[2024] UKUT 310 (AAC)

There is one allegation in this case. It is expressed concisely in the DBS Final Decision letter. The evidence to support the allegation is the witness statement of SP and bruising that appeared the next evening.

We have decided that the DBS made a mistake of fact in finding that the appellant punched PR 3 times.

We heard evidence from the appellant. She has been consistent throughout in her evidence. She was interviewed twice by her employers and gave consistent evidence. She gave the same evidence today. She did not change her evidence even under the able questioning of Mr Serr, Counsel for the DBS. Her evidence was tested by him and by us and was consistent.

The only evidence of punching was from SP. In granting permission Judge Perez said this at para. 6 of that decision;

“She, like the DBS, is free to call witnesses in support. It seems there are no witnesses apart from SP to the alleged act, so it may be that the appellant has no-one to call. The DBS does however have an alleged witness whose account has not been tested and whose oral evidence would help the tribunal.”

The DBS has not called SP and his evidence has not been tested by us or the appellant. We have had the evidence of the appellant tested and she was entirely consistent. We therefore place more weight on her evidence.

The photos of the bruise were taken at 19.41 on Tuesday 14 March 2023 and at 01:02 on 15 March 2023 the evening after the alleged assault and early in the morning of the next day. We note the bruising is in one place. Throughout the bundle it is noted that the punches were to the left thigh and this has been found significant by the care home as it correlates with the location on PR’s body described by SP. SP says that the appellant punched PR three times and in two different locations; twice in the lounge and once in the bedroom. We find that it implausible that if the appellant did punch PR three times in two different locations whilst he was kicking and punching that these punches would have been to the exact same place on his body.

We also find that it is entirely credible that the bruising could have been caused by contact with the chair in which he was sitting, the wheelchair to which he was moved, the hoist or the bed given he was kicking and punching throughout the process of transfer. We have heard the GP said the bruises were because of “impact.” That impact could have been from PR kicking and punching whist he was transferred to the wheelchair and then his bed. We are also told the GP said; “the injury is conducive with this type of punching injury”. We assume that conducive means consistent but we have not seen this note and repeat our findings that it is entirely credible that the bruising could have been caused by contact with the chair in which he was sitting, the wheelchair to which he was moved, the hoist or the bed given he was kicking and punching throughout the process of transfer.

Much has been made of the appellant not noting injuries in the Kradle notes. The notes made by the appellant describe PR’s behaviour. There was no bruise until the next evening and so the appellant would not have written that PR was injured in the notes. She was working with him in the way she was to avoid injury.

We accept that the relationship between the appellant and SP was difficult. He describes in his first statement that she was bossy and ordered him to do things. She said she was giving him advice and he would not follow it. She also said she found him sleeping and reported it to the Team Leader. We have no reason to doubt her account. We have not been able to hear from SP despite the DBS being free to call him. We find that her allegation that she found him sleeping does cast doubt on the statement he made.

To conclude, we find the DBS did make a mistake of fact. We find there is insufficient evidence to make the finding they did on the balance of probabilities for the reasons given above.

Having decided that the DBS decision made a mistake of fact, we direct the appellant is removed from the Vulnerable Adults Barred List.