[2024] UKUT 310 (AAC)

The appellant was put on the Adults Barred List by the DBS on 28 November 2023. She had worked in the care sector at this home for 6 years before the alleged assault. There have been no allegations of violence before this allegation. There was an allegation of inappropriate language in 2018 in the referral, but the DBS did not rely on this and no details were available. We are therefore considering whether there was a mistake of fact in the DBS decision with reference to the alleged assault as set out in their final decision letter.

By way of background the resident PR moved to the care home after the appellant had started but he had been there for some time before the alleged assault took place. We are told he is suffering from dementia. It seems common ground that he can be difficult behaviourally in that he lashes out and is verbally abusive. The appellant was aware of this and explained to us that this happens often and she does not take any notice of it. She has looked after him for some time. She worked in the care home two night shifts a week and at Tesco’s on other days.

The appellant has consistently denied the allegations that she struck PR on the evening of 13 March 2023. She says that PR was being encouraged by another resident JB to get up from his chair to go out. She went over to PR and told him she needed to help him. He had mobility problems, was suffering from dementia and was incontinent. The staff member SP who made the allegation was on duty on the same floor but on one to one with another resident.

When the appellant approached PR he was getting upset as he was trying to stand up to go out with JB who was encouraging him. Standing up without assistance was dangerous for him and it was late. The appellant went over to him and told him he cannot go out now but could tomorrow and asked him to sit back on the chair for his own safety. He was getting upset, lashing out and racially abusing the appellant when she attempted to help him. SP offered to help get PR into the wheelchair. She was reluctant and said that they should wait until he calms down. She wanted to get the senior member of staff who was downstairs. SP said that they should carry on. Given her concern for his safety she agreed. At some point PR ends up on the floor and a hoist is used to get him to a wheelchair. He was taken to his room to prepare for bed and needed to be “changed” as he had soiled himself. She cleaned him and then put him to bed with SP assisting. The team leader came into the bedroom where PR was. The appellant said this was not until after PR was in bed. The team leader said she took over from the appellant and put PR to bed with SP.

SP alleges that the appellant hit PR twice in the lounge and once in the bedroom.

Later that night about 2am the appellant tells us she found SP sleeping and warned him that he was not allowed to do this. She told the team leader this but did not write it down. She did not want to get SP into trouble and she believed she had addressed the incident correctly.

It is clear that the appellant and SP did not have an easy relationship. He has referred to her as “bossy” and she believed he did not listen to advice. SP had only been at the home for 4 months when he made the allegation of assault.

The appellant gave evidence that she did not assault PR, that she does not hit her children and PR is the same age as her parents. She told the Tribunal she would never assault a resident. She told us that whilst he did kick her and racially abuse her this was common, and she did not take this to heart. She adamantly denied that she hit PR as she has denied any assault took place from the time the allegation was made.

The notes she wrote on the Kradle system explained that PR was chatting to JB and they both wanted to go out. JB gave him a frame to stand up. The appellant asked PR to sit down so he did not fall but he refused. She told him she was helping him to the bedroom and he was aggressive “screaming, shouting punching and kicking” – “we calm him down but still continue fighting took us ages before we can hoist him to his wheelchair wheeled to his bedroom he continue to punch screaming transfer him to bed sensor mat put in place PR still continue screaming will continue to observe him through the night.” This entry was made a 11.05 pm on 13 March 2023. In the morning of 14 March 2023 at 7.26 am the appellant wrote PR had a settled night, was given medication in the morning, his incontinence pad was changed and he was dressed and left in the lounge.

SP made the allegation on 14 March 2023. His first statement is at page 38 of the bundle and handwritten. In summary it says that the appellant “didn’t talk to PR in a good manner”, PR got “little aggressive” and the appellant punched him three times, two times in the lounge and one time in his room. He goes on to describe the appellant; “she was ordering me to do such things as I am one to one to room 17.” In this statement he did not mention where she had allegedly hit PR.

On 14 March 2023 an investigation meeting was held and SP interviewed. This is at pp 45 of the bundle. He said she was shouting at PR and pulled him from the chair. PR kicked her and she punched him. He says he told her not to punch residents. She denies he said this as she denied punching PR at all. He described the appellant’s temperament; “She was angry with me. She is always ordering me what to do, she never ask to do things, she is bossy. Many staff has the same problem with her, she is interfering with our job, controlling us what we are doing”. He says when they were in PR’s room that he had calmed PR down but that PR was upset by the appellant. When hoisting him to the bed PR kicked the appellant and she punched him back on his leg. SP alleges that she punched him three times on the leg.

The Team leader said she heard PR shouting and went to his room. She said she took over from the appellant and put PR to bed. The appellant said the team leader came to the room but not until after PR was in bed. The Team Leader said once she was in her office SP told her that the appellant punched PR a few times when they tried to put him to bed. She advised him to report to management.

On 17 March 2023 the appellant attended an investigation meeting. She said the allegation was false “I will never punch my resident”. She said that PR was being aggressive and she wanted to wait for the Team Leader but SP said to transfer him. They continued and got him to bed. After that the Team Leader came into the room. PR slept the rest of the night. She maintained she told SP they should wait but SP said they should carry on. In evidence today she told us she agreed to avoid injury to PR. She said she did not know why SP made the allegation but it could have been because she caught him sleeping.

There were no bruises on PR on the morning of 14March 2023 but they were seen at 19.41 on 14 March 2023. There is a significant bruise in one place on PR’s thigh.

On 18 March 2023 the Deputy Manager finds there is evidence that supports the allegation against the appellant. This was that SP had stated precisely where the appellant had struck PR, that at 19.41 the bruising appeared in that place. He also said the appellant’s statement did not tally with the statements of the team leader and SP.

A disciplinary meeting was held on 24 March 2023 with the Manger PB. The appellant was accompanied by her union representative. Again, she denied the allegation and her evidence was consistent with her note in the Kradle entry. The manager who was conducting in answer to questions from the union representative said that the bruises developed in the exact location on PR where it was alleged the appellant hit him and there was no other contact documented. He repeated this in the decision letter dismissing the appellant. The manager said that PR was hoisted from a soft chair and “doctors” had said “the bruises of that size are from impact. The District Nurse also asked if he had been hit”. The union representative pointed out that the bruises could have been caused by hitting the arm of the chair, the wheelchair, bed or any hard surface. The manager said there was no evidence “to suggest this and no recorded incident taking place”.

We have not been given any medical notes confirming any medical opinion. In the meeting PB said that “Doctors have said bruises of that size are from impact. The District Nurse asked if he had been hit.” In the letter dated 06 April 2023 informing the appellant of this it is said “… consultation notes from further exploration from the GP state that “the extent of bruising being from the possibility of trauma is high”. We note that this is a different account of the medical advice from the appeal of dismissal letter from SH the Regional Manager below.

The appellant appealed the dismissal This was conducted by the Regional Manager and the hearing was on 10 May 2023. The appellant again denies the allegations and gave consistent evidence that she did not hit PR. She asked if anyone had spoken to PR. They had not. The Regional Manager then conducted her own enquiries. The decision letter confirming the dismissal says that the appellant approached PR when he was sleeping. That was not the evidence until this letter, and it is not clear where that came from. It is not in the statement of SP nor the appellant. The Regional Manager did speak to PR and JB and neither recalled the incident. They were not asked until May when the alleged assault happened in March. The Regional Manager goes onto say that there are “no entries have been documented to support any injury to PR at all.”

This is the second time this has been repeated in a decision letter. However, the notes do describe PR as screaming, shouting, punching and kicking and that it took some effort to get him into the wheelchair. Whilst no specific injury was noted common sense would lead one to believe that PR could have been bruised during that series of events described by the appellant, SP and in the notes. The decision letter goes on to say, “The GP visited PR and reported that the injury is conducive with this type of punching injury. It does therefore correlate with the punching allegation”. There is no note about whether the GP was asked whether the bruising could have been caused another way by PR lashing out, from the wheelchair, from the chair, from falling on the floor or from the hoist. This was the first time it was mentioned that the GP mentioned punching.

The letter from SH also addresses the ulterior motive of SP in that the appellant found him sleeping. It says; “I have enquired of all night staff as to whether they have ever witnessed any sleeping on duty and have had no positive responses. I also note that you did not report this.” This is despite the appellant having said that SP was asleep and she reported this verbally. She was consistent with this piece of evidence and repeated it today.