Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 344 (AAC)

Fecha: 02-Ago-2024

Review of the evidence, our findings of fact, and conclusions on whether DBS made mistakes in its factual findings

Review of the evidence, our findings of fact, and conclusions on whether DBS made mistakes in its factual findings

12.

BG’s email to FO, written the morning after the incident, stated that

the incident occurred just after 7 pm on a Friday evening

BG and SCK were assisting MDC to bed; they removed his shirt and put him in a pyjama top, sitting in a wheelchair; up to that point, MDC was cooperative

they then stood MDC up to change his pad; MDC was “vocal” but with BG distracting him with conversation, SCK was able to change his pad without “physical outburst”

they then got MDC into bed; SCK was refastening the pad as it had come loose; MDC then “lashed out”, screaming “ah bastard”; SCK reacted by holding MDC’s hands to his chest whilst BG continued trying to distract MDC with conversation; BG noticed that MDC opened his mouth to go bite SCK’s hand; BG swiftly moved SCK’s hand down and said “[MDC]’s going to bite”

within 2 seconds of her saying that, SCK removed his right hand out from under BG’s and smacked MDC on the right side of his face “with excessive force”

after a few seconds, MDC again called SCK “bastard”; SCK replied: “I’ve told you before. I am not a bastard your son is the bastard and that is the reason you are here”

SCK and BG then finished the personal care, collected the dirty pad, and left the room in silence.

13.

The meeting minutes of 13 February 2023 recorded the following exchange:

FO: On the Friday in question, can you start with what happened?

SCK: I was working with M and was holding his hand and pulled the pad sticker, as my arm was there, he bite my hand

FO: Did he actually bite or go to bite you?

SCK: My hand was on his chest. I had held both his hands on his chest, and it was close to the pad and I tried to pull it up. I took my hand out and took it too fast. I came to you to help not to fight, and he was like ‘I don’t like you’ and after that I take off the blanket and came out.

FO: On Saturday you said you struck him? Those were your words. On the Saturday morning you also said ‘I hit him’.

SCK: It wasn’t a hit really, it was not a planned hit

FO: How did you feel after?

SCK: He was like ‘leave me, leave me’ and I did take the blanket and left the room

FO: Do you feel any remorse for what had happened?

SCK: No because actually sometimes they hit and punch too and more days I am working he does. 5 days I am working here, I know the routine. I am not thinking about that. I come off and that is it. I am not remorseful as it isn’t planned. When I come out the room, I am not thinking about it. Same with Claire, I have nothing to say to him. Everyone hits us but I am here to help. I am very sorry and was not expecting that time. The pain from his bite I was not expecting

FO: I have had to put a safeguarding into the authorities, commissioners and the Police and SCW have been informed of the incident. It is our legal responsibility and he is a vulnerable adult. Do you understand that?

SCK: I understand. I am always helping and I work very hard here and I have never punched people and people are happy to see me.

FO: You cannot hit people, we are here to care for them

SCK: I understand

FO: You have been trained in PBS [positive behaviour support] training haven’t you?

SCK: Yes

SR: Why did you not use the techniques you have been taught?

SCK: He bite my hand and my mind didn’t go to the PBS training

FO: But you are taught how to get out of a bite safely

SCK: I am not sure.

FO: Do you have any questions for us?

SCK: If I can work more or if you will sack me?

FO: We’ll take a break here and we’ll need to make a decision on your probation.

SCK: I know it is my fault and if I work with you in the future, it won’t happen again. It won’t be without any problem. It is my fault. I know these people and I know in my heart not to hit.

14.

The key differences between SCK’s account of what happened, and BG’s email, was that SCK said that when MDC bit his hand, SCK quickly moved his hand away and, in so doing, inadvertently made contact with MDC’s head. SCK’s evidence was that when he told FO on the Saturday that he had “hit” MDC, he meant “hit” in the sense of “come into contact with”, rather than intentionally strike. SCK also said that he did not call MDC’s son a “bastard”.

15.

SCK acknowledged that, during the incident, he was holding down MDC’s hands to MDC’s chest (to stop MDC from lashing out at him whilst he was adjusting MDC’s pad); SCK described his grip on MDC’s hands as “gentle”.

16.

It seems to us on the balance of probabilities that what happened here was that SCK, on having his hand bit by MDC, responded to the pain with a flash of anger and intentionally slapped MDC on the face. We come to this view based on the detailed and near-contemporaneous evidence in BG’s email, as well as the record of his interview with the employer two days later which, in our view, is consistent with reluctant acceptance that he had, in a flash of anger, slapped MDC – we note the following statements by SCK (with italicised words emphasised by us): “it wasn’t a hit really, it was not a planned hit”; “I am not remorseful as it isn’t planned”; “I am very sorry and was not expecting that time. The pain from his bite I was not expecting”; “It is my fault. I know these people and I know in my heart not to hit”).

17.

We also find that SCK’s grip on MDC’s was firm and tight, rather than “gentle”: it had to be, in order to stop MDC using his hands to lash out at SCK whilst SCK was changing his pad.

18.

Finally, we find, on the balance of probabilities, that SCK did, in his flash of anger, call MDC’s son a “bastard” in the immediate aftermath of the incident, as we find the account in BG’s near-contemporaneous email more persuasive than SCK’s (in part because, as we have just found, BG’s email account was more accurate on the question of whether SCK hit or slapped MDC).

19.

It follows that, in our view, DBS did not make a mistake in finding that SCK restrained MDC by holding both of his hands to his chest, and that SCK slapped MDC across the face and called MDC’s son a ‘bastard’. We have considered whether it was a mistake for DBS to have omitted to make findings about the context, namely that MDC was trying to, and then did, bite SCK’s hand, as he was upset that SCK was trying to affix MDC’s pad. We note that DBS’s decision letter stated that

“… the challenging behaviour shown by MDC at that time was normal and at first you [SCK and BG] were both utilising distraction techniques due to known triggers around personal care, all of which were said to be documented in the care plan. Whilst we have not had sight of the care plan, the employer states in the Probationary Review a few days later, that the plan details that carers were to leave MDC and then go back in and give him time.”

In our view, this indicates that DBS was aware of, and took into account, the relevant context of SCK’s conduct, being MDC’s “challenging behaviour”: there was therefore no mistake with regard to making findings about that context.