[2024] UKUT 377 (AAC)

The Appellant was employed as a care assistant and team leader providing care to elderly and vulnerable service users. It was not in dispute that he was engaged in a regulated activity.

On the 20 October 2022, the Respondent issued a final decision letter placing the Appellant’s name on both barred lists.

The Appellant had contacted the service on the 13 October 2022 to say that he wished to make representations in response to the Minded to Bar letter but had not been able to do so because he had moved away from the address provided to the DBS.

The Appellant submitted a late appeal against the decision on the 20 December 2022, which was received by the Upper Tribunal on the 22 December 2022. The application stated that the appellant wanted “..an opportunity to explain as I have not been able to explain to [his employers]) that I had no bad intention to hurt the resident or cause him any harm.”

It was unclear on what basis the appeal was being made or what material mistake of fact it was alleged that the Respondent had made.

In his application, the Appellant admitted that he had made a Facetime call to a teenage girl whilst feeding a vulnerable service user suffering from dementia and acknowledged that this was inappropriate behaviour.

By an order issued by the Tribunal on the 15 March 2023, the Appellant was invited to clarify his grounds of appeal and identify the mistake of fact it was alleged that the Respondent had made. The Appellant did not respond to the order within the given deadline but later submitted amended grounds of appeal setting out his challenge based on four grounds.

On the 21 March 2024, UT Judge Church gave permission to appeal on three grounds namely that on dates prior to the 31 March 2022:

The Appellant had not harassed the girls on social media and in the street;

The Appellant had not asked teenage girls whether they could get him marijuana

The Appellant had not asked a teenage girl to have sex with him.

The final hearing of the appeal was conducted by video using the Cloud Video Platform (CVP) to enable the Appellant to participate in the hearing from his home in Nigeria. Nigeria is a country which has granted permission for its citizens to give evidence to courts and tribunals in the UK. The Tribunal was satisfied that it was an appropriate form of hearing for the appeal.

The hearing was listed at 10.30am on the 23 September 2024, but the Appellant did not join the hearing until 11.17am. The Tribunal had waited until 11am before starting the hearing, to allow the Appellant time to join or to contact the Tribunal to explain his absence. When no further message was received, and the Tribunal being satisfied that the Appellant had been notified of the hearing, the Tribunal concluded that the hearing should be conducted in his absence, pursuant to rule 38 of the Upper Tribunal Procedure Rules. When he then joined, the hearing was stopped and restarted, with the introductions repeated so that the Appellant did not miss any part of the proceedings/hearing. Towards the end of the hearing, the Tribunal encountered some breaking up of the sound from the Appellant, and the Appellant was requested to repeat his comments to ensure that all of his representations had been fully understood.

The Appellant had not submitted a witness statement to the Tribunal but had provided a document setting out his amended grounds of appeal, explaining the details of his challenge and providing additional evidence in support of his appeal. At the start of the hearing, it was suggested to the Appellant that if he consented, the Tribunal could use the amended grounds of appeal, which he had prepared in response to the Tribunal’s directions, as his statement of evidence and Mr Bayne, the Respondent’s representative, could cross examine him in relation to the information provided in the amended grounds. The Appellant agreed that he would give oral evidence and affirmed before responding to Mr Bayne’s questions.

The Tribunal asked the Appellant to clarify some of the information in his statement and Mr Bayne provided closing submissions before the Appellant concluded the hearing with his own closing comments.

Following the conclusion of the hearing, on the 14 October 2024, the Respondent’s representatives wrote to the Tribunal stating that it appeared that some documents provided by the Appellant in evidence had been omitted from the final hearing bundle. The email provided new copies of pages 1 – 51 of the bundle and these did include some evidence not previously seen by the Tribunal. The Appellant had obtained copies of text messages between him and the young people with whom it was alleged that he had inappropriate exchanges, and some of these had not previously been seen by the Tribunal.

We have read the evidence, both in the 312-page hearing bundle and the additional 51 pages provided after the hearing and taken it all into consideration in reaching our conclusions. We considered whether it was necessary to reconvene to hear further submissions from the parties regarding the additional evidence provided after the hearing, but concluded that the issues had all been covered in the hearing and that the documents were, in fact, self-explanatory. It was not, therefore, necessary to reconvene the hearing because the Appellant had submitted the documents himself in the original appeal and had covered the relevant submissions at the hearing.

In an email dated 14 October 2024, the Respondent requested that further individuals referred to in the documents provided by the Appellant in support of his appeal should be the subject of an order pursuant to rule 14(1)(b) to prohibit disclosure of the names of the individuals in the decision, to avoid jigsaw identification of the individuals. By order dated 7 November 2024, the Tribunal granted anonymity to the individuals concerned.