[2024] UKUT 389 (AAC)

It was not in dispute that the service user had been left with a CD which he destroyed and used to self harm.

The issue was that the Appellant considered that she had applied the Risk Assessment and complied with the Positive Behaviour Plan, in a situation where the service user has a propensity to self harm much of the time.

We considered the Risk Assessment document, which we noted was very poor and woolly in its presentation, especially in respect of the action to be taken by members of staff in relation to the service user. It was not specific about the action that a support worker was to take and left the decisions to be made by the support worker with very limited guidance. The Positive Behaviour Management plan confirms that the service user was not to be subject to constant observation and could leave the premises if he so wished. The guidance specified that if he was calm then his wishes were to be respected and he was to be permitted to make decisions about how he spent his time day to day.

There were anomalies within the risk assessment document. For instance, whilst plastic cutlery was identified as a possible area of property damage and use of such broken cutlery for self harming, the service user was given plastic cutlery instead of standard cutlery because this was perceived as reducing the risk. Whilst under the risk assessment, a request by the service user to be left on his own was to be regarded as an early indicator of escalation of his behaviour, the document also stated that staff should not remain with the service user if they had been requested to leave and his requests were to be respected.

The position in which support workers are left by the lack of clarity in the risk assessment and positive behaviour plan, is that they must gauge the presentation of the service user and make dynamic assessments of what they can do there and then. It is a very difficult balance for the support workers to know what they can allow the service user to do. It is especially so when the setting is under staffed and the on duty staff are managing very challenging behaviour.

We concluded that the risk assessment was very poorly written and doesn’t make sense when read objectively. The documentation provided contradicts itself and best practice would dictate that the support workers would have to use their common sense in any given situation. It is impossible, in those circumstances, to impose a blanket ban on the service user having any items left in his possession and the Appellant was required to make a judgement call on a minute by minute basis.

The situation was further complicated by the fact that the two other witness interviews were with a team leader and support worker, who were both potentially at risk of criticism in the decisions they had made in relation to the service user. It was not the Appellant who permitted the service user to have the CD player installed in his flat on the morning of the 15 November. When she was then asked by the service user, who was very well known to her, to listen to a CD and to do so on his own, she assessed him as being in a settled and happy place and we have concluded that contrary to the finding of the DBS, complied with the Positive Behaviour Plan recommendation that his requests should be respected where he was settled and happy.

Based on her service history and her knowledge of the service user, that was a conclusion that she was entitled to reach on the basis of the situation as she saw it and which was in compliance with the guidance provided in the risk assessment and positive behaviour plan documentation. The failure to consider the wording of the risk assessment document was an error of fact on the part of the DBS.

The Appellant’s description of the events has been consistent throughout and whilst she conceded at the hearing that she may not have specifically referred to the service user having a CD, the contemporaneous evidence at the time from Mr T, the support worker who had set up the stereo system for the service user, was that he knew that the service user had a CD.

The evidence from Ms B’s interview on the 15 November was that she could recall the reference by the Appellant to the “Joseph party”, could hear the service user singing in his flat and believed that Mr T had been made aware of the CD. In oral evidence, she stated that the CD had not been specifically referred to, but she was the Team Leader at the time the incident occurred and it was she who should have been checking in on the service user, once the Appellant had completed her shift. The reference to the CD in the daily notes, again suggests that there was awareness of it being left with the service user.

We have concluded that on a balance of probability, the Appellant had made sufficient reference to the CD to her work colleagues, to make them aware that the service user was listening to the CD. They did not observe him for approximately 45 minutes after the Appellant left the home. The home was seriously understaffed on that day and we realise that the pressures on the staff who were on duty must have been extraordinarily high: these were complex service users with very complex needs and we understand that the difficulties for the staff were significant.

We found the conclusion that the Appellant had failed to comply with the risk assessment and positive behaviour plan to be based on an error of fact. The DBS in reaching their conclusions did not identify the way in which the assessment documentation had been breached and focussed on the outcome of the incident rather than the question of how the wording of the risk assessment and positive behaviour plan had been breached. The assumption that the Appellant sought to justify her action by stating that the service user appeared calm and settled before he had been left alone is not borne out by the evidence of the daily notes which were contemporaneous and confirmed that he “appeared settled at the start of the shift” and was heard by both Mr T and Ms B to be singing along to the CD when the Appellant left the home are indicative of her assessment of the service user being accurate at the time that she left.

We conclude that the Appellant, having worked successfully over an extended period with the service user, was in a situation where she was required to dynamically risk assess the situation from one minute to the next. Her job was to undertake that assessment on the day and make a judgement call based on her observation of the service user, her understanding of his presentation and her experience of his behaviour. The judgement call she made may have been the wrong one, but errors of judgement can be made, but they are not indicative of a failure to adhere to the paperwork, risk assessment, plan or health passport. We note that the protocol for safe use of the stereo was not produced until after the incident and consequently, the Appellant could not be criticised for a failure to comply with that.

The structured decision making by the DBS relied on the assertion that the Appellant has left the service user alone with items that he could use to harm himself but does not at any point address the contradictions within the risk assessment, between the risks identified of self-harming and the service user’s verbalisation of those intentions and the secondary strategies recommended of respecting the service user’s requests when he is calm. The evidence from the risk assessment documentation is that the service user had capacity to make decisions about his day to day life, but there is limited information about how the very sensitive issue of respecting his rights as an individual and imposing restrictive practices on him to prevent him from self-haring are to be addressed. There is a significant difference between a carer who believes that they ‘know best’ as concluded by the DBS and a carer who must make judgement calls in the best interests of the service user because the guidance from the risk assessment is so poor as to be undeliverable.

In her response to the Minded to Bar letter (p182), the Appellant made reference to her difficult family circumstances at the time of the incident and two bereavements in close succession. We noted the DBS assessment of the Appellant especially that she was callous and had no regard for the welfare of the service user. Noting that the Appellant was due to conclude her shift at 12.30 on a day when the setting was seriously understaffed and had carried on working until 2.45, we conclude that the finding that there were some concerns that she was callous and lacked empathy, is an error of fact which does not reflect the evidence presented that she continued working well beyond her allocated hours to assist service users at the setting and was empathetic to the service user in allowing him to have the Joseph CD.

Finally, we concluded that there were errors of fact in the decision and that there were other elements to be taken into consideration in reaching a conclusion in relation to placing the Appellant’s name on the Barred List: she had been subject to significant bereavements and encountered two errors in work within a relatively short space of time, following several years of unblemished working. The issue of the serious understaffing of the setting was also a factor to be taken into consideration in making the decision and the potential self-interest of the two witnesses whose evidence was relied upon by the employer and the DBS in reaching their respective conclusions.

For these reasons, we have concluded that the decision of the DBS was subject to errors of fact and should be remitted for reconsideration.

Because the appeal related only to the second incident in November 2021, the first incident on the 26 July 2021 remains unchallenged. In those circumstances, we have decided that we do not direct the removal of the Appellant’s name from the list but remit the decision back to the DBS for reconsideration.