[2024] UKUT 052 (AAC)

We heard oral evidence from Mr O for a little over an hour and 20 minutes, in which he confirmed the contents of his witness statement dated 18 April 2024 (which had obviously not been before the original DBS decision-maker). Mr O explained that he was now a registered nurse, having qualified in 2022, and no longer worked for the care home, having moved into the NHS hospital sector. At the time in question, i.e. in August 2021, he was the shift leader on nights at the care home. As such he was in charge of staff and his functions included allocating staff to support particular residents. He told us he had worked with the Appellant for 2 years and that she was hard-working and one of the most reliable staff he had: “she goes out of her way to meet the needs of patients”. He said that she and Mrs A “give their best”. He had had no issues with the level of care the Appellant provided. Indeed, if at all possible, he always tried to allocate the Appellant to support Mr N during her wake-at-night shift as she was particularly skilled at calming Mr N down at times when he had become agitated and challenging in his behaviour. This was a regular issue as Mr N frequently became upset, e.g. if he was unable to shower due to the condition of his tumour and sores.

Mr O confirmed that he undertook routine checks every half hour or sometimes hourly. On the night in question, Ms S the regional manager had carried out a spot check inspection. He was with Mr K in the office, with the lights off, which had upset Ms S. They had then conducted a tour of the premises. Ms S led the way in front as she wished to see what the staff were doing. When they approached Mr N’s flat, Ms S opened the door and saw the chairs had been moved round in the lounge and the lights were off. She had thought Mr N would find it difficult to move out of his bedroom. Mr O said he was behind her at the door, but they did not stay long or go into the room. He added that he had not seen the notes of his meeting with the investigator Mr B on 8 August 2021 at the time in question. The first time he had seen the notes was at the adjourned Upper Tribunal hearing in April 2024. He had never been asked to check or sign those minutes as a full and accurate record of the meeting. The interview he had with Mr B had been about everything that had taken place that might. He had said the chair was in front of the door, not that it was barricaded or wedged. He had not said that the Appellant was sleeping and he did not think that she had been asleep. He had checked on her and Mrs A about half an hour before the inspection and there had been nothing untoward.

Under cross-examination by Mr Serr, Mr O reiterated that he had put his best qualified staff to work with Mr N. He added that a lot of staff refused to work with Mr N as he could be so difficult (he referred to one incident when Mr N had assaulted the Appellant). He said that on 4 August 2021 Ms S had been “very mad” and had “given me a dressing down … as a shift leader it was a bad day for me”. He conceded that he could be wrong but as far as he knew the Appellant had not been asleep. He denied having said that the chair was wedged – rather the furniture had been rearranged as the support staff had been cleaning the room, which could get very dirty and be in need of a deep clean. He had been concerned about the care home’s treatment of the Appellant and had been disappointed when she had left – he told us that “one of the reasons I came today is because she gives her best … she’s one of the best staff I’ve worked with”.

Mr O was a quietly impressive witness. He gave his evidence in a clear, thoughtful and matter of fact manner. He did not seek to embellish his evidence. If he was not sure of something he said as much. Whilst he plainly had misgivings about the care home’s treatment of the Appellant, and about the support more generally provided for staff, he did not strike us as harbouring any sort of real grudge or animus against his former employer. Indeed, as he has moved on in his professional career he could easily have ‘walked away’ and taken the view that these proceedings were not a matter that need concern him. The fact that he had gone out of his way and taken the trouble to attend both the original adjourned Upper Tribunal hearing (and had not in the event been called to give evidence) and the more recent effective hearing (when he had just completed a night shift) spoke volumes as to the value he attached to the care and support provided by the Appellant to service users. In all the circumstances, we had no hesitation in accepting his evidence as credible and so reliable.