[2024] UKUT 052 (AAC)

We heard oral evidence from the Appellant for the whole of the morning session of our hearing (2½ hours with a 10-minute break at ‘half-time’). The Appellant started by confirming the contents of both her witness statements in the bundle (dated 17 April and 15 November 2024) and her earlier detailed written representations to the DBS. Here we simply record some of the main points of her oral evidence.

The Appellant told us she had extensive experience in care work in her home country (Nigeria), but the job with the care home was her first employment in the UK. She had started work there in September 2019, before the Covid-19 pandemic. She had always worked nights, on a 4-nights a week basis, as it fitted in with her family responsibilities. She had not previously received any oral or written warning from the care home about her work as a carer. She had supported Mr N for a long time, indeed since 2019, including staying with him when he had had to be admitted to hospital. Most of her colleagues did not like working with him as his behaviour could be so challenging. She also explained that the day shift did not have time to clean the accommodation so cleaning always fell to the night shift to do. A deep clean was necessary both because of Covid-19 and the mess that residents could create during the day. The Appellant confirmed the layout of the lounge in the flat as shown on Mrs A’s hand-drawn plan in the hearing bundle.

On the night in question (4 August 2021) Mr N was not able to shower, and as a result he was extremely distressed and aggressive. The Appellant said that she and her co-worker, Mrs A, spent a long time calming him down. Her shift leader, Mr O, had also spent some time in showing them how the newly issued walkie-talkies worked. As a result, although her shift had started at 10 p.m., it was quite a while before they were able to start cleaning the flat. That process involved having to move the furniture round in the lounge to the flat. At the time that the inspection took place they had finished mopping the floor and were waiting for the floor to dry properly before moving the furniture back. The Appellant confirmed that she had been sitting on the single sofa to the left of the main door to the flat, while Mrs A was on the other 2-person sofa further into the room. Mr N was in his bedroom (to the right of the lounge) watching Peppa Pig on his I-pad. A single chair (a dining chair with no arms) had been moved so it was close to the entrance of Mr N’s room, but it was not wedged against the door, which opened out into the lounge. The Appellant added that she had a scarf wrapped like a towel round her head – if she had left it over her shoulders then the risk was that Mr N would just grab it.

Ms S had arrived at the flat followed by Mr K, Mr O and the new manager. The Appellant told us she had no real relationship with Ms S, who she had only met 3 or 4 times, but she thought that Ms S liked to impose her way of doing things on staff. The Appellant stated that Ms S had banged on the flat’s main door and asked loudly “Why is the light off?”. The Appellant inferred that Ms S was not familiar with the details of Mr N’s care plan – one aspect of which was that he did not like having the light on and coming under his bedroom door at night, so as far as possible staff worked in the lounge by the light of the TV screen (but with the sound off). The Appellant told us that she had immediately stood up. She denied that either Mrs A or herself had been asleep. Ms S and the others had not come into the room but had then continued with their inspection of the other flats.

Later on during that shift Ms S had asked the Appellant to come to the office to write a statement, in which she said she had written down what had actually happened, although Ms S was telling her what to write. She had explained in her statement that the chair was not wedging the door. She had also written about the cleaning they had been doing. The Appellant repeated the various steps she had taken to try and get disclosure of a copy of her statement, but they had all been to no avail, as we have already described above.

Following her suspension, the Appellant confirmed that she had resigned on 6 August 2021. She had been thinking of leaving and looking for another job closer to home in any event. She had tried to rescind her resignation on 9 August 2021 but her employer had told her it was not possible. She had also attended the care home on 9 August 2021 as she wanted to take part in the investigation but she was again told this was not possible as she was no longer a member of staff.

Under cross-examination by Mr Serr, the Appellant repeated that Mr N had been very upset at not being able to shower and so it had taken a long time to calm him down. She and Mrs A had mopped him with a wet flannel to help calm him. As a result, they had not started the deep clean until 11.20 p.m. or later. The kitchen had been particularly messy – Mrs A had cleaned the kitchen while the Appellant had cleaned the lounge. When the management team had arrived, Mrs A had been filling in their web-based log of what they had been doing and the Appellant had been listening to the information which Mrs A had described as she had been entering. She repeated that Ms S had stood by the door and shouted. The Appellant thought Ms S was angry because of what she had already seen in the office. The Appellant added that if the door had truly been barricaded then Ms S would have taken a photograph. However, she did not and none of them came into the flat.

In our estimation the Appellant has given an honest and consistent account of events. She was plainly genuinely committed to working in the care sector. She communicated her enthusiasm for what was, for her, as much a vocation as a job. In a lengthy and testing session she gave her evidence without hesitation in a clear and compelling fashion. If she thought that a question had misunderstood something she had previously said, she was careful to provide further clarification. She was certainly familiar with and knowledgeable about the details of Mr N’s care plan. We do not consider that her credibility was undermined by her decision to resign (being, or so it was argued by the DBS, an indication that she had ‘jumped before she was pushed’), not least as very shortly afterwards she sought to rescind that decision and tried to take part in the care home’s investigation, but was rebuffed. We also consider that her credibility has been enhanced by the repeated (albeit, through no fault of hers, unsuccessful) efforts she has made to secure a copy of her written statement which the care home appears to have mislaid. Those steps represent an extremely high-risk strategy if she is telling untruths. All in all, we find her to be a credible and reliable witness.