[2024] UKUT 052 (AAC)

Thecontemporaneous documentary evidence relating to the particular incident in this case on 4 August 2021 is somewhat limited.

The care home’s referral to the DBS, made just over a month later on 8 September 2021, was framed in the following terms:

Mr B, the care home’s registered manager, prepared a short ‘investigation report’ on 9 August 2021, running to just 2½ sides. In terms of methodology, Mr B explained that he had interviewed Mr O (the shift leader) and Mr K (a support worker) and reviewed their (one-page) handwritten statements. He did not speak to the Appellant or Mrs A because they had both resigned by that time. He had also had a Teams call with Ms S, the regional / operations manager (although there was no separate record or transcript of this call). The sum total of his substantive review of the evidence was as follows (the syntax has been left as in the original text and uncorrected):

It will be evident that this brief consideration of the evidence is as much concerned with the conduct of Mr O and Mr K as that of the Appellant and her co-worker Mrs A. The penultimate two sections of the report (before the recommendation that the matter be referred to the DBS) then read as follows (again, without any textual corrections):

Appendices 1 and 1A were listed as the written statements by the Appellant and Mrs A respectively. However, they were not included with the documentation referred to DBS. The Respondent appears to have taken no steps, as part of its decision-making process, to obtain copies of these statements. The Appellant, on the other hand, has made both a Subject Access Request and secured a third party disclosure order from the Upper Tribunal, but her former employers have been unable to produce the document in question. Thus, the Appellant made an application against the care home under rule 16(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for specific disclosure of documents referred to in the investigation report, namely the contemporaneous written statements from the Appellant and Mrs A on the night in question. The application was granted by the Upper Tribunal, and a final answer to that request was provided by the care home on 14 December 2023, namely that Mr B had been unable to locate the documents and a further search for the documents by the care home was also unsuccessful.

The care home did however include two other handwritten statements with its referral to the DBS.

The first was from Mr K, one of the support workers. It was signed and dated at 02:15 on 4 August 2021 and so was genuinely contemporaneous. It referred to various other aspects of the spot check carried out by the regional manager, but just made a single passing reference to the Appellant: “Thereafter Ms S took myself and Mr O into the court-yard and she opened Mr N’s flat and found the support workers on the sofa”. There was no reference to a chair having been wedged so as to restrict Mr N’s freedom of movement. There was no suggestion that the Appellant or Mrs A were asleep.

The second handwritten statement was from Mr O, the shift leader, and was dated 4 August 2021. Again, this referred mostly to other aspects of the spot check. There was a single statement relevant for our purposes: “we proceeded next to Mr N’s flat where she also noted that the light was off in Mr N’s flat and also met one of the staff laying on the sofa with blanket. She also noticed that the door was barricaded with chair in which she expressed her anger and frustration”.

The care home also disclosed typed notes of investigation meetings with Mr O and Mr K respectively as held on 8 August 2021 (presumably when interviewed by Mr B). The relevant part of the note of the meeting with Mr O read as follows (the text has been italicised by us to reflect what we understand as our best guess to have been the investigator speaking):

The typed notes of the meeting with Mr K include nothing directly relevant by way of evidence about what the Appellant was doing or was not doing, beyond the general observation that “I knew that Ms S was not happy about finding people asleep on shift and rightly so”.

The Appellant was suspended on 4 August 2021, i.e. on the day of the incident, the reason being given in the letter of suspension that she had failed in her duty of care towards the service user and “it is alleged that you have been restricting the movements of a service user … You put a chair outside Mr N’s flat, holding the door handle and blocking the door, not allowing the service user to leave his flat. This is a form of abuse”. The Appellant resigned by e-mail on 6 August 2021, although shortly afterwards on 9 August 2021 she wrote seeking to withdraw her resignation and stating that she was available to take part in the disciplinary investigation.

There is no other relevant contemporaneous documentation. In particular, we note that there is no statement from Ms S, the regional manager. The most that we have is some hearsay account mediated through the investigation report and notes of meetings conducted by Mr B.