[2024] UKUT 052 (AAC)

The DBS’s core or primary finding of fact was that the Appellant had “neglected the care and wellbeing of vulnerable adult Mr N by knowingly restricting his movement by way of blocking his bedroom door to prevent access to the lounge, enabling you to intentionally sleep on duty”. The DBS sought to buttress this primary finding by two secondary findings. The first was that the chair had been positioned by being wedged under the door handle to prevent the bedroom door being opened. The second was that the Appellant had been found during the inspection to be sat on a chair with an item of clothing over her head and asleep (or with the intention of trying to sleep). The DBS case, in short, was that the Appellant had essentially been caught ‘red-handed’ by an unannounced inspection and that the Appellant’s protestations to the contrary were both improbable and unpersuasive.

However, unlike the decision maker at the DBS, we had the opportunity to hear the Appellant’s extensive live evidence, as well as the evidence of Mr O, tested under cross-examination and to weigh it against the somewhat sparse documentary evidence. Our conclusion, in summary, is that the DBS’s barring decision placed heavy and undue reliance on untested hearsay evidence, and in large part on untested second or even third hand hearsay evidence.

We consider it helpful to review the relevant documentary evidence in date order. The handwritten statement by Mr K on the night in question provides no support for the allegations found proven by the DBS. It simply states that the support workers were on the sofa(s). There was no suggestion that the chair had been wedged so as to restrict Mr N’s freedom of movement or that either the Appellant or indeed Mrs A was asleep. Had Mr K himself observed either matter, we might have expected some mention of it.

The second handwritten statement on the night in question was from Mr O. At the time he recorded that “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”. We consider he was reporting what Ms S had said to him rather than giving direct evidence of what he had seen.

The typed notes of the investigation meetings with Mr K and Mr O do not take us appreciably further forward. Mr K’s responses do not bear directly on the points at issue, beyond recognising that management were not happy about finding staff asleep on duty. The record of Mr O’s meeting includes the following passage, which for convenience we have broken down into its numbered constituent parts: “(1) The other member of staff was on the chair with a coat over her face, there was a chair wedged under the door handle. (2) Who was the carer (3) it was DAK”. It is fairly plain that question (2) was posed by the interviewer, Mr B, while reply (3) was presumably Mr O’s response. However, it is entirely unclear whether statement (1) was a statement attributed to Mr O or rather part of question (2). This uncertainty is compounded by the fact that, contrary to good practice, Mr O was not asked to check and confirm the notes of the meeting at the time. We are not satisfied on the balance of probabilities that Mr O stated that “there was a chair wedged under the door handle”. Even if he did say that, we think it more likely he was repeating what he had been told by Ms S, rather than giving direct evidence of what he himself had seen.

That leaves the investigation report. We have to say that this report, by way of comparison with other reports we have seen in similar cases, was a deeply unimpressive document. Perhaps the most polite assessment would be to say it was a ‘rush job’ that had not been properly proof-read. There was no specific evidence as to what the operations manager had said on the Teams call. There was no record of any interview with the two members of staff who were the principal subjects of the investigation. The report alleges that the accompanying statements by the Appellant and her co-worker “openly admit” wrongdoing, yet these important and allegedly incriminating documents were not included with the referral to the DBS and cannot now be located by the care home. This shoddy procedural record-keeping brings seriously into question the quality of the substantive investigation itself.

We must weight on the other side of the scales the evidence of the Appellant and Mr O. We have already explained why we found them both to be credible witnesses in their own way. The Appellant has given a consistent account throughout these lengthy proceedings. It has also been a detailed account (as for example in her representations following the minded to bar letter). She was evidently and genuinely committed to caring for Mr N and as such we consider it highly unlikely she would take any steps which might involve placing restrictions on his freedom of movement. We reiterate that we consider her credibility has been enhanced by her determination to try and obtain a copy of her written statement and has not been undermined by her resignation.

Mr O’s evidence was also clear. He did not accept that the bedroom door had been wedged or barricaded by the chair. On the contrary, he stated that the door could have been opened even with the chair positioned as it was following the deep clean. He did not believe that either of the carers had been asleep. We consider that his contemporaneous statements – insofar as they were in any way inconsistent with his evidence now – reflected what he had been told by Ms S, rather than what he had seen himself. Indeed, we think it likely that Ms S jumped to the conclusion that staff were asleep when she found the lights were off, when in fact there was a perfectly plausible explanation for the reliance on the partial light from the TV.

We have not overlooked the fact that in a determination promulgated on 1 November 2024 Mrs A was refused permission to appeal against her barring decision by Upper Tribunal Judge Wright following an oral hearing. However, that determination is not binding on us, not least as it was based on different evidence and different submissions. We note, in particular, that Judge Wright heard submissions from counsel but no oral evidence from Mrs A (nor, of course, did he hear from the Appellant in the present case or from Mr O). The fate of Mrs A’s listing is not a matter that falls for consideration by us. However, there must at least be an argument that the Respondent should consider whether to review that barring decision under paragraph 18A of Schedule 3 to the SVGA. There may also be a wider issue about how the Respondent case manages referrals and appeals where more than one individual is involved in what is essentially the same incident.

Be all that as it may, it follows in this case that on the balance of probabilities we find that (1) the chair was not wedged under the bedroom door handle or barricaded so as to restrict access to the lounge and (2) the Appellant was not asleep (or trying to go to sleep) at the time of the spot-check inspection. We therefore conclude that the Barring Decision was based on at least two material mistakes of fact and so was fundamentally flawed.

Because we have found that the DBS was mistaken in its findings as described above, we find that the Appellant did not engage in any relevant conduct for the purposes of the SVGA. As such, there was no basis for the Appellant’s name being included in any barred list.

In the circumstances we need not consider the Appellant’s further grounds of appeal that seek to show that the DBS erred in law in reaching its decision to bar the Appellant.