[2025] UKUT 040 (AAC)

It is clear from KH’s appeal application that she believed there were mistakes in the findings of fact on which DBS’s decision was based:

DBS made its decision on the basis that KH did not challenge its findings of fact; it follows that the evidence before us (which includes the factual assertions made by KH in her appeal application) is not identical to that which was before DBS. We note, however, that none of the evidence was tested in cross examination before the Upper Tribunal, as no witnesses attended the hearing.

We see our task, therefore, as being to weigh the (entirely documentary) evidence that was before us, and come to a conclusion as to whether DBS made a mistake in the factual findings on which its decision was based.

On the findings concerning KH wearing PPE, we find the evidence that KH was regularly not wearing full PPE when attending on service users, and that that was also the case on 21 and 24 January 2022 (see paragraph 12a above, corroborated in part by the 12b and c evidence), combined with the evidence of the ‘spot check’ on 25 January 2022 (see paragraph 12d and e above), which includes observation of KH standing near the service user’s bed, without PPE, more persuasive than KH’s denials and assertions that, during the ‘spot check’, she was only observed when not in close contact with the service user. It seems to us that the employer’s ‘spot check’, in particular – carried out by an organisation with no likely motive of trying to “trip up” KH – tilts the balance of probability in favour of DBS’s findings. We accordingly find no mistake in DBS’s ‘primary’ factual findings in this regard (those at paragraph 5 above, as well as those at paragraph 4a), or in its ‘secondary’ factual finding (see paragraph 4a above) that this conduct amounted to neglect which placed service users at risk.

On the finding concerning KH’s conversation with Ms M including themes of a sexual nature, we prefer the contemporaneous documentary evidence (see paragraph 12g and h above), corroborated in part by evidence of KH more generally talking about inappropriate person matters in front of service users (see paragraph 12i and j above), more persuasive than KH’s denial in her appeal application. We accordingly find no mistake in this finding.

On the finding about KH speaking to Ms E inappropriately, causing her to become angry, we observe that KH, in her appeal application, appears to say that, if she did this, it was “defensive” (our word, not hers), because Ms E had been verbally abusive to her. We prefer the contemporaneous documentary evidence (see paragraph 12 k above), which comes from another care professional who, it would appear, had no likely reason to try to “trip up” KH or omit relevant context (such as Ms E being verbally abusive to KH in such a manner as to make it reasonable for KH to respond to Ms E, a vulnerable adult, as she did). We accordingly find no mistake in this finding.

It follows that in our view DBS made no mistakes in the findings of fact on which its decision was based.