Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 040 (AAC)

Fecha: 14-Ene-2025

KH’s reasons for appealing and the grant of permission to appeal

KH’s reasons for appealing and the grant of permission to appeal

KH’s application form for permission to appeal gave these as reasons for appealing:

she said that she always wore her PPE when with clients and followed the guidelines to avoid putting users at risk; the statements made that KH was not wearing her PPE when with service users were speculative as the only times KH was not wearing my PPE was when traveling between calls as the driver also did not wear their PPE. Regarding the spot check (on Tuesday 25 January 2022), KH says that her mask was on, she was not wearing an apron, and was between changing gloves following washing dishes at a safe distance from the service user;

she said that she did not have any conversations with clients that she deemed as sexual in any manner, and the report is from a third party and hearsay after any proposed fact, including the third party then questioning her sexual orientation in front of a service user;

she said that Ms E had a history of being verbally abusive to staff and any level of comment in response would have only been with the intention to resolve the situation, with the care of the user and KH’s own safety.

KH also made the following supplementary arguments:

If she was a Covid risk, then how was it that she did not contract the disease herself?

KA, the branch manager, had not worn PPE

She had been taken off calling on Ms E in April 2021 due to an allegation against her; she was put on this call again in April 2022 but felt uncomfortable and possible resentment by Ms E due to the original complaint.

10.

KH also made a number of criticisms of the domiciliary home care organisation that she was working for at the time, saying she would not recommend it to anyone looking for work in care. She also provided emails from five people who had known KH for some years, commenting positively on her traits and personality.

11.

Permission to appeal was given by the Upper Tribunal (Judge Citron) in a decision issued on 16 November 2023. The permission decision stated that

DBS’s decision was based on the three factual findings set out at paragraph 4 a, b and c above;

KH challenges those factual findings:

as regards the first (failing to wear full PPE on particular dates, and this amounting to neglect), KH asserts that significant context is missing from the facts as found – for example, that the only times she did not wear full PPE, was when she was in between visits; and that she had removed her face mask temporarily, at the time of the “spot-check” on 25 January 2022 – and that these contextual facts are materially relevant to DBS’s factual finding of “neglect”;

ii.

as regards the second (discussing personal/sexual matters with a client, when client asked her to stop), KH asserts that she did not do this;

iii.

as regards the third (failing to complete duties with client; speaking to the client inappropriately), KH again asserts that significant context is missing from the facts as found: namely, that the client had a history of being verbally abusive to staff; and that KH’s response was intended to resolve the situation with the care of the client and KH’s own safety;

in its barring decision document, DBS regarded these allegations as not challenged by KH;

it was realistically arguable that oral evidence from KH (in a hearing before the Upper Tribunal) could show that, on the balance of probabilities, that DBS made material mistakes in its findings of fact, as KH alleges; and

if KH were to be able to establish mistakes by DBS in its factual findings as set out above, it would then be realistically arguable that DBS made a mistake on a point of law by making a decision that was disproportionate.