[2025] UKUT 225 (AAC)

DBS made its Barring Decision about AA on the basis of considering documentary evidence, in the form of the referral form and related documents from VC and AA’s written representations and character statements.

As confirmed in DBS v RI, the Upper Tribunal is entitled to hear evidence from an appellant and assess it against the documentary evidence on which the DBS based its decision (paragraph 29). Furthermore, the Upper Tribunal may view the oral and written evidence as a whole and make its own findings of fact (see paragraph 31 of RI).

The only witness at the hearing on 27 February 2025 was AA. The DBS did not call any witnesses. AA had provided evidence in a witness statement dated 22 May 2024 (page 413 of DBS bundle). AA gave additional oral evidence, including in cross-examination by Mr Webster, and in answering the Upper Tribunal’s questions.

AA’s evidence was that when VC took over from his former employer, he had been managing his project for quite some time. What was described as an individual project comprised houses, in which individual service users lived together, with specific staff present to help support the service users’ needs.

AA said that when VC took over, they agreed to put some staff in place to help the existing staff, but the new staff were never produced. AA said that when the staff were not produced and no-one came to help him, he raised his grievance (30 August 2021, pages 23 to 25 of DBS bundle). AA stated that VC had a meeting with him, but thought the situation was just between him and an operations manager (“VW”) mentioned in the grievance. VC said they would bring in mediation to sort things out, but nothing really good came out of it, nothing conclusive. AA said it was never satisfactorily resolved.

AA explained that he had some limited experience of working with JL in around 2008. He described encountering JL again in 2016, when she was on medication for behavioural difficulties and had an open head wound. AA met with her parents and with the commissioner at the council, realising that funding for JL and another service user to attend college had stopped, meaning they were not doing anything between 9am and 4pm. He described JL having limited speech (restricted to saying one word), but she would say “tea” even when she might have had a drink five minutes before, and that if she was refused, she would bang her head on the floor. AA described developing a strategy to work with JL and having obtained funding from the council to give her activities to do. AA told us that this had helped to improve JL’s challenging behaviours from 2016 onwards.

AA also described that JL’s behaviour of not sleeping in September 2021 was not a new behaviour for her and even rubbing her private area was not really new with her. He told us JL’s difficulties sleeping had not happened for a while in September 2021, so staff decided they needed to report it happening during the holiday. AA stated that when the staff went on holiday to Devon with JL on 11 September 2021, they had only taken lorazepam with them PRN to manage her sleep, because JL had been sleeping ok at the project. AA stated that JL will sometimes have difficulties sleeping and then the GP will sometimes provide medication to help her sleep.

AA told us he had a four-day work / three-day rest working pattern in September 2021. He told us he returned from holiday on 09 September 2021 with his last day of leave being 08 September 2021. AA said he had then received training. AA told us that on 11 September 2021, he was not formally on shift but went into work to sort out a car for two care staff (“JG” and “LST”) to go on holiday with JL. AA told us that his next shift day was due to be Sunday 12 September 2021. AA told us that although he was not on shift on 11 September 2021, he did receive a phone call about JL displaying behaviours. AA told us that he was not aware of JL having spots on her body before she went on holiday.

AA told us that after he was telephoned by the care staff on Saturday 11 September 2021 about JL’s behaviours of not sleeping and rubbing herself, he notified his manager (“JA”) about both behaviours. AA said he was in contact with JA throughout the period of JL’s holiday, including on Monday 13 September 2021, at which point JA said to come home early from the holiday. AA told us that on the Wednesday (15September 2021), he and JA were in the same office in person. At other times he was based at his project, so talked to JA by phone or email.

AA told us that when JL does not sleep, her behaviour can become very challenging, and therefore the main priority to inform the GP about was lack of sleep, so that they could prescribe JL some medication to manage that difficulty. AA said that he discussed this with GP at the telephone appointment on 15 September 2021. The GP prescribed JL zopiclone. AA told the GP in this appointment that the staff on the holiday said JL had been touching herself, but the GP said there was nothing they could do unless they saw her. AA said this was because at that time GPs would not allow anyone to come to the surgery due to COVID-19. AA said the GP told him that the care staff should look to see if there were any spots or anything for JL that looked suspicious and take a picture of it.

AA said he told the GP on 15 September 2021 that JL was rubbing herself and asked if there was anything he and his team could do. The GP asked about spots and AA said there were none. The GP said they would book an appointment on the Monday (20 September) in case it was ringworm. AA told us the GP advised AA and other staff to look for a spot or common sign, anything coin sized. AA said that over the weekend after the holiday, staff supporting JL saw tiny spots coming out, so one of the female staff took a picture of them.

AA said that there was not enough space on the record of the 15 September 2021 entry for him to mention about the rubbing. Mr Webster suggested in cross-examination that there was enough space on the document to add in a sentence to say she had not been sleeping and unusually was rubbing her genitalia. AA responded that it was probably on another document, a summary of work for the day. He also said that the reason the GP had booked the follow up appointment on 20 September 2021 was due to the ringworm as the GP confirmed the appointment would be to see if anything developed over the weekend.

In cross-examination, AA was asked about having been told during JL’s holiday that she had a rash, which he disputed. He said that when he phoned the GP to get an appointment, they asked if there were any spots and when AA spoke to the staff, they could not find anything. AA said that he was not aware of any rashes, and the staff did not mention this to him. He said that there were no spots or rash for JL until the weekend when she came back. AA was asked about saying that the ringworm was on JL’s leg. He said he did not see the ringworm himself or take the photograph, because that would be inappropriate as a male carer, so a female carer took it, and forwarded the photograph to AA to upload to the GP. AA said the photograph was a close up showing the spots, and he could only see the spots, not anything else on the picture, so could not say whereabouts specifically it was.

AA said that on 20 September 2021, he spoke to the GP during the 1pm phone appointment and advised them that staff had seen something developing. The GP sent through a link at that stage, which AA used to upload the photograph and he spoke again to the GP that day, at which point the GP said ok, it was ringworm, and prescribed hydrocortisone cream for it. AA said he uploaded the documents on page 532 and 533 to VC’s g: drive on its computer system. He said this was probably the same day or the day after. He said that JL had a dedicated file on the g: drive and he took photos of the documents on pages 532 and 433 and uploaded them there. AA said that he documented the conversations with the GP in JL’s health action plan. In cross-examination, he clarified that this was different to the hospital appointments and outcomes document on page 533.

AA said that while staff told him that JL had started exhibiting spots in the weekend after she came back from holiday, he was not told about JL having a rash until he came back from sick leave in October. At that time his manager, JA, mentioned they had to book another appointment for JL with the GP because of rashes (and AA was not aware of any rashes). AA said that at that time, the issue had already been dealt with and he was not privy to what happened in October.

AA said that along with the TUPE transfer of his previous employer’s work to VC, care user files were meant to be created in the new system, but this was taking time. AA said it was being done project by project and VC had not completed the project he was managing. When asked, AA said he did not know why it was taking such a long time to create the case files but one had not been completed for JL and as it wasn’t there, he used JL’s folder on the g: drive to upload documents. He said the g: drive was a temporary method of keeping records until JL’s records had been created.

AA told us that in addition to uploading the GP appointment documents on page 532 and 533, he would have written notes on a case summary for JL onto the g: drive. AA said there was also a MARS sheet kept at the project for medication, which would have information on it about the medicine the GP had prescribed for JL including the cream for the ringworm.

AA described the CMS system involving an incident reporting system, which was different to the g: drive. He told us the ABCD form is completed when someone displays challenging behaviour, and the staff are aware this is not behaviour they would demonstrate on a daily basis.

AA told us that his project did not have any scanning equipment to scan in documents, so he would take photographs of documents and scan them in that way. There was a scanner at the main office. AA told us he had a laptop at home. He explained that when he was on call over the weekend of 10 December to 12 December 2021, he had not been given the dedicated VC on call mobile phone, although this is meant to be provided to on-call staff. AA said that instead, calls were re-routed to his mobile phone. The VC dedicated on call phone contains telephone numbers for different care staff. Without it, AA only had the telephone numbers for staff from his own project.

AA told us that he did not upload the ABCD form. He said he did not photograph it (to upload it) before he went off on sick leave. AA said he was off on sick leave from 26 September 2021 to 11 October 2021. When asked about the MED3 certificate from his GP starting on 03 October 2021 (page 100 of DBS bundle), AA said he self-certified for the first 7 days of that period of sick leave. He said he thought the document at page 102 was evidence of this, although we confirmed with AA that this related to a later period of sick leave in December 2021.

AA said he would not have worked while he was off sick because it was not a good practice and would tarnish his reputation. In cross-examination, AA said that using his laptop while off sick would make it look like he was not sick if he could upload documents. He told us that if he had uploaded the ABCD document, he would have completed the (blank) boxes on the last page (page 222) because he has to follow up by writing on the form. AA told us he definitely did not complete the form himself, and therefore would not have been able to upload it onto the CMS system.

When asked by Ms Bayley whether it was possible for someone else to upload a document to CMS and for his name to appear, AA said it probably was because when VC had the disciplinary meeting with him, they told him that during the on-call process in December 2021, he had not recorded in the on-call log what happened on 12 December 2021. AA said he told his employers that he did record it, and asked whether it could be deleted. AA said his employer said oh yeah, anything can happen, maybe someone deleted it. When asked by a Tribunal member about passwords for the CMS system, AA said that to his knowledge, people kept their passwords private. He did not share his password with anyone. He thought it was strange that the ABCD form had been uploaded in his name, but it was possible, maybe, that someone had his log in details.

AA told us that he was not told in advance what the 08 November 2021 investigation meeting was about and was not allowed to be accompanied at that meeting or to have the chance to talk to his employer properly. When asked by Ms Bayley, AA told us he did not agree with the record of what was said at the meeting. He said that he did not speak to his employers in the way recorded in the notes (with just saying yes or ok). AA told us that he told his employers he would not sign the investigatory meeting notes because what they had written was different to what he said. He said he did not have access to his emails after he was suspended in December 2021 to produce the email saying he was not willing to sign the meeting notes.

In relation to the incident on 12 December 2021, AA said he was the on-call person for the weekend of 10 December 2021, starting at around 5 pm or 6pm on Friday 10 December, when the office closed. AA was on call until the Monday morning. AA described having the work laptop at home but not the specific mobile phone for on call (which would have the personal numbers of the staff from all the other projects around the local area).

AA said he had access to a rota system, but only for his particular project, and he could not access another particular project on his phone. AA said that when his on-call duty started, he was not told that a taxi had been booked for the Sunday night for the other project. He said that the first he knew about it was on the Sunday night, when the taxi did not arrive. AA said he was also not told by the agency that the agency staff member for a project (at a place called FR) had cancelled.

AA confirmed that on the weekend of 10 December 2021, the operations manager, VW, was the next person in command for him to call (he described this as her being the cover for that weekend as well). AA said that when the staff member phoned him to say the taxi had not arrived, he telephoned his direct manager, JA, first but she did not answer, so he left a message, and phoned again two or three times, so he went directly to deal with the issue by himself. AA said this was because he knew he could still sort it out as quickly as possible. AA said that JA was also back up for him during the on-call weekend. He said he did not telephone VW about the taxi issue because he knew he could sort it out, and he called VW when he could not sort out the issue of staffing at FR.

AA said that when he was on call, he had to record his actions on the on-call log, and that he did so that weekend. AA told us that on 12 December 2021, he had been on a shift from 07.30am, due to end at 5.30pm (but which did not finish until 8pm). AA said that as soon as he finished, he received a call that one of the staff working at another project (at a place called WC) was supposed to finish early and then be taken home so that their partner could leave to go to another project. A taxi should have been booked for this but did not turn up and AA was not informed about it when he started his on-call duties.

AA decided to go to the staff member’s home, as it was 10 minutes away from where he lived, and collect the partner, but when he got to their home, they had a baby at home, and AA did not have a car seat to transport them. AA therefore had to drive back to the WC project, taking half an hour, collect the first staff member and take them home (another 30-minute drive). AA said it took two hours overall for him to drive back and forth, after a long shift that had ended late at 8pm.

When asked why this was something he needed to sort out, AA said that a taxi should have been booked, and staff had told him one had been booked but had not turned up. He said he had to go out of his way to make sure that the staff were in the right place. AA told us he did not have authorisation to book a taxi to take the staff member home from the WC project. AA said that there was a double problem if he could not sort things out because the staff member needed to go home, and their partner needed to go to a shift.

AA said he was in the middle of sorting out the problems with the missing taxi, when he was telephoned about the agency staff not arriving at FR. AA told us he had to pull over in his car to take the calls because he did not have a hands-free system. He agreed that the staff member at FR (called “LB”) had called him at 9.05pm. AA confirmed he then telephoned a team supervisor at VC to ask about the agency staff and that the supervisor called him back at 9.48pm to explain the agency staff member was not going to attend.

AA told us that he then rang LB shortly afterwards to tell her that no agency staff was going to come. He said that LB told him one agency staff member was there, and explained that residents were watching a film, they had capacity and could not go to bed straight away because it was their choice. AA told us he then spoke to VW at around 9.56pm. He said VW initially told him to go to the project at FR himself, but AA said he could not do this because it was a long day, and he was driving people around, he had an early shift the next morning and didn’t think it was safe for him to work. AA said he could not really remember what advice VW had given him, but he thought she had told him to tell LB that VW was 5 minutes away and would go to the project if needed. AA told us it was common practice at that project because VW would tell the staff she was 5 minutes away and could get there as soon as possible if anything happened, and agency staff would always stay.

AA told us that he tried to find someone from his project’s staff to provide cover and ringing around took time, but no one was available. AA told us that he then spoke again to LB, when she phoned him and told him that she and the agency staff member were putting people to bed. This call took place after AA had spoken to VW. He told us he relayed VW’s advice to LB. AA told us LB did not tell him the agency staff member was refusing to stay, and he did not tell LB to leave the project in circumstances where the agency staff was refusing to stay. AA also said he did not advise LB not to sign any documentation. AA said he would never tell staff to leave the project.

When asked why LB had written in her statement that AA had rung her again at 11.41pm, AA said that LB had wanted to get a taxi home, but AA did not have the budget or the power to authorise it, so he advised LB to telephone VW about sorting out a taxi. Asked how he had LB’s telephone number, AA said that he must have had it because she had rung him on the on-call system.

AA told us that he rang the project at WC at around 11.56pm, but no one answered the phone. He rang again at midnight, and again, no one answered. Both times AA rang the house number. Asked if he telephoned LB at that time, AA said no, and that he was expecting her to finish her shift, leave the project and to leave the agency staff member alone with the users in bed, and VW available for back up if needed. AA said that LB did not call him back after their last phone call to say otherwise, so he assumed everything was ok.

AA told us that he rang the project at WC at 6.30am the next day and was told by the agency staff that everything was fine. No one mentioned any problems to him.

Asked about the entries in the on-call log on page 531 of the DBS bundle, AA explained that the staff member on call would complete these. He had completed the entries for 11 December 2021. However, the entry for 12 December 2021 was missing. AA said that he did not know why it was not there. He said that on the Monday (13 December 2021) he sent an email to JA about everything that had happened, which included the problem with the taxi not turning up. AA said JA had replied apologising for this, but that after he was suspended, he did not have access to any of his emails so could not retrieve it.

AA said he told his employers that some of his entries were missing from the on-call log, and they said it would be investigated, but nothing came out of it.

AA told us that he signed the notes for the disciplinary hearing minutes on 28 January 2022 because he was under a lot of pressure, including the way his employers were talking to him. AA said he disagreed with some of what his employer had recorded in those notes, because they were not what he actually said.