[2025] UKUT 225 (AAC)

There is documentary evidence in the form of the care manager outcomes document dated 15 September 2021 that AA sought medical assistance for a change in JL’s behaviours in terms of her not sleeping while on holiday and having to return early. See page 532 of DBS bundle. This document records that a follow-up appointment was booked for 20 September 2021. The document has AA’s signature on it. He told us, and we accept, that he uploaded it to the folder for JL on the g: drive, which was being used while files were being transferred over to a new system, as part of the overall transfer from AA’s former company to VC. AA’s former employer had this document, although it appears VC did not provide it to the DBS as part of the referral (see index at Annex A to the Minded to Bar letter, page 137 of the DBS bundle).

There is also documentary evidence in the form of the Hospital Appointments and outcomes form dated 20 September 2021 that AA sought medical assistance for AA in terms of ringworm. See page 533 of DBS bundle. The outcome recorded is consistent with the evidence AA gave at the hearing on 27 February 2025, that staff were to take a picture of the (ringworm) spots and upload it through the link sent by the GP. This document is signed by AA. Again, he told us, and we accept, that he uploaded it to JL’s folder on the g: drive. VC had this document and did provide it to the DBS as part of the referral (see index at page 137 of the DBS bundle).

AA’s oral evidence was that while JL was on holiday, there were discussions about her going to a walk-in clinic in Devon, but that on 13 September 2021, JA made the decision that JL should return from holiday early and she returned on 15 September 2021. AA managed to arrange a telephone appointment with a GP on the same date. AA’s evidence was that he told the GP about two behaviours by JL – that she was not sleeping and that she was rubbing herself. His evidence was that the GP asked if there were spots, and AA said there were none, so the GP advised the follow up appointment on 20 September 2021, and for the staff to monitor JL to see if any spots emerged over the weekend after 15 September 2021. AA’s evidence was that the GP advised they were to look for a coin-sized mark.

We accepted AA’s evidence on this issue as credible and consistent with the documents dated 15 September 2021 and 20 September 2021. The follow up appointment dated 20 September 2021 does not contain any information about JL’s problems with lack of sleep and whether the zopiclone was working. If it had been a follow up appointment for lack of sleep, we would have expected it to have focused on that issue.

We also take into account that in the investigatory meeting minutes dated 08 November 2021, question 14 asked AA whether he had reviewed any documentation before 29 September 2021 to ensure any concerns or deteriorations in presentation were discussed with the GP. VC recorded AA’s answer as: “Yes and I sent a picture to them and then they prescribed cream”. (see page 32 of DBS bundle). This answer was consistent with the hospital appointments and outcomes form dated 20 September 2021. It is not consistent with AA describing consulting the GP about JL’s sleeping difficulties. This is because there would be no reason to photograph her to evidence sleeping difficulties, and it is unlikely cream would be prescribed to help with sleep difficulties (and, in fact, zopiclone tablets were prescribed instead).

We also accepted as credible and reliable, AA’s oral evidence that he was not aware of JL having spots or a rash before she went on holiday, or during the holiday.

One of the carers who took JL on holiday, LST, was recorded, in an undated and unofficial document headed “investigation meeting” as having seen JL had a rash slowly spreading (and mostly in her pad area) when delivering personal care and pad changes during the holiday. The document records that LST reported it to AA and completed a body map and he advised to keep an eye on the ringworm as it was spreading (see pages 88 to 89 of DBS bundle). The document recorded LST’s surname incorrectly as “TS” not “ST” (see the ABCD form on page 217 in which LST records as her surname as “ST”). We directed the DBS to obtain a copy of the body map from VC. Given that VC confirmed to the DBS that it had provided everything it had, which means there was no body map available, and we take that into account.

The other carer who took JL on holiday, JG, was recorded, in investigatory meeting minutes dated 02 November 2021, as inspecting where JL was rubbing and not seeing anything (see page 29 of the DBS bundle). We take into account that of the two carers who took JL on holiday, and each delivered personal care to her, one of them did not see any spots or rash during the holiday.

AA was not present on the holiday to see whether she had spots. AA told us, and we accept, that as a male carer, he would not be expected to deliver personal care to JL and inspect JL’s intimate body areas to see if she had a rash or spots. AA told us that over the weekend, spots developed on JL, and he reported these to the GP on the 20 September 2021. AA told us he was sent a link to upload a picture of them (which he did) and then had a follow up conversation with the GP by telephone, who confirmed JL had ringworm and prescribed her topical cream to treat it.

Again, we accept that as a male carer, AA would not be expected to personally photograph the spots on JL. We accept his evidence that a female carer did so and sent him the photograph, which the carer told him was of JL’s leg, but the image captured the spots so close up that AA could not tell where on the leg it was.

We take into account that while the hospital appointments and outcomes document dated 20 September 2021 referred to another follow up appointment in one week, by 27 September 2021, AA was not present at work, due to sickness. AA has a MED3 fit note from his GP covering sickness for stress from 03 October 2021. We accept his oral evidence that he self-certified for the first 7 days of that sickness, which would cover his absence from 26 September 2021 onwards.

Mr Webster suggested at the hearing that the rules allowing a person to self-certify their absence from work had changed from 3 days to 7 days after 2021. However, we take judicial notice of the fact that in 2021 and up until December 2021, an employee could self-certify sickness absence for a period of up to 7 days. The change in December 2021, in response to the COVID-19 pandemic, allowed employees to self-certify their sickness absence for a period of up to 28 days. This covered the period from 10 December 2021 to 26 January 2022.

We take into account that the CMS entry JA made dated 04 October 2021 states: “GP has also prescribed a different cream to treat ringworm as there appears to be no improvement in her symptoms”. This is documentary evidence confirming JL attended an emergency appointment with her GP on 01 October 2021, had been treated by the GP with cream for ringworm, and that her ringworm was still present at that time October 2021. The entry dated 04 October 2021 then refers to the ringworm looking like it was improving, but there is a CMS entry dated 08 October 2021 stating that the ringworm appeared to be spreading (page 537 of DBS bundle). None of the entries indicate where specifically the ringworm was on JL’s body.

We also note that the CMS entries dated 04 and 08 October 2021 do not confirm that JL had thrush, although the entry dated 04 October 2021 states that on 01 October 2021, a tablet and cream had been prescribed on 01 October 2021 to treat thrush, but that a possible UTI (urinary tract infection) was also being investigated and a sample was collected that day. The UTI was later ruled out as the results were negative.

We are not medically qualified, but take into account, as a matter of common knowledge, that any of the three conditions identified above of ringworm, thrush and a UTI, would potentially cause itching, soreness and for JL to display behaviours of rubbing herself in response. We take into account that having been consulted by AA, JL’s medical practitioner, decided to treat her in September 2021 for ringworm, and that it was still confirmed as present in October 2021. AA was not medically qualified and would not be in a position to know whether JL’s rubbing was caused by the ringworm her GP diagnosed on 20 September 2021 or by some other medical cause.

We also take into account, as a matter of common knowledge, that even in late 2021, it was difficult to obtain medical appointments in person with GPs. This was caused by ongoing difficulties in consequence of the COVID-19 pandemic.

When granting permission to appeal, the Upper Tribunal directed the DBS to obtain notes and documents produced by VC including documents creates or uploaded by JA on or after 29 September 2021 including the outcome of the GP appointment on 04 October 2021 (see page 484 of DBS bundle). We acknowledge that the DBS requested those documents from VC and all that has been provided in relation to that specific direction, are the CMS entries on pages 537 of the DBS bundle. However, we are left without any documentary confirmation that JL was medically diagnosed with thrush, and if so, when it was, or was likely to have been, contracted.

Taking account of all the matters set out at paragraphs 72 to 81 and 83 to 99 above, we are satisfied that AA’s oral evidence, supported by the documentary evidence we have described, confirms the DBS made a mistake of fact in deciding that AA failed to seek medical assistance for a change in JL’s behaviours. It was a mistake of fact because we are satisfied AA sought medical assistance on 15 September 2021 and on 20 September 2021 for the changes in JL’s behaviours, which included her not sleeping and rubbing herself.