[2025] UKUT 225 (AAC)

Within its finding that allegation 1 was proved, the DBS made a finding of fact that AA delayed the diagnosis and treatment of thrush for JL by not sharing her unusual and new behaviour of rubbing her genitals with other staff and the GP (see Barring Decision Summary on page 296 of the DBS bundle). It follows from the matters set out at paragraphs 83 to 100 above that we are satisfied this contains a mistake of fact, because it relies on AA not sharing JL’s behaviour of rubbing with her GP, and with other staff in circumstances where the evidence indicates he told the GP, and other staff, including the staff who observed, and then photographed, JL’s spots after she returned from holiday.

Given the matters set out at paragraphs 83 to 100, we have decided the DBS made a mistake of fact in deciding that there was a delay in the diagnosis and treatment of JL’s thrush prior to 29 September 2021. Implicit within this finding by DBS is a finding that JL had thrush and that she had it on 11 September 2021. As explained above, the DBS has not produced evidence to confirm that JL was diagnosed with thrush or that she contracted it on or around 11 September 2021. What has been made available to the Upper Tribunal are the CMS entries for early October 2021 that refer to JL being prescribed a tablet and cream for thrush, while at the same time being investigated for a UTI, and at the same time being prescribed a different cream for ringworm that was not improving and on 08 October 2021 appeared to be worsening.

We note that Mr Webster’s written submissions state that AA was told JL had a rash in the groin area, and that the ringworm was around JL’s leg and AA was unable to say where it was on the leg because he saw the photograph of it from very close range. Mr Webster relies on this to separate the location of the ringworm from what was causing JL to rub her genital area. However, it is the DBS’s assertion, present in the findings made within allegation 1, that JL had a diagnosis of thrush and that it was present from 11 September 2021. The burden of proving that assertion must rest on the DBS, rather than the burden of disproving it resting on AA.

The DBS has not produced evidence to demonstrate where the ringworm was on JL, beyond relying on what AA was recorded saying in the investigation process (that it was on her leg), while at the same time acknowledging that AA did not see the ringworm spots himself. Mr Webster’s written submissions do not address the notes recorded from LST that she noticed JL had a rash around her genital area near her thighs and that this was described as ringworm slowly spreading and mostly in JL’s pad and where she sweats (pages 88 to 89 of the DBS bundle). While this evidence is inconsistent with AA’s position that JL did not have any signs of spots or rash during her holiday, it is also inconsistent with the DBS’s position that JL’s ringworm was somewhere other than at, or close to, her genital area.

We do not accept Mr Webster’s written submissions that the only symptoms referred to in terms of the thrush are the rash in the groin area and itching that AA accepted staff had reported to him, and thus on balance JL must have already had thrush. Putting on one side the fact that AA disputes that staff reported a rash and itching from 11 September 2021 onwards (as opposed to rubbing behaviour), the DBS has not established that JL had symptoms of rubbing that are more likely than not to demonstrate she had thrush on that date. Such an argument would have to discount ringworm as a cause of itching in, or close to, JL’s groin area. The DBS has not provided sufficient evidence to demonstrate this on the balance of probabilities, for the reasons set out above.

We have also decided there was a mistake of fact within this part of allegation 1 because the DBS’s reasoning in support of its conclusion that AA’s actions delayed JL’s diagnosis of thrush, are that JA was not aware of JL’s behaviours rubbing herself. In the Barring Decision Summary, at page 296 of the DBS bundle, the DBS relied on JA’s statement that she was not aware of JL’s rubbing behaviour before 29 September 2021. The DBS analysed that AA disputed this but stated it appeared to be one word against another.

The DBS then wrote that the interviews with both support workers indicate JA was contacted about PRN medication, but this does not state that she knew about the new behaviour. However, while this is broadly consistent with what is recorded in the undated note with LST, it is contradicted by question 4 asked of JG during the investigation meeting dated 02 November 2021. That question was worded: “When was the incident of JL initially reported during or after the holiday? Am aware from the notes that you contacted [JA] during the holiday to ask if you could give further PRN due to displayed behaviours that appeared JL was rubbing herself?” JG replied: “Yes, during the holiday but [LST] dealt with all the calls whilst I was attending to the needs of JL. I know that phone calls and text were going on.”.

Mr Webster argues in his written submissions that JG said in the investigation meeting that JG said LST dealt with all the calls while she was attending to the needs of JL. He argues that LST confirms calls were made but does not personally attest to what JA was told or even whether JA was spoken to. We did not accept the second part of this submission, because question 5 of the undated investigation notes for LST states: “Am aware from the notes that you contacted JA during the holiday to ask if you could give PRN medication, is this correct?”. LST was recorded as saying “Yes. As JL’s sleep deteriorated on the Monday where she had no sleep at all”.

We therefore do not consider it realistically sustainable to argue that LST did not personally attest to whether JA was spoken to during the holiday. Question 5 was a specific question, based on notes VC already held. If JA had not been spoken to about the rubbing, one might reasonably expect LST to say so in her response. We conclude that the nature of question 4 to JG and question 5 to LST indicate VC had evidence in the form of notes that JA was made aware of JL’s behaviours while she was on holiday and that she was told that JL appeared to be rubbing herself.

The DBS’s finding that the interviews with both support workers do not state JA knew about the new behaviour (i.e., rubbing) therefore contains a mistake of fact, because it conflicts with what JG was asked by her employer, drawing on notes that indicated JA was told about the rubbing. This is a key part of the DBS’s finding that AA delayed a diagnosis and treatment of JL’s medical difficulties before 29 September 2021, because it relies on JA being unaware, prior to that date, that JL was rubbing herself.

In light of the matters above, we have decided it is not necessary to decide whether the DBS made a mistake of fact by deciding that AA uploaded the ABCD form to the CMS system on the 29 September 2021. Our assessment of the evidence here was that it was equivocal, rather than it definitely indicated a mistake of fact by the DBS. We are mindful that the Upper Tribunal should not identify a mistake of fact by the DBS simply because it would, or might, have reached a different factual conclusion based on the evidence.

Having said that, we observe the ABCD report was dated as completed by JG and LST on 11 September 2021 (and signed by them with that date), when this could not be correct. That was the date when JL’s holiday started. The ABCD form was completed to include: “Whenever JL sat down from the journey to 2 days after she repeated to do this” (page 221 of DBS bundle). This indicates the form talked about later events on 12 or 13 September 2021 and therefore could not have been completed until at least 2 nights after the holiday started. We also observe that the final section of the form, which needed completion when uploading to CMS, was also incomplete. It included space for a CMS reference number, which would be generated once the form was uploaded. None of the boxes have been ticked and the reference number has not been included.

The DBS acknowledged that AA was not working between 26 September 2021 and 11 October 2021 (see page 294 of DBS bundle). The DBS acknowledged AA’s representations that he was off sick on 29 September 2021 (page 296 of the DBS bundle) but has not addressed those representations. We consider this issue is more appropriately addressed as a potential error of law, by failing to address and evaluate the representations being made and to explain how the DBS concluded that AA uploaded the ABCD document to the CMS system while he was said to be off work on sick leave.