[2025] UKUT 86 (AAC)

The appellant filed her notice of appeal to the Upper Tribunal on 24 November 2021 (in time). It is unfortunate that it has taken so long for her appeal to be determined and we offer our apologies to her for the Upper Tribunal’s part in the delay. However, it is not just Upper Tribunal administration that has delayed the appellant’s appeal, and as the history of this appeal before the Upper Tribunal has some bearing on the decision we have ultimately reached in this case, we need to set it out here.

The appellant’s case was first allocated to Judge Rowley who made directions on 10 February 2022 requiring DBS to provide the appellant with certain information, including the CCTV footage on which DBS had relied in making its decision. DBS refused in part and by letter of 9 May 2022 sought an order prohibiting the CCTV footage from being sent to the appellant because of concerns about the risks of such footage being copied and coming into the public domain. DBS suggested that the appellant should be provided with an opportunity to view the footage at the Upper Tribunal prior to any hearing. By directions of 14 June 2022, Judge Rowley indicated that it was her preliminary view that DBS should provide the CCTV footage to the appellant, subject to the usual requirements that the appellant use it only for the purposes of these proceedings.

By submissions of 30 August 2022, DBS maintained its position that the CCTV footage should be withheld from the appellant.

Judge Rowley then retired and the case was reallocated to Judge Jacobs who made an order authorised for issue on 29 September 2022. He required the CD of the CCTV footage to be sent to the appellant for viewing and for her then to return it to the Upper Tribunal after a month. He further directed that the appellant should have an opportunity to amend her grounds of appeal in the light of the CCTV evidence and other documentary evidence DBS had provided, if she wished.

Unfortunately, the appellant was unable to get the CD to work. By directions authorised for issue on 9 November 2022, Judge Jacobs accordingly directed that she would need to be given an opportunity to view the recording during a hearing, if there was one at the permission or substantive stages.

By letter of 15 December 2022 DBS raised concerns about Judge Jacobs’ directions of 9 November 2022 and suggested that its application 30 August 2022 for the CCTV footage to be withheld from the appellant had not been dealt with. By directions authorised for issue on 19 December 2022, but not issued until 2 February 2023, Judge Jacobs corrected that misapprehension.

By directions authorised for issue on 27 April 2023, but not issued until 24 June 2023, Judge Jacobs noted that the appellant had not heard from the appellant (who had not provided amended grounds as permitted by his order of 29 September 2022). Judge Jacobs gave notice that he would make a decision on the appellant’s application for permission if he did not hear from the appellant within two weeks.

By decision authorised for issue on 6 July 2023, but not issued until 9 August 2023, Judge Jacobs refused the appellant permission on the papers. Regarding the procedural complaints in the appellant’s application for permission to appeal, he observed:

SM has now seen all the evidence (apart from the CCTV footage) and will have a chance to make any points she wishes to challenge the decision to include her in the lists. But she must make a sufficient case to justify being given permission.

The appellant then emailed on 22 August 2023 applying to renew her application to an oral hearing. She stated that she had still not had an opportunity to view the CCTV and contended that she had not had an opportunity to challenge DBS’s findings of fact.

Directions were then given by Judge Perez for an oral hearing in person in Manchester on 22 February 2024. That hearing took place before Judge Stout, who was able at the hearing to show the appellant what the Upper Tribunal was able to see of the CCTV footage. Judge Stout’s decision granting permission records what happened in relation to the viewing of the CCTV footage as follows:-

43.

I therefore showed her the four videos during the hearing, pausing them as necessary to point out key parts of them (as noted below). The videos are difficult to use (or, at least, they were for me) as the audio and video cuts out intermittently and (inexplicably) in a way that is slightly different each time the file is played. Nonetheless, I have been able to observe the following in the videos, as I shared with the appellant.

44.

What I have noted from the audio/video evidence provided by DBS, and shared with the appellant, is as follows. Again, I emphasise that these are merely my provisional notes for the purposes of this permission hearing and do not constitute findings of fact about the content of the videos:-

a.

“Asking Cardigan” – 1:23 of footage from 4/7/2020 at 13:38, audio only up to 00:59. The television can be heard. VA is in the corner of the room in her wheelchair. She is saying “I’m cold” and asking for a grey something. I cannot make out the word “cardigan”.

b.

“Locked Again” – 1:31 of video footage, dated 11/7/2020, hallway. Shows another carer carefully reversing VA in her wheelchair. The door to her room is shut but it is not possible to see whether it is locked.

c.

“S Unlocks Door” – 03:02 of video footage of the hallway on 5/7/2020. The appellant is seen moving through the hallway a couple of times at an 01:04 comes and unlocks the door to the VA’s room. There is no audio.

d.

“Shouting” and “Shouting (2)” – the same 03:47 of audio and video footage on 15/05/2020. The appellant can be heard shouting “you don’t call me on my break”, “you are just being a pain” “I am gonna tell your family you don’t need a carer on my break” “I am getting fed up of you”. The video footage is intermittent. The appellant can be seen gesturing at VA and continuing to say that she is “a pain”, that she does not want her to call her, she repeatedly says “it will never happen”, putting her face in the vulnerable adult’s face and gesturing at her. I do not hear any reference to a continence pad. At 01:08 the appellant shoves the door into the VA’s wheelchair and then continues gesticulating at her. At 2:37 the appellant moves VA’s wheelchair quickly and takes her out of the room.

45.

After she had viewed the videos, I indicated to the appellant that I did not consider it was fair to her to expect her to respond on the spot to the content of the videos, and that there was no need to do so as none of her grounds of appeal turn on the content of the videos, which it seems to me she has probably never seen before in this complete form. I explained that if she wanted, now she had seen the videos, to set out her response to the videos in writing she could:

a.

apply to DBS for a review under paragraph 18A of Schedule 3 and/or,

b.

if she considers she has identified a mistake of fact in the DBS’s decision, make an application to the Upper Tribunal for permission to add a further ground to her appeal.

46.

I emphasised that these were just options that are open to her: it does not follow either that DBS will grant her a review or that the Upper Tribunal would grant her permission to add a further ground of appeal. Any application will be considered on its merits.