[2025] UKUT 98 (AAC)

The DBS found that the inconsistencies in RW’s evidence lessened RW’s credibility, but prior to making the Barring Decision the DBS didn’t have the opportunity to hear RW’s live evidence or to test her case under cross-examination. That opportunity arose at the hearing before the Upper Tribunal.

RW was the only witness called to give evidence at the hearing, so she is the only witness whose evidence has been tested. She clearly found the experience of giving evidence very difficult. She required a break in the proceedings when she became tearful and overwhelmed, but we found her to be forthcoming in her evidence. She was not circumspect in her responses. She did her best to answer the questions put to her, and she was willing to admit to things that didn’t necessarily help her case (accepting under cross-examination that AG was getting on her nerves at the relevant time, that she moved AG physically, and that she shouldn’t have done that).

We note that the DBS made much of RW referring to AG “misbehaving”, suggesting that this indicated that she failed to recognise AG’s persistent demands for attention as being associated with his learning disability. We had the benefit of hearing RW’s oral evidence. She sometimes struggled to find the right words and used terms that jarred. For instance, she referred to AG as “a Down’s Syndrome”. However, we did not infer from the words RW used that she had a callous attitude towards AG. Rather, we found that RW was sometimes just a bit clumsy in her choice of words. This was most likely as a result of her own learning disability, which she was able to describe as relating to her cognitive abilities and language/vocabulary. RW was not able to provide objective documentary evidence of her learning disability, but her difficulties were apparent from her presentation at the hearing. We accepted what she told us about having a learning disability and having “been statemented”, receiving additional support in the classroom and extra time when undertaking assessments. Her evidence on this was corroborated by the email evidence of Ms Walker, the mother of one of RW’s school friends.

There were some inconsistencies between what RW said in her written account, what she said in her disciplinary interview, and what she said in her oral evidence before the Tribunal. Mr Fullbrook put these inconsistencies to RW at the hearing.

We noticed that RW sometimes struggled to understand the questions put to her, especially when the questions were long or involved multiple parts. Sometimes she seemed not to understand the rephrased questions fully either. However, rather than reveal her difficulty, she tended to get flustered and simply agree with whatever the questioner was putting to her.

We decided that this was likely to have explained the inconsistencies in her responses in her disciplinary hearing.

We found the inconsistencies in RW’s evidence to be relatively minor, and we assessed that they were more likely the result of failings in her memory, difficulties in expressing herself verbally, and/or her becoming flustered and overwhelmed when put under pressure, rather than being indicative of dishonesty on her part. In her disciplinary interview, when challenged about inconsistencies in the details of her account, RW explained: “I didn’t make this up, I just say things differently”.

RW was, however, consistent in her denial that she had threatened to punch AG, pointed her finger in his face, shouted at him, pushed him or told him to “shut up”.

Considering her evidence in the round, we found RW to be honest and her account to be largely reliable.