[2025] UKUT 98 (AAC)

In her evidence before the Upper Tribunal RW explained that she was not prone to complain. In her words at the hearing: “I am not that kind of person who likes to get people into trouble”. We had the opportunity to observe RW’s demeanour at the hearing. She presented as someone who was compliant and conflict-avoidant. We found this to be consistent with her not having reported SB’s swearing and inappropriate behaviour during their shared shift on 25^th February 2023 until she was questioned about the Allegations, when it became necessary to do so.

We were more troubled by SB’s failure to report what she claimed to have witnessed earlier than she did, especially because she claimed in her written account to have called ML after the alleged incidents “to come out to sort it”. However, it is apparent that SB did not report the Allegations to ML when she came to visit on 25^th February 2023. Had ML been made aware of the Allegations at that stage it is unlikely she would have left RW alone in charge of AG and the other residents when she, according to RW’s unchallenged evidence, gave SB a lift home in her car.

Although SB’s Account is dated 25^th February 2023, it was accepted by Mr Fullbrook on behalf of the DBS that ML wasn’t made aware of the Allegations until Monday 27^th February 2023. It is apparent that as soon as she was made aware, she initiated an investigation into the Allegations and RW was sent home.

SB’s statement that she was “horrorfied [sic] to see such disgusting behaviour from a member of staff” and that she “went home feeling physically sick with a banging headache” is inconsistent with her failure to report the Allegations to ML on the day in question. She had the perfect opportunity to do so when ML came to the Care Home to visit in response to SB’s telephone call (which SB claimed was made for the purpose of asking ML “to come out to sort it”). Even if she hadn’t wanted to report the Allegations in RW’s presence, given that ML gave SB a lift home in her car, there was also an opportunity for SB to disclose the Allegations in private.

We consider SB’s delay in reporting the Allegations far more undermining of her credibility than RW’s failure to voice her concerns about SB was of RW’s credibility.