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The Upper Tribunal’s assessment of DBS’s findings of fact, and the Upper Tribunal’s own findings of fact
The Upper Tribunal’s assessment of DBS’s findings of fact, and the Upper Tribunal’s own findings of fact
Having considered all the evidence before us, including evidence that was not before the DBS when it reached the Barring Decision, we are persuaded that, to use Mr Fullbrook’s phrase, “something happened” during the shift that RW and SB worked together on 25th February 2023.
However, establishing that “something happened” is clearly insufficient to justify placing RW’s name on the barred lists. We do not accept the argument that, because RW accepts the truth of some facts that are consistent with the Allegations, that acceptance provides support for those elements of the Allegations that she denies. Neither do we accept the argument that RW’s acceptance of elements of what SB said bolsters SB’s credibility as a witness. Each of those propositions is fallacious.
The balance of the evidence does not persuade us that the “something” that happened that day involved any violence, threat of violence, shouting, or derogatory behaviour on RW’s part.
We make the findings of fact that follow.
- Heading
- The decision of the Upper Tribunal is to allow the appeal. The Disclosure and Barring Service’s decision of 5 April 2024 was based on material mistakes of fact
- Factual background
- Legal framework
- The ‘relevant conduct’ gateway
- The Upper Tribunal’s jurisdiction under the 2006 Act
- The relevant authorities
- The Barring Decision
- The Evidence
- SB’s evidence
- AG’s evidence
- RW’s evidence
- RW’s disciplinary interview
- DBS’s evaluation of the evidence
- Summary of DBS’s case before the Upper Tribunal
- Summary of RW’s case before the Upper Tribunal
- The Upper Tribunal’s assessment of the evidence
- Corroboration provided by AG’s evidence
- Impact of inconsistencies on RW’s credibility, and RW’s live evidence before the Upper Tribunal
- RW’s failure to report her concerns about SB
- No reason to doubt SB’s evidence
- The Upper Tribunal’s assessment of DBS’s findings of fact, and the Upper Tribunal’s own findings of fact
- Allegation 1: “Shouted at resident AG”
- Allegation 2: “threatened to knock AG out, pointing a finger in his face”
- Allegation 3: “told AG to shut up, to go to his room and to stay there”
- Allegation 4: “pushed AG with both hands in his back down the hallway, causing him to stumble”
- Conclusions