[2025] UKUT 192 (AAC)

The DBS relied on written evidence from witnesses and notes of the incident or reports of meetings contained in the bundle of evidence it filed and served which contained 287 pages. It included all the material relied upon by the DBS in making Decisions 1 and 2, as summarised above, and in defending the appeal as well as some of the material provided by the Appellant. Additional material provided by the Appellant was contained in the Appellant’s bundle.

We have examined all the evidence in the case with care, both that which was before the DBS and that provided by the Appellant as part of his appeal (most of which was not available to the DBS at the time it made its Decision). We have not found it necessary to refer to every document.

We make findings of fact on the balance of probabilities as set out below. In light of these, we consider whether the DBS made mistakes of fact in accordance with the approach set out in PF v DBS and DBS v RI. The burden of proof remained on the DBS when establishing the facts and making its findings of relevant conduct in its barring decision. Thereafter on the appeal to the UT, the burden was on the Appellant to establish a mistake of fact (see PF at [51]):

Furthermore, the UT stated in PF:

However, it is not within our jurisdiction, when considering whether there have been mistakes of fact, to make our own evaluative judgments (for example, what was reasonable for the Appellant to do or whether there would be a risk of repetition or future harm). The proper evaluative judgements which should be made based upon the primary facts found are a matter for the DBS as the expert risk assessor. We would not interfere with risk assessments made by the DBS unless such judgments are based upon mistakes of primary fact or are irrational (contain a mistake of law).

We make findings of fact – both of primary facts and secondary facts (inferences from primary fact). We make the following findings on the balance of probabilities.

MC was the only witness from whom we heard oral evidence. We found him to be an honest and reliable witness and we accept his evidence and find it as fact on the balance of probabilities.

We accept the contents of MC’s witness statement which he adopted as his evidence in chief as follows:

“3.

During my time as a Health Care Support Worker, I was employed by several healthcare providers. I worked with M Healthcare from December 2018 to March 2019, with G Healthcare from July 2019 until July 2020, with A Healthcare Services from July 2020 until October 2020, and with E Services Ltd from 16 March 2021 until 20 December 2021. Over these periods, I worked through various challenges, including the COVID-19 pandemic, and remained dedicated to helping those under my care.

4.

On [1]8 November 2021, an unfortunate incident occurred between myself and a patient, [W], who I had been caring for at the time. I had looked after W on previous occasions, as well as other patients living in the same residence.

5.

The issue that arose on that day involved W’s eagerness to use the kitchen late at night to cook. The kitchen is located near the room of another patient, J, who lives downstairs and whose room is directly opposite the kitchen. Cooking in the kitchen during the night would likely disturb J, and as such, I advised him gently not to cook at that time. However, he refused my request repeatedly and was adamant on using the kitchen. In an attempt to prevent him from disturbing J, I tried to stop him from cooking, which unfortunately led to an incident between us. He subsequently called the police.

6.

I fully acknowledge and accept that my handling of this situation was inappropriate and unprofessional. I deeply regret my behaviour, which I recognise fell far below the standard expected of me in my role.

7.

While my intention was to protect J from being disturbed, I understand that my approach in dealing with W was wrong. I had no intention of causing him any harm or distress, and I regret the way in which I handled the matter. I failed to maintain a balance in caring for both J and W, for which I am really sorry.

8.

In response to the allegation that I did not show any remorse or empathy towards W following the incident, I want to clarify that I did apologise to him after the incident. I expressed my regret both verbally and in a written letter of apology to him. I never intended to excuse my actions, and I have taken full responsibility for what happened.

9.

I want to acknowledge the incident that occurred, as I cannot deny that it happened. However, I want to provide further context regarding the specific word that has caused concern—the word "smash."

10.

I want to be clear that this word was never meant with any bad intent. It was an accident, a slip of the tongue in the heat of the moment, and not something I was consciously aware of at the time.

11.

I have never been, nor do I want to be, a violent person. My character and professional record reflect this. You can verify my background with any of the organisations I have worked with, and you will find no history of violence, aggression, or any criminal activity.

12.

In fact, I have faced challenging situations in my role as a Health Care Support Worker, particularly with the patient in question, W. This incident was not the first time we have had a difficult interaction.

13.

On a previous occasion, he used hurtful and discriminatory language towards me. He called me several offensive names and even went as far as to say that he did not want any Muslim to “control” him. I tried to remain calm and professional, telling him that I was simply there to do my job and that my religion had nothing to do with the care I provided.

14.

However, W persisted and stated that he would never let any Muslim control his life. He even went so far as to threaten me, telling me that he would "put me in trouble."

15.

After that incident, I did everything I thought was right. I reported the matter to both the management and the police. I felt threatened and vulnerable because of W’s comments, and I wanted to make sure that the situation was addressed through the proper channels.

16.

Unfortunately, despite my efforts, the management did not take any meaningful action to resolve the issue. The police, however, have been diligent, and I have been contacted several times by officers to check on my well-being, showing that this was a serious matter.

17.

Despite everything that had happened previously, I was still committed to providing W with the best care possible. I hold no personal grudges against him, and I believe in professionalism.

18.

After the more recent incident, I took it upon myself to write an apology letter to W, expressing my regret for any distress caused. I wanted to mend the relationship and ensure that he knew I did not have any ill will towards him. W accepted my apology, which shows that there was understanding and resolution between us.

19.

I understand that what happened—especially the use of the word “smash”— was a mistake, but I do not believe that this single moment of error reflects who I am as a person or a professional. I have worked for years in this field with numerous vulnerable individuals, and I have always carried out my duties with compassion and care. This one mistake should not overshadow all the positive contributions I have made and the many patients I have helped.

20.

In that moment, I was trying to cool the situation, but I made an error in judgment when I said something I later regretted. The word “smash” slipped out during the heat of the moment, and as soon as I realised what I had said, I knew it was wrong. I never intended to hurt him physically or emotionally, and I deeply regret that it came across that way.

21.

I want to emphasise that this was a slip of the tongue, not a reflection of my character or my intentions. I have always maintained a calm and professional demeanour in my work, and I care deeply about the well-being of my patients. I understand that this incident has raised concerns, but I urge you to consider my full record and the context surrounding this event. This was not a deliberate act of aggression—it was an unfortunate mistake, and I am truly sorry for it.

22.

I know that as professionals, you have every right to consider barring me from continuing in this role, but I am asking for your understanding and leniency. I am only human, and like everyone else, I am not above making mistakes. However, I promise that this was an isolated incident, and it will not be repeated. I have learned from this experience, and going forward, I will be even more mindful of my actions and my words in challenging situations. I would never intentionally hurt or distress a patient, and I have always strived to provide the highest level of care.

23.

Since the incident, I have reflected deeply on my actions and have learned from this experience. I am fully committed to ensuring that such an event will never happen again. If faced with a similar situation in the future, I would approach it differently, placing the safety and well-being of all my patients at the forefront. I now understand that assisting my patients in resolving such conflicts, rather than attempting to prevent them, is the correct course of action.

24.

I would also like to emphasise that my previous record as a Health Care Support Worker demonstrates that I am not a risk to my patients.

25.

Throughout my career, I have consistently shown my dedication to caring for my patients and ensuring their safety. I deeply regret the incident that took place on [1]8 November 2021, but I do not want this isolated event to define me or prevent me from continuing to provide high-quality care to those who need it. I am committed to using what I have learned from this experience to improve and provide even better care in the future…”

MC was cross examined by Mr Serr for the DBS. He gave the following evidence which we accept as reliable and established on the balance of probabilities.

MC was working dayshifts at the relevant time. He would look at the care plans of service users. He would keep a log every 2 hours of what they were doing. He had received training in September 2021 a couple of months before the incident. This included training in Conflict Management, safeguarding and de-escalation. It was common for service users to exhibit and demonstrate aggression, agitation and extreme emotion. W had been diagnosed with schizophrenia and had had history of drug misuse and self harm as well as recorded as being physically and verbally aggressive towards others. In his care plan it said that W needed support in setting up routines to distract him from drugs and self harm. In the care plans prepared in July and August 2021 it said that staff would offer to chat with W and respect his space.

MC had worked with W since around July 2021. In particular, he had worked with W since an earlier time when W had used a discriminatory epithet against him based on the fact MC was a Muslim. W had also previously told him that he did not like him and he would report him to the police and make him lose his job.

The day the incident happened, 8 November 2021, MC was working on day shift from 7am to 11pm and it occurred after 9pm. MC was tired. MC accepted that he dealt with W during the Incident that evening in a manner that was not consistent with the care plan and was quite aggressive and confrontational. MC accepted he said he would smash W’s nose but he did not mean that and it was not a threat MC was intending to carry out. He accepted that it would be triggering to W as a vulnerable person diagnosed with schizophrenia and ASD (Autism Spectrum Disorder). MC accepted he shouted at W. MC said he was not that kind of person and it was just one of those days and it happened from the blue moon.

However, MC and W worked together after the Incident between 8 November 2021and 6 December 2021 without any further problem.

MC said he did write the incident down in the incident book and report it to the manager at the time although there is no record of this produced by the company, Appellant nor DBS. The only record now available is when MC’s manager GS wrote up specific incident report on 6 December 2021. GS’s note began by describing what was seen on CCTV. The report then described the aftermath of the Incident:

“06-Dec-2021 00:00

Management was not aware of the situation when it happened so unable to take action until today (6/12/2021).

W didn't report to management and staff did not report to management.

However two weeks ago, Staff [MC] called registered manager saying the police visited and they wanted to talk to [W] but “ isn't in. Staff asked what happened, MC Said he advised [W] to go to sleep when he was cooking but [W] lied to police that he was threatened.

Manager GS asked Staff MC why he was prompting S to sleep when W was cooking? MC said well just a suggestion to him; but W has lied to Police. Manager GS told staff MC that if the police is already involved he will wait for them to do their investigation and let E know the outcome.

Today (6/1 2/2021) the Police attended and Manager GS, was informed that the Police were around.

Manager GS attended with the Safeguarding Lead (staff DI). DI who is in charge of access to CCTV. DI logged into the CCTV data base and provided the police the access, together they watched the Clip and after police provided the date of report as 8th of November 2021. The CCTV was checked for that day. It was then found that MC had bullied and threatened W without any obvious provocation-details of said threat are

What action was taken?

Police informed Staff MC, that they will refer to DBS. As soon as Police left, Staff DI asked MC to leave and sent a replacement staff.”

MC accepted the accuracy of this note in cross examination. MC accepted that he did tell the manager GS that W had lied to the police by saying that MC had threatened him. MC accepted that his report to GS was not true and it was not fair – MC had threatened W and W had not lied when reporting this to GS. MC accepted he had lied to GS about the incident. MC was truly sorry and ashamed.

Based upon all the findings above we make a finding of fact that the findings of fact relied upon by the DBS set out in Decisions 1 and 2 are established on the balance of probabilities:

“On 08/11/2021, whilst employed as a Support Worker for E Services, you caused emotional harm to service user W[] by preventing him from legitimately using the kitchen and threatening him with violence.” [Decision 1]

“On 08 November 2021, whilst employed as a carer whilst on night shift at E Supported Accommodation you have threatened and intimidated a service user, Mr W, which has resulted in his behaviours being provoked”. [Decision 2]

There is no dispute that these actions amount to relevant conduct against a vulnerable adult for the purposes of the Act because they caused emotional harm to W. This is evidenced by W’s behaviour during the Incident, W then calling the police and the other matters we explain below.

We accept the mitigation put forward by MC in his evidence about the Incident. Not only do we accept all MC’s evidence as being honestly given and make a finding to that effect, we also accept that MC was clearly upset about events as well as having to give evidence about them to the Tribunal. This was demonstrated by MC’s body language throughout his evidence as well as his verbal expressions of remorse and contrition. He was clearly doing his best to assist the Tribunal despite the events being upsetting for him.