Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 192 (AAC)

Fecha: 03-Abr-2025

Ground 5 – whether MC failed to report and/or concealed his conduct etc

85.

Ground 5 is set out at para 12(5) – and paras 32-35 – of the Grounds dated 15 December 2023.

86.

It is clear from the CCTV Footage that W was, as we have found as fact, threatened with direct physical violence by MC and he was caused emotional harm. As some mitigation we have also accepted MC’s account that despite this – he did not intend to carry through with his threat even though he made it.

87.

We have also accepted that it is more likely than not, on the evidence, that MC indicated to the Provider that W had lied about having been threatened by MC:

(a)

There is the record set out in the Incident Report by GS [63], repeated and maintained in the formal referral to adult safeguarding [79]. It was stated there (twice, in effect) that MC had “said” that W had “lied to police that he was threatened” [79].

(b)

There is also the following record within the Other Report [225]: “[W] told the staff that he is going to call the police. Staff tell him to carry on. [W] went to his room staff could hear him on phone saying. The other staff is trying to control him and he went to say the staff want to break his noise [sic] which was big lie. When [W] finish the phone call, he…”.

88.

MC, accepted in his own evidence that he had lied when he said to GS that W had lied about being threatened. MC’s own statement to GS must, objectively viewed, have been false/misleading.

89.

The obvious inference is that it was an attempt by MC to downplay and/or conceal the level of his own culpability. MC appears to have sought to minimise the seriousness of matters elsewhere too – describing it (merely) as his “little mistake”, for example, in his initial response [29].

90.

Thus, the finding(s) by DBS in Decision 1 that this was an aggravating factor was not mistaken. It does not appear to have been relied on in any event in Decision 2.

91.

It will noted that there was no challenge to this finding in the Reps [85]; nor in the initial grounds [8]; nor was there any reference to it in MC’s initial response [29]. MC accepted it in his oral evidence.

92.

While the challenge was made in the Grounds: it was a limited attempt to undermine the DBS finding; there has never been a positive (or detailed or persuasive) case advanced on behalf of MC; and no supportive evidence has been provided by MC.

93.

Again, even if there had been a mistake regarding this aggravating factor, it would be immaterial in any event; because MC did make the threat and that was the finding of relevant conduct made by DBS in Decision 1 and 2. The attempt by MC to seek to cover it up is an aggravating factor but DBS could/may have barred him without relying on such an aggravating factor.