[2025] UKUT 192 (AAC)

Ground 1 is set out at para 12(1) – and paras 16-21 – of the Appellant’s Grounds of Appeal dated 15 December 2023.

We are satisfied that there was no mistake in any finding by the DBS that W was “legitimately” – at the material time – using the kitchen. Events need to be viewed in context. W’s care plan documentation [“the Care Plan”] did refer to W needing “staff supervision at all times when helping with the cooking to avoid of the risk of accidents in the kitchen” [71]; to staff supervising W when he had “chosen” to cook his own meal [72]; and to staff staying with W at all times and advising him on health and safety measures around the kitchen to keep him safe [72].

But importantly: (a) W was not “cooking”. He was merely preparing food. Moreover, he was simply grating a few potatoes. The essence of the relevant parts of the Care Plan was about keeping W safe while cooking (or doing other things in the kitchen). There was a very low risk of any injury (or other health and safety risk) arising from the limited and straightforward act of grating potatoes. Further, protecting W from such a risk was never said to have been a motivation of MC (he had referred to being allegedly concerned about his own safety in his initial response to DBS [29]; but then later, within the Reps and his evidence to the Tribunal, about noise and its alleged effect on another service user, namely J [86]).

Any such care plan would not be binding, on the service user (or at least service users with the kinds of issues W had), in the same way as it might be on relevant staff. Moreover, the Care Plan expressly stated (correctly and in line with the general but important principles relating to “less restrictive” practice by organisations such as the Provider and its staff) that “W may decide not to follow this plan” – i.e. that W was entirely permitted to make decisions and “choices” which may “contradict” the Care Plan [72], even if, objectively, viewed, they may be considered “unwise”.

Further, such sections of the Care Plan need to be viewed in the wider context of the whole of the Care Plan. That included sections about the importance of: maintaining emotional stability; routine activities; activities which gave W a sense of achievement, enjoyment, and self-esteem; activities and which reduce frustration and help distract/ mitigate against the risk of self-harm and/or drug misuse; W having a degree of freedom and independence; staff supporting W to do such activities [69] and dealing with him in a supportive and positive manner. In short, managing W’s mental health had to be balanced against other risks (and was more important than any potential safety issue arising that evening from grating a few potatoes).

Further, the evidence indicates that W had in effect been given permission (to the extent any such permission was required) from GS to act in the way he was in the kitchen at the start of the Incident. Although W did ask to be left alone to continue with his task, it seems clear from the CCTV Footage that he did so, primarily, as a reaction to the inappropriate (and increasingly intimidating) nature/manner of MC’s intervention. W’s initial mood can be seen to have been settled and his initial response(s) to MC to have been constructive.

Second, MC was present in the building and, at the time, in the kitchen. He can be said to have been supervising or able to supervise sufficiently, given the low-risk nature of the task being undertaken.

Third, there was no mistake in DBS finding that MC had, in effect, sought to impose his own restriction or disregard the Care Plan. He did. The Care Plan permitted W to make his own decisions, and encouraged staff to support W in general and in relation to activities (such as those he was engaged in at the time) etc.

Fourth and importantly: any mistake of fact in relation to Ground 1 was not material in any event. The same overall outcome would have been reached. Irrespective of whether MC had some potential justification for “challenging” W’s preparation of food in the kitchen that evening, he had no justification for what followed (or for the manner in which he had “challenged” W).

It is also be noted that Decision 2 did not seek to rely on any findings in relation to W having been “legitimately” using the kitchen at the relevant time. The Relevant Conduct was conceded to be problematic by MC in the context of the Appeal, irrespective of any consideration of these secondary matters relating to Ground 1.