Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 238 (AAC)

Fecha: 27-May-2025

DBS’s finding that on 22 February 2023 whilst employed at the nursing home, AB failed to identify that a service user was experiencing a seizure as she had failed to follow the epilepsy support guidel

DBS’sfinding that on 22 February 2023 whilst employed at the nursing home, AB failed to identify that a service user was experiencing a seizure as she had failed to follow the epilepsy support guidelines

27.

AB, consistent with her case as understood at the time of the permission decision, maintained in oral evidence that she was the only member of staff in the lounge at the time, with seven service users (the other care worker had gone into the kitchen); there should have been two staff there; and that is why she did not notice the seizure happening, which she says was “quick”.

28.

In cross examination, AB said she positioned herself so that she could see the service user in question, but “through” wheelchairs that were in the way.

29.

Turning to the documentary evidence:

in the investigation meeting on 10 March 2023, AB is recorded as saying (pages 57-58 of the bundle) that she could not see the service user in question because there were two wheelchairs in the way; AB felt she could not reposition herself because of the positions of the other service users in the lounge; AB thought her colleague had gone to the next lounge and was gone for “seconds”; when her colleague returned, the colleague observed that the service user was having a seizure; and that AB then said to her colleague that she was sorry she did not see that because she (AB) was there on her own;

the ‘support guideline’ for the service user in question, in the area of epilepsy, was in the bundle at pages 127-128. It includes “support during a seizure” (points 15 to 25 in the document), including maters such as ensuring the airway is clear, loosening tight clothing, ensuring the environment is safe, informing the nurse on duty at the onset of the seizure, and reassuring the service user throughout the length of the seizure;

AJ, the colleague of AB’s in question, is recorded as saying in the investigation meeting of 1 March 2023 that she saw the service user in question “head bowing down chin is on the chair” (page 86 of the bundle); she said to AB that she thought the service user was having a seizure; AB replied that she wasn’t; AJ went to the service user, whose eyes were in a “fixed stare”, and lifted her head back for a minute while she was in seizure.

30.

On our weighing up of the evidence, this incident involved AB not noticing that one of the seven service users in the lounge with her was having a seizure; whereas her colleague noticed it as soon as she came back into the lounge, and initiated the steps set out in the service user’s ‘support guideline’ for epilepsy. It follows, in our view, that DBS did not make a mistake in finding that AB failed to identify that a service user was experiencing a seizure and therefore failed to follow the service user’s epilepsy ‘support guideline’. We have considered whether DBS made a mistake by not including the facts that AB was in the lounge with seven service users, and that the seizure was relatively short-lived; however, the fact that AB’s colleague readily identified that the seizure was going on, when she re-entered the lounge, indicates to us that these further facts would not have changed the outcome, and so were not “material” to DBS’s decision: in other words, they do not mitigate the core finding that AB failed to identify that a service user in her care was having an epileptic seizure.