[2025] UKUT 238 (AAC)

Permission to appeal was given by the Upper Tribunal (Judge Citron) in a decision (the “permission decision”) issued on 4 March 2025. The material parts of that decision were as follows (with some additional anonymisation):

Grant of permission to appeal

2.

AB’s case, expressed legally and succinctly, is that there are mistakes in each of DBS’s findings of fact. I now go through these one by one, indicating in brief what I understand AB’s case to be:

DBS’s finding that on 25 December 2022 whilst employed as a support worker at a [nursing] home, AB refused to reposition service users who were in need of pressure sorerelief

3.

AB’s case is that this finding was mistaken because it omits the fact that the reason she did not want the service users to reposition on to mats, was that this required another service user (“PG”, as referred to on page 72 of the bundle) to be “pinned” to the table (otherwise that other service user would be of danger to the service users on their mats); AB’s case is that she wanted to reposition the service users to their beds, instead; her case is that she was a whistleblower in relation to the issue of “pinning” the other service user to the table.

DBS’s finding that on 8 February 2023 whilst employed as per the previous finding, AB failed to preserve the dignity of service user SA by transporting him through the home in a state ofundress

4.

AB’s case is that this finding was mistaken because it omits the fact that SA had come downstairs (to use facilities downstairs, because those upstairs, where SA slept, were broken), by himself, in a state of undress; that AB had in fact tried to put a towel around him. AB’s case is thus that it is misleading to describe her as having “failed to preserve SA’s dignity” and “transporting him through the home in a state of undress” – the situation was not one of her choosing, and she was trying to mitigate it.

DBS’s finding that on 22 February 2023 whilst employed as per the previous finding, AB failed to identify that a service user was experiencing a seizure as she had failed to follow the Epilepsy SupportGuidelines

5.

AB’s case is that this finding was mistaken because it omits the fact that she was the only member of staff in the lounge at the time with seven service users; there should have been two staff there; and that is why she did not notice the seizure happening, which she says was “quick”.

DBS’s finding that whilst employed as per the previous finding, AB deliberately and repeatedly called a service user by the wrong name in the presence of the serviceuser

6.

The background to this, according to information on page 42 of the bundle (the referral to DBS), is that the service user’s name was _eni, but AB referred to her as _emi.

7.

AB’s case is that this finding was mistaken because it omits the fact that it was because of her accent, or “the way she speaks”, that AB mispronounced _eni as _emi; it also omits the context that AB went to special effort with, and had a good relationship with, this service user; and in fact one of AB’s character references comes from this service user’s mother.

DBS’s finding that whilst employed as per the previous finding, AB frequently exhibited hostility and unprofessional conduct towards a number of hercolleagues

8.

AB’s case was that this was not fair and accurate. In particular, she denies racism towards colleagues.

DBS’s finding that between 22 January 2024 and 1 March 2024 whilst employed as a support worker for a [charity supporting people with learning disabilities], AB failed to support service users in her care in line with the service users’ wishes and establishedprocedures

9.

AB’s case focused on an incident in a shop with a service user (and which appears to be the reason for the referral to DBS: see page 163 of the bundle), in which she denies being aggressive to the service user.

Why AB’s case is realisticallyarguable

10.

It seems to me realistically arguable that, if AB were found, following fair and just questioning by DBS’s counsel at a hearing, to be a credible and reliable witness, that her evidence would be found more persuasive than that put forward by DBS. I acknowledge that her case is less detailed as regards the last two factual findings set out above, but I think her case remains arguable as

a.

the penultimate finding is broadbrush; AB’s case that it is mistaken is, to a large extent, interwoven with her evidence on the true context for DBS’s other factual findings;

b.

the final finding is also somewhat lacking in specificity; apart from the incident mentioned in the referral to DBS (which AB’s case does address), the only other evidence supporting this finding (that states conclusions as opposed to allegations) appears to be the four bullet points in the letter from the employer of 13 March 2024, on page 213 of the bundle; one of these bullet points appears to be the incident just mentioned; the other bullet points are somewhat vague, which arguably weakens their evidential value.