[2025] UKUT 219 (AAC)

Finding 1 is that the Appellant neglected Teresa by sleeping on duty, resulting in Teresa leaving her house unsupervised and falling over.

There is no dispute in this case that Teresa left her home unsupervised and fell over. The real dispute is over whether the Appellant’s failure to supervise Teresa was because she was asleep on duty or because she was in the garden hanging out the washing.

We can understand why the DBS reached the conclusion that the Appellant was asleep at a time when she should have been on duty. On the face of it at least, the care agency’s account is both compelling and damning. The allegation is put at its highest in the e-mail from Susan of the ASC team to Nicola at the agency, which refers to “my colleague … shouted but got no answer, she shouted again and got no answer so she went in and found the carer still in bed in her night clothes fast asleep. She woke the carer up and told her Teresa had gone out and had fallen over.” There is, however, no other separate evidence to corroborate this claim – the other references to the Appellant being found asleep all stem from this one claim.

However, we have very real concerns about the reliability of this evidence, essentially for the following reasons.

First, this is a classic case of hearsay evidence. There is no witness statement or note, signed or otherwise, from the ASC team member who was one of Teresa’s neighbours. We are being asked to take effectively as gospel an account which is at best second-hand and cannot be properly tested.

Second, we think there is a real possibility that the neighbours jumped to an incorrect conclusion based on the Appellant’s attire on the day in question – we accept that it was entirely possible that her African wrap may have been mistaken for night clothes.

Third, we consider that there is an inherent contradiction in the criticisms being levelled against the Appellant. The care agency and the DBS both assert that the Appellant was found sleeping on duty, and yet both also state that she neglected Teresa by seeming to be more concerned about the washing. Whether she was indeed concerned about the washing is a matter we go on to deal with in relation to Finding 2. However, just assuming for present purposes that the Appellant was indeed overly concerned with the washing, it is difficult to see how that is consistent with the narrative that she was asleep. Thus, the claim that she was too concerned with the washing actually supports the Appellant’s case that that was the task with which she had just been engaged in.

We therefore consider that there is a material mistake of fact in Finding 1. We find that the Appellant was not asleep when Teresa went outside unsupervised and had a fall. However, we do find the Appellant was at fault by not supervising Teresa closely enough when the Appellant was hanging out the washing, especially given what she knew about Teresa’s propensity to wander.