[2025] UKUT 302 (AAC)

We find that the management of the supported living home had created a virtually unworkable situation whereby PEO, the night-support employee on site at the time, who had knowledge and experience of where medication was kept at the assisted living home and how it was to be administered to residents, had had his authorisation to administer medication suspended (and was on a personal instruction plan to ensure his skills in this area were up to scratch) - and yet the person relied on to administer medication that night was an agency worker who had comparatively little knowledge or experience in this area. The outcome was that PEO had, in effect, to tell the agency worker what to do as regards administering medication, without doing it himself. DBS’s factual finding was therefore mistaken: it was the agency worker who administered the medication, albeit under PEO’s guidance and with his assistance.

In coming to this conclusion, we have preferred PEO’s evidence (written, and orally at the hearing) over the short written accounts of the deputy manager and of the agency worker (see [11d ii. and 11e] above). We found PEO’s evidence on this matter coherent, plausible and believable. In contrast, the deputy manager was not present at the incident itself; her account was based on what she said the service user had told her; on the circumstances as presented (in our view, coherently) by PEO, it is easy to see why a service user may have felt, or perceived, that PEO was administering the medication, as he was involved (inevitably, due to the situation created by management, as described above) in helping in its administration. As the deputy manager did not appear as a witness before us, we had no opportunity to hear her questioned on her account. The agency worker was, of course, present at the incident; but given the choice between PEO’s evidence, which was coherent and subjected to cross examination, and that of someone who we had no opportunity to see respond to questioning, we preferred the former.

Counsel for DBS invited us to give credence to the agency worker’s evidence because it did not cast him in a very positive light (the evidence at [11e] above is not wholly coherent, but seems to imply that the agency worker signed for the medication even though the agency worker “allowed him” i.e. allowed PEO to give it); however, without having the agency worker as a witness before us, such that we could make some meaningful judgement as to his character (and so how bothered he was about being cast in such a light), this was not a point that weighed very much in the balance for us.

Counsel for DBS also stressed the weakness of PEO’s opinions as to why the deputy manager (and the staff member responsible for the evidence at [11h] above) would have wanted to say untrue things about him: PEO gave his view that this was because he had criticised practices at the assisted living home, and this was resented by management there. This point, again, did not weigh very heavily in the balance for us: our primary task is to decide if DBS made a mistake in this finding of fact; the fact that PEO, who we found generally credible and coherent on this point, could not fully explain something outside his personal knowledge - why another person (who did not appear before us to give evidence) had a different account of things - was not a decisive point for us.

We acknowledge that the employer’s investigation (see [11i i.] above) came to a different factual conclusion; but as they did not appear to have any evidence we did not, and as the authors were not available to give evidence and answer questions before us, this made little difference in our consideration of all the evidence before us.