Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 321 (AAC)

Fecha: 06-Ago-2025

Mistake of fact

Mistake of fact

65.

Mr Masemola contended that the finding that the Appellant lacked empathy flies in the face of material evidence and as was the finding of callousness and harmful behaviour – these were all based on a mistake of fact.

66.

He argued that the history of MOO’s dealings with RR is remarkable – in a period up to 8 months – she claimed no-one among the staff had suffered more from beatings, biting, or being chased by RR, a young adult. Nonetheless, MOO had developed a rapport with RR including acting as a hairdresser for RR to increase her self-esteem. MOO applied the Restraint training (RRN) that she was given, so she knew when RR was ‘kicking off’ and needed to be approached with care. On her mother’s admission MOO stayed loyal in supporting RR throughout her time at the Home.

67.

With regard to the alleged assault, RR did not say anything to her parents about MOO hitting her when she got into the car after incident and when RR immediately stated she had hit the Appellant and had apologised to MOO for it. The parents were incredulous when they later heard from another source about MOO allegedly hurting their daughter knowing that RR would have told her parents if it happened. On the index date, MOO after being hit by RR patiently accepted her apology, ending the fracas over getting weighed. Then, in a forgiving way, MOO let RR input the weight into the weighing App on her mobile phone. Surely that act alone arose from empathy.

68.

Mr Masemola submitted that it was equally incomprehensible that MOO having fallen pregnant after trying for a baby for 5 years and being a dedicated member of staff, would endanger RR, the daughter of people she got on well with, in an unprofessional retaliatory strike against a service user, which could have provoked more violence and endangered the baby she was carrying.

69.

In support of his argument that the finding of relevant conduct was based upon a mistake of fact, he relied on the following reasons undermining the credibility of the alleged assault by MOO on RR at the Home on 5 February 2023:

MOO from the very outset narrated she was the victim of an aggressive assault from RR, but she did not retaliate. When either BB or MJL told MOO she had hit RR, she immediately replied to that member of staff that she had not hit RR. MOO’s training would require MOO to retreat but she could not do so quickly as the kitchen door adjacent to her was closed.

ii.

As stated in her email on 5 February 2023 to EO, MOO declared she did not hit RR.

iii.

She had been RR’s personal support worker for many months and was familiar with RR’s aggressive and unpredictable behaviour. There had been many incidents with RR including; MOO being the recipient of biting, hitting and racist abuse in the past, and in such incidents MOO sometimes had to run into the garden to escape from her.

iv.

After trying to get a child for five years and knowing she was four weeks pregnant she did not wish to risk the pregnancy by any further altercation with RR after she was hit on the chest with the scales on the chest and arm.

vi.

The fact-finding episode with the two support workers contains instances of leading by JH and contradictions with earliest written statements. For example, on 5 February 2023, MOO is said to have “ran after RR” before hitting her on the back; but in March six weeks later, it was recollected that MOO walked “one or two steps towards RR.”

vii.

The Care Plan which MOO was familiar with contained information about RR intermittently making false accusations against staff. It was not referred to.

viii.

RR’s mother referred in her statement to MOO’s commitment to RR. As parents she and her husband experienced episodes especially during the Covid period when their daughter was so difficult or violent that police were called.

ix.

It was said that there was a loud bang, when RR was struck. Neither the employer not the DBS questioned what the true nature of the sound was or its source. Nor does it appear there was any reasonable enquiry into how a blow on the shoulder would make a “loud bang” as opposed to a thud. The question was could the bang have had another source?

There was a voice message from Team Leader Z to MOO exonerating her from any wrong-doing, and a WhatsApp message indicated that after MOO’s suspension and dismissal a member of staff in the Home contacted MOO to say they too had been attacked by RR and falsely accused leading to their suspension, but management had conducted an interview with RR, (in a process not followed in MOO’s case over the incident with RR).

xi.

As already submitted, the original statements of the two staff witnesses, BB and MJL have inconsistencies and so do the fact-finding interview statements on 21 or 27 March 2023. The default position that three witnesses agreed the service user was hit, is not so clear-cut. It leaves sufficient room for doubt to the degree the testimony cannot be regarded as reliable even on a balance of probabilities, that MOO struck RR in a defenceless stance as she walked away.

xii.

The parents of RR had a good rapport with MOO. There was frequent communication and gratitude expressed for MOO persevering and supporting their adult child despite her particularly challenging behaviours. They were told by RR she hit or hurt MOO and she apologised to her for it on 5 February 2023. There was also a rapport between MOO and RR to the extent that MOO allowed RR to enter her weight on the Nourish App on her phone after she came and apologised for hitting MOO that Sunday. It is counterintuitive to suggest a person who must have forgiven her many times would hit RR on her back while she was walking away that morning, soon to be picked up by her parents.

xiii.

The Appellant did not have any blemishes on her work record until the index event and having worked in the sector before, it is not apparent, she had any previous record of misconduct as a care worker.