‘I feel the decision made did not take into account my 32 years previous experience where I have not had any complaints. Also that I have adopted my grandsons after fostering for over a year and have been commended for the work I have done with my grandson who has had severe anxiety issues. They also left investigation for over a year and a half with me not hearing anything from them and also working in care in that time and did not contact my current workplace for information on how I work and that I am extremely empathetic as always stated by previous homes I’ve worked for. They did not take into account that the two people that started the complaint are also very close to and have a lot of influence over other people that work there and are related to some staff. It feels like SS’s reference wasn’t taken into account or others. I feel that DBS should have at least spoken to me before making a judgement that affects the rest of my life. I feel that all the stuff that I did to improve the same home wasn’t taken into account or my health at the time. I also feel that they could of spoken to social workers and my grandson’s psychologist before putting me on the children’s list.’
“18 …A point of law…includes a challenge on Wednesbury grounds and a human rights challenge. But it will not otherwise entitle an applicant to challenge the balancing exercise conducted by the ISA [ now DBS ] when determining whether or not it is appropriate to keep someone on the list. In my view that is plain from traditional principles of administrative law but in any event it is put beyond doubt by section 4(3) which states in terms that the decision whether or not it is appropriate to retain someone on a barred list is not a question of law or fact. It follows that an allegation of unreasonableness has to be a Wednesbury rationality challenge i.e. that the decision is perverse.”
“23.I would accept that the ISA must give sufficient reasons properly to enable the individual to pursue the right of appeal. This means that it must notify the barred person of the basic findings of fact on which its decision is based, and a short recitation of the reasons why it chose to maintain the person on the list notwithstanding the representations. But the ISA is not a court of law. It does not have to engage with every issue raised by the applicant; it is enough that intelligible reasons are stated sufficient to enable the applicant to know why his representations were to no avail.”
‘We therefore reject the argument that our jurisdiction is limited to what is often termed Wednesbury unreasonableness – that the actions of ISA are so unreasonable that no reasonable body of a similar nature could have reached that decision. The Upper Tribunal will have in all cases the duty to ensure that proper findings of fact are made. This will include both considering any alleged factual errors in the ISA decision and also whether ISA has both identified all relevant evidence and given an appellant a chance to make representations on all relevant evidence. Conversely ISA must ignore irrelevant evidence. In cases of dispute it will be for the Upper Tribunal (and of course the courts on further appeal) to indicate what is relevant.’
‘28.I agree with the observation that there is no longer any point of legal principle raised by this appeal which requires determination by the court, but I do not accept that the parties are in agreement as to the interpretation and scope of the mistake of fact jurisdiction. Far from it. In their further supplementary skeleton argument on behalf of RI Mr Kemp and Mr Gillie write:- "The Upper Tribunal is entitled to make a finding that an appellant's denial of wrongdoing is credible, such that it is a mistake of fact to find that she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS based its decision. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal)." 29.That is in my view an accurate description of the mistake of fact jurisdiction and corresponds with the guidance given by the Presidential Panel of the Upper Tribunal in PF, approved by this court in Kihembo.’
‘43. By way of preliminary observation, the role of the Upper Tribunal on considering an appeal needs to be borne in mind. The Act is intended to ensure the protection of children and vulnerable adults. It does so by providing that the DBS may include people within a list of persons who are barred from engaging in certain activities with children or vulnerable adults. The DBS must decide whether or not the criteria for inclusion of a person within the relevant barred list are satisfied, or, as here, if it is satisfied that it is no longer appropriate to continue to include a person's name in the list. The role of the Upper Tribunal on an appeal is to consider if the DBS has made a mistake on any point of law or in any finding of fact. It cannot consider the appropriateness of listing (see section 4(3) of the Act). That is, unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity with children or vulnerable adults, is a matter for the DBS. 55. Section 4(7) of the Act provides that where the Upper Tribunal remits a matter to the DBS it “may set out any findings of fact which it has made (on which DBS must base its new decision)”. It is neither necessary nor feasible to set out precisely the limits on that power. The following should, however, be borne in mind. First, the Upper Tribunal may set out findings of fact. It will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to a marriage being a "strong" marriage or a "mutually-supportive one" may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third "finding" would certainly not involve a finding of fact. Secondly, an Upper Tribunal will need to consider carefully whether it is appropriate for it to set out particular facts on which the DBS must base its decision when remitting a matter to the DBS for a new decision. For example, an Upper Tribunal would have to have sufficient evidence to find a fact. Further, given that the primary responsibility for assessing the appropriateness of including a person in the children's barred list (or the adults’ barred list) is for the DBS, the Upper Tribunal will have to consider whether, in context, it is appropriate for it to find facts on which the DBS must base its new decision.’
‘The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.’
“on different occasions VM has gone upstairs and signed the mars sheets at 5[pm] (but signed for all of the 8[pm] medication) so she can have a headstart”
“VM was telling staff that if she was [DH’s] secret santa she would get [DH] femfresh because she stinks” and had “said this in front of” service users. According to the note, GH repeated the same in her IM [61], adding that VM had, around Christmas time, been “telling” it to “everyone who would listen”. (b) SJR is recorded as having said in her IM [59] that VM had said DH needed femfresh. (c) KC is recorded as having said in her IM [68] that she “witnessed”
‘Following your failure to attend the disciplinary hearing arranged for Monday12th April 2021 to be held in the presence of AV, Registered Manager and NJ, Deputy Manager In my letter I informed you that, should you not attend the hearing, a decision could be made in your absence based on the evidence available to us. As you failed to attend the disciplinary hearing, as you offered your resignation08/04/2021 effective immediately, I now write to inform you of my decision. The allegations considered at the disciplinary were:- 1. Failing to use Moving and Handling Equipment in line with the Policy and Procedures. • 3 staff have stated during interview or statements that VM has disclosed to them or others that she has lifted DL on her own and given this as a reason her arms are sore. VM did not attend the hearing therefore did not offer an explanation however during investigation she denied all allegations against her. No mitigation offered as VM did not attend the hearing. VM denied all allegations against her and felt that the staff had conspired against her. • The behaviour in questions contravenes Manual Handling H&S26 policy, Health and Safety atWork Act 1974 ,Manual Handling Operations Regulations 1992 and Safeguarding Adults, OP08 • The conduct contravenes the training that VM has completed which is People Handling on11/04/2021 . VM also holds a NVQ 3 and is in a management position. VM also completing safeguarding Adults ELearning29/05/2020 and Face to Face Safeguarding23/04/2021 • DL support plan (SP03) Mobility 8t Transport under control measures that DL is 2:1 for all transfers. This support plan was written by VM. • The concerns raised are that VM failed to use people handling correctly - the action that should have been taken is to follow the support plan and training in place to lift DL correctly. The way in which DL was lifted amounts to neglect. • The conduct in question would have put not only VM at risk of injury but also DL, lifting independently could result in serious injury which would constitute a safeguarding concern, it is also a breach of Manual Handling regulations and company policy. • I would uphold this allegation on the balance of probability the evidence shows that VM has breached Policies & Procedures in relation to using moving & Handling equipment. She has also put DL at risk under the safeguarding adults policy as lifting independently is unsafe and neglect of a service users needs. 2. Falsifying Medication Documents. • The evidence shows that 2 staff have witnessed or been on shift when VM has signed the MAR sheets for medication prior to the medication being given. • VM did not attend the hearing therefore did not offer an explanation however during investigation she denied all allegations against her. • No mitigation offered as VM did not attend the hearing. VM denied all allegations against her and felt that the staff had conspired against her. • The conduct in question contravenes the Management of Medications in Sites/Homes with No Nursing Services AC(SR)07 policy and Safeguarding Adults OP08. VM also holds a NVQ 3 and is in a management position. • VM has completed her Care of Medicines Boots on11/06/2020 and also a medication competency assessment on19/06/2020 . The conduct in question breaches the training provided, at no point during this training are we trained to complete MAR sheets in advance of medication being administered. • During training we are trained to ensure all medication has been administered and accepted before signing the MAR sheet. Signing the MAR sheet in advance could have led to the service user missing their medication and putting their health and well being at risk. • The conduct in question was wrong as this could have led to service users medication being omitted (missed) if there were a reason for VM to be called away. This could have had an impact on the service users mental and physical well being. • On the balance of probability I am upholding this allegation there are 2 staff members who have witnessed this occurring. 3. Falsifying Daily Notes. • The evidence from the investigation shows that there are 3 staff that states during interview they have witnessed VM write daily notes prior to events taking place. • VM did not attend the hearing therefore did not offer an explanation however during investigation she denied all allegations against her. • No mitigation offered as VM. did not attend the hearing. VM denied all allegations against her and felt that the staff had conspired against her. • VM holds an NVQ 3 and is in a management position. A Completion of progress notes competency assessment was completed on20/03/2020 . • As VM is in a management position the expectation is that she should lead by example. • The conduct in question is considered as fraudulent, this can have an impact on company reputation, is reportable to CQC. • During the investigation VM denied the allegation against her, however on the balance of probability I conclude that this allegation is upheld. … 5. Breaching Professional Boundaries. • There are 4 staff that state they have heard VM talk about staff and how she feels about them i.e. "if it was that easy to get rid of her id have put her on nights a long time ago", "if you lie to me I'll punch you in the face" and "I would buy her femfresh because she stinks" The statements provided by staff shows that VM has on more than one accession talked about how she feels about the staff. • VM did not attend the hearing therefore did not offer an explanation however during investigation she denied all allegations against her. • No mitigation offered as VM did not attend the hearing. VM denied all allegations against her and felt that the staff had conspired against her. • The conduct in question contravenes Professional Relationship Boundaries OP41 • There appears to be a culture of management discussing or saying things in front of staff that should not be disclosed. • On the balance of probability I conclude that this allegation is upheld. … As the concerns that have been raised are being treated as a safeguarding issue and may amount to gross misconduct, we would be duty-bound to refer our findings to the DBS who may contact you further in relation to this matter, and' a decision may be taken by them in relation to any impact these findings may have on your ability to work with vulnerable groups in the future. Any future reference response would confirm that you resigned during a safeguarding investigation. As you resigned there is no right of appeal.’