“5. I have given permission under section 4(2)(b) on the ground that DBS may have made mistakes of fact. Mr Khan disclaimed any reliance on mistake of law under section 4(2)(a). 6. Mr Khan accepted that JE had not used a hoist, as required by the service user’s care plan. She denies lifting the service user alone, saying that she did so jointly with JT. She denies using a headlock. She denies having handled service users in the same way previously. She says that she was confused by the service user’s new chair. Mr Khan drew attention to the absence of previous complaints, JE’s training record (page 47), and the absence of any investigation into the allegation of rough handling. Taking those points as a whole, I consider that there is a realistic prospect of the Upper Tribunal making findings to justify at least referring the case to DBS for reconsideration.”
“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.”
“There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. This includes matters such as who did what, when, where and how. It includes inactions as well as actions. It also includes states of mind like intentions, motives and beliefs. The mistake may be in a primary fact or in an inference. There was a discussion at the hearing about primary and secondary facts and about inferences. It became clear that these terms were used in different senses, so we need to make clear what we mean. A primary fact is one found from direct evidence. An inference is a fact found by a process of rational reasoning from the primary facts as a fact likely to accompany these facts. One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before the DBS. It is sufficient if the mistake only appears in the light of further evidence or consideration.”
“In establishing the above findings we can equally determine the admitted actions, as described by JT, amount to physical handling that is “rough”