Why should we not believe her?

Kihembo v DBS [2023] EWCA Civ 1547

Why would they lie? We are all familiar with the oft-repeated refrain of prosecuting counsel – all too often adopted by the tribunal in question. In effect, it would seem it is for the registrant to provide a motive for a false allegation, or an explanation for a misunderstanding. Where they fail, the matter is found proved. It is nice, therefore, to see the Court of Appeal take a robust line in response to this clear reversal of the burden of proof.

Ms Kihembo worked as a live-in carer for SJP who suffered from cerebral palsy and required physical care and support. In 2015 SJP alleged Ms Kihembo had been repeatedly hitting her with a shoe horn and spoon over a period of 3 months. A police investigation over the course of three and half years resulted in no further action. The DBS, however, barred her from working with vulnerable adults and children. It was satisfied on the balance of probabilities that over the course of three months she had hit SJP repeatedly causing red marks to her forehead and thighs, as well as bruising to her knuckles and right eye.

Ms Kihembo appealed to the Upper Tribunal. In doing so, it commented:

“11. SJP has no mental health issues and is mentally competent, so why should we not believe her?”

The judgment went on to consider various explanations advanced by Ms Kihembo setting out why SJP’s evidence should be disbelieved. It did not accept any of them.

Ultimately, whilst in fact rejecting the finding that these assaults lasted three months, the Upper Tribunal upheld the DBS’ decision that Ms Kihembo had assaulted SJP on one occasion.

Ms Kihembo went to the Court of Appeal. The appeal dealt primarily with other matters. For the present purposes, it is enough to note that Ground 3 alleged the Upper Tribunal rhetorical question at paragraph 11 had reserved the burden of proof.

Bean J observed:

“Strikingly, the first sentence of paragraph 11 reads: “SJP has no mental health issues and is mentally competent, so why should we not believe her?

It is impossible to read paragraph 11 without concluding that the UT considered it was for the Appellant to give a satisfactory answer to their rhetorical question, itself based upon the flawed premise that complainants with capacity are credible, and those without are not, and thus to prove her innocence. In short, they appear to me to have reversed the burden of proof.”

The case was remitted back to the DBS to reconsider.

It is to be hoped that other panels and tribunals take note of this observation.

Christopher Geering