England and Wales Care Standards Tribunal

Hawkes v Secretary of State [2004] 243(PC) (25 March 2004)
 
Alan Hawkes v Secretary of State
[2004] 243.PC
APPLICATION BY THE RESPONDENT TO STRIKE OUT THE APPEAL


1. This is an application by the Secretary of State to strike out the appeal of Mr Alan Hawkes. At the hearing before me, the Respondent was represented by Mr J Moffett of Counsel and the Applicant was represented by Mr A Sharland of Counsel.

2. I gave my decision at the conclusion of the hearing that the application to strike out be dismissed and gave my reasons for this decision. I now provide these reasons in writing.

3. The facts are not in dispute. I do not of course deal with any of the facts as to why the Appellant has been placed on the Protection of Children Act list.

4. On 28^th November 2002, the Department of Health (the Government department then responsible) wrote to the Appellant stating that his name had been provisionally included on the statutory list. On 22^nd August 2003, the Appellant was informed by letter that his name had been confirmed on the list. He was told that he had a right to appeal to an independent Tribunal against the decision to confirm his name on the list, and the letter stated:

   "If you wish to exercise this right of appeal you must make an application to the Tribunal within three months of the date of this letter."

5. It is common ground between the parties that the deadline for receipt of an appeal was 24^th November 2003.

6. The Appellant wrote to the Tribunal on 31^st October 2003. This letter was received by the Tribunal on the 6^th November 2003. The letter reads as follows:

   "I write requesting a copy of the guidance explaining how to appeal a decision to have had my name included on the POCA list. Please also lodge that I will be appealing that decision, and that this letter is dated 31^st October 2003. Please also note that the completed appeal will not be sent to your offices until 10^th December 2003. Although this does not keep strictly to the 3 month period suggested in the letter dated 26^th September 2003 from the Department for education and skills, you should be aware that I will not be in the country from 2^nd November 2003 – 27^th November 2003. The delay in writing to notify you of my intention to appeal lies in the fact that I have been waiting for Extended Reasons from an Employment Tribunal which dismissed my Employers claim of gross misconduct relating directly to the matter. I received the extended reasons on 27^th October 2003."

7. The Secretariat was in contact with the Respondent. There is an email on file from an official of the Protection of Children Act list to the Secretariat saying. "As discussed. We wrote to Mr Hawkes on 22 August explaining that the Secretary of State had confirmed his name on the Protection of Children Act list".

8. On 21^st November 2003, the Secretariat wrote to Mr Hawkes the following letter:

   "Thank you for your letter in which you express your intention to appeal to the Care Standards Tribunal. I have enclosed an A1 Appeal Application Form to enable you to do this. Please return the completed form as soon as possible".

9. Not having received the A1 form, the Secretariat telephoned the Appellant on 30^th December 2003, and there is a file note that states: "he still intends to appeal and will send A1 first week of January. Notified him that he is out of time…"

10. In fact, the A1 form arrived in the Care Standards Tribunal offices on the 17^th February 2004, with a covering letter dated 9^th February 2004. Before this arrived however I had issued an Unless Order pursuant to Regulation 10 on 4^th February 2004 that stated that unless the Appellant within five working days of receipt of the Order files Form A1 with the Secretariat, the case may be determined in favour of the Respondent.

11. Counsel for the Appellant concedes that the letter dated 31^st October 2003 does not comply with Schedule 4 paragraph 1(4) of the Regulations. The real issue in this strike out application is whether the appeal should be registered by the Tribunal. This can only be done if the time limit for lodging the appeal is extended by virtue of Regulation 35.

12. Regulation 35 states that the President may extend any time limit (except the time limits for initiating an appeal mentioned in para 1 of Schedule 2,6,7,8 or 9) if in the circumstances –

    (a) it would be unreasonable to expect it to be, or to have been, complied with; and

    (b) it would be unfair not to extend it.

13. Counsel for the Respondent submitted that I had no jurisdiction to extend the time limit in this case because both subsections of Regulation 35 could not be satisfied. The Respondent's case is that it was reasonable to have expected the time limit to have been complied with, that he knew that he had three months in which to file his application for appeal, and that there is no reasonable explanation as to why he did not do so.

14. Mr Sharland submits that the time limit should be extended in this case. He submits first that the Respondent misled and potentially confused the Appellant when it stated in the letter dated 28^th November 2002 that the Appellant could not appeal until six months after the end of any civil or criminal proceedings in connection with the allegation that is the subject of the referral. So far as this letter is concerned, it is of course only dealing with the provisional listing. It correctly states the law, and I do not find the letter confusing in any way. There is no evidence to support the view that the appellant was misled by this letter.

15. The second submission of Mr Sharland, namely that the Respondent further confused the Appellant by implying that he needed an Application Form and failing to inform him what information his appeal should include, is similarly unattractive. I do not find the letter of 22^nd August 2003 misleading, and there is no evidence to show that the Appellant was misled in any way by that letter.

16. In the light of this case, it may be that the Secretary of State should consider whether it would be appropriate for the future handling of these cases to provide more information in their letter informing an Appellant that he or she has been confirmed on the Protection of Children Act list. For example, it would be relatively straightforward for the Secretary of State to enclose a Form A1 or at least to inform the appellant that the Form is available on the Tribunal website.

17. More important are the third and fourth submissions of Mr Sharland. He refers to the three week delay by the Tribunal Secretariat in sending the Form A1 and the failure of the Tribunal Secretariat to state that the time limit was about to expire, and in the letter dated 21^st November 2003 merely requesting that the form be returned as soon as possible.

18. It is understandable that the Secretariat may have the view that as the Appellant said that he would be out of the country until 27^th November 2003 that there was no urgency in replying immediately to the letter that arrived on the 6^th November 2003. However, the staff should have replied and should have informed him of the time scales, especially as they were aware of the date that he had been confirmed on the list.

19. The letter dated 21^st November 2003 did not suggest any real urgency. The appellant returned to the country on 27^th November 2003, and he should have been told that the form must be returned immediately.

20. There were two administrative failures by the Secretariat and it would not be right for the Appellant to be penalised for these failures.

21. Mr Sharland drew my attention to the Appellant's medical condition, and I have read one letter from a doctor about this matter. I accept that the Appellant's medical condition may well have played some part in the way he handled his affairs during the latter part of 2003.

22. Mr Sharland drew my attention also to the difficulties that the Appellant had in obtaining legal advice, and that when he did obtain this advice it was singularly unhelpful. I have not heard any evidence on these matters and therefore I have not been able to look at this submission in any detail.

23. In Neville Davis v Secretary of State [2002] 13.PC, I had before me a strike out application where I accepted that the blame for the failure to lodge the appeal expeditiously must lie firmly at the door of a firm of solicitors. I do not believe that the facts of the present case are identical to Davis. But it is important to err on the side of caution in an area where the consequences for the Appellant are so draconian. There is some evidence drawn to my attention by Mr Sharland of the advice given by a firm of employment law consultants and this does give some cause for concern. It is not appropriate to penalise the Appellant for these shortcomings.

24. I turn to the second part of Regulation 35. In allowing the case to proceed, the Respondent will be involved in the expenditure of public money. But if I were to strike out the case, the implications for the Appellant would be very severe indeed. I bear in mind what I said in Davis: "It is not in the spirit of the duty on the Tribunal to act fairly to strike out the application."

25. Thus both parts of regulation 35 are satisfied and accordingly, in the exercise of my discretion, I extend the time scale that the Appellant had to submit his application in accordance with Schedule 4, to February 17^th 2004.

26. I make absolutely clear to the Appellant, who now has competent legal advisers, that he must ensure that all steps requested by the Tribunal to bring the matter to a hearing are complied with by him within the time scales.

    APPLICATION TO STRIKE OUT THIS APPEAL DISMISSED.

    His Honour Judge David Pearl

    President

    25^th March 2004.