England and Wales Care Standards Tribunal

 
Esther Aliyu (Excel Kids Club and Childcare Services Ltd) v OFSTED St Peter's Church Hall [2004] 254.EY Kambala Community Centre [2004] 257.EY Wandsworth Community Hall [2004] 258.EY St Joseph's Church Hall [2004] 260.EY
APPLICATION BY THE RESPONDENT TO STRIKE OUT
1. This is an application by the Respondent to strike out the appeals under the provisions of Schedule 2 paragraph 4(1)(a) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, on the basis that the applications were made otherwise than in accordance with paragraph 1.
2. At the hearing before me on 19^th January 2004, the Respondent was represented by Ms S Freeborn of Counsel and the Applicant was represented by Miss McMeachan of Counsel.
3. It is submitted by the Applicant that the appeals in these cases are against decisions taken by the Respondent of serving Notices either of intention to refuse applications for registration or of cancelling a registration under s 79L(1) of the Children Act 1989. The right of appeal is provided by s 79M of the Children Act inserted by s 79 of the Care Standards Act 2000.
4. It is common ground that the Notices were dated 8^th December 2003 and were received by the Applicant on 11^th December 2003.
5. According to Schedule 2 paragraph 1(2), an application must be received by the Secretary no later than 28 days after service on him of notice of the decision to take the step in question. An application may be made on the application form available from the Secretary (and downloadable from the Tribunal website); the B1 Form.
6. In accordance with paragraph 1(4) the application must –

(a) give the applicant's name and full postal address, if the applicant is an individual his date of birth, and if the applicant is a company, the address of its registered office;

(b) give the name, address and profession of the person (if any) representing the applicant;

(c) give the address within the UK to which the Secretary should send documents concerning the appeal;

(d) give, where these are available, the applicant's telephone number, fax number and e-mail address and those of the applicant's representative;

(e) identify the decision against which the appeal is brought and give particulars of –

(i) whether the appeal is against the refusal or cancellation of registration, or the imposition, removal or variation of any condition of registration, or the imposition, removal or variation of any condition of registration, or a refusal to remove or vary any condition;

(ii) whether the appeal is against a decision of the registration authority or a justice of the peace;

(f) give a short statement of the grounds of appeal; and

(g) be signed and dated by the applicant.

7. It is common ground between the parties that the 28 day period available for lodging an appeal expired on January 9^th 2004. Miss Freeborn submits that at that date no valid appeal conforming with the provisions of paragraph 1(4) had been submitted, and as there is no discretion to extend this particular time limit because this is expressly excluded by Regulation 35(3), the applications must be struck out.
8. One can ascertain what happened in these cases on the basis of a number of emails that are on the computer of the Secretariat of the Tribunal. It would seem that on 2^nd January 2004, there was a telephone call conversation between a member of staff of the Care Standards Tribunal and a Mr Khan, a Solicitor at Knights and Co, solicitors. As a result of that telephone conversation, the member of staff emailed Mr Khan with a B1 Appeal Application form. The B1 Form is of course the Form required for appeals brought under s 79M, and thus one can infer that the telephone conversation took the form of the Solicitor seeking advice on how to appeal decisions under s 79M of the Children Act 1989. It would appear that this email and its attachment did not arrive. There is a Delivery Failure Report that states the document was not delivered because "this message is larger than the current system limit or the recipient's mailbox is full."
9. The member of the Secretariat who had been involved in this matter sent a further email to Mr Khan on 5th January that states "Dear Sir, I have been trying to send you an appeal form but the message is undeliverable because your mailbox is full. Can you please contact me when (sic) I can resend this?"
10. On 6^th January 2004 at 12.52pm, another member of the Secretariat sent the website link to Mr Khan at a second email address.
11. Later that day. The Solicitors enclosed one appeal form. This is a D1 Form. At 16.23 that afternoon, the first member of the staff emailed Mr Khan as follows:

"Dear Sirs. Thank you for your fax enclosing a D1 appeal form. However the D1 is for appeals against suspension of registration or refusal to lift suspension. To appeal against a Decision to Cancel or Refuse registration, you need to fill in a B1 appeal form (please find attached). I would be obliged if you could fill in a B1 form for each of the decisions your client is appealing against. Can you also send copies of the Notices of Decision with the appeal forms.

For your information, we have registered the appeals as received today. I would be grateful if you could send the B1 appeal forms to us as soon as possible." [The cases are registered under the numbers 254,257 and 258]

12. On the 9^th January 2004 all that had been received on paper was the D1 Form. Counsel for the Applicant concedes that this form is the incorrect form, and does not provide the information as required by Schedule 2 paragraph 1(4). However, she submits that the Tribunal knew that these were Schedule 2 appeals as a result of the telephone conversation on January 2^nd 2004, and that the solicitor representing the applicant was told by email on 6^th January 2004 (within the time limits) that the appeals had been registered and that the B1 Forms should be returned "as soon as possible."
13. I have to consider whether, prior to January 9^th 2004, applications had been made; albeit on an incorrect Form. I sympathise with the arguments advanced by Counsel for the Respondent. No appeal right can be open ended and time scales must be introduced to ensure that children are protected. In this legislation one is concerned with the welfare of children. The provision of day care at St Peter's Church Hall ([2004] 254.EY) remains open, and the children remain cared for by the applicant and her staff.
14. However, in reaching my decision I have an obligation to comply with my responsibility under the Human Rights Act 1998 and in particular to ensure that my decision is in conformity with Article 6 of the European Convention on Human Rights. I must be careful to ensure that any decision I take does not deprive the applicant of the right of appeal that has been provided by Parliament in s 79M of the Children Act 1989 so as to comply with Article 6.
15. I must ensure that I approach this application to strike out by adopting a proportionate response. Strike Out is a draconian provision under these Regulations and, at the present time, there is no internal appeal or review procedure. Case law in the Tribunal has already confirmed this position [Woodbine Villa (Shahid Akhter and Tanveer Salam v NCSC [2002]116.NC]. The only remedy against a successful strike out would be to judicially review the decision. Such a remedy is not satisfactory in this context, being as it is simply an examination of the reasonableness of the decision, rather than a consideration of whether the decision is right or wrong.
16. There are two provisions in the Regulations that allow errors to be corrected. The first is Regulation 29. This Regulation is not relevant to the facts of this case, in that it is concerned with matters other than the application itself. However, Regulation 29 does provide a framework to the Regulations and encourages me to interpret the Regulations in such a way that there is available to the President a margin of flexibility so as to ensure compliance with the Human Rights Convention.
17. The other provision is Schedule 2 paragraph 2(2). This states that if in the Secretary's opinion there is an obvious error in the application

(a) he may correct it

(b) he must notify the applicant in writing that he has done so; and

(c) unless within five working days of receipt of notification under head (b) of this subparagraph the applicant notifies him in writing that he objects to the correction, the application shall be amended accordingly.

18. Paragraph 2(2) is not relevant to this case. The applicant's lawyer had submitted a wholly inappropriate form, dealing with a single suspension of registration, rather than submitting three B1 Forms containing the information required by Schedule 2 paragraph 1.
19. What should have happened on January 6^th 2004, with the benefit of hindsight, is clear. The staff should have informed the representative of the applicant that separate B1 Forms must arrive by 9^th January 2004, or otherwise there was a possibility that the applications would be struck out.
20. It would be wrong in my view, and wholly disproportionate, to strike out this appeal. The mistakes that were made, by her lawyers in filling in the D1 Form, and by the staff in telling the lawyer that the B1 Forms should be submitted "as soon as possible" were not mistakes made by the applicant.
21. I am reassured that this is the correct approach, by what subsequently happened. On the 13^th January 2004, the file was drawn to my attention, because at that time no B1 forms had arrived. I was aware from conversations with the Secretariat staff that there were three appeals, although I believed on the basis of the D1 form that the decisions had been taken on 11^th December 2003. It is common ground that the decisions were served on that day.
22. I issued the following Unless Order:

2. The Appeals have been registered by the Secretariat, but on 6^th January 2004, the Secretariat requested the Solicitors to fill in the appropriate form (B1) for each of the three appeals and to send copies of the Notices of Decision

3. As of today's date, the appeal forms have not been received.

4.The Solicitors acting on behalf of the applicant is asked to fill in the correct forms (attached to this Direction) within five working days of receiving this Direction.

5….

6.Accordingly, I now ORDER that unless the applicant, either directly or through her solicitors, within five working days of receipt of this DIRECTION and ORDER files Form B1 in respect of each of these appeals with the Secretariat, the cases may be determined in favour of the Respondent.

23. It would seem that the lawyer representing the applicant, in response to the emails of 6^th January 2004, submitted one B1 form that arrived at the Tribunal on 13^th January 2004 but only after the Unless Order had been signed. This B1 form contains inaccurate information about these appeals, but I do not need to refer to it because the Unless Order was complied with and FOUR B1 Forms arrived on 19^th January 2004 signed by the applicant on 16^th January 2004.
24. In consequence, and as a result of the Unless Order, the appeals are now "on track". I do not accept that the Respondent has been prejudiced in any way. The Respondent has 20 working days from receiving the information provided by the applicant to respond to the application. It is common ground that this information (namely the 4 B1's) was received on the 19^th January 2004. Thus the Response should be with the Tribunal no later than 18^th February 2004.

Accordingly, I hereby ORDER

(1) The application to strike out these appeals is dismissed

(2) The Tribunal had been informed prior to January 9^th 2004 that there were three applications [254,257 and 258] brought under s 79M of the Children Act 1989 from decisions under s 79L of the Children Act 1989

(3) The application had been made on an incorrect document

(4) As a result of the Unless Order dated 13^th January 2004, four applications have now been submitted

(5) Counsel for the Applicant is without instructions in relation to case [2004] 260.EY (St Joseph's) and in consequence it would be wrong of me to deal with that matter solely on the basis as suggested by the Respondent, that the application to Register had been withdrawn and thus there is no adverse decision on which to appeal.

(6) The Respondent has 20 working days from the date of the receipt of the Forms to respond to the applications; namely 18^th February 2004.

25. I conclude by making a general observation. I do not wish to allocate any blame in this case. However, Counsel for the Applicant had to concede that those instructing her have made mistakes in this application by submitting an incorrect Form (D1) and failing to comply with the time scale of 28 days after service of the notice of decision (Schedule 2 Regulation 1(2)) to submit the appropriate B1s. This area of law is a new and rapidly developing area. The Tribunal website provides considerable information, and the Statutory material is available in commercial publications. It is incumbent on legal advisers to ensure that they are familiar with the Statutes and Regulations and, if they consider it necessary, to seek advice from the Secretariat immediately.

His Honour Judge David Pearl

President

26^th January 2004.