England and Wales Care Standards Tribunal

Hine v Secretary of State for Education and Skills [2004] EWCST 349(PC) (28 October 2004)

Brian Hine -v- Secretary of State for Education and Skills [2004] 349.PC APPLICATION TO STRIKE OUT UNDER REG 4A DETERMINATION
1. The Secretary of State applies under Regulation 4A to strike out this appeal against the decision to include his name on the list kept under s 1 of the Protection of Children Act. The application is made on the basis that the appeal is out of time.
2. In accordance with Regulation 4A(2), before striking out an appeal, the parties must be invited to make representations on the matter and, if the applicant so requests in writing, the parties must be afforded an opportunity to make oral representations.
3. The applicant in this case requested that he be afforded an opportunity to make oral representations. Accordingly, the application to strike out was considered at an oral hearing in Darlington on 27^th October 2004. At this hearing, the applicant appeared in person, and the Respondent was represented by Ms L Busch, of Counsel.
4. The facts are not in dispute. The applicant was confirmed on the List on 26^th June 2002 in a letter dated that day and signed by Mr M Harrison, the Manager of the Protection of Children Act List. The letter specifically states: "You now have a right of appeal under section 4 of the Protection of Children Act 1999 to an independent Tribunal against the decision to confirm your name on the List. 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." The applicant is informed that an application form for appeal can be obtained from the Secretary to the Care Standards Tribunal and the correct address is given to him.
5. The applicant is told also that if he is unsuccessful in his appeal, or he decides not to appeal, then his name is retained on the list and he will have to wait ten years from the date of inclusion before he can ask the Tribunal for leave to review "your position on the list."
6. He is told in this letter that the Secretary of State may at any time remove his name if he is satisfied that he should not have been included on it.
7. There is no doubt but that the applicant received this letter. We were shown correspondence between the applicant and officials of the Respondent that makes this abundantly clear. The clearest indication of the applicant's position is the letter dated 13^th August 2002 to Ms Tara Noble that states: "I understand my right of appeal as outlined in your letter, but…feel that it largely a paper exercise to give the illusion of justice in action. I am just an ordinary man, not perfect in any way, merely someone who has tried to be a reasonable and responsible citizen throughout my life…I will consider the right of appeal but quite frankly I find the whole process very upsetting and don't feel that I could bear to go through it again."
8. The applicant did not appeal within the time limits as set down by Schedule 4 paragraph 1(2); namely no later than the first working day after the expiry of three months from the date of the letter informing him of the decision. Indeed, he did not file his appeal until 4^th August 2004.
9. Regulation 4A(1) states that the President or the nominated Chairman may at any time strike out an appeal on the ground that it is made otherwise than in accordance with the provisions of the Regulations for initiating the appeal. This has to be read together with Regulation 35(1) that provides the President or the nominated Chairman with the discretion to extend the time limit if (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. A time limit can be extended only when both (a) and (b) are satisfied.
10. The applicant explained the reason why he did not appeal in the summer of 2002. He said that he experienced at that time the trauma of losing his job in York, and then losing another job. He said that he was trying his best to put all of this behind him. He said that he admits he made a mistake and as a result been dismissed, but did not feel he could do justice to himself at that time. He admitted that he was not clinically depressed, and indeed he did not seek medical help.
11. He started a fish and chip shop, and in the summer of 2004 he sold this business. He thought that it would be a good idea to start a taxi company, but he has been refused a licence by the local authority as a result of checks that need to be made. Removing his name from the list now is important for him because otherwise he will not be able to start up this taxi business, and by the time he seeks a review after ten years he said he will be 62 years old and possibly retired.
12. Regulation 35 provides the Tribunal with a discretion to extend the time limit for appealing. Regulation 35 has been applied by the Tribunal to allow an appeal to proceed in the cases of Hawkes [2004] 243PC and Davis [2002] 13 PC. Both of these cases are very different to the present case. In Hawkes, where the three month period was only missed by a relatively short period, there had been administrative failures by the Tribunal Secretariat in not informing the applicant in that case of the time scales. There was also medical evidence of the applicant's medical condition. Finally although it made no findings on the point, the Tribunal drew attention to the difficulties that the applicant had in obtaining legal advice, and the advice that he did receive being singularly unhelpful. In Davis [2002] 13 PC, the blame for the failure to lodge the appeal expeditiously lay firmly at the door of a firm of solicitors.
13. The situation in this case is not one where the Tribunal can exercise its discretion under Regulation 35. It was not unreasonable to have expected the three months period to have been complied with. There is no medical evidence presented by the applicant, and indeed he acknowledges that he was not clinically depressed and did not see a doctor. He was told quite clearly of the time scales, and he was in correspondence at that time stating that he did not intend to appeal.
14. The applicant now wishes to appeal. It is my view of his evidence that he wishes to appeal now because of his desire to start a taxi firm and the listing prevents him from doing this.
15. However, the applicant is aware that he has to wait for the ten year period prior to seeking a review. Allowing an appeal out of time would provide a "back door" for this applicant, and no doubt other applicants, to avoid the procedure as set out by Parliament under s 4B(4)(a)(b) of the Protection of Children Act 1999. The point was made by my colleague in Bromfield-Rabley v Secretary of State [2004] 324.PC [This was a case seeking leave to appeal under s 4(1)(b), out of time, from a decision not to remove her from the list under s 1(3)]. Mr Robertson said: "It follows therefore that Parliament has applied a very strict regime, thus when approaching any application for leave to appeal out of time considerable caution must be applied in ensuring that the application is not in reality a back door attempt at an early review."
16. I am not able to extend the time limits in this case. Accordingly, the application by the Secretary of State to strike out the appeal must succeed on the ground that it is made otherwise than in accordance with the provision in the Regulations.
17. According to Regulation 4A(4), where the President or the nominated chairman has made a determination to strike out an appeal, the applicant may apply to the President for the determination to be set aside. Such an application must be made not later than 10 working days after the date on which notice of the determination was sent to the applicant. I understand that the applicant will be out of the country for ten days as from 29^th October 2004. In those circumstances, I am prepared to exercise my discretion under Regulation 35 to extend the period available to the applicant to apply for this determination to be set aside, until 19^th November 2004. Any application to set aside this determination must be made in writing, setting out the grounds in full (Reg 4A(5)(b)). No application to set aside will be considered after 19^th November 2004.
18. So far as costs are concerned, I invite the Respondent, if it seeks an order for costs, to apply under Regulation 24 setting out why it considers the applicant has acted unreasonably in bringing or conducting the proceedings, and to provide a schedule of costs incurred.

APPLICATION TO STRIKE OUT ALLOWED.

His Honour Judge David Pearl

President

28^th October 2004.