England and Wales Care Standards Tribunal

 


Lowe v National Assembly for Wales [2004] EWCST 0425(EA-W) (10 January 2005)

Ellen Lowe

-v-

National Assembly for Wales

[2004] 0425.EA-W

DECISION

Michael Lubienski, solicitor for the Respondent. The applicant in person

1. On the 12^th October 2004, the National Assembly for Wales, being the Registration authority notified the Applicant of its proposal to refuse her application for registration as provider of Gabriels, a domiciliary care agency.
2. Ms. Lowe submitted written representations against the refusal and having considered them the National Assembly for Wales issued a Notice of Decision to Refuse her application for registration on the 10^th November 2004.
3. The Decision Notice identified the applicant's right of appeal to the Care Standards Tribunal within 28 days from the date of service of the Notice.
4. Section 21(1) of the Care Standards Act 2000 states: "No appeal against a decision …may be brought by a person more than 28 days after service on him of notice of the decision."
5. On the 16^th December 2004, an Appeal Form dated the 16^th December 2004 and signed by the Applicant was received by fax at the Tribunal offices. Also sent to the office by fax on that day was a copy of an undated letter enclosing a letter dated the 30^th November 2004 stating: "I would like to formally appeal to the Tribunal to hear my appeal." The undated letter stated that the letter of the 30^th November had been posted to the Tribunal on the 1^st December 2004.
6. On the 17^th December 2004, the President of the Tribunal considered the position in relation to the appeal and found as a fact that the letter dated 30^th November 2004 had not been delivered to the Tribunal until after the 28 days for lodging the appeal had expired.
7. He therefore concluded that the appeal had been made other than in accordance with the provision in the Regulations for initiating that appeal and in accordance with Regulation 4A is liable to be struck out.
8. An order was made provisionally striking out the appeal and stating that unless the applicant indicated her objection to the provisional decision before the 10^th January 2005, the strike out would be confirmed.
9. On the 4^th January 2005, the applicant wrote to the Tribunal indicating her objection to the provisional strike out. A hearing to consider her representations was arranged for the 10^th January 2005.
10. At the hearing, Ms Lowe submitted that she had notified the inspectors of her intention to appeal when she was served with the notice in November 2004. She had started drafting a reply which she believed she had sent to the Tribunal either on the 31^st November or 1^st December 2004 by posting the letter in Penarth. She was very busy at the time trying to find another responsible person for the agency. She heard nothing then until she received a letter from the Care Standards Inspectorate for Wales on the 16^th December informing her that the agency would be closed. She then telephoned the Tribunal and received the appeal form from them, completed it and faxed it to them that day. She was concerned about the effect the closing of the agency would have on the service users. There are 44 service users aged 69 to 104 who will be affected by the decision.
11. Mr Lubienski confirmed that he could provide documentary evidence of service of the Decision Notice on Ms Lowe on the 11^th November 2004.
12. On the basis of the representations made, the Tribunal found as a fact that the Tribunal were not notified in writing of the appeal within 28 days of service of the Notice of Decision, as required by Regulation 1 of Schedule 1 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2003.
13. The Order made on the 17^th December 2004, provisionally striking out the appeal is confirmed.
14. I strike out the appeal.

Order Accordingly

Meleri Tudur

Nominated Chairman

10^th January 2005