England and Wales Care Standards Tribunal

Debbie Stewart -v- OFSTED [2005] 533.EY
DECISION TO STRIKE OUT THE APPEAL
1. On 5^th August 2005, a provisional decision was made to strike out the appeal in accordance with Regulation 4A(1)(a)(i).
2. Before striking out an appeal, by Regulation 4A(2) the parties must be invited to make representations and the parties must be afforded the opportunity to make oral representations.
3. Accordingly, there was a hearing on 6^th October 2005 when Mr J Jackson of Jones Myers Partnership represented the Respondent and the Appellant appeared in person.
4. It is accepted by the Appellant that David Phillips and Partners, her then legal representatives, received a copy of the Notice of Refusal on the 3^rd June 2005. In fact the original Notice of Refusal was dated 22^nd April 2005. It is not necessary in this case to consider when time began to run, namely from 22^nd April 2005 or from 3^rd June 2005, because an appeal (Form B) dated 26^th July 2005 was not lodged with the Secretariat to the Tribunal until 29^th July 2005.
5. It is accepted by the Appellant that the appeal has been lodged out of time even taking the later of the two dates (3^rd June 2005). This is more than 28 days after service on the Appellant of the decision to refuse the application to register the Appellant as a Day Care provider in respect of Ladybird Academy.
6. There is no power in the Tribunal Regulations to extend the time limits for initiating an appeal under Schedule 2.
7. Having heard Miss Stewart in person and having read the papers submitted by the Respondent in support of the strike out application, I have no doubt whatsoever but that the fault for the late submission of the appeal documents rests with the Appellant's then legal representatives, David Phillips and Partners.
8. Indeed, this is acknowledged by David Phillips and Partners in a letter from them to the Secretariat of the Tribunal dated 24^th August 2005 where the writer of the letter states: "Unfortunately, the fee earner with conduct of this matter was suffering from a personal crisis at the time the appeal ought to have been lodged…It was because of his grave personal difficulties that he missed the deadline for the submission."
9. The firm's notepaper suggests that David Phillips and Partners is a firm with 12 partners, 8 Associates, 3 Consultants, 1 in-house Barrister, 1 legal executive, and 8 Paralegals. It is absolutely clear that the firm fell below the standard of care that was required in the conduct of this matter. The documents show that both the Respondent and the Respondent's solicitors informed David Phillips and Partners of the right of appeal to the Tribunal, of its address, and of the requirement to file within the time scale. In the letter dated 2^nd June 2005, the Solicitors for the Respondent state: "If your client is to appeal please note that this should be done forthwith as there are time limits on the appeal."
10. The Appellant finds herself in a situation where she is unable to pursue her appeal from the decision of the Respondent in this case.
11. One way forward, however, may be to use the provisions in the Day Care and Child Minding (Disqualification) (England) Regulations 2005 that came into force on 3^rd October 2005. I am told by Mr Jackson that the Appellant is disqualified from being registered as a day care provider because of a previous refusal under Part XA of the Children Act 1989 (Schedule 1 para 17(b)). If this is the case, the Appellant can apply to OFSTED for a waiver under Regulation 9, and a refusal to waive the disqualification triggers a right of appeal to the Care Standards Tribunal under Regulation 11.

APPEAL STRUCK OUT IN ACCORDANCE WITH REGULATION 4A(1)(a)(i)

COSTS:

There is a power to award costs in this case in accordance with Regulations 4(A)(3) and 24(1)(2)(3). If the Respondent wishes to apply for costs, the Respondent must submit the application within ten working days of receiving notification of this Decision, and provide a Schedule of costs incurred in respect of the proceedings. If no application is made within the period of ten days, there shall be No Order As to Costs.

ORDER ACCORDINGLY

His Honour Judge David Pearl

President

6^th October 2005.