England and Wales Care Standards Tribunal

Delanty v Secretary of State [2006] EWCST 681(PVA) (22 June 2006)

David Delanty

-v-

The Secretary of State

[2006] 681 PVA

[2206] 682 PC

Before:

Mr Stewart Hunter

[nominated Chairman]

Sitting at the Care Standards Tribunal on 9^th June 2006

Attendance

Mr.D. Delanty appeared in person..

Mr Auburn (Counsel) for the Secretary of State.

APPLICATION BY THE RESPONDENT TO STRIKE OUT THE APPEALS

1. This is an application by the Secretary of State to strike out the appeals of Mr David Delanty.
2. On the 30^th March 2005 the Respondent wrote to the Appellant saying that he had been provisionally included on the Protection of Vulnerable Adults, ("POVA"), list Further that the Appellant had also been provisionally included on the Protection of Children Act,("POCA") list. On the 30^th November 2005 the Respondent informed the Appellant by letter that his name had been confirmed on both the POVA and POCA lists and that as a result of being on the POCA list he had also been included on the Education Act list, commonly known as List 99.The Appellant was told that he had a right to appeal to an independent Tribunal against the decision to confirm his name on the POVA and POCA lists. The letter also stated that:

"If you wish to exercise your right of appeal you must make an application to the Tribunal within 3 months of the date of this letter."

3. It was agreed between the parties that the deadline for receipt of the appeal was the 1^st March 2006.
4. On the 7^th February 2006, the Appellant wrote not to the Tribunal, but to the Department of Health. A copy of the Appellant's letter was produced to me. The first paragraph of the letter states as follows:

"I wish to appeal against your decision to include my name on the three lists."

The letter gave the Appellant's home address. The Appellant told me that whilst he had a telephone number he did not have a fax number or an e-mail address and that he was representing himself.

5. Mr Auburn told me that on receipt of the Appellant's letter of the 7^th February 2006, the Respondent forwarded it to the Tribunal as an e-mail attachment. On the 9^th February 2006 the Tribunal wrote to the Appellant enclosing an Appeal Form A, a copy of "A Guide to the appeals process and procedure of the Care Standards Tribunal" and details of the Bar Pro Bono Unit. The letter included the following statement:

"It is my duty to inform you that, in order for your appeal to be considered, you must submit your completed form within 3 months of the date of the letter informing you of your inclusion on the list."

6. On the 29^th March 2006, the Tribunal received from the Appellant, the Tribunal Appeal form, indicating that the Appellant wanted to appeal against his inclusion on the POCA, POVA and Education lists. In response to the questions on the form as to when he had received the letter giving him the decision against which he was appealing, the Appellant had initially inserted the 30/11/05, but had then crossed out that date and written underneath the 9^th February 2006. In respect of the Education list the Appellant had written the 39/11/05 and not crossed it out.
7. The Appellant wrote to the Tribunal on the 4^th May 2006 and stated in his letter that:

"During the time of my completion date and final application date I was robbed by a so called friend and most of my information was lost, including the expiry date and thus was in limbo as to the dates,"

At the hearing the Appellant told me that the robbery had taken place sometime between Christmas and New Year 2005, his video and DVD players had been stolen and his papers had been disturbed. He had not reported the matter to the police, as he had not seen any point..

8. As regards the Tribunal letter of the 9^th February 2006, the Appellant told me that he had found the letter confusing and he had thought that he had 3 months from the date of that letter to return the Appeal form to the Tribunal.
9. Counsel for the Respondent submitted that the receipt of the Appellant's Appeal form by the Tribunal on the 29^th March 2006 was out of time and accordingly the appeal should be struck out.

Schedule 5 section 1 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, ("the regulations"), set out how an appeal should be initiated. Schedule 5 paragraph 1 (2) states that:

" An application under this paragraph must be received by the Secretary, (of the Tribunal) no later than the first working day after the expiry of three months from the date of the letter informing the applicant of the decision."

10. Counsel for the Respondent also submitted that the Appellant's letter to the Secretary of State of the 7^th February 2006 should not be treated as a valid application to appeal, notwithstanding that it reached the Tribunal before the deadline of the 1^st March 2006.

Firstly because it was not sent directly to the Tribunal by the Appellant, but that it had arrived at the Tribunal only after having been forwarded by the Secretary of State. I reject this argument, Schedule 5, paragraph 1(2) simply states that the application "must be received by the Secretary……", it does in my view not invalidate an application simply because it is forwarded on by a third party.

Secondly it was argued that the Appellant's letter of the 7^th February 2006 does not comply with the requirements of Schedule 5 paragraph 1 (4); in particular the letter did not give the Appellant's date of birth, details of his representative, an address for service of documents, no telephone number, fax or e-mail address. Although it was accepted that the letter did give the Appellant's name, address and his reasons for appealing.

As the Appellant is unrepresented he clearly had no details of a representative to give, he did at the top of the letter give his home address. I do not consider that he needed to separately give an address for service. He does not have a fax number or an e-mail address. Therefore there only appears to be two items of information missing, namely the Appellant's date of birth and telephone number.

I note that Schedule 5 paragraph 1 (4) indicates that an application must contain certain prescribed information. However I cannot believe that it was Parliament's intention that if an unrepresented Appellant submits an appeal in writing within the time limits giving his name, address and reasons for appeal that it should be ruled out of order simply because someone has, for example, not included a fax number or e-mail address. It seems to me in those circumstances and more importantly in the circumstances in this case, that Appellants should be requested to supply the missing information with penalties in default. Whilst the regulations do not require an Appellant to use the Tribunal's appeal form, clearly a lot of these problems could be avoided if that form is used.

11. I am therefore inclined to the view that the Appellant's letter of the 7^th February 2006 was a valid appeal. However if I am wrong on this point and the first valid appeal from the Appellant was not received by the Tribunal until the 29^th March 2006, then it is clearly out of time .It can then only be registered if the time limit for lodging the appeal is extended by virtue of regulation 35
12. Regulation 35 states that:

"the President or the nominated chairman may, having consulted the parties in the case, extend any time limit, mentioned in these Regulations."

In their letter of the 21^st April 2006, applying to strike out these appeals, those representing the Respondent said that the Appellant had not at that time made any application under regulation 35 to extend the time limits for lodging his appeal. In my view regulation 35 does not require an application by a party, but in any event the Appellant in his letter of the 4^th May 2006 states that:

"I was not aware of my appeal date, to extend my appeal, but I wish to do so now."

Accordingly I consider that I have the necessary jurisdiction to consider whether or not to extend the Appellants time for submitting his appeals.

13. Regulation 35 sets out the factors which I need to consider; in essence it is a two part test. Regulation 35 (1)(a) states; (referring to any particular time limit)

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

I was referred to a number of earlier Tribunal cases in particular, Bromfield-Rabley v the Secretary of State [2004] 324.PC in which Mr Robertson commented at paragraph 10 as follows:

"As stated at the outset given the onerous nature of the statutory scheme, there is a heavy burden upon the Applicant to show that there are good and valid reasons as to why leave to appeal should be granted out of time. Actual notice of the right at the time will almost invariably render such an application futile. I would go further and say that in the absence of bad faith by the Secretary of State, the onus is on the Appellant when placed on the list to investigate whether a right of Appeal exists and failure to do so will not in itself give rise to a sympathetic hearing on a leave application."

The facts in that case were that the Appellant had been informed of the decision to include her name on a statutory list by a letter dated 2^nd October 2000, but did not lodge an appeal until the 25^th May 2004, some considerable time later.

Whilst acknowledging that there is a heavy burden on an Appellant to show that there are good reasons and valid reasons why leave to appeal should be granted out of time, in my view each case must be considered on its own facts.

14. Counsel for the Respondent submitted that it was not credible that when the Appellant was robbed he lost or had stolen all relevant documents, including the Secretary of State's letter of 30^th November 2005. Further that the dates regarding when the Appellant had been notified of his right to appeal, contained in the Tribunal Appeal form had been altered by the Appellant to try and bring his appeal within the time limits. There had been nothing to stop the Appellant, even after receiving the Tribunal's letter of the 9^th February 2006, from submitting an appeal before the 1^st March 2006.
15. I am not persuaded that the Appellant did lose all the relevant documents during the robbery, although some disturbance may well have taken place. In any event the Appellant was able to write to the Secretary of State at the correct address on the 7^th February 2006 and therefore it seems to me that he is likely to have had the letter of the 30^th November 2005 to hand when he wrote his letter.

I then come to the letter from the Tribunal to the Appellant of the 9^th February 2006, following receipt of the Appellant's letter of the 7^th February 2006. In my view the Appellant clearly intended his letter of the 7^th February to constitute his appeals. The first sentence of that letter stated that:

"I wish to appeal against your decision to include my name on the three lists"

In those circumstances it might with hindsight have been sensible if the Tribunal secretariat had made it clear in their letter of the 9^th February that further information was required from the Appellant to complete his appeal; i.e his date of birth and telephone number and/or that his appeal was not going to be registered until this information was provided. I have seen the Appellant's completed Appeal form and have had the opportunity to hear from the Appellant. I am satisfied that he was genuinely confused by the Tribunal's letter of the 9^th February, as to when all the necessary information to constitute a valid appeal had to be submitted. In those circumstances it would have been unreasonable to have expected him to have complied with the time limit for lodging the appeals.

16. I now need to consider the second part of Regulation 35 namely 35(1) (b):

"and (b) it would be unfair not to extend it" (i.e. the relevant time limit)

Counsel for the Respondent did not seek to persuade me that it would be unfair if I was satisfied in relation to the first limb of regulation 35(1) It seems to me that 35(1) (b) involves a balancing act in relation to the effect on each party. In the case of the Respondent there will undoubtedly be costs implications if the appeal goes ahead, whilst if the appeal does not proceed the effect on the Appellant in terms of his livelihood are likely to be very severe indeed.

I note the comments of the President in the case of Alan Hawkes v Secretary of State [2004] 243 PC in which he stated at paragraph 23:

"……it is important to err on the side of caution in an area where the consequences for the Appellant are so draconian."

Accordingly I consider it would be unfair in the circumstances of this case not to extend the time limits.

I conclude therefore that both parts of Regulation 35 (1) are satisfied and therefore in the exercise of my discretion, I extend the time scale that the Appellant had to submit his applications, in accordance with Schedule 5, to the 29^th March 2006.

ORDER

1 The Application to strike out these appeals is dismissed.

2. The Respondent shall respond to the appeals within 14 working days of the date of this decision.

Mr Stewart Hunter

[Nominated Chairman]

22^nd June 2006.