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Cite as: [2007] EWCST 881(PC)

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UF v Secretary of State [2007] EWCST 881(PC) (19 June 2007)

-v-

Secretary of State

[2007] 881.PC

[2007] 882.PVA

DECISION RELATING TO APPLICATION BY APPELLANT TO SET ASIDE THE DECISION DATED 1^st JUNE 2007 TAKEN UNDER REGULATION 33(1) TO DISMISS THE PROCEEDINGS

-Before-

His Honour Judge David Pearl

(President)

Mr J Lim

Dr J Low

Background to application

By letter dated 26^th September 2006, the Appellant was confirmed by the Secretary of State on the PoCA and the PoVA lists disqualifying her from working both with children and with vulnerable adults.

The Appellant appealed against both decisions to the Tribunal by Appeal Application Form A signed on 27^th December 2006 and received by the Tribunal on 9^th January 2007. The Secretary of State was sent a copy of the Appeal Form on 10^th January 2007, and the Secretary of State responded to the Appeal by opposing the appeal will full reasons.

After receiving Further Information Forms from both parties, the appeals were set down for a hearing on 12^th June 2007 by way of an Order dated 16^th April 2007, with an amended Order incorrectly dated 13^th April 2007 but which was actually sent on 23^rd April 2007 and should have been dated that day.

By letter dated 28^th May 2007 received by the Tribunal on 1^st June 2007, the Appellant wrote to the Tribunal stating "I want to cancel my appeal….Please can you now cancel my appeal."

This letter was placed before the President on that day, and he issued the Decision dated 1^st June 2007, in accordance with Regulation 33(1) dismissing the appeal.

Application to re-instate the appeal

The Tribunal received a letter from Irwin Mitchell Solicitors dated 4^th June 2007. The letter states: "Having talked through the consequences of her withdrawal with this firm, our client has decided that she has made the wrong decision and that she does in fact wish to pursue the appeal. We are writing to request that her appeal be re-instated." In a further email from Irwin Mitchell dated 6^th June 2007, Ms A Sandhal of Irwin Mitchell stated "my client's earlier decision to withdraw her appeal was an ill informed one and made at a time when she was feeling very low and was not in the right frame of mind. Having subsequently discussed the implication of her decision with this firm, she realised that the contents of her letter dated 31^st May was not in fact her true position."

Treasury Solicitor on behalf of the Respondent by email dated 6^th June 2007 objected to the application to set aside the decision dated 1^st June 2007.

The matter was considered by the Tribunal comprising the President sitting as Chairman with two specialist lay members on 12^th June 2007. The Appellant was represented by Ms V Butler-Cole of Counsel, and the Respondent was represented by Mr P Coppel of Counsel. We received a statement from Ms Sandhal.

As this application raises issues of importance for the administration of appeals before the Care Standards Tribunal, the Tribunal decided to reserve its decision on the Appellant's application, and to give its decision in writing after a full consideration of the submissions made by Ms Butler-Cole and Mr Coppel.

The relevant Legislation and Regulations

Section 9(1) of the Protection of Children Act 1999 states:

"There shall be a tribunal ('the Tribunal') which shall exercise the jurisdiction conferred on it by section 4".

Section 9(2) confers on the Secretary of State the power to make provision by way of Regulations relating to the proceedings of the Tribunal, in particular section 9(3)(m) and (q), as to the withdrawal of appeals, and for enabling the Tribunal to review its decisions, or revoke or vary its orders, in such circumstances as may be determined in accordance with the Regulations.

The Regulations made in accordance with s 9(2) and s 9(3) are the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (as amended).

Regulation 33(1) states:

"If the applicant at any time notifies the Secretary in writing, or states at a hearing, that he no longer wishes to pursue the proceedings, the President or the nominated chairman (or at the hearing, the Tribunal) must dismiss the proceedings, and may, subject to regulation 24, make a costs order."

Regulation 25 is headed "Review of the Tribunal's decision" and Regulation 25(1) states:

"a party may apply to the President for the Tribunal's decision to be reviewed on the grounds that –

(a) it was wrongly made as a result of an error on the part of the Tribunal staff;

(b) a party, who was entitled to be heard at a hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear; or

(c) there was an obvious error in the decision".

Submissions

Mr Coppel submits that the letter from the Appellant dated 31^st May 2007 was unambiguous and that in consequence the Order of 1^st June 2007 dismissing the proceedings was not capable of being challenged in any way. He submits that the attempt by Ms Butler-Cole to rely on Regulation 25 is misplaced.

Ms Butler-Cole relies on Regulation 25(1)(b) and/or (c), asking us to apply a very loose and generous interpretation to the wording of this Regulation. As to (b), she submits: "It is accepted that this ground would most commonly apply in cases where an Appellant had failed to attend a scheduled hearing, rather than cases where an Appellant has withdrawn, or purported to withdraw an appeal. However…by withdrawing her appeal, the Appellant has lost her entitlement to be heard at a hearing, and has in that sense failed to appear at a hearing which she was otherwise entitled to attend."

She submits further that the Appellant had good and sufficient reason for her failure to attend the hearing (due to her withdrawal of proceedings) namely that she was unable to face the prospect of giving oral evidence at the hearing due to the psychological distress caused to her by the allegations and the ongoing proceedings.

We are unable to accept this construction. Regulation 25(1)(b) is in no way ambiguous. It deals with the all too common scenario in this and other Tribunals and Courts of an Appellant who discovers that a decision has been made in his or her absence when he or she has failed to appear or be represented at a hearing, and purports to show good and sufficient reason for this failure. In this case of course there was no hearing, and therefore Regulation 25(1)(b) has absolutely no application in this case.

As to ground (c), Ms Butler-Cole submits: "her withdrawal was ineffective and the decision to dismiss pursuant to Regulation 33(1) was therefore made in error." She states that notwithstanding the apparently clear instructions contained in the letter, the surrounding circumstances, in particular her mental well-being, entail that her purported withdrawal of the appeal was ineffective.

We are unable to accept this submission either. Regulation 25(1)(c) refers to an "obvious" error. The letter of 28^th May 2007 is very clear indeed. It is a withdrawal, and in these circumstances, the President must dismiss the proceedings. This he did.

Ms Butler-Cole drew our attention to the European Court of Human Rights case of Marpa Zeeland B.V. and Metal Welding B.V. v The Netherlands (application 46300/99) decided by a Chamber chaired by Mr J-P Costa, President. That case, however, is fundamentally different to the factual situation we are concerned with here. In that case the ECtHR considered that the applicant companies were denied effective access to a court and were not able to exercise their right of appeal in a meaningful manner because undue pressure had been applied by the Advocate General in that he had persuaded them to withdraw the appeal on the basis of their understanding that they would be granted a remission of sentence.

It is not suggested for a moment that any pressure was placed on the Appellant by the Respondent to withdraw her appeal. Mr Coppel submits that if such an issue were to arise in the context of appeals to the Care Standards Tribunal then the matter would have to be dealt with in the context of an application to the High Court in the exercise of the inherent jurisdiction of the High Court, and that there was no provision in the Tribunal Regulations that would enable the Tribunal to deal with such an application. We agree with him. There may be an unfortunate gap in the Regulations, and we make observations later on how the gap may be remedied. But the Tribunal is a creature of Statute and it must apply its Regulations in the way they have been approved by Parliament.

Ms Butler-Cole makes a further point in relation to Regulation 33; namely that the Regulation does not involve a "judicial act", being an act which is administrative in nature, and therefore the administrative "mistake" may be corrected in such a way as to alleviate a perceived injustice. We do not accept this proposition. Regulation 33 refers specifically to a decision to dismiss the proceedings by the President, the nominated Chairman, or the Tribunal. A letter of withdrawal is presented to the President by the Secretariat; he reads the letter; and only when he is satisfied that there has been a withdrawal does he dismiss the proceedings by issuing a decision under Regulation 33. It is clearly a judicial act, and it is in no way an administrative one.

Ms Butler Cole raises another matter, which she accepts is an argument in effect against her own submission in relation to the application of Regulation 25. She says that this Regulation deals with "Reviews of the Tribunal's decision." In this case, of course, as in many cases where the dismissal is made under Regulation 33, the decision is not that of the Tribunal comprising three members but that of the President or nominated Chairman alone. It is argued by Ms Butler-Cole that Regulation 25 does not apply to decisions of the President alone; rather it is a basis for the Tribunal's decision (the Tribunal comprising three members) to be reviewed.

This argument has substance, and indeed the President has refused to invoke Regulation 25 on the application of the Secretary of State when the Secretary of State has purported to apply for a Review of the decision of the President refusing to strike out an appeal under Regulation 4A. (Stuart Charles John Kerr v Secretary of State [2007] 890 PC; 891 PVA annexed to this decision) Regulation 25 is not the best drafted of Regulations, but it is difficult to argue that the words "the Tribunal's decision" should be read to mean "The Tribunal's decision or the President or nominated Chairman's decision."

There are therefore four reasons why Ms Butler-Cole's arguments relating to regulation 25 cannot be accepted:

a. Regulation 25(1)(b) does not apply to a case where there has been no hearing at all;

b. Regulation 25(1)(c) does not apply because there is no "obvious error";

c. Regulation 33 is a "judicial act": it is not simply an administrative action by the Secretariat that can be corrected in some way, for example by the use of the "slip rule" in Regulation 29;

d. There is in any event no mechanism within Regulation 25 for the President's decision under Regulation 33 to be the subject of a Review; because Regulation 25 refers to "the Tribunal's decision."

The alternative submission: Regulation 35

We turn therefore to the alternative argument raised by Ms Butler-Cole; namely an application under Regulation 35 to allow a new appeal to be filed out of time (no later than the first working day after the expiry of three months from the date of the letter informing the Appellant of the decision).

Regulation 35 states:

(1) The President or the nominated chairman may, having consulted the parties in the case, extend any time limit mentioned in these Regulations if in the circumstances –

(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.

She submits this argument in this way: "There can be no reliance by the Respondent on cause of action estoppel, since the withdrawal is in effect a discontinuance: the substantive merits of the Appellant's case have not been determined….The Appellant contends that in the circumstances, if the Decision is not to be set aside, it would be unreasonable and unfair not to extend the time limit for initiating the appeal. The Appellant mistakenly withdrew her first appeal due to the stress of the proceedings…"

She refers us to the decision of the Court of Appeal in the case of Dr Sajid Saeed Khan v Heywood & Middleton PCT [2006] EWCA Civ 1087 where the lead judgement is delivered by Wall LJ. This case deals with the Employment Tribunal Regulations. Ms Butler-Cole submits that although the Court of Appeal, in applying the Employment Tribunal Regulations, said that the Employment Tribunal does not have the power to set aside a notice of withdrawal, injustice can be avoided by extending the time limit for a new claim to be brought. Wall LJ said at para 73:

"..if the Respondents to a claim in the ET wish to secure their position, they must apply to the ET for the claims against them to be dismissed. If they do not, they have the possibility that the claimant may bring a second claim on the same facts."

The Employment Tribunal Regulations are very different to the Regulations that govern this Tribunal. In this Tribunal, on a "withdrawal", the President must dismiss the proceedings and, as we have stated already, this is a "judicial act." In the Employment Tribunal, the withdrawal by the claimant is an administrative act (Reg 25(3)) and the proceedings are brought to an end. The proceedings are not however dismissed unless the Respondent makes an application and that application is granted.

Thus, we are unable to obtain any support for Ms Butler-Cole's position from a consideration of the Employment Tribunal.

There is moreover another reason why leave should not be granted under Regulation 35 to extend the time limits for bringing a new appeal in this case. Section 86(1) of the Care Standards Act 2000 (the PoVA list) and s 4(1)(a) of the Protection of Children Act 1999 (the PoCA list) states that an individual may appeal against the decision to include him on the respective list. There is a right to appeal to the Tribunal within a three month period subject to the power of the Tribunal to extend that period under Regulation 35.

If he does not exercise his right of appeal at the point of "inclusion", he may apply to the Secretary of State for his name to removed from the list (s 81(3) CCA 2000 and s1 (3) PCA 1999). If his name is not removed, there is a right to seek leave from the Tribunal (s 86(1)(b) CCA 2000 and s 4(1)(b) PCA 1999) to appeal the decision not to remove him from the list.

Finally, there is a right to apply direct to the Tribunal to be removed from the list under s 87 CCA 2000 and s 4A PCA 1999, but this application can be made only after the applicant has been continuously on the list for ten years (or five years in the case of a juvenile).

Thus the regime as set out under the two schemes is a tight one. As the nominated Chairman (Mr Ian Robertson) said in Bromfield-Rabley v Secretary of State [2004] 324.PC where, as here, the Appellant sought an extension of time under Regulation 35 to appeal her confirmation on the list:

"Parliament has applied a very strict regime, thus when approaching any application for leave 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…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."

There is of course no new appeal before us at this stage, and therefore it could be argued that a consideration of Regulation 35 is premature. But in any event, we do not see how Regulation 35 can be applied to allow leave to be granted in this case for a fresh appeal. The Appellant has withdrawn her appeal, and a decision has been made to dismiss the appeal, The Appellant has had legal advice during these proceedings, and the first appeal was of course submitted in time.

Mr Coppel suggests that the appropriate approach would be to apply under s 1(3) PCA 1999 and s 81(3) of CSA 2000 to the Secretary of State for her name to be removed from the list. This triggers the right to seek leave to appeal to the Tribunal if the application to the Secretary of State is negative. The approach taken by the Tribunal in such applications for leave is as set out in the case of PD v Secretary of State [2006] 651 PC; [2006] 652 PVA. It is our view that this procedure is the correct approach.

Concluding Remarks

This case has raised a number of issues that require further consideration when next the Tribunal Regulations are amended. We are not without sympathy for the position that the Appellant finds herself in, and we hope that some of these suggested amendments to the Regulations will be beneficial for future cases. We believe that consideration should be given to the following amendments to the Tribunal regulations:

Regulation 25 as presently drafted restricts the right to seek a review to a decision of the Tribunal (defined as a panel of three members). There is a persuasive argument that it should be amended to enable there to be the possibility of a Review of decisions by the President or nominated Chairman taken under Regulation 33. It should also be possible to seek a Review of decisions of the President or nominated Chairman made under Regulation 4A refusing an application by the Respondent to strike out the appeal as misconceived.

Regulation 33 should be amended to enable an application to be made by the Appellant who has withdrawn his or her appeal, and where in consequence the appeal has been dismissed, to apply to the President or nominated Chairman for the decision to be set aside (as in Regulation 4A(4)). We have given some thought as to whether this jurisdiction should adopt the approach taken in the Employment Tribunal where a withdrawal does not result in a dismissal of the proceedings. The Care Standards Tribunal deals with issues where it may be thought essential to ensure that there is no ambivalence and where it is essential to know that a withdrawal results in the Appellant's name being confirmed on the PoCA and/or PoVA list. In those circumstances, a withdrawal inevitably brings about a dismissal of the appeal and the judicial act of dismissal ensures that there is no ambiguity in the position of the Appellant. To classify a case as "withdrawn" (as in the case of the Employment Tribunal) may result in a degree of uncertainty and confusion, which would be unfortunate in this area.

However, consideration should be given for the following Formal Withdrawal Notice to be provided to all Appellants who wish to withdraw:

"I [name of Appellant or his or her Representative] hereby notify the Secretary of the Tribunal that I [the appellant] no longer wish to pursue the proceedings. I understand that the President (or nominated Chairman) must dismiss the proceedings, and I will not be able to reinstate it. Signed and dated".

It would be helpful also if the Secretary of State, in the original letter that informs the Appellant of the right of appeal, and the Tribunal, in its Appeal Application Form, inform the Appellant that if he or she withdraws his or her appeal, the appeal will be dismissed and it cannot be reinstated.