England and Wales Care Standards Tribunal

 


Hudson v Secretary of State for Education & Skills [2007] EWCST 961(PC) (18 June 2007)

SIMON HUDSON

V

SECRETARY OF STATE FOR EDUCATION & SKILLS

[2007] 0961 PC

Before

Mr Laurence J Bennett (Nominated Chairman)

Hearing

Liverpool Combined Court Centre, Vernon Street

11 June 2007

Representation

Ms Hudson, the Appellant, appeared in person.

The Respondent, Secretary of State for Education & Skills was represented by Ms Zoe Leventhal, Barrister instructed by Ms Naomi Kincey for the Treasury Solicitor.

Appeal

1. Mr Hudson appeals under section 4(1) of Protection of Children Act 1999 against the decision of the Secretary of State for Education & Skills to include his name on the List kept under section 1 of the Act.

Application

2. The Respondent applies under paragraph 4(A)(i) of the Protection of Children & Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations) for the appeal to be struck out on the grounds that it is made otherwise than in accordance with the provisions in the Regulations for initiating that appeal as it was submitted outside the time limits specified in Schedule 4, paragraph 1(2).

Preliminary

3. In an order made on 27 March 2007, His Honour Judge David Pearl President of the Tribunal noted that the Appellant's name was confirmed on the List on 22 January 2003 and that his appeal form is dated 8 March 2007 and was received by the Tribunal on 9 March 2007. In accordance with paragraph 4(2) of the Regulations he made directions for the parties submission of written representations or request for an opportunity for oral representations.
4. In an Unless Order under paragraph 10 of the Regulations a nominated chairman of the Tribunal observed that the Appellant had failed to respond to the directions of 27 March 2007 and gave a further opportunity for response failing which the case may be determined in favour of the Respondent.
5. By letter dated 3 May 2007 the Appellant requested an oral hearing.

The Evidence

6. On 29 July 2002 Mr Hudson was notified by the Secretary of State for Education & Skills (SSES) of his provisional inclusion in the Protection of Children Act (POCA) List. On 2 August 2002 his solicitors Bell Lamb & Joynson contacted SSES making observations about his provisional listing. The Secretary of State confirmed his listing on 22 January 2003.
7. A letter containing notification of confirmation of inclusion in the POCA List was sent by special delivery to Mr Hudson, however, this was returned not called for. It is not disputed that Mr Hudson did not receive it.
8. Mr Hudson stated he first became aware of his inclusion in the POCA list in February 2004 when questioned by Police in connection with an alleged CRB offence.
9. Mr Hudson's solicitors Boscoe & Partners wrote to the SSES on 15 November 2004 requesting information regarding the listing, further correspondence took place and on 23 December 2004 Mr Hudson's solicitors requested that his name be removed from the POCA list. A response was sent by SSES informing the procedure. There was subsequent correspondence between SSES and Mr Hudson's solicitors and sent to Mr Hudson's home address during 2005 and 2006. On 8 March 2007 Mr Hudson submitted a completed appeal form to the Tribunal.
10. Mr Hudson stated that he did not receive many of the letters and his solicitors were misinformed in correspondence from the SSES of the correct contact addresses and information for appeal. He mentioned his personal circumstances. He was affected by deaths of family members in 2003, 2004 and 2005 and was receiving treatment for psychiatric illness from 2002 until he recovered in April 2006. He contacted his solicitors on many occasions who informed him they were still waiting to hear regarding the appeal; he was content to rely upon them.
11. Mr Hudson considers it unfair that despite instructing solicitors to appeal he has not had the opportunity for his name to be removed from the POCA List. He stated that Police took one of the allegations against him no further, although he received a conditional discharge for another.
12. Ms Leventhal emphasised the fact that it is over four years since Mr Hudson was listed, three years since he claims to have been aware of the listing, two years since the SSES wrote to his solicitors setting out the appeal procedure, eighteen months since correspondence sent again to his home address on request and five months since further correspondence to his solicitors.

The Regulations

13. Schedule 4 paragraph 1(a) provides that "A person who wishes to appeal to the Tribunal under section 4(1)(a) of the 1999 Act, against a decision to include him in the POCA List; must do so by application in writing to the Secretary of State." Paragraph 2 states that "An application under this paragraph must be received by the Secretary 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."
14. Paragraph 35(1) provides that "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."
15. Paragraph 4A(1) provides that "The President or the nominated chairman may at any time strike out an appeal or application for leave mentioned in Regulation 4 on the grounds that – (a) it is made otherwise than in accordance with the provision in these Regulations for – (i) initiating that appeal; or (ii) applying for leave." Paragraphs 4(2)-(8) set out the procedure to be followed.

Findings and Conclusions

a. There is little dispute of fact. Ms Leventhal on behalf of the SSES accepts that Mr Hudson did not receive the original confirmation of listing and that he may have first become aware of his POCA listing when questioned by Police about a CRB offence in February 2004.

b. Subsequently correspondence passed between Mr Hudson's solicitors and the SSES. It is clear that they were instructed to pursue an appeal against the listing and had contacted the SSES for that purpose.

c. It is surprising in those circumstances that the appeal was not initiated until the notice of appeal form was received in March 2007. It was obviously outside the time limit for appeal and otherwise than in accordance with the requirement in the Regulations.

d. Mr Hudson stated that whilst he had personal and health difficulties, he was in contact with his solicitors on regular occasions over the relevant period. He stated in turn they had access to him and knew his whereabouts. We do not have exact details of the nature of their instructions or correspondence between them and Mr Hudson confirming their terms of engagement but are surprised that timely and direct steps were not taken.

e. Taking into account the awareness of the parties of the need for prosecuting the appeal we do not consider it unreasonable for the time limit provided within the Regulations be observed or even if not, any short extension of time necessitated by Mr Hudson's personal circumstances to have been requested earlier. Three years is substantially beyond any reasonable time extension that could be appropriate and could not now be considered a reasonable or fair extension.

f. Mr Hudson considers it unfair that in the absence of a time extension he will be prevented from appealing against his inclusion in the List. POCA and the Regulations in their provisions and procedure give certainty of expectation to the parties and the relevant public about when an appeal may take place. We do not consider that the operation of these provisions is unfair. Mr Hudson may be disappointed that this appeal cannot take place but I do not consider it appropriate that his listing by the Secretary of State in January 2003 should, in effect, be reviewed by way of appeal after this length of time and earlier opportunities available.

Order

Mr Hudson's appeal is struck out.

Mr Laurence J Bennett

(Nominated Chairman)

Date: 18 June 2007