First-tier Tribunal (Health Education and Social Care Chamber)

Erlan Guzman

-v-

                                                      Secretary of State                                                    

[2009] 1630.PVA

-Before-

Ms. Melanie Lewis

(Nominated Chairman)

Mr Paul Thompson

Ms.  Janice Funnell

Decision

Introduction

1. The Appellant appealed on Appeal form received by the Tribunal on 24 September 2009 against the decision of the Secretary of State to confirm the Appellant’s name on the Protection of Vulnerable Adult Lists (PoVA). In that document the Appellant acknowledged that the decision was taken six years ago, but that he had misplaced it.

2.     The background was that the Appellant had been employed as a care assistant. It was alleged that he had struck an elderly resident who had become uncooperative and also called them an abusive name. Following a disciplinary hearing the Appellant was summarily dismissed without payment in lieu of notice on 9 July 2004.By letter dated the 19 October the Respondent states that the Appellant was notified that his name had been placed on the list by letter dated 8 March 2005.    He then had three months to bring an appeal, so he should have lodged the appeal by 8 June 2005-over 4 year ago.

The Law:

3.     On 3 November 2009, the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the “2002 Regulations”), which formerly regulated proceedings before the CST were repealed. They were replaced by the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the “2008 Rules”).

4.     The time limit for bringing an appeal against inclusion in the PoCA list was the same under the 2002 Regulations as it is now under the 2008 Rules, namely three months because by rule 20(1) of the 2008 Rules, an applicant before the Tribunal must start proceedings by filing the application notice so that it is received by the Tribunal within the time specified in the Schedule.

5.     Rule 7(1) provides that an irregularity resulting from a failure to comply with any requirement in the 2008 Rules does not of itself render void the proceedings or any step taken in the proceedings. However, by rule 7(2) if a party has failed to comply with a requirement in the 2008 Rules, the Tribunal may take such action as it considers just, which may include waiving the requirement, requiring the failure to be remedied, exercising its power to strike out a party’s case under rule 8, or restricting a party’s participation in the proceedings

The Application:

6.   By letter dated 19 October the Respondent was submitted that due to the inordinate delay, the tribunal should not exercise it’s discretion to extend the time  limit for lodging the appeal and should refuse to admit the appeal application. In the alternative, the for the appeal should  be struck out under rule 7(1)  2008 rules on the grounds that the appellant had failed to comply with procedural requirements. 

7.      We have read correspondence from the Appellant to the PoVA Manager re his listing dated 22 October 2009 stating that he was 4 8 months late in making the application as Spanish was his first language and he had not understood the decision letter. He had only recently found out that his name was on the list when he applied for a support workers job, when bilingual friends had translated for him. However, he also refers to being on the PoVA list for 6 years which he said was discriminatory as the Nursing home had investigated the mater but found no proof of his colleagues allegations. The decision breached his human rights and severely impeded his ability to earn a living and support his family. 

8.      On 13 November 2009 Deputy Principal Judge Oliver gave Directions that the Appellant until 5pm on 30 November 2009 to inform the Tribunal whether he wished to make oral representations at a hearing, failing which it would be considered on the papers. No such representations were received.

Conclusion and Reasons: .

9.       The Tribunal has examined the CST’s power to strike out an appeal submitted late in a number of cases; see Bromfield-Rabley v Secretary of State [2004] see paragraphs 3 and 10-11:

“…parliament has applied a very strict regime, thus when approaching any application for leave to appeal 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….

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 upon the Applicant when placed upon 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. There may be circumstances where an Applicant is genuinely unable by reason of intellectual, physical or mental infirmity or through language or other reasons from availing themselves of the Appeal process, but such cases will be few and far between….

“In the instant case the Applicant was clearly informed of the appeal process on not one but two occasions. The decision of the President is therefore unimpeachable and I refuse the application for leave.”

10.          That decision was applied in Keith Marlow v. Secretary of State [2004] 423.PC. The CST stated as follows, at paragraph 10:

“As stated above, Regulation 35 [of the 2002 Regulations] provides the Tribunal with a discretion to extend the time limit for appealing. However this is not a case where the applicant was unaware of his right of appeal, nor is it a case where the Secretary of State has acted in bad faith or misled the applicant or potentially confused the applicant. There are no administrative errors in the case which would make it unfair not to extend the time for appealing. The applicant has not missed the deadline by a few days. He has missed it by 47 months.”

11.   We find no evidence nor does the Appellant give any real reason why it would have been unreasonable to comply with the three month time limit. English may not be the Appellant’s  first language but he was able to work and if he had any problems, he could as now, seek a translation. We find no reasons why it would be unfair not to extend it.

12. Accordingly we refuse to extend time to accept the appeal and it struck out

Ms Melanie Lewis

Mr Paul Thompson

Ms Janice Funnell

Date: 18 January 2010