Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HC/2761/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  This appeal is unsuccessful.  I set aside the decision of the First-tier Tribunal dated 18 June 2011, striking out the appeal numbered [2011] 1953.EA-JP.  However, I substitute a decision refusing to admit the appeal numbered [2011] 1953.EA-JP for consideration by the First-tier Tribunal and refusing to reinstate appeal numbered [2011] 1902.EA for consideration by the First-tier Tribunal.

REASONS FOR DECISION

1. The Appellant and his wife were the proprietors of a care home, registered by the Respondent under Chapter 2 of Part 1 of the Health and Social Care Act 2008.  On 8 June 2011, on the Respondent’s application, a justice of the peace cancelled the registration with immediate effect, under section 30 of that Act.  The Appellant and his wife appealed to the First-tier Tribunal under section 32(1)(b) but, with the consent of the First-Tier Tribunal (Sheikh v Care Quality Commission [2011] 1902.EA), they withdrew their appeal on 27 July 2011, the first day of a hearing listed for three days.  They were, at that time, represented by solicitors and counsel.

2. On 21 March 2012, the Appellant, acting in person, purported to lodge a second appeal.  The grounds of appeal relied heavily on a letter dated 14 December 2011 from Kent County Constabulary informing the Appellant that no further action would be taken against him in relation to an alleged assault that had formed part of the Respondent’s case before the justice of the peace.  The Respondent submitted that the appeal should not be admitted.  On 20 April 2012, the First-tier Tribunal gave the Appellant an opportunity to show why his appeal should not be struck out for want of jurisdiction but, despite his representations, the appeal was struck out on 18 June 2012.

3. On 19 September 2012, I granted permission to appeal against the decision of 18 June 2012 on the ground that it was arguable that the appeal to the First-tier Tribunal should not have been struck out without consideration being given to treating it as a late application for the reinstatement of the earlier appeal that had been withdrawn, although I also indicated that there might be good reasons for substituting a decision to the same practical effect as the decision of the First-tier Tribunal.  Both parties have made written submissions and neither has asked for an oral hearing.  I am satisfied that I can properly determine the appeal on the papers.

4. There can be no doubt that the Respondent was right to submit that the First-tier Tribunal had no power to admit the second appeal as such.  Section 32(2) of the 2008 Act provides –

“No appeal against a decision or order may be brought by a person more than 28 days after service on the person of notice of the decision or order.”

Thus the time limit is in primary legislation and not in Tribunal Procedure Rules.  Moreover, there is nothing in primary legislation authorising the extension of that time limit.  Tribunal Procedure Rules may make provision for time limits for initiating appeals (see paragraph 4 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007), but, without there being a more specific enabling provision, they may not override provision for such time limits made in primary legislation (see Mucelli v Government of Albania [2009] UKHL 2; [2009] 1 W.L.R 287) and they do not purport to do so.  Rule 5(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) provides that –

“… the Tribunal may—

(a) extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment containing a time limit”.

The Respondent places emphasis on the concluding words of that subparagraph but it seems to me that the more important words of limitation are “rule, practice direction or direction”.  The concluding words seem to have been included primarily to remind readers that not all time limits relating to proceedings before the Health, Education and Social Care Chamber of the First-tier Tribunal are to be found in the Rules, although some, including some time limits for initiating proceedings (see rule 20), are.

5. Therefore, even if a person might otherwise lodge a second appeal after one has been withdrawn, the second appeal in this case was clearly out of time.  Rule 20(4)(b) consequently required that the application notice be not admitted.  Striking the appeal out under rule 8(3)(a), as the First-tier Tribunal did, came to the same thing but is not the process contemplated by the Rules in this context and required the First-tier Tribunal first to give the Appellant an opportunity to make representations (see rule 8(5)), which was arguably unnecessary.

6. However, it seems to me that the First-tier Tribunal should have treated the appeal as an application to reinstate the first appeal that had been withdrawn on 27 July 2011.  Rule 17(4) and (5) provides –

“(4) A party which has withdrawn its case may apply to the Tribunal for the case to be reinstated.

(5) An application under paragraph (4) must be made in writing and be received by the Tribunal within 28 days after—

(a) the date on which the Tribunal received the notice under paragraph (1)(a); or

(b) the date of the hearing at which the case was withdrawn orally under paragraph (1)(b).”

The application would have been late but the time limit in rule 17(5) may be extended under rule 5(3)(a).

7. The Respondent submits that reinstating the first appeal would have had the effect of subverting the time limit for appeals contained in section 32(2).  The submission does not refer to the power expressly conferred by rule 17(4), which may have been overlooked by the writer, but in any event amounts to an argument that rule 17(4) cannot permit the reinstatement of an appeal after the time for appealing allowed by section 32(2) has expired.  I do not accept that argument.  Section 32(2) requires an appeal to be brought within one month of the decision being challenged but it has no direct bearing on the course that proceedings take thereafter.  I see no more objection to reinstating a withdrawn appeal after an extended period than there could be to staying proceedings in an appeal for an equivalent period.  In this case, had the Appellant asked for the proceedings to be stayed to await the conclusion of the police investigation, instead of withdrawing the case, the request might have been granted.  There might have been arguments against such a stay on the facts of the case, but I do not see any reason why a stay would have been wrong in principle.  Provided delay is not such as to make it difficult for the Respondent to make its case, it is an appellant who is likely to suffer the disadvantage of delay in this context rather than a respondent.

8. Since a late application for the reinstatement of the first appeal could properly have been made in this case, that would clearly have been the appropriate way for the Appellant to try to achieve the practical result he wanted.  Where a person makes an inappropriate type of application but an alternative type of application would have been appropriate in order to achieve the purpose desired by the applicant, the First-tier Tribunal should always treat the application as having been made in the appropriate form, unless that would cause any unfairness to any other party.  Form should not triumph over substance and, indeed, rule 2(2)(b) of the 2008 Rules provides that the overriding objective of dealing with cases fairly and justly includes “avoiding unnecessary formality and seeking flexibility in proceedings”.  Accordingly, I consider that the First-tier Tribunal erred in law in not treating the purported second appeal as a late application to reinstate the first appeal.  I therefore set its decision aside.

9. I am in as good a position as a First-tier Tribunal judge to decide whether the first appeal to the First-tier Tribunal should be reinstated.  Accordingly, I will substitute my own decision rather than remitting this case for redetermination.

10. The Appellant’s case is, in a nutshell, that the decision to cancel his registration was wrong and based on inaccurate evidence, that he was badly advised by counsel to withdraw his appeal and that an important part of the evidence apparently accepted by the justice of the peace has now been shown to have no substance.  He wrote to the Respondent on 22 December 2011, within two weeks of receiving the letter from the police, and submitted his purported appeal within two weeks of receiving the Respondent’s reply dated 7 March 2012, saying that it would not reinstate the registration.  Justice, he effectively submits, requires that he should now be able to put his case before the First-tier Tribunal.  The Respondent, on the other hand, submits that the letter from the police does not show that the allegation of an assault had no substance and that there were many other grounds for cancellation advanced before the justice of the peace.  It is now too late, it effectively submits, to challenge the justice’s decision.

11. One reason for there being no power to extend the time for appealing may be that, even where cancellation is under the procedure set out in sections 26 to 28 of the 2008 Act, it will have taken effect when the time for appealing expired (see section 28(6)) and the draftsman might have thought that a new application for registration (against a refusal of which there would be a new right of appeal) would provide a more appropriate way of obtaining registration than an appeal.  Plainly the fact that a justice of the peace cancelled the Appellant’s previous registration will be relevant to the question whether a new application for registration should be granted, but an applicant is entitled to argue that the justice’s order should not be determinative.  The prospects of success will often be limited but in principle the application may be made.  In this case, the Appellant says that he had less than twenty-four hours notice of the hearing before the justice of the peace.  Even if recorded verbatim, which they appear not to have been in this case, findings made in such circumstances can hardly give rise to any form of estoppel and do not gain much in strength merely because a right of appeal has not been fully exercised.

12. The possibility of making a new application for registration is also relevant to the question whether an appeal should be reinstated.  I accept that there may be practical difficulties in making an application for registration if the premises have been lost and purchase of new premises depends on their being a clear prospect of registration.  Similar difficulties were recognised in Welsh Ministers v Care Standards Tribunal [2008] EWHC 49 (Admin); [2008] 1 WLR 2097), where it was held that an appeal against a refusal to register a person as a manager was not bound to be struck out when the possibility of employment at the relevant premises ceased to be available.  Therefore, there may be cases where it would be fairer to reinstate an appeal rather than suggest that a new application for registration would be appropriate.  However, the possibility of making a new application is likely to be determinative where the premises have not been lost.  In the present case, it appears that the Appellant still owns the relevant premises.

13. It is also relevant that the Respondent relied on a large number of matters other than the alleged assault, some of which were arguably not material to the question whether registration should be cancelled by a justice of the peace but which might have been highly material to whether registration could have been cancelled under the “ordinary” procedure set out in sections 26 to 28 of the 2008 Act.  In Lyons v East Sussex County Council (1987) 86 L.G.R. 369, the Court of Appeal held that an appeal against a decision of a justice of the peace to cancel registration in respect of a residential care home under the Registered Homes Act 1984 should be allowed if a registered homes tribunal was not satisfied that there would be “a serious risk to a person’s life, health or well-being” (see now section 30(1)(b)) if the order were not upheld, even if the tribunal was satisfied that the proprietor was not a fit person to be concerned in carrying on a residential care home so that cancellation under the “ordinary” procedure would have been justified[1].  The desirability of it being possible to have regard to all of the Respondent’s grounds for considering that the appellant should not be registered is a powerful reason for the Appellant being required to pursue his case through a new application for registration rather than a reinstated appeal.  This is particularly so in this case because, if the Respondent’s solicitors’ note of the justice’s ex tempore judgment is accurate, it is arguable that, in the light of Lyons, he misdirected himself and had regard to immaterial considerations.

14. In these circumstances, I am satisfied that the Appellant’s first appeal should not be reinstated.  He may, however, make a fresh application to the Respondent for registration.  I express no view as to the strength of his case.

15. With hindsight, it can be seen to have been unfortunate that the response to the Appellant’s letter of 22 December 2011 was not to inform him that he could make a formal application for registration or, possibly, to treat him as having done so.  Then the proper process would have been initiated and, instead of the letter dated 7 March 2012 which triggered the second appeal against the justice of the peace’s decision, there would have been a formal decision against which the Appellant could properly have appealed had it been adverse to him.

Mark Rowland

14 March 2013