DECISION

Appeal No 2004 324.PC

IN THE CARE STANDARDS TRIBUNAL

BETWEEN:

ARLENE ALTHEA BROMFIELD-RABLEY
Appellant

-and-

THE SECRETARY OF STATE FOR EDUCATION AND SKILLS 
Respondent
On 14 September 2004 sitting at The Care Standards Tribunal hearing centre, 18 Pocock Street, London

Before Mr I Robertson

Mr J Strachan (counsel) for the Secretary of State

1.	This is an application brought by Ms Bromfield-Rabley under paragraph 7 of Schedule 4 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 to review the decision by the President of the Tribunal on 13 July 2004 to refuse the appellant leave to appeal the decision of the Secretary of State dated 2 October 2000 to place her name on the Protection of Children Act List.
 
2.	Since this is the first appeal brought under these provisions it is worth setting out the legislative background. Under the Protection of Children Act 1999 the Secretary of State following a referral may place any person upon the Protection of Children Act list,. S2A-D. Such an individual has the right within 3 months to appeal against inclusion. S4 If the appeal is unsuccessful or no appeal is made there is power to apply to the Tribunal for leave to apply to be removed from the list. Here however, is the rub, since such an application cannot be made for 10 years from the date of inclusion (5 years if a child when included). S4A –B 

3.	It follows therefore that 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.

4.	In this case Ms Bromfield-Rabley’s name was added to the list on 2 October 2000 having previously been on the Department of Health’s Consultancy service Index since 1998. She applied to the Secretary of State to have her name removed from the Index in December 2001 and that application was refused on 1 February 2002. At that time she was notified of her right of appeal against the original inclusion but not informed of the three month time limit, which had of course in any event expired. As indicated above she was notified of the decision to include her name on the statutory list by a letter dated 2 October 2000and also notified of her right of appeal in the following terms;

“You have a right of appeal, under section 4 of the Protection of Children Act 1999 to an independent Tribunal against this decision. If you wish to exercise this right of appeal you should write, within 3 months of the date of this letter to (address of Tribunal)”

5.	No appeal was lodged by Ms Bromfield-Rabley in respect of the original decision. 

6.	On 26 May 2004 Ms Bromfield- Rabley lodged an appeal in form A1 with the Care Standards Tribunal. She set out in detail reasons why the decision to place her on the list should be reviewed but did not set out any grounds as to why she should be allowed to appeal out of time. In a subsequent letter to the Tribunal dated 18 June 2004 she indicated that she was ignorant of the appeal process and accordingly the Tribunal should now grant her leave.

7.	On 13 July the President refused the Appellants application the crux of that decision being;

“I agree with the submission of the Secretary of State that the applicant was given full information of her right to seek leave to appeal. The Applicant has given no satisfactory reason as to why she waited for more than two years to seek leave. In the circumstances and for these reasons leave to appeal is refused”

8.	Following this decision the Applicant exercised her right under Paragraph 7 of Schedule 4. This states as follows;

“The President or the nominated chairman must reconsider a decision to refuse leave if within 10 working days after receipt of a notice under paragraph 6(3) the secretary receives a written request to do so from the applicant”

9.	Such a request was received and an oral hearing was arranged for 14 September 2004. The Secretary of State was represented at that hearing by counsel and solicitor. Ms Bromfield – Rabley did not attend nor notify the tribunal that she would not attend. On the morning of the hearing the Tribunal received a letter from solicitors instructed by the Applicant in the following terms;

“….Miss Bromfield-Rabley has informed us that the reason that she waited for more than two years to seek leave to appeal was that she thought that the correspondence with the relevant department at the time constituted such an appeal. We are informed that this is the only reason that an appeal directly to the Care standards tribunal had not been made earlier. In the circumstances due to the very narrow issues highlighted above and the fact that Mrs Bromfield-Rabley is of limited means we should be grateful if the tribunal would accept this letter as the explanation as to why an appeal took two years to be filed”

10.	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. Furthermore on an application under paragraph 7 a Chairman will need considerable persuasion that the original decision was wrong and will be unlikely to overturn the original decision in the absence of perversity or new evidence. 
 
11.	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. 

12.	Under Regulation 24 of the Tribunal Regulations the Tribunal has power to make a costs order where party has acted unreasonably in bringing or conducting the proceedings. In this case I have been asked by the Secretary of State to make an order limited to this hearing and based upon the Applicants failure to attend only. I have given directions in accordance with Regulation 24 and will deal with the costs application at a later date. I would wish to add however that the issue of conduct of proceedings is not limited to conduct at the hearing and that applicants in exercising their right under paragraph 7 for a review and indeed in making the application for leave should be aware that costs may be sought by the secretary of state for all their expenses if such an application has in reality no prospect of success and is therefore brought unreasonably.

Ian Robertson
20 September 2004