Arthur v Ofsted [2006] EWCST 0685 (EY) (19 May 2006)

David Arthur

-v-

OFSTED
[2006] 0685.EY 

DECISION ON AN APPLICATION TO STRIKE OUT

1.	By letter dated 16th May 2006, the Respondent has requested that the Appellant’s appeal be stuck out on the grounds that the appeal was not made within the 28-day deadline stipulated in Schedule 2, paragraph 1(2) of the Regulations and further, or alternatively, that it is misconceived, as it has no prospect of success. 

2.	Applications to strike out are governed by Regulation 4A(1)(a)(i) or (b) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (‘the Regulations’). 

3.	The reasons for the application to strike out are as follows:

4.	The Notice of Decision to cancel the Appellant’s registration is dated 9th March 2006 but was delivered to the Appellant’s address on the morning of 11th March 2006. Consequently, says the Respondent, the latest date by which the Tribunal could receive an appeal form was 8th April.

5.	On 10th April 2006 the Respondent wrote to the Appellant to confirm that the Tribunal had not received an appeal from him and that, as a consequence, his registration was cancelled. The Respondent understands that on receipt of this letter the Appellant telephoned the Tribunal to say that he had sent his appeal from to the Tribunal some time earlier but it appeared that the Tribunal had not received it. The Tribunal indicated to the Appellant that he should submit his appeal form before 5pm the same day.

6.	The Appeal Form was received on, and is date stamped, 10th April 2006.

7.	The Respondent states that although there is power to extend any time limit pursuant to Regulation 35 of the Regulations, this power is expressly excluded in relation to the time limit in initiating an appeal in Paragraph 1 of Schedule 2. I agree.

8.	The time limit for sending the appeal form to the Tribunal is 28 days which, as is mentioned above, took the Appellant until 8th April 2006, a Saturday. There is nothing to indicate that the Appellant had sent the form to the Tribunal before 10th April, although he did enclose a letter addressed to the Tribunal dated 17th March 2006. That letter does not constitute a Notice of Appeal.

9.	The Appeal from should have been with the Tribunal by Saturday 8th April 2006. Had it been it could not and would not have been considered or processed until Monday 10th April 2006. It would be impossible to say before Monday 10th April at what time an appeal form would be received had it been hand delivered, for example. Likewise, if the form had been posted, if there was no delivery on Saturday it would not have arrived until Monday.

10.	The earliest date, therefore, that the appeal could have been registered was on Monday 10th April even if it had been received on 8th April. The Appellant’s appeal was registered on 10th April. 

11.	It would be unfair to say that the appeal form has to be with the Tribunal by 09.00 on a given day. Letters might not be read or delivered until later in the day and in those circumstances it would be wrong to say that because the postal service was late in delivering (for example) an appellant would lose the right of appeal.

12.	In the circumstances, I do not regard the receipt of the appeal form as being out of time because it was processed on 10th April 2006, as it would have been had it arrived on Saturday 8th April. Had the time limit expired on a weekday I accept that the appeal form would need to be with the Tribunal by the close of business that day. Likewise, had the respondent written to the appellant on 11th April 2006 to inform him that his registration had been cancelled the appellant would not have been able in those circumstances to have sent in his appeal form as it would have been out of time.

13.	I dismiss the application to strike out the appeal pursuant to Regulation 4A(1)(a)(i).

14.	The second ground is that the appeal is misconceived on the basis that has no prospect of success. The basis for this application is that in his Appeal Form, the Appellant has indicted that he intends to step down as a registered person as soon as possible. Further the Respondent states that the Appellant’s appeal form does not address the various breaches of the National Standards detailed by the Respondent in the Notice of Intention. The Respondent also relies upon the Tribunal’s decision in the Woodbine Villa case (Woodbine Villa, Rushden, Northampton (Mr Shaid Akhter and Mr Tanveer Salam) v NCSC [2002] 116.NC) for the proposition that an appeal is misconceived if there are no pleaded grounds of appeal and no attempt to draw the attention of the Tribunal to the heart of his case in his reasons.

15.	This case differs from the Woodbine Villa case in that in the Woodbine Villas case the Appellants were given three opportunities to submit a completed appeal form. They then filed a Further Information form and asked for a directions hearing, which neither attended. It was against that background that the President reached his decision.

16.	In this case the Appellant has not yet been required to complete a Further Information form. In addition, it is also open to him to amend the reason he gives in support of his appeal (albeit with leave of the President or nominated chairman) pursuant to Regulation 32 of the Regulations.

17.	If full reasons are not forthcoming and/or there is no application by the Appellant to amend the ground of the appeal to draw the attention of the Tribunal to the heart of his case then it might be appropriate to apply for the case to be struck out on this ground. However at present I believe that the application is premature and so I DISMISS the application to strike out the appeal pursuant to Regulation 4A(1)(b)

ORDER ACCORDINGLY

Simon Oliver 
Nominated Chairman
19th May 2006