Callinan v Secretary of State for Health [2007] EWCST 950(PVA) (06 August 2007)

Susan Callinan

-v-

Secretary of State for Health

[2007] 950.PVA

Application to Strike Out.
The Application

1.  The Secretary of State applies under Regulation 4A(1)(a)(i) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (“the Regulations”) to strike out the appeal against the Respondent’s decision to include the Appellant’s name on the list of individuals who are unsuitable to work with vulnerable adults, kept pursuant to section 81(1) of the Care Standards Act 2000.  The application is made on the basis that the appeal has been made otherwise than in accordance with the provisions of the Regulations.

2.	In accordance with Regulation 4A(2), before striking out an appeal, the parties must be invited to make representations on the matter and if the applicant so requests in writing, the parties must be afforded an opportunity to make oral representations and the nominated chairman must consider any representations the parties may make.

3.	The Appellant in this case requested that she be afforded the opportunity to make oral representations.  Accordingly, the application to strike out was considered at an oral hearing in Pwllheli on the 25 June 2007.

4.	At the hearing, the appellant was unrepresented and the Respondent was represented by Mr Holloway of Counsel.

The Law.

5.	Section 86(1)(a) of the Care Standards Act 2000 provides that an individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under section 81 may appeal to the Tribunal against the decision to include him in the list.

6.	Regulation 4(5)(b) of the Regulations provides that the procedure set out in Schedule 5 shall apply to appeals under section 86(1)(a).

7.	Schedule 5(1)(1) provides that an appeal under section 86(1)(a) shall be made in writing and 5(1)(2) that an application must be received by the Secretary to the Tribunal 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.

8.	Regulation 4A(1)(a)(i) provides that the President or nominated chairman may at any time strike out an appeal on the grounds that it is made otherwise than in accordance with the provision in the Regulations for initiating that appeal.

9.	Regulation 35(1) provides that the President or the nominated chairman may, having consulted the parties in the case, extend any time limit mentioned in the Regulations if, in the circumstances it would be unreasonable to expect it to be or to have been complied with and it would be unfair not to extend it.  

Background
10.	The Appellant was employed by the Westgate College for Deaf People as a Residential Social Worker from September 2003 until her dismissal in February 2005. 

11.	Following her dismissal, a referral was made by Westgate College under Section 82(1)(a) of the Care Standards Act 2000 to the Respondent, that the Appellant’s name be included on the Protection of Vulnerable Adults list  (“the PoVA list”) because she had been dismissed from her post as care worker on the basis of an allegation that the Appellant had struck a service user and was formally cautioned for common assault in respect of it.

12.	After consideration of the information received, a decision was made by the Respondent to provisionally include the Appellant on the PoVA list.

13.	Due to the circumstances leading to the provisional listing, the Secretary of State for Education decided to provisionally include the Appellant’s name on the Protection of Children’s Act list (“the POCA list”) under section 92 of the Care Standards Act 2000.

14.	On the 12 July 2005, the Respondent sent a letter to the Appellant notifying her of the decision.  The letter was addressed to 56 Mortimer Street, Kerne Bay, Kent and included an information note on the Protection of Children Act 1999 scheme, copies of correspondence from Westgate College and a Provisional Listing Observation Form, setting out the process to be followed should the Appellant wish to submit any written observations in relation to whether her name should be confirmed on the list.

15.	On the 23 November 2005, the Respondent wrote again to the Appellant, this time to 56 Mortimer Street, Herne Bay, Kent, advising her that they had not received her observations and advised her that if she did wish to make observations that she should return her form by 7 December 2005.  The Respondent did not receive any response to the letter.

16.	On 23 March 2006, a letter was sent to the Appellant at 56 Mortimer Street, Kerne Bay, Kent, notifying her that the Respondent had considered all the information available and had decided to confirm the Appellant’s name on the PoVa list .The letter included information about the Appellant’s right of appeal the decision to the Care Standards Tribunal within three months of the date of the letter.  The three-month time limit for making an appeal in relation to either decision expired on the 24 June 2006.

17.	On the 6 March 2007, the Appellant completed Appeal Application Form A, indicating her wish to appeal against the Respondent’s decision to include her on the PoVA list and the decision of the Secretary of State for Education to include her on the PoCA list.  The form was sent direct to the Care Standards Tribunal with an e-mail, stating that the Appellant had never received a letter informing her of the listings.

The hearing.
18.	Ms Callinan gave evidence at the hearing that she had moved from Herne Bay on the 25 May 2005 to Ashford in Kent.  She obtained a new job at Senacre School, Kent, starting on 1 June 2005, as part of a teacher-training course affiliated to Canterbury University. Because she had notified her bank and her previous employer of her change of address, she did not make any further arrangements to forward her mail after she moved from her rented accommodation at Herne Bay. 

19.	The course was completed and the Appellant qualified as a teacher in September 2006.  She was offered a one year contract as a newly qualified teacher at Senacre School in Kent, starting in September 2006.  Prior to being offered the job, she had informed her new employers about the circumstances of her dismissal from Westgate College but they had appeared unconcerned about the situation.

20.	Following the appointment, her employer made an application for a Criminal Records Bureau (CRB) check.  On the 17 November 2006, she was called in for interview by the Head of the school and a representative of the county council personnel department.  During the interview, she was informed that the CRB check had revealed her listing.  She was summarily dismissed on the basis that her position was untenable.  She was shown or provided with a copy of a letter from Kent County Council, dated 17 November 2006, confirming the inclusion of her name on the PoVA list. The letter did not include information about her right of appeal against the listing but made reference to the relevant contact, should she wish to obtain a copy of the barring letter or if she wished the Secretary of State to review her case. 

21.	Following her dismissal, the Appellant wrote a letter about an appeal.  She could not recall at the hearing where it had been sent, but believed that she had sent it to the CRB.  Some time later, they wrote back saying that she had to apply to the Care Standards Tribunal.

22.	On the 4 December 2006, the Appellant went home to her family in Ireland, returning to Kent in late January 2007.  She did not make any further enquiries regarding the position in relation to the listing or the appeal before she went to Ireland and did not seek any advice about the matter.

23.	After she returned, the Appellant contacted the Care Standards Tribunal assuming that she would be advised about her right of appeal by the Tribunal secretariat.  She did not seek any other advice from a professional body or any form of legal advice.

24.	On the 1 March 2007, the Appellant submitted a notice of appeal form against her registration on the PoVA list by e-mail to the CST.  In the covering e-mail, she confirmed that she had never seen the barring letter and could not provide a copy.  In the form, she identified the date of the registration as the 23 March 2006.

25.	The Respondent’s response to the appeal included a copy of the barring letter dated the 23 March 2006.

26.	At the hearing, Ms Callinan submitted that it was unreasonable of the Tribunal to expect her to respond to the letter within the three-month time limit, since she had not received the letter informing her of the decision and notifying her of her right of appeal.  She stated that she had appealed to the CRB in November 2006 and that it had taken some time for her to discover that she had appealed to the wrong department.

Decision

27.	On the basis of the evidence presented by the Appellant at the hearing, it is accepted that she did not receive a copy of the Respondent’s letters dated July or November 2005 regarding the provisional listings, nor the letter of confirmation of the inclusion of her name on the PoVA list dated 23 March 2006.  In those circumstances, if it is accepted that non receipt of the letters is a good and sufficient reason, it might be unreasonable to expect the Appellant to have complied with the three-month time limit which expired on the 23 June 2006, since she was not at that time aware of the listing.

28.	By the Appellant’s own evidence, however, on the 17 November 2006, she became aware of the inclusion of her name on the list.  I accepted her own evidence that she was shown or provided with a copy of the letter from Kent County Council dated 17 November 2006 explaining her listing and identifying the relevant contact should she require a copy of the barring letter or a review by the Secretary of State.  As a result of receiving the information about the listing, she made some attempt to lodge an appeal, by writing a letter to the CRB.  She did not lodge a valid appeal with the Secretary of the Tribunal, as required by Schedule 5 of the Regulations, until the 1 March 2007. 

29.	The legislation has imposed a strict regime and timescale for making appeals, and the Tribunal must be cautious in dealing with applications to extend time for appealing.  In this case, I took into consideration the fact that the Appellant had very clearly been notified of her listing on the 17 November 2006.  She was, therefore, aware of the listing from that date.  Although she had not been formally notified of her right of appeal, she was provided with information about where she might obtain a copy of the barring letter and she was sufficiently alerted to the right of appeal to attempt to lodge an appeal immediately, albeit to the wrong agency.

30.	I consider that the Appellant was honest in her evidence that she was completely unaware of her listing until the 17 November 2006, but having been informed of the information on that date, I would expect a reasonable person to take steps to find out more about the situation immediately.

31.  Even if it was accepted that the non receipt of the provisional listing letters and the confirmation letter was a good and substantial reason for failing to lodge the appeal in time, I consider that it would be reasonable to expect the appeal to be lodged within three months of the date when the Appellant became aware of the listing.  The Appellant in this case did not succeed in meeting that extended time frame either, and I do not consider that she has shown a good and sufficient reason for that failure.

32.	In any event, where the Appellant took no steps at all to ensure that her mail was forwarded to her following her change of address, I am not persuaded that the non receipt of letters from the Respondent is a good and sufficient reason for failing to comply with the time limits imposed by the legislation.  	

33.	I do not, therefore, consider that it is appropriate to extend time for filing of the appeal and as a result, the application by the Respondent to strike out the appeal must succeed on the basis that the appeal has been made otherwise than in accordance with the provision in the Regulations. 

Order

The appeal is struck out.

Meleri Tudur
Chairman

6 August 2007