Khan v Commission for Social Care Inspection [2008] EWCST 1347(EA) (10 October 2008)

Mohammad Sajid Khan

-v-

Commission for Social Care Inspection

Application No.  [2008] 1347.EA

Before:
Mr John Reddish
(Nominated Chairman)

Hearing date:  1st October 2008

Appeal
On 21 and on 28 July 2008 the Applicant purported to appeal, under section 21 of the Care Standards Act 2000, against the decision of the Commission for Social Care Inspection, made on 22 April 2008, to refuse his application for registration as the manager of a care home.

Application to strike out
On 18 August 2008 the Respondent applied for an order that the appeal be struck out under regulation 4A of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.

Hearing
At the hearing Mr Stephen Janisch, solicitor of Messrs Radcliffes Le Brasseur represented the Respondent Commission.  The Applicant appeared and represented himself.

Facts
The material facts are as follows:

1.	On 22 November 2007 the Applicant applied to the Respondent Commission under section 12 of the Care Standards Act 2000 for registration as the manager of a care home for young adults with learning disabilities in Croydon.

2.	On 29 November 2007 the Applicant was interviewed by one of the Respondent’s inspectors.  She felt unable to recommend approval of the Applicant’s application.  She reported that the Applicant was “a pleasant young man” who was “eager to provide good service in the home” but that he had “very little idea of the legal framework” and of the “day to day management of finances”. 

3.	On 20 February 2008 the Respondent sent a Notice of Proposal to Refuse Registration to the Applicant.

4.	On 25 March 2008 the Applicant made his written representations in response to the Notice of Proposal.  The Applicant argued that his application had been “unfairly rejected”.  He said that he possessed all of the necessary qualifications and experience and asked that he be given another opportunity to prove himself.

5.	On 22 April 2008 the Respondent sent a Notice of Decision to Refuse Registration to the Applicant.  The Regional Director noted that the Applicant’s “lack of experience” was “of particular concern”.  There was, she said, no evidence that the Applicant was “aware of the wide range of regulatory requirements” so that there “would be an unacceptable risk” to service users.

6.	The Notice of Decision stated that the Applicant had a right to appeal to the Tribunal against the decision within 28 days of the receipt of the decision letter.

7.	In June 2008 the Applicant informed the Respondent that he had not received the Notice sent on 22 April 2008.

8.	On 19 June 2008 the Respondent sent a copy of the Notice to the Applicant with a covering letter giving the address of the Tribunal and saying that, should he wish to exercise his right of appeal, the Applicant should do so “within 28 days of service of this letter”.

9.	On 21 June 2008 the Applicant received (via the Royal Mail Recorded Delivery service) the copy Notice and the covering letter.

10.	On 21 July 2008 the Tribunal received an unsigned letter from the Applicant dated 4 July 2008 in which he said that he was disappointed that his “appeal for the registration for registered manager” had been rejected and that he would “like to appeal it again”.

11.	On 22 July 2008 an Administration Officer of the Tribunal sent an appeal form to the Applicant and reminded him of the time limit for an appeal.

12.	On 28 July 2008 the Tribunal received an Appeal Application in Form B completed and signed by the Applicant and dated 22 July 2008, giving his reasons for appeal.

13.	On 18 August 2008 the solicitors acting for Respondent delivered an initial response to the appeal in which they said that the appeal had been “made otherwise than in accordance with the provision in the Regulations for initiating such an appeal” and applied for “an order striking out the appeal under regulation 4A(1)(a) and (d) of … the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, as amended”.

14.	On 21 August 2008 the Deputy President invited the Applicant to make representations in response to the application to strike out his appeal and directed him to inform the Tribunal whether he wished to make oral representations.

15.	In a letter to the Tribunal dated 1 September 2008 the Applicant said that he would be pleased to attend and make oral representations.

The law

16.	Section 21(2) of the Care Standards Act 2000 provides that no appeal against a decision may be brought by a person more than 28 days after service on him of notice of the decision.

17.	Section 37(1) of the Care Standards Act 2000 provides that any notice required to be served on a person managing or intending to manage an establishment may be served on him by delivering it to him personally or by being sent by post to him in a registered letter or by recorded delivery service at his proper address.

18.	Section 37(3) of the Care Standards Act 2000 provides that where a notice is served by being sent by post in a registered letter or by recorded delivery service, the service shall, unless the contrary is proved, be deemed to have been effective on the third day after the day on which it was sent.
 
19.	Paragraph 1(1) of Schedule 1 to the 2002 Regulations provides that a person who wishes to appeal to the Tribunal under section 21 of the 2000 Act must do so by application in writing to the Secretary.

20.	An application may be made on the application form available from the Secretary (Paragraph 1(2) of Schedule 1 to the 2002 Regulations) but it does not have to be.

21.	Paragraph 1(3) of Schedule 1 to the 2002 Regulations provides that an application in writing must give, inter alia, the applicant’s name and full postal address and his date of birth and must be signed and dated by the applicant.

22.	Regulation 35 provides that the President or the nominated chairman may extend any time limit mentioned in the Regulations but this regulation does not give any power to extend a time limit set out in a statute.

23.	Regulation 4A provides that the President or the 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 an appeal.

Issues

24.	It was argued by Mr Janisch on behalf of the Respondent that:
(a)	service of the Notice of Decision was deemed to have taken place on 25 April 2008 by reason of the provision in section 37(3) of the 2000 Act so that the time for an appeal expired on 23 May 2008;
(b)	alternatively, since delivery was certainly effected on 21 June 2008, the last day for the initiation of a valid appeal was 19 July 2008;
(c)	the Applicant’s letter was capable of being a valid application to the Tribunal but it was defective in that it did not contain the Applicant’s full name or his date of birth and it was not signed by him;
(d)	the appeal was actually initiated by the properly completed application form which was received by the Tribunal on 28 July 2008; and
(e)	the appeal was therefore initiated outside the statutory time limit and should be struck out.

25.	It was argued by the Applicant that:
(a)	the provision in section 21(2) of the 2000 Act means that a person has 28 working days after the service of a notice of decision upon him to appeal against that decision; and
(b)	therefore, whether his appeal was initiated by his letter dated 4 July 2008 or by his completed application form dated 22 July 2008, it was well within the time limit and should be allowed to proceed.

Conclusions with reasons

26.	The provision in section 21(2) of the 2000 Act means exactly what it says.  No appeal against a decision may be brought more than 28 days after service of notice of a decision.  “28 days” does not mean “28 working days” or “28 business days”.

27.	The general rule, in relation to statutory provisions which specify a period within which a person must act or take the consequences, is that the day of the act or event from which the period runs should not be counted against him (see Lester v Garland (1808) 15 Ves 248 cited with approval by Lord Diplock in Dodds v Walker [1981] 1 WLR 1027 at p. 1029).  Accordingly, the first of the 28 days referred to in section 21(2) of the 2000 Act is the day after receipt of notice of the decision.

28.	The general rule with regard to the ending of a prescribed period is that, when an act may be done during a certain period, the act may be done up to the last moment of the last day of that period (Afovos Shipping Co SA v Pagnan, The Afovos [1983] 1 WLR 195).  Thus, a notice required to be given within so many days from a given date must, at the latest, be given on the last of such days.  Therefore, under section 21(2) of the 2000 Act an appeal must be brought on or before the twenty-eighth day.

29.	Where a period is fixed within which some act must be done, Sundays and holidays in general count like other days (Wheeler v Green (1839) 7 Dowl 194).

30.	In Benton v. Sanderson Kayser Ltd [1989] ICR 136, the Court of Appeal held that the provision in section 84(4) of the Employment Protection (Consolidation) Act 1978 (now repealed) referring to “the period of four weeks” within which an employee might be re-engaged meant four calendar weeks and not four working weeks.  The same principle applies here.

31.	Particular rules for the computation of time are sometimes made, particularly in subordinate legislation.  For example, Rule 2.84(4) of the Civil Procedure Rules 1998 provides that where the specified period is 5 days or less and includes a Saturday or Sunday or a Bank Holiday, Christmas Day or Good Friday, that day does not count.  Similarly, Rule 1.5(4) of the Family Proceedings Rules 1991 provides that where, apart from this paragraph, the period in question, being a period of seven days or less, would include a day which is not a business day, that day shall be excluded.  Rule 1.5(6) provides that “business day” means any day other than a Saturday, Sunday, Christmas Day or Good Friday; or a bank holiday under the Banking and Financial Dealings Act 1971 in England and Wales.  No similar provision applies to the computation of 28 days after service of notice of a decision for the purposes of section 21(2) of the 2000 Act.

32.	The basis of the decision of Collins J in Chief Inspector of Schools in England (Ofsted) v Care Standards Tribunal and another [2007] EWHC 341 (Admin) was that, under paragraph 1 of Schedule 2 to the 2002 Regulations, the applicant had 28 days in which to appeal and that that period could not be extended to take account of the fact that it expired on a Saturday.  An appeal received and registered by the Tribunal on the following Monday was still out of time, notwithstanding that the Monday was the earliest day upon which an appeal received on the Saturday could have been registered.

33.	The Applicant was served with notice of the relevant decision on 21 June 2008.    The period of 28 days after Saturday 21 June 2008 (i.e. not including Saturday 21 June 2008) expired on Saturday 19 July 2008.

34.	The Respondent could not show that the notice required to be served on the Applicant, as a person managing or intending to manage an establishment, was served on him in April 2008 by being sent by recorded delivery service.  The “recorded delivery” was apparently not collected or signed for at that time.  Accordingly, the Respondent could derive no benefit from the provision in section 37(3) of the Care Standards Act 2000 relating to the deemed date of service.

35.	Further, in June 2008, the Respondent accepted in writing that the Notice of Decision sent on 22 April 2008 was not received by the Applicant and therefore could not now be heard to say that the deemed date of service was 25 April 2008.

36.	However, the Applicant did not initiate his appeal until 28 July 2008.  The Applicant’s letter to the Tribunal dated 4 July 2008 but received on 21 July 2008 could not properly be taken to be a valid application under paragraph 1(1) of Schedule 1 to the 2002 Regulations because, although it contained almost all of the prescribed information, it did not contain the Applicant’s date of birth and, more significantly, it was not signed by him.

37.	The appeal was initiated several days out of time.  There is no discretion to extend the time limit for the initiation of this type of appeal. A court or tribunal has no power to extend a period of time limited by a statute for doing an act unless the statute so provides (Kerridge v Lamdin [1950] 2 All ER 1110).

38.	This case falls squarely within regulation 4A(1)(a) and the appeal must be regarded as having been made otherwise than in accordance with the relevant provision in the Regulations for initiating an appeal.

Order

The appeal by Mohammad Sajid Khan against the decision of the Commission for Social Care Inspection shall be struck out.

Signed

John Reddish
Nominated Chairman
10th October 2008