J T L
-v-
The
Secretary of State for Children Schools and Families
Application No. [2009] 1578.PC
J T L
-v-
The
Secretary of State for Health
Application No. [2009] 1579.PVA
Before:
Mr John Reddish (Tribunal Judge)
Ms Jennifer Cross
Mrs Susan Howell
Hearing date: 3 December 2009
Application
On
20 July 2009 the Applicant purported to appeal under section 4(1)(a) of the
Protection of Children Act 1999 against the decision of the Secretary of State
for Children Schools and Families to include him in the list kept under section
1 of the Protection of Children Act 1999 (the “PoCA list”) and also purported
to appeal under section 86(1) of the Care Standards Act 2000 against the
decision of the Secretary of State for Health to include him in the list kept
under section 81 of the 2000 Act (the “PoVA list”).
Representation
The Applicant is represented Mr Evan Pritchard of Robert
Lizar, solicitors of Princess Road, Moss Side, Manchester. The Secretaries of
State are represented by Mr Kevin Brooks of the Treasury Solicitor’s Office.
Application to strike out
By
a letter dated 10 August 2009 the Respondents applied under Rules 8(3) and
20(4) of the Tribunal Procedure (First-tier Tribunal) (Health, Education &
Social Care Chamber) Rules 2008 for an order that the application notice should
not be admitted because it was provided to the Tribunal outside the relevant
time limit.
Application to extend time
By
a letter dated 4 September 2009 the Applicant applied for an order pursuant to
Rule 5(3)(a) of the 2008 Rules extending his time for delivering his
application notice to the Tribunal.
Hearing
The parties agreed that their cross-applications should be
determined by the Tribunal without an oral hearing and presented their
submissions in writing accordingly.
Facts
The
material facts found by the Tribunal were as follows:
- The
Applicant was born in September 1969. He was brought up and educated in
the Republic of Ireland. He moved to England in 1990 and worked, first as
a laboratory technician, later as a research assistant and then in a
variety of child care positions. The Applicant was also a specialist
foster parent.
- From
December 1998 until March 2001 the Applicant worked as the education and
training manager in a residential home for children with learning
difficulties.
- In
June 2001 the Applicant was appointed as the education and training
manager in another children’s home. Following his resignation from that
post in August 2001, the manager of the home found, in the Applicant’s
locker, several confidential files relating to children and a document
which appeared to be a forged reference.
- On
26 June 2002 the Applicant was appointed as a residential social worker in
a secure unit for children but was summarily dismissed from that position
on 25 July 2002, when it was discovered that he had failed to disclose his
previous, short employment in the children’s home when applying for the
job, thus depriving his prospective employer of the opportunity to obtain
a reference from a previous employer.
- Following
the Applicant’s dismissal in July 2002, it was discovered that the agency
that he had named as his most recent employer when applying for the job
probably did not exist.
- Thereafter,
the Applicant was employed as the manager of a local authority sponsored
hostel for 16 and 17-year old children until July 2004.
- On
28 June 2004 the Commission for Social Care Inspection received an
anonymous complaint about the Applicant’s behaviour as the manager of the
hostel and commenced an investigation.
- In
July 2004 the Applicant left his employment at the hostel and co-founded
an organisation “to meet some of the needs of the young homeless” by
providing them with “short to medium term accommodation”. The
organisation was not successful and was “wound up” in October 2004.
- On
28 September 2004 the Commission for Social Care Inspection referred the
Applicant’s name to the Department for Children, Schools and Families for
possible inclusion on the PoCA list.
- In
October 2004 the Applicant left England and went to work in his native Ireland.
- It
appeared to the Department that the Applicant had, on three occasions,
supplied information which was either false or incomplete when applying
for child care positions and he might therefore be regarded as
untrustworthy and unsuitable to work with children and/or vulnerable
adults. Accordingly, on 19 November 2004 the Department sent a letter to
the Applicant at his last known address in England informing him that his
name had been provisionally included on the PoCA and PoVA lists and
inviting him to make representations. The letter was returned to the
Department by the Royal Mail marked “addressee gone away”. Subsequent
attempts by the Department to locate the Applicant were unsuccessful.
- On
20 April 2005 the Department confirmed the Applicant’s name on the PoCA
and PoVA lists. As before, a letter informing the Applicant of this
action was returned undelivered.
- In
August 2008 the Applicant returned to England and applied for appointment
as the Deputy Head of Operations of an organisation providing social care
services. An application for a Criminal Records Bureau check revealed
that the Applicant’s name had been entered on the PoCA and PoVA lists in
2005.
- On
22 December 2008 the Applicant contacted the Department by telephone and
facsimile transmission. He expressed his shock and surprise that his name
appeared on the lists. He protested that he had never received any
correspondence about the matter and that he had never been able to
exercise any right of reply.
- On
20 January 2009 Mr Bateman of the Safeguarding Children Operations Unit
(PoCA) wrote to the Applicant and formally notified him that his name had
been included on the lists. He also enclosed a copy of the Department’s
letter to him dated 20 April 2005. Mr Bateman informed the Applicant that
he had a right of appeal “under section 4 of the Protection of Children
Act List (sic)” to “an independent tribunal (Care Standards
Tribunal)”. He also said that the Applicant had to apply to the Tribunal
“within three months of the date of this letter” and could obtain an
application form from the Secretary of the Care Standards Tribunal.
- On
2 February 2009 Mr Pritchard wrote on behalf of the Applicant to the
Department. He pointed out that they appeared to have confused the
Applicant with another person of the same name and with the same date of
birth. They had, he said, supplied the Applicant with information which
did not relate to him at all and they had referred to the personal details
of a named person whom the Applicant did not know. Mr Pritchard made it
clear, in a subsequent letter dated 17 March 2009, that he was only
retained by the Applicant to ensure that the information held by the
Department and others was accurate and that the Applicant would himself be
dealing with an appeal to the Tribunal against the decision of the
Department to include his name on the lists.
- On
26 February 2009 the Applicant wrote to the Secretary of the Tribunal.
His letter was received on 2 March 2009. The Applicant gave his name and
address and indicated that he was seeking to initiate an appeal to have
his name removed from the PoCA and PoVA lists. He said that he had
“prepared a full and comprehensive appeal” but that he was unable to send
it to the Tribunal until his solicitor had received “information withheld
by the Department for Children Schools and Families” which had “crucial
significance” for his case. The Applicant gave his solicitor’s name and
address. He said that Mr Pritchard had requested the required information
three times but was still awaiting a response from the Department. The
Applicant added that he “felt at this stage it was prudent to write … in
this format” because he understood that there were “time limits involved
with lodging of appeals”. He concluded by saying that he hoped to send
“the full appeal … and all correspondence concerned within a week or so”
and thanked the Secretary in advance for her acknowledgement of his
appeal.
- On
6 March 2009 the Tribunal sent the Applicant an Appeal Application in Form
A. In accordance with the usual practice, the Tribunal did not send any
explanatory letter to the Applicant, relying upon the fact that Form A is
self-explanatory and invites careful consideration of the relevant time
limit for completing and returning the Form to the Tribunal.
- On
2 April 2009 the Applicant wrote a letter of complaint addressed to the
Secretary of State for Children, Schools and Families.
- On
29 April 2009 Mr Bateman wrote to the Applicant in reply to his letter
dated 2 April 2009. He reviewed the exchanges of correspondence and noted
that he had, in his letter dated 20 January 2009, advised the Applicant of
his right of appeal to the Tribunal. Mr Bateman added that, if the
Applicant decided to pursue an appeal, he should lodge it with the
First-tier Tribunal (Care Standards) at the same London address as before.
- In
July 2009 the Applicant completed and signed but did not date the Form A
he had received from the Tribunal. He also prepared a full account of his
case in the form of a long letter addressed to the Secretary of the
Tribunal. The Applicant then sent these documents to the Tribunal. They
were received on 20 July 2009.
The law
- Rule
20 of the 2008 Rules provides that an application notice must be signed by
the applicant and must include (a) his or her name and address; (b) the
name and address of his or her representative, if any; (c) an address
where documents for the applicant may be sent or delivered; (d) the name
and address of any respondent; (e) details of the decision or act to which
the proceedings relate; (f) the result the applicant is seeking; (g) the
grounds upon which the applicant relies; and (h) any further information
or documents required by a relevant practice direction.
- The
Schedule to the Rules provides that the time limit for an application
under section 4 of the Protection of Children Act 1999 and for an
application under section 86 of the Care Standards Act 2000 is three
months after written notice of the decision was sent to the applicant.
- Rule
5(3)(a) of the 2008 Rules provides that the Tribunal may extend the time
for complying with any rule unless such extension would conflict with a
provision of another enactment containing a time limit.
- In
Wheeler v The Secretary of State [2008] 1229.PT and in Thomas v The Secretary of State
[2009] 1474.PT the President of the Tribunal referred to the three months
deadline as “very generous” and said that it would only be extended in the
most exceptional circumstances. In the latter case the President also
said that cases decided under the 2002 Rules should still provide a
framework for the Tribunal in deciding when to exercise the discretion to
extend time for serving an application notice under Rule 5(3)(a) of the
2008 Rules.
- In
Delanty v The Secretary of State [2006] 681.PVA [2006] 682.PC the
Nominated Chairman was inclined to the view that an application notice
sent to the Tribunal within the time limit by a third party and not on the
prescribed form was a valid notice notwithstanding that it did not contain
the applicant’s date of birth and telephone number (as required by the
2002 Rules). He also said that, if he was wrong about the validity of the
notice, he would extend the time limit because the applicant was
“genuinely confused” as to when all the necessary information to
constitute a valid appeal had to be submitted.
Issues
- Mr
Brooks submitted on behalf of the Secretaries of State that:
(a)
the Applicant should have sent
his application notice in proper form to the Tribunal to arrive no later than 20
April 2009;
(b)
the Applicant was three months
outside the time limit - a period that has previously been held to be too long
to justify the exercise of the discretion to extend the time;
(c)
the Applicant revealed in his
letter dated 26 February 2009 that was well aware that there was a time limit
for his appeal;
(d)
there are no exceptional
circumstances in this case to justify an extension of the time;
(e)
the requests for information made
by the Applicant’s solicitor to the Department do not amount to a satisfactory reason
for the Applicant’s delay;
(f)
the merits or otherwise of an
appeal have no bearing upon a decision as to an extension of time for
appealing;
(g)
the Applicant was given a clear
warning in the letter dated 20 January 2009 that his application notice had to be
sent to the Tribunal within three months;
(h)
the amount of time that passed
between the placing of the Applicant’s name on the lists and the notification
of that fact to the Applicant similarly has no bearing upon a decision as to
the extension of time for lodging an appeal; and
(i)
the error in Mr Bateman’s letter
dated 29 April 2009 has no bearing since the time for sending the application
notice had already expired and Mr Bateman was under no duty to explain the true
position to the Applicant.
- Mr
Pritchard submitted on behalf of the Applicant that:
(a)
the Applicant’s appeal has merits
and this should be a factor taken into account when his application for an
extension of time is considered;
(b)
given the amount of time that has
passed since the Applicant’s name was placed on the lists, the relatively short
period of further delay should not be allowed to prejudice his application;
(c)
allowance should be made for the
fact that the Applicant was not at the material times legally represented in
relation to the appeal;
(d)
the Applicant had, within the
prescribed time limit, notified both the Department and the Tribunal that he
intended to appeal;
(e)
Mr Bateman’s letter dated 29
April 2009 should be regarded as fatal to an application to strike out the
appeal because it conveyed to the Applicant the suggestion that an appeal by
him would still be in time and because the Applicant was led to believe by that
letter that his time for appealing would be extended for a further three months
from 29 April 2009; and
(f)
the application notice was sent
to the Tribunal within three months of Mr Bateman’s letter.
Conclusion with reasons
- Having
carefully considered the copy documents and the written submissions placed
before them, the Tribunal decided to exercise the discretion given by Rule
5(3)(a) of the 2008 Rules in favour of the Applicant and to extend his
time for lodging an application notice until 20 July 2009.
- When
he wrote his letter to the Secretary of the Tribunal dated 26 February
2009 the Applicant probably believed that he had validly instituted an
appeal against the decision to place his name upon the lists within the
prescribed time limit.
- An
application notice does not have to be presented in Form A and a notice in
some other form will be regarded as valid if it contains all of the
information set out in Rule 20(2) of the 2008 Rules.
- The
Applicant’s letter dated 26 February 2009 came very close to being a valid
application notice in that it contained all of the required information
save the address of the Respondents and the grounds upon which the
Applicant relied in support of his appeal. It was not argued on behalf of
the Applicant that his letter constituted a valid application notice and
the Tribunal was unable to find that it was valid, since it contained no
grounds of appeal.
- Shortly
after he had sent his letter to the Tribunal the Applicant received an
Appeal Application in Form A from the Tribunal. This form contains the
information that an appeal against a decision of the Secretary of State to
place a name on the PoCA list, the PoVA list or List 99 must be made
within 3 months from the date of notification of the decision. This
should have conveyed to the Applicant that he had only until 20 April 2009
(at the latest) to send the completed form to the Tribunal. However, the
Applicant may well have disregarded this information, reasoning that he
had already validly instituted an appeal against the decision and that it
therefore did not apply in his case. The Applicant may also have been
deceived by the fact that he was not informed that his letter was
deficient.
- The
deadline imposed by the Rules is generous and it should only be extended
in exceptional circumstances. However, a degree of latitude should be
extended to unrepresented applicants so as to ensure that they are not
prevented from gaining access to justice because of genuine
misunderstanding or confusion as to the application of the Rules.
- In
the present case the circumstances were exceptional in that:
(a)
as the Respondents accept, the
Applicant had been given no opportunity to make representations as to why his
name should not be placed upon the lists in 2004 or 2005 and the Applicant was
genuinely unaware that his name had been placed on the lists;
(b)
shortly after the Applicant
discovered that his name had been placed on the lists he was given information
by the Department which was confusing and may have led him reasonably to
believe that he had been mistaken for another person with the same name;
(c)
the Department failed immediately
to bring an end to that confusion and gave the appearance of withholding
information and documents from the Applicant that he thought should be supplied
to him;
(d)
the Applicant communicated his
intention to appeal to the Tribunal and to the Department well within the time
limit and he believed that he had done enough to commence the appeal process;
and
(e)
the Applicant was not given any
warning, either by the Tribunal or by the Respondents, that his purported
application notice was deficient.
- The
Tribunal accepted the submission that the merits of the appeal should be
taken into account when an application for an extension of time is under
consideration but only to the extent that the discretion will not be
exercised if the appeal has no reasonable prospect of success. In this
case the Applicant will clearly have grave difficulties in resisting the
allegation that he was guilty of misconduct, since he apparently admits
that he failed to supply relevant information about his past employment
history when he applied for a child care position. However, the Applicant
may be able successfully to contend that his misconduct did not harm a
child or place a child at risk of harm and/or that he is not unsuitable to
work with children and/or vulnerable adults. The Tribunal formed no
concluded view about those contentions save that they are not demonstrably
untenable.
- The
Tribunal accepted that the letter from Mr Bateman dated 29 April 2009 had
no direct bearing on the issue because it was written after the date
before which the Applicant should have sent his application notice but
concluded that the letter had some relevance because it might have induced
the Applicant to delay the submission of his completed Form A for longer
than he might otherwise have done.
- The
circumstances of the present case were similar to those which prevailed in
Delanty v The Secretary of State and it was appropriate for the
Tribunal to adopt a similar course to that adopted by the Nominated
Chairman in that case.
Order
1. The time
limit for the Applicant to send his application notice to the Tribunal shall be
extended to 20 July 2009.
2. The time
limit for the Respondents’ response shall be extended to 20 days after the
receipt by them of this decision.
Signed
John
Reddish Tribunal Judge
Ms Jennifer Cross
Mrs
Susan Howell
