Marlow v Secretary of State [2004] EWCST 423(PC) (07 March 2005)

Keith Marlow

-v-

Secretary of State
[2004] 423.PC

APPLICATION TO STRIKE OUT UNDER REGULATION  4A

DETERMINATION

1. The Secretary of State applies under Regulation 4A to strike out this appeal against the decision to include  the applicant’s name on the list kept under s.1 of the Protection of Children Act. The application is made on the basis that the appeal is out of time.

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.

3. The applicant in this case requested that he be afforded an opportunity to make oral representations. Accordingly, the application to strike out was considered at an oral hearing in Birmingham on 28th February 2005. At this hearing, the applicant was represented by his colleague, Dr. Mark Cox and the Respondent was represented by Ms. Caroline Ricketts, solicitor.

4. The facts are not in dispute. The applicant was confirmed on the POCA List on 2nd October 2000 in a letter dated that day and signed by  D.R.Copeman. The letter specifically states “You have the 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 three months of the date of this letter.” The applicant is given the address of  the Secretary of the Protection of Children Act Tribunal to whom any appeal should be made.

5. There is no doubt that the applicant received this letter. Through his Union he instructed solicitors, Messrs Thompsons of  Stoke-on-Trent, to act on his behalf. They responded by letter dated 22nd November 2000 stating that they had been instructed to investigate the circumstances surrounding the applicant receiving a caution in January 1994. They particularly note that the applicant had three months in which to appeal his inclusion on the POCA List and request that their letter be accepted as potential notice of the applicant’s intention to appeal. On 28th November 2000 that letter was forwarded by the Department for Education and Employment to the Department of Health for their attention. On 4th December 2000, the Dept. of Health wrote to Messrs. Thompsons, solicitors, noting the potential appeal and advising that the matter should be addressed to the Secretary of the Tribunal. Also a booklet about the Tribunal was enclosed with the letter. By letter dated 7th December 2000, the applicant’s solicitors acknowledge receipt of that letter and say they are taking the applicant’s instructions.

6. Notice having been given of the applicant’s inclusion on the POCA List on 2nd October 2000, the three month appeal time expired on 3rd January 2001. No appeal was received. Indeed, he did not file his appeal until  8th December 2004, some 47 months after the time for appealing expired.

7. Regulation 4A(1) states that the President or the nominated Chairman may at any time strike out an appeal on the ground that it is made other than in accordance with the provisions of the Regulations for initiating the appeal. This has to be read together with Regulation 35(1) that provides the President or the nominated Chairman with the discretion  to extend the time limit if (a) it would be unreasonable to expect it to be, or to have been, complied with; and (b) it would be unfair not to extend it. A time limit can be extended only when both (a) and (b) are satisfied.

8. The applicant explained that , when he received the letter dated 2nd October 2000 advising him of his inclusion on the List, he did not fully understand it so he took it to his Union who referred him to Thompsons Solicitors. At that stage, he saw a Mr. Ian Durrant . The applicant explained to him that he was concerned about the effect on his job. The applicant states that he was advised by Mr. Durrant not to worry. The applicant then sought advice from his employers as to the possible effect on his job and states that he was told that his job was safe. He then  returned to see his solicitor. Mr. Durrant was not available so he saw a Ms. Stacey Cox. He advised her that his job was safe. So far as his instructions relating to a possible appeal are concerned, the applicant told the tribunal that he could not remember whether or not he discussed the appeal. He stated “I did not think about it at all”. However, in his letter to the Care Standards Tribunal dated 30th January,2005, the applicant  writes “When my employers told me my job was safe and the fact that I did not have £500, I did inform the solicitors that it was O.K.” When asked about this in the tribunal hearing, the applicant stated that he had received a booklet which suggested that the cost of an appeal would be about £500. He was unable to say what he had meant by the phrase “I did inform the solicitors that it was O.K.”

9. The applicant now finds himself in considerable difficulties with his employers. On 30th April,2003 the applicant was suspended from his job. Nottinghamshire County Council advised the Department of Health on 30th April, 2003 that the applicant’s job involved him going onto school sites, cutting grass and general maintenance work. The Department of Health advised the County Council that the applicant is on the POCA List and he was suspended and remains so.

10. As stated above, Regulation 35 provides the Tribunal with a discretion to extend the time limit for appealing. However this is not a case where the applicant was unaware of his right of appeal, nor is it a case where the Secretary of State has acted with bad faith or misled the applicant or potentially confused the applicant. There are no administrative errors in the case which would make it unfair not to extend the time for appealing. The applicant has not missed the deadline by a few days. He has missed it by 47 months.

11. I accept Dr. Cox’s explanation that the applicant is of limited education and has no legal expertise. However, he was sufficiently concerned to seek legal advice through his Union. His memory of exactly what was discussed may be understandably vague after 4 years, but it is clear from the correspondence that the need to appeal within three months was a  matter which was being considered. The letter from the applicant dated  30th January 2004 referred to at paragraph 8 above shows that the applicant’s concern over his job was uppermost in his thoughts and he had been told, at that time, that it was safe. His statement that he informed his solicitors that it was O.K. leads me to believe, on balance, that a decision was made not to take the matter any further because the applicant believed that it would not impact on him so far as his employment was concerned and that was his main concern

12.In the case of Bromfield-Rabley v Secretary of State [2004] 324.PC my colleague Mr. Robertson said  “ ….There is a heavy burden on the Applicant to show that there are good and valid reasons as to why leave to appeal should be granted out of time…….If 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”

13. Taking all these matters into account, I am not satisfied that the discretion afforded me by Regulation 35 can properly be exercised in this case. I am not satisfied that it would be unreasonable to expect the time limit of three months to have been complied with, nor do I believe that it would be unfair not to extend it. I am not able to extend the time limits in this case. Accordingly the application by the Secretary of State to strike out the appeal must succeed on the ground that it is made otherwise than in accordance with the provision in the Regulations.

ACCORDINGLY THE APPEALS ARE STRUCK OUT

14. According to Regulation 4(A)4, where the President or nominated chairman has made a determination to strike out an appeal, the applicant may apply to the President for that determination to be set aside. Such an application must be made no later than 10 working days after the date on which notice of the determination was sent to the applicant. Any application to set aside this determination must be made in writing, setting out the grounds in full (Reg 4A(5)(b)).

15. So far as costs are concerned, I invite the Respondent, if it seeks an order for costs, to apply under Regulation 24 setting out why it considers the applicant had acted unreasonably in bringing or conducting the proceedings, and to provide a schedule of costs incurred.

MRS. C.A.SINGLETON, Chairman
7th March 2005