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:

1.	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.

2.	From December 1998 until March 2001 the Applicant worked as the education and training manager in a residential home for children with learning difficulties.  

3.	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.

4.	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.

5.	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.

6.	Thereafter, the Applicant was employed as the manager of a local authority sponsored hostel for 16 and 17-year old children until July 2004.

7.	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.

8.	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.

9.	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.

10.	In October 2004 the Applicant left England and went to work in his native Ireland.

11.	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.

12.	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.

13.	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.

14.	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.

15.	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.

16.	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.

17.	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.

18.	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.

19.	On 2 April 2009 the Applicant wrote a letter of complaint addressed to the Secretary of State for Children, Schools and Families.

20.	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.

21.	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

22.	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.

23.	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.

24.	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.

25.	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.

26.	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

27.	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.

28.	 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

29.	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.

30.	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.

31.	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.

32.	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.

33.	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.

34.	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.

35.	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.

36.	 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.

37.	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.

38.	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