EDMUND ATTOBRAH

-v-

SECRETARY OF STATE
[2006] 0751.PC
[2006] 0752.PVA

DECISION ON AN APPLICATION TO STRIKE OUT

1.	By a letter dated 18th August 2006 received by the Tribunal Secretariat on 21st August 2006, the Respondent has requested that the Appellant’s appeal be struck out on the grounds that the appeal was not made within the three-month deadline stipulated in Schedule 4, paragraph 1(2) of the Regulations.

2.	Applications to strike out made on the basis that the appeal was not lodged within the time limit are governed by Regulation 4A(1)(a)(i) of the Protection of Children and Vulnerable Adults and Care Standard Tribunal Regulations 2002 (‘the Regulations’).

3.	The reasons for the application to strike out are as follows:

4.	On 17th February 2004 the Appellant was informed by the Respondent that he would be provisionally included on the Protection of Children Act 1999 list (the PoCA list). By a letter dated 4th August 2004 the Appellant was informed that, because of his provisional listing on the PoCA list he would also be provisionally included on the Protection of Vulnerable Adults list (the POVA list). 

5.	On 30th November 2004 the Appellant was sent two letters notifying him that the Respondent had decided to confirm his name on both the PoCA and POVA lists. Both letters informed the Appellant of the right to appeal to this Tribunal and that the appeal had to be made within three months of the date of the letter.

6.	The three-month time limit for making the appeal in relation to either decision expired on 1st March 2005. No appeal was lodged by that time although the Appellant was in correspondence with the Respondent during March 2005.

7.	On 31st July 2006 the Tribunal received from the Appellant a completed Appeal Form (dated 24th July 2006), indicating his wish to appeal against the decision to include him on both the PoCA and POVA lists. This was some 16 months after the three-month time limit for making an appeal.

8.	The Respondent states that although there is power to extend any time limit pursuant to Regulation 35 of the Regulations, neither of the two grounds (namely (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) in that Regulation apply. 

9.	In respect of whether it would be unfair to extend it, the Respondent states that the Appellant was directed to the Tribunal as long ago as March 2004 and that the Appellant’s explanation that he had difficulty in getting legal assistance are not sufficient for the Tribunal to determine whether or not it would be unfair not to extend it.

10.	As to the question of whether it would be unreasonable to have expected the time limit to be complied with, the Respondent refers to two previous decisions of this Tribunal in which the question of extension of time limits has been considered. In Keith Marlow v Secretary of State [2004] 423.PC the Tribunal noted that there was no administrative errors in the case which would make it unfair not to extend the time for appealing, that the Appellant was aware of his right to appeal and the Secretary of State had not acted in bad faith or misled the applicant or potentially confused the application. In that case the deadline was missed by 47 months.

11.	In Bromfield-Rabley v Secretary of State [2004] 324.PC the Tribunal stated that there was 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 and that actual notice of the right at the time will almost invariably render such an application futile.

12.	The Respondent relies on these cases to support the submission that the Tribunal should not exercise its discretion to extend time in this case since the Appellant was aware of his right to appeal at the time, that the Respondent has not acted with bad faith or misled the Appellant or potentially confuse the application. The Respondent also contends that the Appellant has not discharged the burden of showing that there are good and valid reasons as to why leave should be granted out of time.

13.	Regulation 4A(1)(a)(i) of the Regulations states 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 provisions in the Regulations for initiating that appeal.

14.	There is a three-month time limit for initiating the appeal. That information was set out on the letter which the Appellant received on the 30th November 2004 meaning that the time limit for receipt of the appeal form was 1st March 2005. The Form was received sixteen months later. 

15.	The Appellant has failed to comply with the three-month deadline and I need to consider whether or not I should extend the time limit by virtue of Regulation 35. In doing this, I feel that I need to bear in mind the case of Wright v Secretary of State for Health. In that case on 18th and 19th October 2006 the Administrative Court is being asked to consider whether it is lawful for an individual’s name to be included on the POVA list when the dismissal took place before the commencement of Part 7 of the Care Standards Act on 26th July 2004. I note that the Appellant in this case resigned from his employment in January 2004 after which the mater was referred to the Secretary of State. If the decision in Wright is that it was not lawful to include an individual on the POVA list if they were dismissed before July 2004, there is an argument here that the Appellant should not have been referred to the POVA list either. 

16.	I am entirely satisfied that there are no reasons why I should extend the time limit in relation to the PoCA list appeal. The Appellant was told of the right to appeal and the time in which it had to be made in the notification letter in November 2004, there was no bad faith or misleading by the Secretary of State, the application was not potentially confused and there were no administrative errors. Accordingly I have come to the conclusion that, in respect of the PoCA listing, I will NOT extend time under Regulation 35 and so STRIKE OUT that appeal.

17.	Given the Administrative Court hearing in Wright I am concerned that there may arguably have been an administrative error in placing the Appellant on the POVA list. That will not become clear until the decision has been made. In the circumstances, I will not strike out the appeal against the POVA listing. Likewise, it would be inappropriate to require either party to take any steps in relation to that appeal until the Wright decision has been published. It would also be inappropriate to extend time since if the Administrative Court concludes that it is lawful to refer an individual if they resigned before 24th July 2004 the Appellant in this case will have the same 16 month delay burden to overcome. In the circumstances, therefore, I will not determine the application to strike out the POVA list appeal at this time. I will ADJOURN the application to strike out the POVA list appeal until 28 days after the Administrative Court has delivered its judgment in the Wright matter.

18.	The Appellant may apply for this Decision to be set aside, but must do so not later than 10 working days after the date on which notice of the determination is sent to the Appellant and must be in writing and must state the grounds in full. For the avoidance of doubt, the Appellant should be aware that 10 working days is equivalent to two weeks and it would be safer to take the time limit from the date of this decision. 

ORDER:
1) THE PROTECTION OF CHILDREN ACT LIST APPEAL BE STRUCK OUT

2) THE APPLICATION TO STRIKE OUT THE PROTECTION OF VULNERABLE ADULTS LIST APPEAL BE ADJOURNED UNTIL 28 DAYS AFTER THE ADMINISTRATIVE COURT HAS DELIVERED ITS JUDGMENT IN THE MATTER OF WRIGHT.

Simon Oliver
Nominated Chairman
23rd August 2006