Arlene Bromfield-Rabley
v
Secretary of State
[2009] 1639.PVA

Decision on Strike Out Application

Application

1.	By a letter dated 29th October 2009 the Secretary of State for Children, Schools and Families (“DCSF”) notified the tribunal that he opposed the appeal by Ms Bromfield-Rabley and that, in accordance with Rule 8 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 the Secretary of State applied for the Tribunal either to refuse to admit the appeal application, or, alternatively, to strike out the Appellant’s appeal, on the grounds that it has been submitted considerably out of time without any explanation; or, alternatively, that it has no reasonable prospects of success.
 
2.	The Secretary of State also requested an extension of time for filing its Response to Appeal until 20 days after the date application for strike out is finally determined.

The Legal Framework

3.	The Appellant was included on the PoCA List pursuant to section 3 of the Protection of Children Act, 1999 (“the 1999 Act”) because she was already on the Consultancy Service Index held by the Secretary of State (see paragraphs 17 and 18 below). However, the routes by which she can have her inclusion on the PoCA List considered by the Tribunal are just the same as those open to someone included on the PoCA List pursuant to section 2: an appeal under section 4 of the 1999 Act; and an application for removal under section 4A. 

Application for removal

4.	Section 4B of the 1999 Act sets out conditions that must be fulfilled before an application for removal can be made under section 4A. In the case of someone who was included on the PoCA List (otherwise than provisionally) as an adult, section 4B(3) makes it a condition that the individual: “has been included (otherwise than provisionally) in the list for a continuous period of at least ten years.”

5.	Since the Appellant was only included on the PoCA List with effect from 2nd October 2000 (see paragraph 19 below), it follows that she may not make an application for removal under section 4A before 2nd October 2010. Insofar as she is seeking to make such an application by way of her present appeal, this tribunal has no jurisdiction to entertain it.

6.	For the avoidance of doubt, “the list” in section 4B(3) must be the PoCA List: see section 4A(1), which refers specifically to “the list kept by the Secretary of State under section 1”; and section 3, which makes clear that the Secretary of State had to take a new decision, and give an individual a further right to make representations beforehand, to include someone on the PoCA List who had previously been on the (non-statutory) CSI. Accordingly, time that the Appellant was included on the CSI does not count towards the ten year requirement.

Appeal

7.	On her appeal form, the Appellant has indicated that she is appealing against a decision by the Respondent not to remove her name from the PoCA List (i.e. her appeal is brought under s. 4(1)(b) of the 1999 Act). The relevant decision for these purposes is the decision communicated to the Appellant on 1st February 2002. The appeal form includes no request for an extension of time and no reasons for the late-filing of the appeal. Consequently, the Secretary of State says that the Tribunal should refuse to admit the appeal, or strike it out, on grounds of delay.

8.	The Appellant may have thought that the DCSF’s letter of 4th September 2009 communicated a decision not to remove her name from the PoCA List. However, the Secretary of State says that, as the terms of that letter make clear, no decision had been taken by the Respondent with regard to removal from the PoCA List: rather the letter was setting-out the limited circumstances in which the Respondent has the power to remove an individual’s name from the PoCA List. 

Relevant law - delay

9.	On 3rd November 2009, the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the “2002 Regulations”), which formerly regulated proceedings before the CST were repealed. They were replaced by the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the “2008 Rules”).

10.	The time limit for bringing an appeal against inclusion in the PoCA list was the same under the 2002 Regulations as it is now under the 2008 Rules, namely three months because by rule 20(1) of the 2008 Rules, an applicant before the Tribunal must start proceedings by filing the application notice so that it is received by the Tribunal within the time specified in the Schedule. 

11.	Rule 7(1) provides that an irregularity resulting from a failure to comply with any requirement in the 2008 Rules does not of itself render void the proceedings or any step taken in the proceedings. However, by rule 7(2) if a party has failed to comply with a requirement in the 2008 Rules, the Tribunal may take such action as it considers just, which may include waiving the requirement, requiring the failure to be remedied, exercising its power to strike out a party’s case under rule 8, or restricting a party’s participation in the proceedings. 

12.	Mr Robertson (one of the Tribunal’s chairmen) examined the CST’s power to strike out an appeal submitted late when he considered the Appellant’s own application for reconsideration in September 2004. Mr Robertson stated, at paragraphs 3 and 10-11:

“…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….

As stated at the outset given the onerous nature of the statutory scheme there is a heavy burden upon the Applicant to show that there are good and valid reasons as to why leave to appeal should be granted out of time. Actual notice of the right at the time will almost invariably render such an application futile. I would go further and say that in the absence of bad faith by the Secretary of State, the onus is upon the Applicant when placed upon the List to investigate whether a right of Appeal exists and failure to do so will not in itself give rise to a sympathetic hearing on a leave application. There may be circumstances where an Applicant is genuinely unable by reason of intellectual, physical or mental infirmity or through language or other reasons from availing themselves of the Appeal process, but such cases will be few and far between….

“In the instant case the Applicant was clearly informed of the appeal process on not one but two occasions. The decision of the President is therefore unimpeachable and I refuse the application for leave.”

13.	That decision was applied in Keith Marlow v. Secretary of State [2004] 423.PC. The CST stated as follows, at paragraph 10:

“As stated above, Regulation 35 [of the 2002 Regulations] 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 in 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.”

14.	The decision in Marlow discussed that a President or nominated chairman could extend the three month limit if (a) it would have been unreasonable to comply, or expect it to have been complied, with; and (b) it would have been unfair not to extend it. The Tribunal found that the time limit should only be extended when both (a) and (b) were satisfied. 

15.	Although the decision in the Appellant’s own case from 2004 and the decision in Marlow were made under the 2002 Regulations, the principles that set out in those cases remain applicable in cases before the First Tier Tribunal under the 2008 Rules. This has been accepted by the Tribunal in, for example, Philip John Maurice Thomas v Secretary of State [2009] 1474.PT, and in Philip Nam v Secretary of State [2009] 1452.PC/1453.PVA

Relevant law - test for leave on application under s. 4(1)(b) 1999 Act

16.	The test to be applied in assessing whether to grant leave on an application under s. 4(1)(b) of the 1999 Act was considered by the Tribunal in the case David Palmer v Secretary of State [2008] 1292.PC (who had been included on the PoCA List after inclusion on the CSI) where HHJ Pearl made findings in paragraphs 13 to 21. It is not necessary for me to set them out here as they are contained in the Secretary of State’s letter of 29th October 2009 and I bear them in mind in reaching my decision.

Background

17.	The Appellant was formerly employed by Haringey Council as a residential social worker at a children’s home. Following her dismissal by the Council on 23rd July 1998, for gross misconduct, she was referred for inclusion on the Consultancy Services Index. The referral was made on the basis of the following misconduct:

a.	The Appellant had taken two children to an indoor play area and left them there after the children refused to leave. She did not wait for the police or other support to arrive before doing so (although she did inform the deputy manager of the establishment). No formal action was taken by the Council in relation to this incident.

b.	In June 1997, she made an inappropriate comment to a young person and the Council issued her with a written warning.

c.	In August 1997, she invited two children in her care to a barbecue without authorisation from an appropriate manager and gave permission for the same two children to visit local parks unsupervised. Following these incidents the Appellant was issued with a final written warning by the Council.

d.	In February 1998, she used undue force in restraining a young person. She was suspended shortly after this incident precipitated; and, after a full investigation and a disciplinary hearing, dismissed by the Council.

18.	The Appellant was informed that she had been included on the Consultancy Services Index (CSI) on 29th December 1998.

19.	On 26th June 2000, the Appellant was informed that the Respondent was considering including her on the list maintained under s. 1(1) of the 1999 Act (the “PoCA List”). She provided representations to DCSF and on 2nd October 2000 she was informed that she had been included on the PoCA List with effect from that date.

20.	By letter of 16th December 2001, the Appellant applied to the Respondent to be removed from the PoCA List. On 1st February 2002, DCSF informed her that, after careful consideration, the Respondent had concluded that the Appellant had provided no new evidence to convince him that her name should not be included on the PoCA List and, accordingly, that her name would remain on it. 

21.	In May 2004, the Appellant applied to the Care Standards Tribunal (CST) for leave to appeal the Respondent’s decision not to remove her name from the PoCA List. That application was dismissed by HHJ Pearl by Order of 13th July 2004. 

22.	The Appellant requested a reconsideration of HHJ Pearl’s decision. Following a hearing, which the Appellant did not attend, the Appellant was again refused leave by decision of Mr Robertson of 20th September 2004.

23.	Following an application by the Respondent, Mr Robertson ordered the Appellant to pay the Respondent £695.55, representing his costs of the reconsideration hearing.

24.	On 11th August 2009, the Appellant wrote to DCSF, requesting that her name be removed from the PoCA List. DCSF responded by letter of 4th September 2009, setting-out the requirements that would have to be satisfied before the Secretary of State could remove her name from the PoCA List (in accordance with s. 1(3) of the 1999 Act). The Appellant did not respond to DCSF’s letter. 

25.	Following the letter from the Secretary of State’s solicitors, I made some directions on 20th November 2009. These directions invited Ms Bromfield-Rabley to make representations in response to the application by the Secretary of State. These representations were to be made by 5pm on 1st December 2009. In addition I listed an oral hearing for 2pm on 3rd December 2009 should Ms Bromfield-Rabley wish to address me in person. 

Grounds of application by the Secretary of State - delay

26.	The Secretary of State argues that the decision which the Appellant has indicated that she wishes to appeal was communicated to her by letter dated 1st February 2002. Consequently the latest date by which the Tribunal could have received an appeal form was 1st May 2002. The appeal form was received by the Tribunal on 17th September 2009 and it is consequently brought 7 years and 4 months out of time. The Appellant was aware of her rights of appeal, she was not misled by the Secretary of State and there were no administrative errors. 

27.	The Respondent notes that in the appeal form, the Appellant has given no explanation for, or evidence in relation to, the delay that has occurred. She has put forward no evidence that it would have been unreasonable for her to have complied with the time limits set out in the 2008 Rules. As such, it is argued that the issue of whether it is unfair not to extend the time limit does not arise. 

28.	The Secretary of State says that the Tribunal may wish to take into account the reasons that the Appellant put forward for her delay in bringing her 2004 application for leave to appeal and which were taken into account by HHJ Pearl and by Mr Robertson in their decisions of (respectively) 13th July 2004 and 20th September 2004. Those reasons were, of course, not considered satisfactory reasons for the delay in bringing an appeal of 2 years at that time. The Respondent submits that the CST was clearly right to reject those reasons in 2004 and such reasons are still more inadequate to justify a delay of more than 7 years in bringing an appeal.

29.	It is argued by the Secretary of State that the case law, as described above, clearly supports the Respondent’s submission that the Tribunal should not exercise its discretion to extend time in this case. The Appellant has not discharged the burden of showing that there are good and valid reasons as to why she has not met the deadline imposed by the 2008 Rules. As such, the Respondent submits that the Tribunal should not exercise its discretion to extend the time limit for lodging the appeals in this case and should refuse to admit the appeal application. Such a course would further the overriding objective in rule 2 of the 2008 Rules, to deal with cases fairly and justly. 

30.	In the alternative, the Tribunal is requested, pursuant to rule 7 of the 2008 Rules, to strike out the Appellant’s appeal. That provision embodies a broad discretion on the part of the Tribunal to deal with failures to comply with its procedural requirements. The Tribunal may take such action as it considers just. The list of possible sanctions is merely illustrative and not exhaustive. Although strike out under rule 8 is referred to, this does not prevent the Tribunal from striking out an appeal in circumstances other than those covered by rule 8 where it considers it just to do so. For the reasons set out above, it would be just to strike out the Appellant’s appeals in the instant case.

Grounds of application by the Secretary of State - no reasonable prospects of success

31.	The Secretary of State says that if the Tribunal considers that DCSF’s letter to the Appellant of 4th September 2009 communicated a decision appealable under s. 4(1)(b) of the 1999 Act, or if, contrary to the submissions made above, the Tribunal considers that the Appellant should be allowed to bring an appeal of the 2002 decision out of time, then the Respondent submits that the Tribunal should nonetheless strike-out the present appeal as having no reasonable prospects of success.

32.	In accordance with the Tribunal’s findings in Palmer (and in the preceding cases of Soper and PD [2006] 651 PC), the question to be asked by the Tribunal in considering whether to grant leave for an appeal under s. 4(1)(b) of the 1999 Act is: were the requirements of s. 3(3)(a) and (b) satisfied at the time that the decision was taken? Evidence that has subsequently been submitted can be taken into account, but it is only relevant insofar as it can shed light on that question.

33.	Nothing that the Appellant has put forward, either in her letter to DCSF of 11th August 2009 or in her grounds of appeal, casts any doubt on the correctness of the original decision by the Respondent that the requirements of s. 3(3)(a) and (b) were satisfied at the relevant time (2nd October 2000). Accordingly, there is no prospect that the test for the grant of leave will be satisfied and the Tribunal should therefore strike-out the appeal on the grounds that there is no reasonable prospect of it succeeding (r. 8(4)(c) of the 2008 rules).

Ms Bromfield-Rabley’s case

34.	Ms Bromfield-Rabley did not contact the tribunal as a result of the directions made by me on 20th November 2009 by any means whatsoever. The tribunal tried to contact her to see if she wished to attend the oral hearing that was scheduled for 3rd December 2009 but she did not answer her telephone. In those circumstances and despite considerable efforts by the Tribunal to obtain Ms Bromfield-Rabley’s views, there is nothing available from the Appellant in response to the application by the Secretary of State. 

Conclusions with reasons

35.	It is necessary for me to try to determine the basis upon which the Appellant has applied to be removed from the list. As she made no written or oral submissions it is not possible to be sure. The three options seem to me to be: either she is taking the view that the 10 years required by section 4B(3) of the 1999 Act started to run from the date she was placed on the CSI – 29th December 1998 - or she is appealing the decision of 2002 not to remove her name from the list or she is she is appealing the contents of the letter from the Secretary of State dated 4th September 2009. I will consider and determine each of these in turn.
  
36.	The first option is easy to deal with. The CSI had no statutory force and so the 10 year time limit only started with the introduction of the 1999 Act. The 10 years before which an application for removal can be considered only started on 2nd October 2000 and so the earliest that an application can be made is 2nd October 2010. Even then, it will be necessary for the conditions in Section 4B to be met. On the basis that this is an application under section 4B, therefore, I dismiss it as being outside the Tribunal’s jurisdiction.

37.	If, however, I am wrong about that, then I need to consider the other two options. If this is an application to appeal the decision made on 1st February 2002, then I need to consider whether or not to allow the appeal to be submitted out of time. In this respect Ms Bromfield-Rabley faces a very difficult task. First, the decision of 1st February 2002 has already been the subject of an application to appeal in 2004. That application was refused by His Honour Judge Pearl on 13th July 2004 and, after reconsideration by Mr Robertson, was refused again on 20th September 2004. It seems to me that if this is another attempt to appeal the original decision the fact that the application has already been refused twice means that I should not entertain it for a third time.

38.	If I was to even consider the application, I would need to decide whether or not to extend time. In paragraph 14 above, Mr Robertson set out the approach to take. His comments were made in relation to the reconsideration of Ms Bromfield-Rabley’s earlier application. I adopt entirely what Mr Robertson has said. I also adopt the passage from the Marlow case cited in paragraph 15 above. If it was too late to extend time in 2004 I cannot see how it would be appropriate to extend time in the same case a five years after it was dismissed and 7 years after the appeal should have been lodged.

39.	In the circumstances, therefore, I do not extend time in which to bring this appeal and I strike out this case on the basis that there is no reasonable prospect of success. 

40.	The last point to consider is whether this is an appeal of the “decision” of the Secretary of State of 4th September 2009. If it is, then in principle the appeal was registered in time. Having read the letter from the Secretary of State of 4th September 2009 I am satisfied that it does not contain a decision NOT to remove Ms Bromfield-Rabley’s name from the PoCA List. It is clear that there has been no decision taken on her application and that the letter merely set out the circumstances that apply to a removal by the Secretary of State. I have come to the conclusion, therefore, that there is no decision which can form the basis of an appeal to this tribunal. Because there is no appealable decision the application is outside the Tribunal’s jurisdiction and so is struck out.

ORDER

1.	In accordance with Rule 8(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 this appeal is struck out on the basis that the appeal is against the 10 year listing and so is not within the Tribunal’s jurisdiction, 10 years having not yet passed.

2.	Further, or in the alternative, on the basis that this appeal is against the decision of the Secretary of State dated 1st February 2002 not to remove her name from the list, in accordance with Rules 20(1)(a), 20(4) and 5(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 I do not extend the time in which to bring this appeal and so this appeal is struck out in accordance with Rule 8(4)(c) on the basis that the appeal has no reasonable prospect of success.

3.	Further, or in the further alternative, In accordance with Rule 8(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 this appeal is struck out on the basis that the appeal is against the contents of the letter from the Secretary of State dated 4th September 2009 as there was no decision in that letter which gave rise to a right of appeal and so it is not within the tribunal’s jurisdiction. 

Simon Oliver
Deputy Principal Judge, Care Standards
16th December 2009