SS HC 2761 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge M. Rowland |
| Judgment Date | 14 March 2013 |
| Neutral Citation | 2013 UKUT 137 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | Care Quality Commission |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HC 2761 2012 |
| Appellant | SS |
IN THE UPPER TRIBUNAL Case No. HC/2761/2012
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Decision: This appeal is unsuccessful. I set aside the decision of the First-tier Tribunal dated 18 June 2011, striking out the appeal numbered [2011] 1953.EA-JP. However, I substitute a decision refusing to admit the appeal numbered [2011] 1953.EA-JP for consideration by the First-tier Tribunal and refusing to reinstate appeal numbered [2011] 1902.EA for consideration by the First-tier Tribunal.
REASONS FOR DECISION
1. The Appellant and his wife were the proprietors of a care home, registered by the Respondent under Chapter 2 of Part 1 of the Health and Social Care Act 2008. On 8 June 2011, on the Respondent’s application, a justice of the peace cancelled the registration with immediate effect, under section 30 of that Act. The Appellant and his wife appealed to the First-tier Tribunal under section 32(1)(b) but, with the consent of the First-Tier Tribunal (Sheikh v Care Quality Commission [2011] 1902.EA), they withdrew their appeal on 27 July 2011, the first day of a hearing listed for three days. They were, at that time, represented by solicitors and counsel.
2. On 21 March 2012, the Appellant, acting in person, purported to lodge a second appeal. The grounds of appeal relied heavily on a letter dated 14 December 2011 from Kent County Constabulary informing the Appellant that no further action would be taken against him in relation to an alleged assault that had formed part of the Respondent’s case before the justice of the peace. The Respondent submitted that the appeal should not be admitted. On 20 April 2012, the First-tier Tribunal gave the Appellant an opportunity to show why his appeal should not be struck out for want of jurisdiction but, despite his representations, the appeal was struck out on 18 June 2012.
3. On 19 September 2012, I granted permission to appeal against the decision of 18 June 2012 on the ground that it was arguable that the appeal to the First-tier Tribunal should not have been struck out without consideration being given to treating it as a late application for the reinstatement of the earlier appeal that had been withdrawn, although I also indicated that there might be good reasons for substituting a decision to the same practical effect as the decision of the First-tier Tribunal. Both parties have made written submissions and neither has asked for an oral hearing. I am satisfied that I can properly determine the appeal on the papers.
4. There can be no doubt that the Respondent was right to submit that the First-tier Tribunal had no power to admit the second appeal as such. Section 32(2) of the 2008 Act provides –
“No appeal against a decision or order may be brought by a person more than 28 days after service on the person of notice of the decision or order.”
Thus the time limit is in primary legislation and not in Tribunal Procedure Rules. Moreover, there is nothing in primary legislation authorising the extension of that time limit. Tribunal Procedure Rules may make provision for time limits for initiating appeals (see paragraph 4 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007), but, without there being a more specific enabling provision, they may not override provision for such time limits made in primary legislation (see Mucelli v Government of Albania [2009] UKHL 2; [2009] 1 W.L.R 287) and they do not purport to do so. Rule 5(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) provides that –
“… the Tribunal may—
(a) extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment containing a time limit”.
The Respondent places emphasis on the concluding words of that subparagraph but it seems to me that the more important words of limitation are “rule, practice direction or direction”. The concluding words seem to have been included primarily to remind readers that not all time limits relating to proceedings before the Health, Education and Social Care Chamber of the First-tier Tribunal are to be found in the Rules, although some, including some time limits for initiating proceedings (see rule 20), are.
5. Therefore, even if a person might otherwise lodge a second appeal after one has been withdrawn, the second appeal in this case was clearly out of time. Rule 20(4)(b) consequently required that the application notice be not admitted. Striking the appeal out under rule 8(3)(a), as the First-tier Tribunal did, came to the same thing but is not the process contemplated by the Rules in this context and required the First-tier Tribunal first to give the Appellant an opportunity to make representations (see rule 8(5)), which was arguably unnecessary.
6. However, it seems to me that the First-tier Tribunal should have treated the appeal as an application to reinstate the first appeal that had been withdrawn on 27 July 2011. Rule 17(4) and (5) provides –
“(4) A party which has withdrawn its case may apply to the Tribunal for the case to be reinstated.
(5) An application under paragraph (4) must be made in writing and be received by the Tribunal within 28 days after—
(a) the date on which the Tribunal received the notice under paragraph (1)(a); or
(b) the date of the hearing at which the case was withdrawn orally under paragraph (1)(b).”
The application would have been late but the time limit in rule 17(5) may be extended under rule 5(3)(a).
7. The Respondent submits that reinstating the first appeal would have had the effect of subverting the time limit for appeals contained in section 32(2). The submission does not refer to the power expressly conferred by rule 17(4), which may have been overlooked by the writer, but in any event amounts to an argument that rule 17(4) cannot permit the reinstatement of an appeal after the time for appealing allowed by section 32(2) has expired. I do not accept that argument. Section 32(2) requires an appeal to be brought within one month of the decision being challenged but it has no direct bearing on the course that proceedings take thereafter. I see no more objection to reinstating a withdrawn appeal after an extended period than there could be to staying proceedings in an appeal for an equivalent period. In this case, had the Appellant asked for the proceedings to be stayed to await the conclusion of the police investigation, instead of withdrawing the case, the request might have been granted. There might have been arguments against such a stay on the facts of the case, but I do not see any reason why a stay would have been wrong in principle. Provided delay is not such as to make it difficult for...
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