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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> UF v Secretary of State [2007] EWCST 881(PC) (19 June 2007) URL: https://www.bailii.org/ew/cases/EWCST/2007/881(PC).html Cite as: [2007] EWCST 881(PC) |
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UF v Secretary of State [2007] EWCST 881(PC) (19 June 2007)
Background to application
Application to re-instate the appeal
The relevant Legislation and Regulations
"There shall be a tribunal ('the Tribunal') which shall exercise the jurisdiction conferred on it by section 4".
Section 9(2) confers on the Secretary of State the power to make provision by way of Regulations relating to the proceedings of the Tribunal, in particular section 9(3)(m) and (q), as to the withdrawal of appeals, and for enabling the Tribunal toreview
its decisions, or revoke or vary its orders, in such circumstances as may be determined in accordance with the Regulations.
"If the applicant at any time notifies the Secretary in writing, or states at a hearing, that he no longer wishes to pursue the proceedings, the President or the nominated chairman (or at the hearing, the Tribunal) must dismiss the proceedings, and may, subject to regulation 24, make a costs order."
"a party may apply to the President for the Tribunal's decision to be reviewed on the grounds that –
(a) it was wrongly made as a result of an error on the part of the Tribunal staff;
(b) a party, who was entitled to be heard at a hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear; or
(c) there was an obvious error in the decision".
Submissions
a. Regulation 25(1)(b) does not apply to a case where there has been no hearing at all;
b. Regulation 25(1)(c) does not apply because there is no "obvious error";
c. Regulation 33 is a "judicial
act": it is not simply an administrative action by the Secretariat that can be corrected in some way, for example by the use of the "slip rule" in Regulation 29;
d. There is in any event no mechanism within Regulation 25 for the President's decision under Regulation 33 to be the subject of aReview
; because Regulation 25 refers to "the Tribunal's decision."
The alternative submission: Regulation 35
(1) The President or the nominated chairman may, having consulted the parties in the case, extend any time limit mentioned in these Regulations if in the circumstances –
(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.
"..if the Respondents to a claim in the ET wish to secure their position, they must apply to the ET for the claims against them to be dismissed. If they do not, they have the possibility that the claimant may bring a second claim on the same facts."
"Parliament has applied a very strict regime, thus when approaching any application for leave out of time, considerable caution must be applied in ensuring that the application is not in reality a back door attempt at an earlyreview
…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."
Concluding Remarks
- Regulation 25 as presently drafted restricts the right to seek a
review
to a decision of the Tribunal (defined as a panel of three members). There is a persuasive argument that it should be amended to enable there to be the possibility of a
Review
of decisions by the President or nominated Chairman taken under Regulation 33. It should also be possible to seek a
Review
of decisions of the President or nominated Chairman made under Regulation 4A refusing an application by the Respondent to strike out the appeal as misconceived.
- Regulation 33 should be amended to enable an application to be made by the Appellant who has withdrawn his or her appeal, and where in consequence the appeal has been dismissed, to apply to the President or nominated Chairman for the decision to be set aside (as in Regulation 4A(4)). We have given some thought as to whether this jurisdiction should adopt the approach taken in the Employment Tribunal where a withdrawal does not result in a dismissal of the proceedings. The Care Standards Tribunal deals with issues where it may be thought essential to ensure that there is no ambivalence and where it is essential to know that a withdrawal results in the Appellant's name being confirmed on the PoCA and/or PoVA list. In those circumstances, a withdrawal inevitably brings about a dismissal of the appeal and the
judicial
act of dismissal ensures that there is no ambiguity in the position of the Appellant. To classify a case as "withdrawn" (as in the case of the Employment Tribunal) may result in a degree of uncertainty and confusion, which would be unfortunate in this area.
- However, consideration should be given for the following Formal Withdrawal Notice to be provided to all Appellants who wish to withdraw:
"I [name of Appellant or his or her Representative] hereby notify the Secretary of the Tribunal that I [the appellant] no longer wish to pursue the proceedings. I understand that the President (or nominated Chairman) must dismiss the proceedings, and I will not be able to reinstate it. Signed and dated".
- It would be helpful also if the Secretary of State, in the original letter that informs the Appellant of the right of appeal, and the Tribunal, in its Appeal Application Form, inform the Appellant that if he or she withdraws his or her appeal, the appeal will be dismissed and it cannot be reinstated.
ORDER:
APPLICATION TOREVIEW
THE DECISION OF 1st JUNE 2007 DISMISSED
APPLICATION TO GRANT LEAVE UNDER REGULATION 35 FOR NEW APPEALS TO BE FILED OUT TIME REFUSED
His Honour Judge David Pearl
(President)
Mr J Lim
Dr J Low
19th June 2007.
APPENDIX ONE:
APPLICATION TO STRIKE OUT NOT GRANTED.
ORDER ACCORDINGLY
His Honour Judge David Pearl
President
21st February 2007.
NO JURISDICTION TO REVIEW APPLICATION TO STRIKE OUT
ORDER ACCORDINGLY
His Honour Judge David Pearl
President
27th March 2007