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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> El-Huseini v General Medical Council  EWHC 2326 (Admin) (23 September 2016)
Cite as:  EWHC 2326 (Admin)
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QUEEN'S BENCH DIVISION
Bull Street, Birmingham B4 6DS
B e f o r e :
| Dr Fakhry Salah Fakhry El-Huseini
|- and -
|General Medical Council
Terence Rigby (instructed by General Medical Council) for the Respondent
Hearing date: 5 September 2016
Crown Copyright ©
HHJ David Cooke:
"A person in respect of whom an appealable decision… has been made, may before the end of 28 days beginning with the date on which notification of the decision was served under section 35E (1) above… appeal against the decision to the relevant court"
The relevant court is the High Court. Section 35E (1) and paragraph 8 of Schedule 4 of the Act provide that the decision may be served by post, and will be deemed served when the letter containing it would be delivered in the ordinary course of post. The decision letter was sent by post on 25 May 2016, with a covering letter stating that it would be deemed served two days later on Friday 27 May 2016, and that accordingly the last day of the 28 day period would be Friday 23 June 2016. That has not been disputed.
"15 … [counsel], on behalf of the appellants, does not contend for a general discretion to extend time. Parliament is used to providing such discretions, often circumscribed by conditions … The omission to do so on this occasion was no doubt deliberate. If Article 6 and section 3 of the Human Rights Act require Article 29(10) of the Order to be read down, it must be to the minimum extent necessary to secure ECHR compliance. In my judgment, this requires adoption of the same approach as that of Lord Mance in Pomiechowski. A discretion must only arise "in exceptional circumstances" and where the appellant "personally has done all he can to bring [the appeal] timeously" (paragraph 39). I do not believe that the discretion would arise save in a very small number of cases."
Documents received on 23 June
Art 6 ECHR
Equality Act 2010
"(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."
But the time limit is set out in primary legislation and cannot in my view be said to be a "provision criterion or practice" of the GMC. Even if it were, it could not be suggested that it would be a reasonable step for the GMC to take to extend this period when it had no power to do so, still less that the effect of the duty was impliedly to grant to the GMC a power which was not set out in the statute itself.