Geraghty v Commission for Social Care Inspection  [2008] EWCST 1227(ET) (18 April 2008)

Linda Geraghty
-v-
Commission for Social Care Inspection
[2008] 1227.EA

APPLICATION BY RESPONDENT TO STRIKE OUT THE APPEAL

-before-

His Honour Judge David Pearl
(President)

DECISION

1.	By letter dated 24th November 2007, the Appellant (Mrs Linda Geraghty) was served with a notice under section 19 of the Care Standards Act 2000 adopting the notice of proposal to refuse her application to be registered as  Manager of Sackville Nursing Home, Hove.
2.	She was informed by this letter that she had a right of appeal against the decision by virtue of section 21 of the Care Standards Act 2000 and that if she wished to exercise this right she must appeal to the Tribunal within 28 days of service of the decision on her. She was given the Tribunal’s address, FAX number and telephone number.
3.	The letter referred to in paragraph 1 above was sent to the Appellant on 28th November 2007 by recorded delivery and accordingly it is deemed to have been served under section 37(3) of the Care Standards Act 2000 on 1st December 2000; that is “on the third day after the day on which it is sent.”
4.	The final date for appealing the decision, in accordance with section 21(2) of the Care Standards Act 2000 was 29th December 2007.
5.	By email dated 16th January 2008, a Ms Panita Vig informed the Respondent that Ms Geraghty “lodged her formal notice of intent to appeal to the Care Standards Tribunal on 21st December 2007 by fax and by post”.
6.	There is no evidence in the Tribunal’s internal documents that the Appellant appealed to the Tribunal by the 29th December 2007, by either of these means. The case manager, on 17th January 2008, checked the Tribunal system and confirmed to the Respondent that the Tribunal had not received any appeal application either by way of FAX or post.
7.	The first notification of the application to appeal that the Tribunal received is stamped 18th January 2008 by the Tribunal staff. The letter is dated 20th December 2007. It states “I…have decided that I wish to appeal to the Care Standards Tribunal.” Accompanying this letter is “Sent Journal” from Portland House showing an OK transmission to 02079600661 (the CST Fax number) at 09.36 on 21st December.
8.	Given the uncertainly regarding whether an appeal had been lodged within the 28 days after service of the notice of the decision, the Secretary to the Tribunal wrote to the Appellant on 21st January 2008 enclosing an Appeal Form, and asking her to return the signed copy immediately to the CST.  
9.	As of 31st January 2008, the Appellant had not returned her Appeal Form, and accordingly I made an Unless Order under Regulation 10. I made clear that the return of the Appeal Form was without prejudice to any argument that may be advanced by the Respondent that the Appeal is in any event out of time because it should have been lodged by 29th December 2007.
10.	The Appellant submitted her appeal form signed on 6th February 2008 and received on 7th February 2008.
11.	By letter dated 6th March 2008, the Respondent applied under Regulation 4A1(a) and(d)) that the Appellant’s appeal be struck out by the Tribunal on the grounds that it has been made otherwise than in accordance with the provisions in the regulations for initiating such an appeal and that it has no reasonable prospect of success.
12.	In accordance with Regulation 4(2), I invited the Appellant to make representations on this matter in Response to the application to strike out. In accordance with Regulation 4(2)(b), the parties must be afforded the opportunity to make oral representations and the Appellant informed the Tribunal that she wished to make oral representations in response to the Strike Out application.
13.	The Strike Out application was heard by me on 11th April 2008, when Mrs Geraghty appeared in person, together with her adviser Dr A Boswell. Mr S Janisch, Solicitor of RadcliffesLeBrasseur appeared on behalf of the Respondent.
14.	I have considered carefully all that the Appellant and Dr Boswell said at the hearing, and I have also read the Notes that she prepared for the hearing. She said that she assumed that the letter dated 20th December 2007 had been  successfully FAXED to the Tribunal. She said that “it was not considered necessary to contact the Tribunal Secretary, nor was it made clear that there was a requirement that contact should be made. It cannot be assumed that success was not an expectation.” She said that there was a strike at the Post Office, but that “as the FAX had been sent, I was not unduly worried.”
15.	The strike out application in this case inevitably must succeed. It is the Appellant’s appeal; and the appeal must be lodged within the 28 day period. There is no discretion on the Tribunal to extend this period. In OFSTED v Care Standards Tribunal [2007] EWHC 341 (Admin), Collins J said: “the regulations are clear and there is no injustice, provided a would-be applicant knows what the time limit is, and if he chooses to wait until the last possible moment or beyond it, that is his look-out. Time limits are there to be obeyed and there was nothing in my view unreasonable about this particular regime.” OFSTED v Care Standards Tribunal is binding on me.
16.	I have reached the conclusion, having examined all the documentation in this case, that the Tribunal did not receive any notification of an appeal before 18th January 2008. No FAX was received, and the “OK” form is not evidence of receipt, only of transmission. An Appellant must accept that he or she has a responsibility to ensure that appeal documents are lodged in time. In this case she had been told of the time limits for appealing, and she had been given the address, the FAX number and the telephone number of the Tribunal. She chose not to engage with the Tribunal at this time, and, unfortunately for her, the appeal has been lodged out of time.
17.	Accordingly, the appeal must be struck out in accordance with Regulation 4A(1)(a)(i) of the Regulations, in that it was made otherwise than in accordance with the provision in these Regulations for initiating that appeal, namely 28 days.
18.	This decision is made on the basis as set out above. I have not given any consideration as to whether the letter, assuming that it had been received in time, was in any event an appeal document that satisfied the requirements as set out in Schedule 1.
19.	There is one additional matter that I wish to deal with in this determination. At the hearing of the Strike Out application, I informed Mr Janisch that it was my view that the Respondent should give consideration to revising the headings of the letter that is sent to applicants under section 19.  The heading “Notice of Proposal to Refuse your application as Manager at [Nursing Home]…… Written representations” is not really appropriate. It would be more sensible to head the letter with words such as “Notice of Decision under section 19 Care Standards Act 2000 to adopt the notice of proposal to refuse your registration as manager”. Mr Janisch agreed to communicate this reflection to his clients. The point is made here so it is not forgotten. Clarity in these letters is all important.
20.	In accordance with Regulation 4A(4) of the Regulations, where the President has made a determination to strike out an appeal, the Applicant may apply to the President for the determination to be set aside. Such an application must be made not later than ten working days after the date on which notice of the determination is sent to the Appellant and must be in writing stating the grounds in full.
21.	I informed the parties of my decision on the day of the hearing, but I stated that the ten days under Regulation 4A(4) would not run until the parties had been notified of my decision with the detailed reasons. 
22.	If the Appellant wishes to apply for the determination to be set aside, the matter will be handed to a nominated Chairman for his or her decision.

APPEAL STRUCK OUT IN ACCORDANCE WITH REGULATION 4A(1)(a)(i)

ORDER ACCORDINGLY

His Honour Judge David Pearl
President
18th April 2008.