CD v FIRST TIER TRIBUNAL (CICA) [2010] UKUT 181 (AAC) (01 June 2010)
Extension of time to appeal
FACTS:-
The Applicant was born in 2001. When she was about 3½ years old, her brother then aged about 12½, pushed a metal pole or rod up her bottom, causing a degree of injury. She and her siblings were placed in foster care in 2005 at which point, she made statements to her foster carer about what had happened to her which caused investigations to be made, and statements to be taken. The Crown Prosecution Service advised that there was not enough evidence to prosecute anyone. She was placed with her proposed adoptive parents soon after October 2006, and the adoption Order was made in 2007. A claim to the Authority was made in March 2007, by the local authority. The claim was made nearly two years after the incident(s) on which it was based.
In June 2007 the Authority refused the claim on the grounds that there was insufficient evidence to show that the Applicant had been the victim of a sexual assault. In September 2007 the Authority received from the local authority a letter dated 18 September 2007 enclosing an application for review. In March 2008, the Authority again refused the application on the same grounds. The notice of appeal, to be in time, was required to be received by the First-tier Tribunal by 17 June 2008. However due to a mix up with the identity of the person to whom the Authority wrote, the local authority did not realise that a decision had been made. On 4 July 2008, the local authority enquired about the application for review. This was followed up by a telephone call on 21 November 2008.
On 8 December 2008 CICA said that the case was closed, and so an appeal was submitted on 5 March 2009 with additional evidence, but it did not include any reasons for the delay in submitting the appeal. On 19 March 2009, the First Tier Tribunal wrote to the local authority stating that the appeal was late, and that if she wished to appeal the review decision she should complete the enclosed Notice of Appeal Form. On 3 April 2009 the local authority took that step, but on 22 April 2009 the Tribunal Judge refused to extend time for submitting the appeal. The local authority applied for judicial review of that decision.
JUDGMENT:-
Judge Turnbull referred above to Rule 22(2) of the 2008 Rules, which lay down the 90 day time limit for appealing. Rule 22(6) provided that if the notice of appeal was out of time (a) the notice of appeal had to include a request for an extension of time and the reason why the notice of appeal was not provided in time; and (b) unless the Tribunal extended time for the notice of appeal under rule 5(3)(a) the Tribunal could not admit the notice of appeal. Rule 5 was headed “case management powers”, and Rule 5(3)(a) provided that the Tribunal could “extend or shorten the time for complying with any rule, practice direction or direction.” Judge Turnbull said that on this application for judicial review he could not consider afresh how the Judge should have exercised the power to extend time. He could only grant relief by way of judicial review if the Judge’s exercise of the discretion was wrong in law or flawed in a respect which permitted interference by way of judicial review.
Judge Turnbull had been invited to apply the Civil Procedure Rules. However, it did not seem to him to be appropriate to give guidance in that form. There was no provision in the 2008 Rules in the terms of CPR Rule 3.9. The power to extend time was unfettered, and the circumstances which would be relevant in exercising it would vary from case to case. Black J was of that view in Howes v Child Support Commissioner [2007] EWHC 559 (Admin).
The 90 day time limit in Rule 61 of the Scheme ran from “the date of the review decision”, not from the date when it was sent or communicated. The Tribunal Judge had accepted, that as the local authority had not in fact become aware until shortly after 8 December 2008 that a review decision had been made, and as the letter of 19 March 2008 enclosing the decision might have got lost in the post, there would have been good reasons for extending time if the appeal had been made promptly after 8 December 2008. However the Tribunal Judge considered that the appeal should have been made by the end of December 2008. The local authority’s letter of 3 April 2009, and their Notice of Appeal, did not explain the delay after 8 December 2008. In Judge Turnbull’s judgment, the Judge was entitled to take the view, as she appeared to have done, that in the particular circumstances of this case, where there had already been substantial delay, the notice of appeal could and should have been sent without additional evidence, so that the only additional work needed to be done in order to submit it was the drafting of the appeal grounds, which could have been done without the additional information.
Judge Turnbull had reached the conclusion that the Judge did not go wrong in law in this respect. 43. At the time of granting permission to bring the judicial review claim Judge Rowland raised the issue whether it should have made any difference to the Tribunal’s decision that the Applicant was a child. Plainly that was relevant, but it did not seem to Judge Turnbull that it could mean that the First-tier Tribunal Judge’s decision was one which was outside the bounds of reasonableness and she did not err in not expressly stating what significance she had attached to it.
Judge Turnbull would not grant judicial review of the Tribunal’s decision not to extend the time limit for an appeal.
Extension of time to appeal
FACTS:-
The Applicant was born in 2001. When she was about 3½ years old, her brother then aged about 12½, pushed a metal pole or rod up her bottom, causing a degree of injury. She and her siblings were placed in foster care in 2005 at which point, she made statements to her foster carer about what had happened to her which caused investigations to be made, and statements to be taken. The Crown Prosecution Service advised that there was not enough evidence to prosecute anyone. She was placed with her proposed adoptive parents soon after October 2006, and the adoption Order was made in 2007. A claim to the Authority was made in March 2007, by the local authority. The claim was made nearly two years after the incident(s) on which it was based.
In June 2007 the Authority refused the claim on the grounds that there was insufficient evidence to show that the Applicant had been the victim of a sexual assault. In September 2007 the Authority received from the local authority a letter dated 18 September 2007 enclosing an application for review. In March 2008, the Authority again refused the application on the same grounds. The notice of appeal, to be in time, was required to be received by the First-tier Tribunal by 17 June 2008. However due to a mix up with the identity of the person to whom the Authority wrote, the local authority did not realise that a decision had been made. On 4 July 2008, the local authority enquired about the application for review. This was followed up by a telephone call on 21 November 2008.
On 8 December 2008 CICA said that the case was closed, and so an appeal was submitted on 5 March 2009 with additional evidence, but it did not include any reasons for the delay in submitting the appeal. On 19 March 2009, the First Tier Tribunal wrote to the local authority stating that the appeal was late, and that if she wished to appeal the review decision she should complete the enclosed Notice of Appeal Form. On 3 April 2009 the local authority took that step, but on 22 April 2009 the Tribunal Judge refused to extend time for submitting the appeal. The local authority applied for judicial review of that decision.
JUDGMENT:-
Judge Turnbull referred above to Rule 22(2) of the 2008 Rules, which lay down the 90 day time limit for appealing. Rule 22(6) provided that if the notice of appeal was out of time (a) the notice of appeal had to include a request for an extension of time and the reason why the notice of appeal was not provided in time; and (b) unless the Tribunal extended time for the notice of appeal under rule 5(3)(a) the Tribunal could not admit the notice of appeal. Rule 5 was headed “case management powers”, and Rule 5(3)(a) provided that the Tribunal could “extend or shorten the time for complying with any rule, practice direction or direction.” Judge Turnbull said that on this application for judicial review he could not consider afresh how the Judge should have exercised the power to extend time. He could only grant relief by way of judicial review if the Judge’s exercise of the discretion was wrong in law or flawed in a respect which permitted interference by way of judicial review.
Judge Turnbull had been invited to apply the Civil Procedure Rules. However, it did not seem to him to be appropriate to give guidance in that form. There was no provision in the 2008 Rules in the terms of CPR Rule 3.9. The power to extend time was unfettered, and the circumstances which would be relevant in exercising it would vary from case to case. Black J was of that view in Howes v Child Support Commissioner [2007] EWHC 559 (Admin).
The 90 day time limit in Rule 61 of the Scheme ran from “the date of the review decision”, not from the date when it was sent or communicated. The Tribunal Judge had accepted, that as the local authority had not in fact become aware until shortly after 8 December 2008 that a review decision had been made, and as the letter of 19 March 2008 enclosing the decision might have got lost in the post, there would have been good reasons for extending time if the appeal had been made promptly after 8 December 2008. However the Tribunal Judge considered that the appeal should have been made by the end of December 2008. The local authority’s letter of 3 April 2009, and their Notice of Appeal, did not explain the delay after 8 December 2008. In Judge Turnbull’s judgment, the Judge was entitled to take the view, as she appeared to have done, that in the particular circumstances of this case, where there had already been substantial delay, the notice of appeal could and should have been sent without additional evidence, so that the only additional work needed to be done in order to submit it was the drafting of the appeal grounds, which could have been done without the additional information.
Judge Turnbull had reached the conclusion that the Judge did not go wrong in law in this respect. 43. At the time of granting permission to bring the judicial review claim Judge Rowland raised the issue whether it should have made any difference to the Tribunal’s decision that the Applicant was a child. Plainly that was relevant, but it did not seem to Judge Turnbull that it could mean that the First-tier Tribunal Judge’s decision was one which was outside the bounds of reasonableness and she did not err in not expressly stating what significance she had attached to it.
Judge Turnbull would not grant judicial review of the Tribunal’s decision not to extend the time limit for an appeal.