Back to school…but is it time for a change?
Dr Fakhry Salah Fakhry El-Huseini v the General Medical Council  EWHC 2326 (Admin)
Pursuant to Section 40(4) of the Medical Act 1983 (the Act), appeals in relation to decisions of the Medical Practitioners Tribunal (the MPT) must be made before the end of 28 days beginning with the date on which notification of the MPT’s decision was served. There is no discretion within the Act itself to extend time. In the present case the High Court considered the impact of the European Convention on Human Rights (ECHR) and Equality Act 2010 (EqA) on that time limit. HHJ David Cooke (the Judge) followed the Court of Appeal case of R (Adesina) v Nursing and Midwifery Council  EWCA Civ 818 (itself applying the Supreme Court case of Pomiechowski v District Court of Legnica, Poland  UKSC 20) and concluded that although statutory time limits have to be interpreted consistently with the ECHR, on the facts in the present case an extension of time was not justified. He concluded that the EqA was not relevant to statutory time limits.
By a letter dated 25 May 2016, the MPT informed Dr El-Huseini that his fitness to practise was impaired by reason of misconduct and his adverse physical and mental health. He was suspended from the Medical Register for 12 months. The letter stated that it was deemed served on 27 May 2016 and that accordingly the last day of the 28-day period for appeal would be 23 June 2016. Dr El-Huseini did not challenge this. Although there is a limited discretion given to the MPT to extend time if an appellant does not receive notice of the MPT’s decision within 14 days of it being sent by post, Dr El-Huseini did not suggest that the provision was engaged in his case.
On 22 June 2016, Dr El-Huseini sent to the Court by recorded delivery, an appellant’s notice (Form N161) with various appendices and a completed application for fee exemption (Form EX 160). It is a requirement of Part 52 of the Civil Procedure Rules that an appellant’s notice is accompanied by the appropriate fee or, if appropriate, a fee remission application or certificate. The documents were duly delivered the following day – the last day of the 28-day period. The same day, the fee remission application was rejected and a letter was sent to Dr El-Huseini informing him of this and asking him to pay the required fee of £240 as soon as possible. On 27 June 2016, Dr El-Huseini sent by recorded delivery a cheque for £240 to the Court. This arrived the following day. His appellant’s notice was sealed and dated 28 June 2016.
The first issue to be determined was the effective date of appeal. The Court Officer rejected Dr El-Huseini’s application for fee remission because the evidence he submitted showing his entitlement to income-related Employment Support Allowance (ESA), was impermissibly over three months old on 22 June 2016 – the date on which he sent his application to the Court. Dr El-Huseini argued that he was nevertheless entitled to ESA and therefore was entitled to fee remission on the day that application was considered. The Judge held that in the case of a fee remission application an appellant must have sent sufficient information to demonstrate entitlement to the remission within the appeal period. The fact that an appellant could have done so but failed to do so is immaterial. The appeal was therefore brought out of time.
The second issue to be determined was whether there was a requirement to vary the time limit to ensure compliance with the ECHR. The Judge approved the dictum of Maurice Kay LJ in Adesina (also considered in a Kingsley Napley case summary), in turn citing Lord Mance in Pomiechowski:
statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time … where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under Article 6.1 in Tolstoy Miloslavsky. The High Court must have the power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring … timeously.
Maurice Kay LJ emphasised that when engaging in such “reading down” of statutory time limits, it must be to the minimum extent necessary to avoid a breach of the ECHR and that the scope for departure from the 28-day time limit is therefore extremely narrow. Appellants must have done all that they can do to lodge an appeal in time.
The Judge considered Dr El-Huseini’s arguments, which concerned health difficulties which meant he required longer to process and respond to complex information; difficulties in obtaining the transcript of the MPT proceedings; and difficulty obtaining legal advice. He concluded that none of those matters was the cause of the late appeal, which was the failure to obtain and send the correct evidence of entitlement to ESA. As the Judge found that Dr El-Huseini was capable of doing so, he had therefore not done everything that he could to bring the appeal in time.
The third issue to be determined was whether there was a requirement or power to extend time to make a reasonable adjustment for disability as required in certain circumstances by the EqA. The Judge rejected this possibility. No such duty applies to the GMC or the Court.
Firstly, dealing with the GMC, even if in conducting proceedings before the MPT the GMC is a “service provider” or a person performing “a public function other than the provision of a service”, such that Section 29(7) of the EqA applies to it, the time limit, as set out in Section 40(4), cannot be said to be a “provision criterion or practice” of the GMC, as specified in Section 20 of the EqA (which concerns the duty to make reasonable adjustments) because it is primary legislation. And even if that were not the case, it would not be a reasonable step to extend time when the GMC has no power to do so.
Secondly, dealing with the Court, again the time limit is not a provision, criterion or practice, such that there can be a duty to make reasonable adjustments. In any event, the Court would only be able to set or vary the time limit for an appeal if exercising the exceptional jurisdiction to ensure compliance with the ECHR. In doing so, the Court would clearly be performing a judicial function and paragraph 3 of Schedule 3 of the EqA 2010 would therefore render inapplicable Section 29 of the EqA.
In the case of both the GMC and the Court, the public sector equality duty is of no assistance to appellants, in that the general obligations it creates cannot impose an obligation to do something beyond their powers or create a power that they would not otherwise have.
Registrants and their representatives should bear in mind that the time limits for appealing regulatory decisions are strict and the discretion to extend is likely to be exercised rarely. Where an appellant is applying for fee remission, it would be prudent to do so early on, so that if there is a problem it can be rectified before time elapses. The EqA does not provide any assistance to Registrants appealing regulatory decisions out of time.
For more information please contact our Regulatory and Professional Discipline team.
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