El-Husseini v GMC [2016] EWHC 2326 (Admin)

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High Level Summary
An appeal brought against the decision of the Medical Practitioners Tribunal Service (MPTS) outside of the statutory time limit of 28 days.  The High Court considered arguments to extend the time limit based around the impact of the European Convention on Human Rights (ECHR) and the Equality Act [2010] (EQA). This was then considered this against established case law.  The Court concluded that it was to follow the judgment of the Court of Appeal case of R (Adesina) v Nursing and Midwifery Council [2013] EWCA Civ 818 and maintain the position that statutory time limits must be considered consistently against the ECHR and EQA, and in the particular circumstances of Mr El-Husseini's case, his appeal was out of time.

Facts

Dr El-Husseini ("the Appellant") sought to appeal a decision of the General Medical Council's (GMC) MPTS that his fitness to practise was found impaired by reason of misconduct on the grounds of adverse physical and mental health. He was suspended from the Register for 12 months.  The appeal concerned section 40(4) of the Medical Act 1983 which directs that any appeal must be brought within 28 days beginning with the date on which notification of the decision was served.  In this particular case the last date for the appeal to be lodged with the High Court was 23 June 2016.   The power for Tribunal to extend this period, due to late service of the notice, was not engaged in this case.   The appeal is statutory and therefore it was governed by CPR 52 and Practice Directions 52B and 52D.

On 22 June 2016 the Appellant sent his Form N161 appellant's notice to the Court via recorded delivery. Attached to the form was a EX160, an application for fee exemption.   The EX160 was accompanied by the necessary supporting documents pertaining to the Appellant's financial circumstances.  The EX160 was processed by the Court the very next day and was rejected due to the Appellant's supporting documents being out of date. The Appellant was notified of the decision on 23 June 2016.  On 27 June the Appellant sent a cheque for the requisite appeal fee and this was received the next day. The appeal was processed on the basis that the Court had the discretion to extend the deadline for submission of the N161 if it so wished.

When deciding whether to allow the appeal to be heard, the Court considered three main issues in this case: the effective date of the appeal, the impact (if any) of the ECHR and the applicability of the EQA.

Judgment

The effective date of appeal was a considered issue as the N161 had first been received by the Court on 23 June 2016, however, the accompanying fee was late and thus the appeal had technically been filed on 28 June.  The Court relied upon previous decisions of the High Court in R (El-Huseinion) v GMC [2012] EWHC 1741 and Gilthorpe v GMC [2012] EWHC 672 which say that an appeal is only valid if it complies with the statutory requirements. Since it is statutory requirement that the correct fee (or a correctly completed fee exemption form) be received with any application, the appeal in those cases, and as in this one, was not valid.   The Appellant's argument that he submitted the E160 with his appeal was dismissed as it was accompanied by insufficient supporting evidence and was thus not correctly filed.  The Court believed that it was within the Appellant's capability to lodge the application correctly and that merely filing the appeal form without a fee was insufficient.  The Judge considered that in certain circumstances (i.e. an accidental error on the fee exemption form) may pertain to an extension but that this was a discretionary decision based upon the facts of each case.

The Appellant made reference to Article 6 of the ECHR and submitted that pursuant to the EQA he was entitled to a reasonable adjustment to be made by virtue of his disability (described as Conductive Aphasia following a stroke in 2008 and suffering post-traumatic stress disorder as a result of disciplinary proceedings).  He further submitted that he had experienced difficulties in obtaining transcripts from the MPTS and due to his disability he required a longer time to process information.

The GMC argued that the case of Adesina made it very clear that the time limit for an appeal could only be extended under the Court's duty under the Human Rights Act, in very exceptional circumstances (see para 15 Maurice Kay LJ. – adopting the approach of Lord Mance in Pomiechowski).   The Judge found that although the Appellant's grounds of appeal had been formulated within the N161 which, had been submitted on time, it was the fee exemption documentation which had prevented the appeal from being filed in time. The documentation provided by the Appellant with the form did not establish his exemption and thus the filing was delayed.   In consideration of this, the Judge concluded that there was an insufficient argument to extend the time limit for the appeal under Article 6 ECHR.

In relation to the EQA, the Judge determined that the EQA did not create any separate mechanism by which the statutory time limit for an appeal may be extended.  Even if the GMC was to be considered a "service provider" or providing a "public function" (such that section 29(7) EQA could be applied) and that it therefore became under a duty to make 'reasonable adjustments', it could be no part of that service or function, since the appeal was not a matter within the GMC's control at all. Neither was the conduct of the appeal before the Court any part of the service or function of the GMC.  The appeal time limit is set out in primary legislation and could not in the Judge's view be a "provision criterion or practice" of the GMC.    The Court would only be able to exercise such discretion if the circumstances fell with the exceptional jurisdiction of the ECHR and in doing so, it would be exercising a judicial function. Whilst exercising a judicial function, as per paragraph 3 of Schedule 3 of EQA, the relevant provisions of the EQA would be rendered inapplicable.

It was concluded that the Appellant's appeal was out of time and could not be heard by the Court.