Newsletters Professional Discipline 19th Feb 2020

Safeguarding and extending time limits

BB v Disclosure and Barring Service (extension of time) [2019] UKUT 366 (AAC)

The Disclosure and Barring Service’s (“DBS”) public function runs in parallel with that of our medical regulatory bodies. It exercises its brutal binary function, barring or not barring professionals from working with children and vulnerable adults, without anything in between. It does so largely on the papers, without the benefit of seeing witnesses questioned and without the benefit of independent legal advice. Many a professional who survives their NMC or GMC investigation, will nonetheless find themselves effectively barred from their profession by the DBS. In one regard alone is its regime fairer to the registrant – its approach to appealing out of time.

There is no discretion for allowing appeals out of time written into the Medical Act 1983, for example. An appeal must be brought within 28 days. The limited discretion to extend this time period – as read into the Act by the courts – is so limited as to be virtually meaningless. It has never yet been properly exercised. Yet, an appeal against a barring decison must be brought before the Upper Tribunal within three months, and – if that was not generous enough –the Upper Tribunal Rules 2008 gives the Tribunal an express discretion to extend it further. Despite both regimes serving to protect the public, they have entirely divergent approaches to the ability of professionals to bring their appeals.

This discretion was examined recently by the Upper Tribunal in BB v DBS. Drawing on earlier authorities, the Tribunal should:

Stage 1: identify and assess the seriousness or significance of the failure to comply with the rules.

Stage 2: consider why the failure occurred i.e. was there a good reason for it

Stage 3: evaluate all the circumstances of the case.

The Court of Appeal indicated in Secretary of State for the Home Department v SS(Congo) and Others [2015] EWCA Civ 387 that:

The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted, and it will usually be unnecessary to spend much time on the second or third stages…

In this instance the delay was 14 days, which was not considered serious. On the other hand, BB essentially had no excuse for the delay. He had access to legal assistance. There was a disinclination to pay for this support, rather than an inability to do so. The Tribunal observed,

The seriousness or significance attaching to the breach in the present case results less from the impact of the breach of the Rules in the specific case and more from the reasons why it occurred and the apparent indifference to the need to comply with the time limits in the Upper Tribunal’s Rules.”

Nonetheless, BB was granted his extension. The Tribunal observed he was a young man with his whole career before him. It was appropriate the case was considered on its merits:

there is a real public interest in ensuring both that children are protected against those from whom protection is needed, but also that people are not by reason of procedural matters too readily restricted in their ability to earn a living

Moreover, the Tribunal added, generally in these kind of safeguarding cases there is limited access to legal representation. Often appellants will be dependent on the Pro Bono services, and therefore greater latitude will usually be warranted. So – even though this second factor did not even apply to BB – the Tribunal permitted him to bring his appeal. I am not sure any sensible justification could be mounted for the different approaches of the Upper Tribunal, and the High Court considering healthcare appeals. The caprice of Parliament has permitted one body to enjoy an extraordinarily generous discretion, whilst the others allows professional’s appeals to fail in almost all circumstances short of becoming incapacitated.

Nonetheless, the judgment is useful guidance in the event an extension is sought.

Chris Geering


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