Extension of time limits for lodging statutory appeals

On 16 May 2023, His Honour Judge Worster gave judgment in the case of Onuigbo v Health and Care Professions Council at the Administrative Court in Birmingham.

The Appellant’s fitness to practise had been found to be impaired by the Health and Care Professions Counsel (HCPC) on 5 November 2021 and a striking off order had been made.

The Appellant sought to appeal to the High Court against the HCPC’s decision. Under Article 29(10) of the Health Professions Order 2001, an individual has 28 days from the date of service of the decision to be challenged in which to appeal. This time limit expired on 3 December 2021.

In her submissions in support of her application for an extension of time for service of her appeal, the Appellant relied on her ill health in December 2021 and lack of legal representation.

In reaching his decision, the Judge had particular regard to the cases of R (Adesina and Baines) v NMC [2013] 1 WLR and Stuewe. He observed that the theme in Adesina was that an appellant must proceed with the appeal within the 28-day period with all due expedition. In Stuewe, the Court of Appeal was clear that the duty to extend only arises if the Appellant can show exceptional circumstances where to deny an extension would impair the essence of the right of appeal.

The Judge observed that he had not been provided with any evidence that the Appellant’s ill health had been such that she was incapable of filing an appeal. She had been able to send emails and apply for Help with Fees at the time that she was stated to be unwell. There are forms, guidance and sources of advice available to litigants in person. Neither of these factors amounted to exceptional circumstances.

Furthermore, there was no explanation for the delay in completing the Appellant’s Notice, which was not signed until 14 February 2022, and for the further delays which occurred from 22 February 2022 onwards. The case law indicated that even relatively short periods of delay were not appropriate to justify the exercise of the discretion to extend time for service.

The application for permission to extend time, and the appeal, were dismissed with costs.

Comment

This is another indication of the very strict approach that the courts apply when considering whether to allow a statutory appeal against a regulator to proceed when filed out of time. It also provides further guidance on what does not constitute ‘exceptional circumstances’ so as to permit a late appeal.