El-Huseini v General Medical Council

The court considered whether an appeal under section 40(4) of the Medical Act 1983 was brought in time where an appellant filed an appellant's notice within the 28 day statutory period but the required court fee was not paid because a fee exemption application was submitted and initially rejected by court staff. The judge held that a valid appeal required either payment of the fee or establishment of entitlement to fee exemption within the statutory 28 day period. An imperfect or unsupported fee exemption application does not operate as an alternative to payment. The court further held that, absent the very narrow exceptional circumstances identified in R (Adesina) v Nursing and Midwifery Council, it had no power to extend the primary legislation time limit and that the Equality Act 2010 did not create a separate mechanism to extend or vary that statutory deadline.

Background and parties: Dr El-Huseini appealed to the High Court under section 40(4) of the Medical Act 1983 against a Medical Practitioners Tribunal decision dated 25 May 2016. The hearing before HHJ David Cooke on 5 September 2016 addressed only whether the Court had power to consider the appeal because the respondent argued that the appeal was out of time.

Nature of the application: The appellant sought to challenge the Tribunal's decision and relied on a contemporaneous appellant's notice filed by recorded delivery on 22 June 2016 (received 23 June 2016) together with a fee exemption application. The court officer rejected the exemption application on the information provided and returned the appellant's notice; the appellant paid the fee by cheque on 27 June, which reached the court on 28 June 2016.

Issues framed:

• Whether the appeal was validly brought within the 28 day period given that the appellant's notice arrived at court on the last permitted day but the fee was paid only thereafter;
• Whether filing a fee exemption application which was not initially supported by the required evidence could be treated as equivalent to payment or as preserving the right to appeal within the statutory period;
• Whether the court had any power to extend the statutory 28 day time limit, including by interpreting the statute compatibly with the European Convention on Human Rights as in R (Adesina) v Nursing and Midwifery Council;
• Whether the Equality Act 2010 or Article 6 ECHR required or permitted an extension or reasonable adjustment in the time limit because of the appellant's disability.

Court’s reasoning and outcome: The court concluded that an appeal required either payment of the fee or a demonstrably valid fee exemption claim within the 28 day period. The appellant’s exemption application was deficient because the supporting document evidencing entitlement to Income-related Employment and Support Allowance was dated more than three months earlier and so did not establish entitlement on 22 June. The court rejected the submission that the appellant had done all he could to bring the appeal in time. The Court of Appeal decision in Adesina permitted only a very limited exception to the otherwise absolute statutory limit where human rights compliance required a narrow reading; those exceptional conditions were not satisfied here. The Equality Act 2010 did not create any separate power to extend the statutory time limit and the public sector equality duty could not impose obligations beyond the powers of the Tribunal or court. Consequently the appeal was out of time and could not be heard. The judge also refused to order a transcript at public expense and refused to make the audio recording available at public expense.

The appeal was dismissed as out of time. The court held that a valid appeal under section 40(4) Medical Act 1983 requires payment of the court fee or establishment of entitlement to fee exemption within the 28 day statutory period; an unsupported or deficient fee exemption application does not preserve time. The limited Adesina jurisdiction to read a statutory time limit compatibly with the ECHR did not apply in the circumstances. The Equality Act 2010 does not create a power or requirement to extend the statutory time limit for an appeal.

Appeal to the High Court (Administrative Court) under section 40(4) Medical Act 1983 against a Medical Practitioners Tribunal decision dated 25 May 2016. This judgment determines a preliminary jurisdictional issue (time limit and power to extend) and does not decide the merits of the underlying appeal.