El-Huseini v General Medical Council

A statutory appeal is out of time unless, within the statutory period, the appellant has paid the required fee or established entitlement to fee exemption. Submitting an inadequately evidenced exemption application is insufficient. The court has no general discretion to extend a time limit fixed by primary legislation. An exceptional power may arise under section 3 of the Human Rights Act 1998 to avoid an incompatibility with Article 6, but only in exceptional circumstances where the appellant has personally done all that could reasonably be done to appeal in time. The Equality Act 2010 does not create a separate power to extend the period or confer such a power on the court or the respondent.

The appellant sought to appeal a Medical Practitioners Tribunal decision finding his fitness to practise impaired and ordering a 12-month suspension. The appeal was lodged on the last day of the statutory 28-day period, but the fee exemption application was rejected because the supporting benefit evidence was out of date. The fee was then paid after the deadline and the appellant’s notice was sealed. The court therefore considered only whether the appeal was validly lodged in time or whether time could be extended under the Medical Act 1983, Article 6 of the European Convention on Human Rights, or the Equality Act 2010.

1. Appeal out of time. The appeal was not validly constituted until the fee was paid on 28 June 2016. The statutory 28-day period had expired on 23 June.
2. Under section 40(4) of the Medical Act 1983, read with section 35E(1) and Schedule 4, the appellant had to pay the fee or establish entitlement to fee exemption within the statutory period. A form which did not contain sufficient information or the required supporting evidence could not preserve an indefinitely long opportunity to correct the deficiency. The appellant’s underlying entitlement to exemption was insufficient; entitlement depended on a correctly completed and evidenced application.
3. The court had no general power to extend the statutory period. Under R (Adesina) v Nursing and Midwifery Council [2013] EWCA Civ 818, an exceptional jurisdiction could arise from the obligation under section 3 of the Human Rights Act 1998 to interpret legislation compatibly with the Convention. That jurisdiction was confined to exceptional circumstances in which the appellant had personally done all that could be done to appeal timeously. The present case did not satisfy that test because the delay resulted from the appellant’s failure to provide the required evidence.
4. The appellant’s disability, delayed transcripts and lack of legal advice did not cause the relevant delay. The grounds of appeal were available in time, assistance had been provided, and the evidence needed for the fee exemption could have been obtained and submitted before the deadline. There was therefore no denial of Article 6 rights.
5. The Equality Act 2010 provided no separate mechanism for extending the period. Neither the GMC nor the court could treat the statutory time limit as its provision, criterion or practice, and the equality duties could not create a power which the statute withheld. Administrative steps by court staff, including accepting the fee and sealing the notice, did not waive the time limit or determine jurisdiction.
6. The appeal could not be heard. The court also refused public funding for a hearing transcript and refused an exceptional order for an audio recording.

The judgment itself records no prior appellate decision in this dispute. It determined the preliminary issue of whether the statutory appeal could proceed.