The Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002

Regulation 4(5)

SCHEDULE 5 APPEALS AND APPLICATIONS FOR LEAVE UNDER SECTION 86 OF THE 2000 ACT

Initiating an appeal

1.—(1) A person who wishes to appeal to the Tribunal under section 86(1)(a) of the 2000 Act, against a decision to include him in the POVA list must do so by application in writing to the Secretary.

(2) An application under this paragraph must be received by the Secretary no later than the first working day after the expiry of three months from the date of the letter informing the applicant of the decision.

(3) An application under this paragraph may be made on the application form available from the Secretary.

(4) An application under this paragraph must—

(a) give the applicant’s name, date of birth and full postal address;

(b) give the reasons why the applicant believes he should not be included in the POVA list;

(c) give the name, address and profession of the person (if any) representing the applicant;

(d) give the address within the United Kingdom to which the Secretary should send documents concerning the appeal;

(e) give, where these are available, the applicant’s telephone number, fax number and e-mail address and those of the applicant’s representative; and

(f) be signed and dated by the applicant.

Applying for leave

2.—(1) An application for leave—

(a) to appeal to the Tribunal under section 86(1)(b) of the 2000 Act against a decision not to remove the applicant from the POVA list; or

(b) to have the issue of the applicant’s inclusion in the POVA list determined under section 86(2) of the 2000 Act by the Tribunal,

must be made in writing to the Secretary.

(2) An application under sub-paragraph (1)(a) must be received by the Secretary no later than the first working day after the expiry of three months from the date of the letter informing the applicant of the decision.

(3) An application under this paragraph may be made on the application form available from the Secretary.

(4) An application under this paragraph must—

(a) give the applicant’s name, date of birth and full postal address;

(b) give sufficient information to make it clear whether the appeal falls within sub-paragraph (1)(a) or (b);

(c) give the reasons why the applicant believes the decision was wrong or, as the case may be, why he believes he should not be included in the POVA list;

(d) give the dates of any previous appeal under section 86 of the 2000 Act and (where applicable) application for leave, he has made to the Tribunal;

(e) give details of any new evidence or material change of circumstances since that appeal and (where applicable) application for leave was determined which might lead the Tribunal to a different decision;

(f) in the case of an application to have the issue of his inclusion in the POVA list determined by the Tribunal, give details of any civil or criminal proceedings relating to the misconduct of which the applicant is alleged to have been guilty;

(g) give the name, address and profession of the person (if any) representing the applicant;

(h) give the address within the United Kingdom to which the Secretary should send documents concerning the appeal and the application for leave;

(i) give, where these are available, the applicant’s telephone number, fax number and e-mail address and those of the applicant’s representative; and

(j) be signed and dated by the applicant.

Acknowledgement and notification of application

3.—(1) On receiving an application, the Secretary must—

(a) immediately send an acknowledgement of its receipt to the applicant; and

(b) subject to the following provisions of this paragraph, enter particulars of the application and the date of its receipt in the records and send a copy of it, together with any documents supplied by the applicant in support of it, to the respondent.

(2) If the President is of the opinion that the applicant is asking the Tribunal to do something which it cannot do, he may notify the applicant in writing—

(a) of the reasons for his opinion; and

(b) that the application will not be entered in the records unless within five working days the applicant notifies the President in writing that he wishes to proceed with it.

(3) If in the Secretary’s opinion there is an obvious error in the application—

(a) he may correct it;

(b) he shall notify the applicant accordingly; and

(c) unless within five working days of receipt of notification under head (b) of this sub-paragraph the applicant notifies the Secretary in writing that he objects to the correction, the application shall be amended accordingly.

Response to application

4.—(1) The Secretary must send the information provided by the applicant under paragraph 1 or 2, as the case may be, to the respondent together with a request that he respond to the application within 20 working days of receiving it.

(2) If the respondent fails to respond as directed, he shall not be entitled to take any further part in the proceedings.

(3) The response must—

(a) acknowledge that the respondent has received a copy of the application;

(b) indicate whether or not he opposes it, and if he does, why;

(c) provide the following information and documents—

(i) the name, address and profession of the person (if any) representing the respondent and whether the Secretary should send documents concerning the appeal or, as the case may be, application for leave, to the representative rather than to the respondent;

(ii) copies of any letters informing the applicant of the decision which is the subject of the appeal or, as the case may be, application for leave;

(iii) copies of any information submitted with a reference under section 82(1), 83(1), 84(1) or 85 of the 2000 Act and of any observations submitted on it by the applicant.

(4) The Secretary must without delay send to the applicant a copy of the response and the information and documents provided with it.

Misconceived applications etc.

5.—(1) The President or the nominated chairman may at any time strike out the appeal or, as the case may be, application for leave, on the grounds that—

(a) it is made otherwise than in accordance with paragraph 1 or 2 (as the case may be);

(b) it is outside the jurisdiction of the Tribunal or is otherwise misconceived; or

(c) it is frivolous or vexatious.

(2) Before striking out an appeal or application for leave, as the case may be, under this paragraph, the President or the nominated chairman must—

(a) invite the parties to make representations on the matter within such period as he may direct;

(b) if within the period specified in the direction the applicant so requests in writing, afford the parties an opportunity to make oral representations; and

(c) consider any representations the parties may make.

Grant or refusal of leave

6.—(1) The President or the nominated chairman shall grant or refuse leave in relation to an application under paragraph 2 without a hearing, as he sees fit.

(2) Subject to paragraph 7, if the President or the nominated chairman refuses leave the application shall be dismissed.

(3) The Secretary must without delay notify the parties in writing of the President or the nominated chairman’s decision, and if he has refused leave—

(a) must notify them of his reasons for doing so; and

(b) must inform the applicant of his right to request a reconsideration of the decision under paragraph 7.

Reconsideration of leave

7.—(1) The President or the nominated chairman must reconsider a decision to refuse leave if within ten working days after receipt of a notice under paragraph 6(3) the Secretary receives a written request to do so from the applicant.

(2) If in his request under sub-paragraph (1) the applicant has asked to make representations about leave at a hearing, the Secretary must fix a hearing for those representations to be heard.

(3) The Secretary must notify the respondent of any hearing fixed for the purpose of considering whether to grant leave, and the applicant and the respondent may appear or be represented by any person at that hearing.

(4) If the President or the nominated chairman again refuses leave after reconsideration—

(a) he must give his reasons for doing so in writing; and

(b) the Secretary must without delay send to the parties a copy of the President or the nominated chairman’s decision and if he has refused leave his reasons for doing so.

Further information to be sent by the applicant and the respondent

8.—(1) As soon as the respondent has provided the information set out in paragraph 4, or as soon as leave has been granted under paragraph 6 or 7, the Secretary must write to each party requesting that he send to the Secretary, within 20 working days after the date on which he receives the Secretary’s letter, the following information—

(a) the name of any witness whose evidence the party wishes the Tribunal to consider (and whether the party may wish the Tribunal to consider additional witness evidence from a witness whose name is not yet known) and the nature of that evidence;

(b) whether the party wishes the President to give any directions or exercise any of his powers under Part IV of these Regulations;

(c) whether the party wishes there to be a preliminary hearing with regard to directions;

(d) a provisional estimate of the time the party considers will be required to present his case;

(e) the earliest date by which the party considers he would be able to prepare his case for hearing; and

(f) in the case of the applicant, whether he wishes his case to be determined without a hearing.

(2) Once the Secretary has received the information referred to in sub-paragraph (1) from both parties, he must without delay send a copy of the information supplied by the applicant to the respondent and that supplied by the respondent to the applicant.

Changes to further information supplied to the Tribunal

9.—(1) Either party, within 5 working days of receiving the further information in respect of the other party from the Secretary, may ask the Secretary in writing to amend or add to any of the information given under paragraph 8(1).

(2) If the Secretary receives any further information under sub-paragraph (1) from either party he must, without delay, send a copy of it to the other party.