Susan Tsolo v Nursing and Midwifery Council [2025] EWHC 1138 (Admin)

Case No AC-2023-LON-002572

[2025] EWHC 1138 (Admin)

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue The Royal Courts of Justice

Date Thursday, 8 May 2025

Strand

London WC2A 2LL

Before

MR JUSTICE LANG DBE

Between

SUSAN TSOLOAppellant

NURSING AND MIDWIFERY COUNCILRespondent

MR I SKEATE appeared for Appellant

MS D CHURAMAN appeared for Respondent

JUDGMENT

(Approved)

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[1]MRS JUSTICE LANG: Ms Tsolo applies for an adjournment of the substantive hearing of her appeal against the decisions made by the respondent's Fitness to Practise Committee on 28 July 2023, which were:(1) refusal to adjourn the hearing on grounds of her ill health;

(2) to make findings of misconduct which they were not entitled to make;

(3) striking her off the register; and

(4) imposing an interim suspension order for 18 months, on the ground it was necessary for the protection of the public and in the public interest, pending any appeal against the striking off order pursuant to Article 31(1)(c) of the Nursing and Midwifery Order 2001. History

[2]Ms Tsolo lodged her appeal on 29 August 2023, which was the deadline. Mr Skeate of counsel, who appears today, was named in the Appellant's Notice as the appellant's legal representative but throughout has only acted on a direct access basis.

[3]The court recorded the appeal as lodged on 1 September 2023 because that was the date on which the appellant lodged a replacement notice of appeal with a correction. The NMC took the point that the appeal was lodged out of time and a preliminary hearing was listed to determine this issue. However, it was resolved by consent on the papers, as recorded by Pepperall J., in an order dated 22 January 2025 on the basis that the initial notice of appeal was valid and lodged in time.

[4]On 24 January 2025 the parties were informed by the court that the appeal hearing had been listed for 8 May 2025.

[5]The interim suspension order expired on 27 January 2025. The NMC applied to extend the order. On 31 January 2025 Mr David Lock KC (sitting as a Deputy High Court Judge) extended the interim suspension order until the determination of the appellant's appeal or 26 September 2025, whichever is the earlier date.

[6]On 26 April 2025 Ms Tsolo emailed the Administrative Court Office asking for an adjournment on 8 May. She said:

"I'm having substantive hearing on 8 May 2025 and I'm kindly requesting the hearing to be postponed to September as I'm the only breadwinner for six children, paying for their education, but unfortunately because of NMC suspension and the delay of NMC since 2020 with High Court extension from 2020 to 2023, as they were chasing witnesses who did not want to be involved, this has caused huge financial difficulties and children had to stop attending school due to financial problems as I could not pay school boarding money and school fees, and one of my children who's attending special school due to learning disabilities has to go out to get money for school and clothes at a vulnerable age of 14 years, now has a baby who I'm also looking after. The NMC has extended my suspension till September and I'm kindly requesting the hearing to be held together with suspension, as I will not be able to help the children who already stopped attending school since 2020 not properly due to financial problems, and now that they're back at school if I had to pay for their lawyer they will not attend again. If the hearing is in September I will be able to write their exams because I will be able to pay for them. Last year I also had a fractured ankle, both sides, bimalleolar ankle fracture, and it took me off work for a long time, and this has also contributed for children not to be attending school as I could not pay for them. I will be grateful for the court's support. I've been a nurse since 1987 and this is the first case in my life since 1987 with nursing council, and nursing is my vocation to help other people, which I've done the rest of my career."

[7]On 30 April 2025 Mr Skeate informed my clerk that he was not currently instructed in the appeal and his understanding was that the appellant had applied to vacate the hearing. My clerk then asked Ms Tsolo to clarify the position and she confirmed she was asking for an adjournment to September 2025. Ms Tsolo forwarded the email of 26 April that she had sent to the Court Office. My clerk told her that it would be forwarded to the NMC for their comments. My clerk added:

"In the meantime the judge has asked for some clarification as to the reasons why you are seeking an adjournment. In particular, is there any reason why you are unable to attend court on 8 May 2025? Presumably you could find childcare for one day and/or take one day off work?"

[8]Ms Tsolo replied on 30 April, asking for an adjournment to September 2025, saying:

"I'm the only breadwinner and at this time of the year children need money for school and I need to pay their school fees. As I've indicated in the email the long effect of NMC taking years for the case has impacted family with hardship and sad implications as my other child with learning disabilities has gone through untold hardship physically and mentally from 14 years due to poverty and children could not attend school as I could not pay due to NMC restrictions and now there is also a baby to support, hence I'm asking for adjournment to raise fees for legal help and keep children at school so that they can have access to education. Thank you."

[9]On 30 April the NMC filed its response to the application for an adjournment, which stated:

"(1) The respondent opposes the application made by the appellant in two emails of 30 April 2025 to the Administrative Court for the appeal hearing on 8 May 2025 to be adjourned. (2) The charges concern events dating back to 2019 and 2020. The decision being appealed dates back to 2023. (3) The appellant lodged the appeal in August 2023. (4) Notice of the hearing was made on 24 January 2025. (5) The appellant's reason for requesting an adjournment appears to be that she is unable to pay for a lawyer at this time due to her personal financial circumstances. (6) The respondent submits that the appellant has had since 2023 to make arrangements for the appeal hearing, including financial arrangements. (7) Civil Procedure Rules 1.1 provides that it is an overriding objective of 'the court to deal with cases justly and at proportionate cost'. CPR 1.1(2)(d), dealing with a case justly and at proportionate cost includes "ensuring that it is dealt with fairly and expeditiously"

. The respondent submits that resolving the appeal on 8 May would be fair and expeditious to both parties. As a public regulator, the NMC safeguards the health and wellbeing of the public and ensures that those on the register are fit to practise. Resolving those outstanding matters expeditiously as both fair and in the interests of both parties."

[10]On 1 May my clerk emailed Ms Tsolo and, referring to the NMC's observations, she asked:

"Please can you inform us whether lack of funds for legal representation is the reason for your application to adjourn next week's hearing? If so, please can you explain how and when you expect your financial circumstances to improve so as to enable you to pay for a lawyer?"

[11]On 1 May Ms Tsolo replied, saying:

"My financial circumstances will be better by September because during the year, as a breadwinner looking after six children, including now a baby, I'm paying school fees for the children to be able to be allowed to write their exams and paying their transport. The children are already behind with their education, and I kindly request adjournment."

[12]On 1 May 2025 my clerk asked the NMC to clarify what steps would be required to extend the interim suspension order beyond its current expiry date. She added:

"Please note that listing of substantive hearings in August and September is restricted to cases which are certified 'fit for vacation business', ie urgent cases which cannot wait until term begins on 1 October."

[13]On 1 May 2025 the NMC replied to my clerk, stating:

"For the NMC to make an application to extend the interim suspension order beyond September 2015 we will have to prepare a new application to the High Court. Preparation takes about ten weeks. It is a new application to extend at a hearing in the High Court so a claim form, witness statement and relevant documentation have to be filed, detailing the history and reasons for the further application. I note what you say about cases which cannot wait until 1 October. If the case is adjourned to after 1 October the matter would be heard over two years after the decision appealed. My submissions are that it should not be adjourned but that if it is adjourned it should be heard before the interim order expires so that the NMC does not incur the further work involved in extending the work and the case is resolved as quickly as possible."

[14]On 1 May 2025 I made an order in the following terms:

"(1) The appellant's request for an adjournment of the appeal hearing listed on 8 May 2025 will be determined at a preliminary oral hearing on 8 May 2025. (2) If the request for an adjournment is refused, the court will proceed to hear the appeal immediately afterwards and the parties must prepare their cases accordingly."

[15]The reasons that I stated for the order were as follows:

"Despite written requests from the court, the appellant (who is a litigant in person) has not provided the court with sufficient information to enable a fair decision on the adjournment application to be made on the papers. Therefore it will have to be dealt with at an oral hearing."

[16]On 5 May 2025 Ms Tsolo emailed my clerk, stating that the NMC had only just sent the bundle to her, which was very late for her and for her legal representatives to look at it. However, the NMC has informed the court in earlier emails and telephone communications that the bundle had already been sent to Ms Tsolo in draft and, at Ms Tsolo's request, bundles were sent direct to Mr Skeate on 17 April. Ms Tsolo also said in the email of 5 May that she was requesting time to raise money.

[17]On 7 May 2025 Mr Skeate emailed my clerk and stated:

"I am instructed by Ms Tsolo way of public access to represent her at the hearing tomorrow of her application to adjourn the hearing of her appeal. The application is before Lang J DBE and if the application is unsuccessful the appeal will proceed immediately afterwards. I am solely instructed for the application and not the appeal, and I will explain that in opening tomorrow."

[18]In his oral submissions in this hearing Mr Skeate explained that he is not instructed to represent her in the appeal because Ms Tsolo has been unable to pay Mr Skeate's fee in the sum of £7,500. She only ascertained the amount of the fee some two to three weeks ago.

[19]In his skeleton argument, produced on the day of the hearing and in his oral submissions, Mr Skeate made the following points.

[20]Ms Tsolo has been and remains in a precarious financial situation because of an accident at work which resulted in two fractured ankles. She was unable to work from January to September 2024 and fell into debt. Even when she was able to return to work in September 2024, she was still somewhat disabled and could not return to the full-time work that she was carrying out before.

[21]She is an agency care worker. Since January 2025 she has been working as many shifts as is reasonably possible, in effect full-time work. Her average net pay is £1,500 per month. She also has a pension of £676 per month so her total monthly income is £2,176 net. She has consolidated the debts incurred while she was unable to work because of her injury and she is now repaying them at £250 per month for about another 12 months from now.

[22]Her living expenses are £1,075 per month. She pays £250 a month to support her dependant grandchildren to attend school in South Africa. There are no school fees payable over the next four months between May and September, which will amount to a saving. Generally, she has £850 left over per month once her outgoings are met, and she considers that that will enable her to meet the legal fees either of Mr Skeate or possibly a more junior barrister who would charge a lower fee. She intends to apply for legal aid, although she may have difficulty obtaining it because of the nature of the proceedings and the fact that she is in work.

[23]Mr Skeate submits that

Article 6 of the European Convention on Human Rights

is engaged and Ms Tsolo will be unable to present her appeal effectively because of her lack of legal knowledge and experience. The NMC skeleton argument runs to some 28 pages citing numerous authorities. Although Mr Skeate makes the point that the appeal bundle has only recently been finalised, as I have already indicated, it was sent to Ms Tsolo and Mr Skeate in April.

[24]The NMC oppose the application for an adjournment on the grounds helpfully set out in their written response which I have already referred to. Conclusions

[25]In my judgment there has been delay in progressing this case. The charges concern events dating back to 2019 and 2020. There was initial delay because police investigations were taking place and they were not concluded until 2019. Because of Covid-related delays in the NMC, case examiners did not determine the matter until 2022. A hearing before the Fitness to Practise Committee listed for December 2022 had to be adjourned. The Fitness to Practise decision was made nearly two years ago in July 2023. Further delay is undesirable and it would be particularly detrimental to the NMC to have to make a further application to extend the interim suspension order.

[26]I am sympathetic to Ms Tsolo's financial difficulties as a result of her serious injury in January 2024 which prevented her from working for many months. I do consider that Ms Tsolo's application has been made very late in the day which has resulted in costs and inconvenience, and that Ms Tsolo should have identified at an earlier stage the cost of being represented at the appeal and considered whether she was unable to afford Mr Skeate's fees and, if so, what implications that had for this hearing.

[27]However, I recognise the importance of this case for Ms Tsolo, as her nursing career is at stake.

Article 6 ECHR

is engaged. I do consider that Ms Tsolo will benefit from legal representation. In my judgment, she faces an uphill struggle with this appeal, and my experience of her handling of the adjournment application suggests that she is likely to have difficulty in communicating the points that she seeks to rely upon.

[28]There is clearly an inequality of arms between Ms Tsolo and the NMC, who will be legally represented. Ms Tsolo's difficulties in representing herself are going to be a problem for the court as well as for her. However, there is no benefit in adjourning the case and a considerable disadvantage in doing so if Ms Tsolo cannot raise the necessary funds to instruct a legal representative at an adjourned hearing. I am persuaded that it is possible for her to raise the necessary funds in time and to instruct a legal representative for the adjourned hearing, provided that she takes the necessary steps to do so now and does not leave it until the last moment.

[29]Accordingly, I grant the application for an adjournment. That concludes my judgment. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk