Leeloves 2 Care Limited v Care Quality Commission [2025] UKFTT 1111 (HESC)

First-tier Tribunal Care StandardsThe Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 2008NCN: [2025] UKFTT 01111 (HESC)2025-01571.EAHeard by Video Link on 16 September 2025
Before
Ms S Goodrich (Judge)Ms D Rabbetts (Specialist Member)Mr A Jinabhai (Specialist Member)
Between
Leeloves 2 Care LimitedAppellant-v-
Between
Care Quality CommissionRespondentDecision on Late AppealDate 2025-09-19

IT IS ORDERED THAT:

[1]Leeloves 2 Care Limited (the ‘Appellant’) seeks to appeal against the decision of the Care Quality Commission (CQC) (“the Respondent”) dated 3 July 2025 to cancel its registration as a service provider in relation to the regulated activity of Personal Care, to be carried out from the location at 73 South Street, Highfields, Doncaster, DN6 7JL. The Registered Provider is Miss Leonorah Sibanda.[2]On the face of it the appeal application form (AAF) was not filed within 28 days of the deemed date of service of the decision to cancel. The preliminary issue therefore arises as to whether the Tribunal should allow the appeal to proceed.[3]Directions were issued by Judge Khan on 21 August 2025 regarding the hearing of this preliminary issue and the evidentiary steps to be taken thereafter by each party. This included a direction that the parties “shall send to each other and to the Tribunal no later than 12 noon on Wednesday 3 September 2025 their written submissions and any relevant evidence for extending the time for lodging an appeal and any supporting authorities that they seek to rely on.” Attendance[4]The Appellant was represented by Miss Sibanda, who appeared before us as a litigant in person. Miss Sibanda had indicated that she has a prospective business partner who might attend. In the event, he did not do so. There was no application to put the matter back or for an adjournment.[5]Mr Toby Buxton represented the Respondent.[6]Ms Zaman from the CQC attended as an observer. The Hearing[7]The hearing was conducted as a video hearing. There were no significant difficulties in connectivity. The documents that we were provided with are contained in the electronic hearing bundle (73 pages) prepared by the Respondent.[8]The Respondent duly confirmed that a copy of the hearing bundle had been sent to the Appellant. Miss Sibanda confirmed that she had received and read the bundle. Chronology of Relevant Events[9]The Respondent helpfully prepared the following chronology to assist the Tribunal, and which set out the apparent events: i. October 2023 - The Appellant was registered as a service provider. ii. 11 June 2025 – A Notice of Proposal (NoP) to cancel the Appellant’s registration as the provider of Personal Care under Section 17(1)(e) of the Health and Social Care Act 2008 (“the Act)” and Regulation 6(1)(c) of the Registration Regulations 2009. iii. 26 June 2025 – The Appellant submitted written representations in response to the cancellation proposal. In these Miss Sibanda set out in detail the difficulties that the company had experienced in seeking to secure clients. Some 18 appendices were also provided. iv. 3 July 2025 - Notice of Decision (NoD) sent by email to the Appellant. The Respondent states that it had considered the representations made but that it had decided to cancel registration because the provider had been dormant for more than a year and a half. Consequently, the Respondent had not been able to carry out inspections and seek assurances that the requirements of the Regulations were being met. v. The NoD made clear that that act of cancellation would not prevent the Appellant from applying for registration at a future date. vi. The NoD included the following. “You remain registered until this decision takes effect, which is 28 days from the date this notice of decision is deemed served, should you not appeal the notice.” The NoD also:a. informed the Appellant: of her right of appeal which had to be exercised within 28 days,b. provided a link to download the appeal application form,c. stated in terms: “You must submit your appeal to the Tribunals Service in writing within 28 days of the date on which you received this notice. If you do not want to appeal against our decision, please let us know. Our decision will become final as soon as we receive your letter or once the 28-day appeal period expires (whichever is sooner).” vii. Friday 4 July 2025 – Deemed date of service of the NoD sent by electronic communication in line with section 93 (2A) and section 94 of the Act. viii. 1 August 2025 – Expiry of the 28-day appeal period. ix. 11 August 2025 – Appellant filed an appeal with the Tribunal. The Appeal Application Form[10]Section F of the AAF asks the applicant to explain the reasons for the late appeal. Although she had, in fact, ticked the box to say that her appeal was in time Miss Sibanda stated the following:
“Tragically, my mother passed away on the 25th of March (2025) after a short illness. In the weeks that followed, I was fully occupied with the responsibilities of arranging her burial, handling the necessary legal and administrative matters, and supporting other family members through this loss. The emotional impact of losing her has been profound, and I have been grieving while managing these urgent and unavoidable duties. These circumstances meant I was unable to prepare or submit my appeal within the original time limit. I have acted as quickly as possible to submit my appeal once I felt able to focus on it, and I respectfully request that the Tribunal considers my situation as a good and sufficient reason for the delay.”
Pausing there, as will be seen “a good and sufficient reason” is not the appropriate legal test given the statutory time limit imposed on the right of appeal conferred by section 32(2) of the Act. The Law[11]Section 32(2) of the Act provides that:
“No appeal against a decision or order may be brought by a person more than 28 days after service on the person of notice of the decision or order.”
[12]The question of whether discretion exists to extend the time limit in Section 32(2) of the Act was considered in Sheikh v Care Quality Commission [2013] UKUT 137 (AAC) where this was said:
“4. There can be no doubt that the Respondent was right to submit that the First-tier Tribunal had no power to admit the second appeal as such. Section 32(2) of the 2008 Act provides – “No appeal against a decision or order may be brought by a person more than 28 days after service on the person of notice of the decision or order.”
Thus the time limit is in primary legislation and not in Tribunal Procedure Rules. Moreover, there is nothing in primary legislation authorising the extension of that time limit.”[13]The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 do not contain any powers to extend the time limit set out in statute. Rule 5(3)(a) allows only for the extension of time for complying with any rule, practice direction or direction:
“(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may — (a) extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment containing a time limit;”
[emphasis added].[14]In the light of binding authority, the Respondent accepts that the time limit in Section 32(2) of the Act is not an absolute one. The Supreme Court decision in Pomiechowski & Ors v District Court of Legunica Poland [2012] UKSC 20 established that an absolute statutory time limit should be read in a manner consistent with Article 6 of the European Convention on Human Rights, and therefore a relevant judicial body must have discretion to extend time limits where the very essence of the right to appeal is impaired. In Paragraph 39 of the judgment in Pomiechowski Lord Mance stated:
“...the statutory provision concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) ... ...[the Court] must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously.”
[15]In R (on the application of) Adesina & Ors v Nursing and Midwifery Council [2013] EWCA Civ 818, the case of Pomiechowski was applied and it was stated:
“A discretion must only arise “in exceptional circumstances” and where the appellant “personally has done all he can to bring [the appeal] timeously.” and, also “...although the absolute approach can no longer be said to be invariable, the scope for departure from the 28-day time limit is extremely narrow.”
[16]Following Adesina, in some cases a test has been applied in relation to whether jurisdiction to extend time arises, containing two limbs:(1) that the circumstances are exceptional and(2) that the Appellant had done all they personally could have done to bring the appeal in time. The Court of Appeal has since considered this in Lars Stuewe v Health and Care Professionals Council [2022] EWCA Civ 1605. Paragraphs 51-52 of the judgement clarify the position, and make clear that the test properly applied consists of the first limb only: that the circumstances are exceptional, taking into account all relevant factors, one of which may be the actions of the Appellant (as per the former second limb of the test).[17]In light of the above cases the legal principles are clear: the scope for departure from the statutory provision that states; “No appeal against a decision or order may be brought by a person more than 28 days after service on the person of notice of the decision or order” is extremely narrow and can only be exercised in exceptional circumstances, i.e. where the statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process. The Appellant’s Case[18]At the start of the case the judge explained that it was for the Appellant to satisfy us that there were exceptional circumstances and that the panel should exercise its discretion to permit the late appeal. Given that Miss Sibanda represented the company herself the judge explained that she could explain the circumstances she relied on by herself if she wished, or that the judge could assist her by asking questions. Miss Sibanda said that both were appropriate. The judge therefore took Miss Sibanda to various parts of the bundle and asked questions to elucidate the circumstances on which she relied, and to explain her case.[19]Miss Sibanda corrected what she had written in the AAF at section F. Her mother did not die on 25 March 2025 but on 25 July 2025. The reference to 25 March was a typo. She had only realised her mistake when the judge had just read out what she had written. Her brother had died suddenly from a heart attack, at the age of 40, in December 2023. Her brother and his son had lived with her mother in Zimbabwe. Her mother had been diagnosed with dementia in 2018 but had been doing OK until her son died. She then got worse and was not talking or eating. On the death of her brother, her nephew went to live with maternal relatives (his own mother having died in 2016). Miss Sibanda sends money for his school fees and upkeep. She had visited her mother in Zimbabwe at the end of March 2025 and stayed until early May 2025. Prior to that, she had not been able to visit Zimbabwe because of her immigration status. She had claimed asylum so she was not able to travel to Zimbabwe, but she had travelled to Zambia in 2018 and 2019 to see her mother there.[20]Miss Sibanda also said that she had calculated the 28 days permitted for appeal by excluding the weekends. The panel noted that this has not been stated in section F of her appeal where Miss Sibanda, notwithstanding that she had ticked the box that indicated her appeal was in time, had relied on her bereavement as an explanation for her appeal being late.[21]Asked what it was that made her believe that she had 28 working days to submit her appeal, Miss Sibanda said she did not know where she had got that from. She initially said that she first downloaded an appeal form on about 8 August 2025. She then checked her email correspondence and said that she rang the CQC on 11 August 2025 to ask for the link for the appeal form and was told that she was “past her date”. She said that she was sent a form by the CQC that day and filled this out and sent it by email on 11 August 2025. Asked if she had downloaded the guidance referred to in the AAF, she said that she cannot remember as she was going through a lot mentally due to her mother’s passing. She had not managed to travel to Zimbabwe for her mother’s burial. She had family members – another brother and her brother’s son and other relatives calling her about the funeral. She was the person who sent money for the burial orders and food for the funeral.[22]Asked if she wanted to say anything else Miss Sibanda said that the main reason for her late appeal was to do with her health. She was providing financial support for her family in Zimbabwe and it was demanding. When her mother died responding to the CQC’s NoD had completely slipped her mind. She referred to the stress of losing her mother who was the only person she had when growing up.[23]We noted that in the context of the reasons for the appeal itself, Miss Sibanda had stated in section G, “While there have been challenges in starting operations, these are part of the normal journey of establishing a new service. I remain determined to address those challenges and am actively seeking opportunities to secure contracts and serve clients. Closing my registration now would remove the opportunity to achieve the very purpose for which it was granted. I am confident that, if given the opportunity to keep my registration active, I will be able to deliver the care services envisioned, fulfil my professional obligations, and make a meaningful difference to those in need”. The Respondent’s Case[24]In its skeleton submissions the CQC pointed out that the class of circumstances which may constitute exceptionality in line with the authorities are those that have the effect of preventing the recipient of an adverse decision from making an appeal within the allotted time, and which are extant for the entirety of the appeal period. The examples given in Adesina include a situation where the recipient falls into a coma at around the same time as receiving the notice, or where the notice is never received at all. The Respondent submits that it is conceivable that a family bereavement could, in some circumstances, create a situation so difficult and stressful for an Appellant that it could not make an appeal within the 28 days immediately following that bereavement. That would require, in the Respondent’s submission, that the legal processes and practical arrangements required following that bereavement to be of such significance and complexity that, for the full 28 days of the appeal period and any further delay thereafter, it was practically impossible for the recipient to make their appeal.[25]The Respondent contends that, generally speaking, strict time limits exist to ensure there is finality and certainty in decision making. The existence of such limits is important to ensure the effectiveness of the Tribunal process and provide clarity for all parties, which is in line with the Tribunal’s overriding objective. The time limit in question is contained in primary legislation as above, and its application is construed far more strictly than a time limit contained in procedural rules, such as those which govern the Tribunal’s general case management powers. The Respondent contends that the circumstances of this case are not exceptional and fall outside the narrow set of circumstances in which the Tribunal may extend a time limit set out in primary legislation.[26]Notwithstanding the explanation and further clarification provided by Miss Sibanda it remained the Respondent’s position that the Appellant had not shown exceptional circumstances. The Tribunal’s Consideration[27]We took into account all the evidence that was included in the hearing bundle and presented orally at the hearing. After the hearing concluded the Tribunal administration received an email from Miss Sibanda attaching the burial order regarding her mother. Having ascertained that the Respondent did not object to the late evidence we agreed to receive the document.[28]We find that the basic facts are as set out on the chronology at paragraph 9 above. There was no dispute that the NoD dated 3 July 2025 was served on the Appellant by electronic means, (and was received and read), on 3 July 2025. The NoD set out the mandatory timescales for an appeal, and where and how to appeal. It is agreed that the appeal was not filed until 11 August 2025.[29]We find that by operation of law the deemed date of service was on Friday 4 July 2025. We also find the 28-day time limit expired on 1 August 2025.[30]Miss Sibanda’s explanation was that she thought that the 28-day time limit did not include weekends. We noted that this explanation had not been provided before the hearing started. The effect of her evidence was that she had always thought this because, as she described it, she was “counting down” the days. Miss Sibanda was unable to explain what had led her to think that weekends would not count. It is clear that, on her own case, she did not take any steps to seek any confirmation of her belief or advice or clarification. We find that she did not do anything to act on her appeal right until 11 August 2025 which, if the Appellant had been right that weekends did not count, would have been day 27.[31]We noted that in the hearing bundle there was a detailed letter of representations from Miss Sibanda, dated 26 June 2025, and which referred to 18 supporting appendices, sent to the Respondent on that date. In short, the 26 June 2025 letter set out the Appellant’s representations against the proposal to cancel registration and why the Respondent should decide that it would be unreasonable to cancel registration. We noted that the effects of her mother’s declining health and the anxiety involved had not prevented Miss Sibanda from addressing the NoP to cancel in some detail. We noted also that Miss Sibanda did not refer to the family circumstances in Zimbabwe, or the declining health of her mother, to explain why the Appellant had not been providing services. The effect of the representations she made on 26 June 2025 was that she was actively engaged in seeking to secure contracts.[32]We recognise that the family circumstances following the death of her brother and her mother’s declining health must have been very difficult. Notwithstanding her bereavement and her anxiety about her mother’s failing health, the overall effect of the representations she made on 26 June 2025 was that she was ready, willing and able to provide personal services in line with her registration and was active in the business. Whilst we can see that the passing of her mother a month later on 25 July 2025 must have caused great sadness and distress, we do not consider that bereavement readily explains why Miss Sibanda did not exercise her right to appeal in time. The AAF is not a complicated or complex document. In reality, all that was required was that Miss Sibanda state that she relied on the representations made in response to the NOP and that the Respondent’s decision was not reasonable.[33]Miss Sibanda’s position before us was that she believed that she was within time to lodge the appeal because she believed that weekends did not count when calculating time. However, she was unable to explain what led her to believe that weekends were excluded when calculating the 28 days of which she had been informed. She said that she did not take any steps to seek advice or clarification on this. She told us that on 11 August 2025 she telephoned the CQC and was told that her appeal was probably out of time. She said that she asked the person she spoke to about weekends not counting but this person did not know. On her own evidence, at the point at which she telephoned the CQC, she had not yet seen or downloaded the AAF. She said that she was then sent a link to a form by the CQC which she then downloaded, completed and sent to the Tribunal by email on 11 August 2025. However, she told us that she had been informed by the Tribunal that this was apparently the wrong appeal form: she was therefore sent a different link by the Tribunal and she then submitted the appeal application.[34]It was very clear from her answers that the only day that Miss Sibanda had taken any actual steps to deal with/process her appeal was on 11 August 2025. It is notable that on her own evidence Miss Sibanda managed to engage with the CQC, and thereafter the Tribunal, over a relatively short time period so as to receive, complete and file an appeal and thereafter to receive, complete and file the proper form (sent by the Tribunal) which she then completed and submitted by email at 11.22 am that day.[35]In effect Miss Sibanda relies on her assumption as to how 28 days was to be calculated as well as her bereavement, as exceptional reasons. In our view a mistake as to how the 28-day period is calculated does not amount to an exceptional circumstance. The 28-day period does not exclude weekends. It is relatively long period and builds in a reasonable period for an Appellant to decide whether to appeal, and to take advice if necessary. It is not unreasonable to expect an unrepresented Appellant to make enquiries before deciding whether to rely solely on their own assumption as to how the 28-day period is calculated. Had Miss Sibanda accessed the AAF earlier she would have seen that section F refers to the Tribunal guidance regarding appeals and states that if there is any doubt about time limits she could contact the Care Standards office for advice.[36]Miss Sibanda referred to her health but there is no evidence before us that she had sought any medical assistance or treatment. What is before us is evidence that on 26 June 2025, despite her undoubted concern and anxiety about her mother’s failing health, Miss Sibanda was well able to articulate why she considered the Respondent’s proposal was wrong. We recognise, of course, that this was a month before her mother died. We carefully considered the likely emotional impact of her mother’s passing on 25 July 2025. However, given the overall context, we have difficulty accepting that her bereavement/feelings of loss following her mother’s passing readily explains why she did not seek to act on her right of appeal until 11 August 2025.[37]In our view it was very clear from Miss Sibanda’s evidence that her initial response to the NoD, which she read on 3 July 2025, was that there was no point in appealing. This was some three weeks before her mother passed. She told us that when she woke up on 11 August 2025 she had a “lightbulb” moment and decided that she should appeal for the sake of her mother’s legacy.[38]We are not persuaded that the impact of Miss Sibanda’s bereavement adequately explains why she did not seek to exercise her right of appeal within 28 days. Her error in relying on her assumption about working days is not, in our view, an exceptional circumstance. Naturally we sympathise with Miss Sibanda regarding the passing of her mother. Ordinary life experience informs us that the effects of bereavement are not to be underestimated. However, the Appellant has not satisfied us that the circumstances were such that she was unable to take practical steps to ensure that she lodged her appeal on time.[39]In summary, even taking the matters regarding the impact of her bereavement on her at their highest, we did not consider that the matters upon which Miss Sibanda relies, either separately or in combination, amount to exceptional circumstances. In our view, notwithstanding her bereavement, the Appellant had access to the appeal process and could reasonably have been expected to have exercised her right to appeal before the expiry of the statutory time limit. We do not consider that the 28-day statutory provision operated to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1).[40]Miss Sibanda has not satisfied us that the circumstances on which she relies meet the test of exceptionality recognised by the Supreme Court in Pomiechowski. The exercise of discretion does not, therefore, arise. Had it arisen we would have taken into account that the Respondent had made clear that cancellation on the grounds of dormancy does not prevent a further registration application being made in the future. DECISION IT IS ORDERED THAT: 1. Judge Goodrich 2. First-tier Tribunal (Health, Education and Social Care) Date Issued: 19 September 2025