Court of Appeal decision on extending s2 Tribunal eligibility period

On 23/11/11, in the case of R (Modaresi) v SSH [2011] EWCA Civ 1359, the Court of Appeal decided that if the final day of the 14-day eligibility period falls on a day when the Tribunal office is closed, the eligibility period is extended until the next business day. Peter Edwards Law, a member of the Association, acted for the patient.

Summary of case from Mental Health Law Online:

“The claimant’s s2 Tribunal application was faxed to the MHA Administrator’s office on New Year’s Eve, within the 14-day eligibility period, but was not faxed from there to the Tribunal office until after the bank holiday weekend, by which time the 14-day period had expired; the Tribunal therefore rejected the application; the claimant was then placed under s3; the Secretary of State refused to make a s67 reference. (1) Where the Tribunal office is closed on the 14th day of the eligibility period, the period is extended to include the next day that it is open (this is the case even though a fax application can be made when the office is closed). (2) Since the application was made on time, the claim against the Trust (that their inadequate system breached Article 5(4)) was academic. (3) The Secretary of State’s decision was not vitiated by being based on the mistaken belief that the application was out of time (as the position was unclear then); requiring the claimant immediately to exercise her s3 right of application (rather than retaining that right until after a reference Tribunal) did not breach Article 5(4) as the Secretary of State would have to exercise his s67 discretion at a later date in accordance with public law principles.”

See Mental Health Law Online for further details.