Tribunal appeal out of time

Due to an administrative oversight we sent in a tribunal application late. The client is subject to a restriction order dated 16/1 and he instructed us to apply on 14/1. Although the application is dated 14/1/23 it was not sent to the tribunal office until 16/1/23. Unfortunately we did not notice this fundamental error and proceeded with the tribunal, under the impression that the client had a further appeal in hand. We have just applied again to be told by MHT that client has already had his tribunal for this eligibility period.
We will seek a referral by the SoS as it is our error but was there any responsibility on MHT to inform us that our initial application was being treated as made on 16/1 even though it was dated 14/1? Obviously had we realised this we may well not have proceeded with the MHT.

I’m not sure what you mean about wanting to appeal 2 days before his section commenced, I think I must be misinterpreting! But in short, no the Tribunal are a processing machine and in my experience don’t tend to question these things.

He has been detained for over a decade and was appealing late in the previous eligibility period.

I suppose I am just wondering if we could suggest that our previous application should have been rejected as it was dated in a previous eligibility period. Of course MHT office does check up to a point-or they would not have rejected our subsequent application.

I agree that the tribunal secretariat have done what you’d expect them to do.

You’re doing the right thing asking for a reference now. DHSC, ‘Section 67 of the MHA 1983: References by the Secretary of State for Health and Social Care to the First-tier Tribunal’ (14/8/19) mentions “a patient detained under section 2 misses the 14-day deadline for applying to the Tribunal through no fault of their own and there is still time for a hearing to be arranged before the section 2 is due to expire” and you could argue that this is similar. I don’t think it should be like civil litigation where a party can expect to suffer for the negligent actions of his solicitor.

R (Modaresi) v SSH [2013] UKSC 53 might be helpful. The Secretary of State refused to make a referral at the beginning of s3 detention, saying (at para 7):

However, should Ms Modaresi make an application to the First-tier Tribunal and the tribunal panel were to uphold her detention under the Act, the Secretary of State would consider any further request for a section 67 reference submitted during her current period of detention."

The Supreme Court (at para 19) also agreed with the Court of Appeal’s judgment that:

What article 5(4) requires is that a patient should have the entitlement to take proceedings to have the lawfulness of his or her detention decided speedily by a court; the appellant had that entitlement under section 66(1) in association with her detention under section 3. Article 5(4) does not prescribe further than that. If there came a time when having unsuccessfully used up her section 3 application at an early stage, the appellant wished to make a further application to the tribunal, she was entitled to ask the Secretary of State again to refer her case to the tribunal under section 67 and he had indicated that he would consider so doing. Of course, that was not a guarantee that he would refer it and to that extent the appellant’s position was less favourable than it would have been had she not had to use her section 3 application in the first place. But the Secretary of State is bound to exercise his discretion under section 67 in accordance with normal public law principles and judicial review would be available to the appellant should he fail to do so, thus ensuring that there would be no breach of article 5(4). Accordingly, I do not consider that the disadvantage to the appellant of having to use up her section 3 application at an early stage was such as to make it unlawful for the Secretary of State to decline to exercise his section 67 power in the expectation that she would do so.

Please keep us posted about what happens next.