New Judgment: R (Modaresi) v Secretary of State for Health  UKSC 53
24 Wednesday Jul 2013
On appeal from:  EWCA Civ 1359.
The appellant was detained under the Mental Health Act 1983, s 2 and had a right to apply to the First-tier Tribunal within 14 days to review her detention under s 66(1) of the Act. She completed an application form but due to staff holidays and Christmas opening hours the form was not immediately faxed to the Tribunal, and when it was received it was deemed to be out of time. Shortly afterwards the appellant ceased to be detained under s 2 and instead was detained under s 3, which carries a separate right to apply to the tribunal under s 66(1)(b) and has no limitation period for applications.
The appellant’s solicitors wrote to the Secretary of State asking that he use his discretion under s 67(1) of the same Act to refer the appellant to the Tribunal. In response it was noted that the delay in receiving the application was not the appellant’s fault but the request for a referral was refused, with the suggestion that the appellant make a separate application now she was detained under s 3. The appellant’s claim for judicial review of the Secretary of State’s decision to refuse to refer her was dismissed by the High Court and the Court of Appeal.
The Supreme Court unanimously dismissed the appeal. The appellant had not been deprived of her right of access to a court or tribunal to review her detention. The issue was not the existence of the right but how speedily it might be exercised, and whether it would have been advantageous if her original application had been accepted. S 67 did not enable the Secretary of State to insist on a hearing within seven days (as would have been required under s 2) – the timing would have been at the discretion of the Tribunal and there was no evidence to support the submission that the SoS could have been more persuasive in that respect. An application under s 3 could contain a request for an urgent hearing in the circumstances.
Lady Hale noted that the appellant had been let down by the system through no fault of her own and there were important lessons to be learnt. The authorities show that when an Act of Parliament prescribes a period for doing an act which can only be done on a day when the court office is closed, the time is extended to the next day on which it is open.