B e f o r e :
Upper Tribunal Judge Wright ____________________
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HTML VERSION OF DECISION ____________________
Crown Copyright ©
I grant the application for judicial review of the decision of the Social Entitlement Chamber of the First-tier Tribunal of 1 February 2022 under the tribunal case reference CI021/17/00298.
The Upper Tribunal's order is:
(i) to QUASH the decision of the First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) of 25 July 2017; and
(ii) to REMIT the appeal to be redecided afresh by an entirely freshly constituted First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation), at an in person, face to face, oral hearing and in accordance with the law as set out below.
Introduction
This is a judicial review of a decision of the First-tier Tribunal made on 1 February 2022 ("the FTT"). The FTT's decision and this decision of the Upper Tribunal turn on rule 89 of the Criminal Injuries Compensation Scheme 2012 ("the 2012 Scheme"). Rule 89 provides as follows:
On appeal, it was for the FTT to reconsider afresh whether the test in rule 89 of the 2012 Scheme was made out on the evidence. An important issue which arises on this judicial review is whether the FTT was correct to conclude that the appellant's ignorance of the criminal injuries compensation scheme was no defence and no excuse for her delay in making her application for compensation to the criminal injuries compensation authority ("CICA").
The relevant background in more detail
The incident for which the applicant is seeking compensation from CICA occurred on 2 June 2011. Given the narrow nature of the legal issues arising on this judicial review and the basis on which the application was refused by CICA, there is no need to consider the detail of that incident.
It is not disputed that the applicant did not apply to CICA for compensation until 29 April 2016. This is outside the two year time limit found in paragraph 87 of the 2012 Scheme, which provides, insofar as material, as follows:
The over two year delay was not however fatal to the application, if the applicant could satisfy paragraph 89 of the 2012 Scheme.
The applicant has succeeded before in a judicial review challenge to a decision of a previous First-tier Tribunal concerning her late application for criminal injuries compensation in respect of the incident on 2 June 2011. In those earlier proceedings (reference JR/1290/2019), Upper Tribunal Judge Levenson quashed the earlier First-tier Tribunal decision. Judge Levenson did so because that First-tier Tribunal had erred in law in (a) illogically relying on the applicant's ability to engage in other procedures when her argument related to her lack of knowledge of the existence of the 2012 Scheme, and (b) by confusing the concept of needing to make enquiries with that of needing to analyse the considerable medical evidence already available. It was on this basis that the appeal came before the FTT on 1 February 2022.
For the reasons given by CICA, I accept that some caution needs to be taken in treating Judge Levenson's decision as laying down any point of legal principle. This is because it was a decision given without sight of the submissions CICA had made in those judicial review proceedings. It was on this basis that Judge Levenson later accepted that there had been a procedural irregularity in those proceedings. However, Judge Levenson declined to set his decision aside because to do so would have lengthened those proceedings and both parties could make their submissions on the merits to the (new) FTT.
The FTT in the current judicial review proceedings made detailed findings of fact around the matters relevant to paragraph 89 of the 2012 Scheme. The relevant findings were as follows.
The FTT found that the applicant had reported the incident to the police on 2 June 2011 and had further 'reported' it to her GP the next day. She had had to push the police to make a statement, which she did on 12 June 2011. Then, in or about August 2011, she made a complaint to the police after it decided not to charge her alleged assailant. Ultimately, she and her partner spoke to the Commissioner for Thames Valley Police but this did not result in any charge being brought.
The applicant had spoken to "ordinary people" about the incident and also the CAB, seemingly in our about 2012, about it, but the CAB could not support her and advised she see a solicitor, which she was too nervous to do.
The FTT further found that the applicant had lost confidence but every so often when she had the confidence she asked the police what they were intending to do. It also found, crucially for these proceedings, that the applicant did not know about the existence of the 2012 Scheme until about two weeks before she made the application to CICA on 29 April 2016, after speaking to Zoe at 'a voluntary organisation' . (The FTT refers to the contact with Zoe being in "early Summer 2016", but that cannot be correct.)
Further findings were made by the FTT that the applicant had a home computer on which she asked her partner to carry out research if required, that she used her local library for research into human rights matters, and she was not incapacitated between 2011 and 2013 such that she could not have made the application to CICA in time. Moreover, she was capable of making enquiries and her involvement with her complaint to the police and with the Information Communications Ombudsman, as well as her contact with the CAB and the advice to see a solicitor, showed "potentially knowledge was there for her to utilise".
Furthermore, the FTT found that during the period concerned the applicant was involved in a campaign against the proposed closure of a local swimming pool, she was active in this activity and in seeking justice, and she wanted justice instead of compensation.
On the basis of the above findings, the FTT held that the applicant:
It was at this stage in its fact-finding and reasons that the FTT stated:
The FTT continued:
The Upper Tribunal proceedings
After an oral hearing on 13 July 2023, I gave the applicant permission to judicially review the FTT's decision. I did so on the following three grounds.
In its written submissions on the judicial review, drafted by Robert Moretto of counsel, CICA consents to the judicial review being allowed but on the third ground only. It submits that the appeal should be remitted to a freshly constituted First-tier Tribunal for rehearing entirely afresh. CICA's support for the judicial review being allowed on the third ground is for the following reasons.
CICA's submission did not agree with the judicial review being allowed on either the first or second grounds, and it sets out argument for why it considers the FTT did not err in law on either of those grounds.
Perhaps unsurprisingly, having seen CICA's submission the applicant said in her submission in reply that, on the basis that CICA agreed to the application for judicial review being allowed and also agreed to another First-tier Tribunal, she had no additional comments to make.
Discussion and Conclusion
Given the stance of both parties, and in any event, I am prepared to accept that the FTT's decision should be quashed under the third ground on which I gave permission for judicial review. The FTT erred in law in failing to show through its reasons that it had fully and properly ascertained the nature of the appellant's vulnerabilities as a vulnerable adult and how they should be addressed. I agree with CICA, and for the reasons it gives, that this was particularly so in the context of the appeal being dealt with at a telephone hearing.
I am concerned, however, by the potential argument that the above would not have been a material error of law if, as CICA argues, the FTT did not err in law under either of the other two grounds of appeal. As Upper Tribunal Judge Perez pointed out when she refused to give permission for these judicial review proceedings, if the FTT directed itself correctly in finding paragraphs 89(a) and 89(b) could not be met on the applicant's evidence, it may be difficult to see on what basis the third ground of appeal led the FTT into any material error of law. However, (a) neither party is arguing for such a result before me, (b) these proceedings are now of some vintage (for which in respect of my contributing delays I apologise) and it would be inappropriate to extend them by seeking further submissions or a further oral hearing, and (c) even on CICA's case, and otherwise, the third ground of appeal has an overarching effect which means that the FTT may not have gathered all relevant evidence from the applicant under both paragraph 89(a) and (b) of the Scheme.
The above is therefore sufficient to dispose of these proceedings and allow the judicial review of the FTT's decision of 1 February 2022.
I remain troubled, however, by the FTT's view that being ignorant [of the existence of 2012 Scheme] is no defence and no excuse for any delay, and how that may have affected its approach to the overall question of whether due to exceptional circumstances the applicant could not have applied to CICA earlier than she did in April 2016. I am satisfied for the reasons I give below that the judicial review should also succeed on the first ground on which I gave permission.
In my judgment, that there can be no a priori exclusion of a person being ignorant of law from the exceptional circumstances which may show they were not able to apply to CICA any earlier than they did. Nor do I understand CICA to be arguing for such a result. Its argument is that the FTT, having found that the applicant did not in fact know about the Scheme, did enough to explore why the applicant did not and what she could have done to find out about the Scheme, and so ought to have known about it before April 2016. But, to borrow from paragraph 17.2 of CICA's written submissions on this judicial review, "there may be exceptional circumstances which mean that an applicant could not reasonably have made enquires earlier", per MM v CICA [2018] CSOH 63 ; [2018] SLT 843 , (see further below), and in such a case it may be that rule 89(a) of the 2012 Scheme might be satisfied. That, however, is part of the overall evaluation of the circumstances under paragraph 89(a).
I can see that there may be force in CICA's argument under the first ground of appeal that:
This will now be an evidential matter for the new First-tier Tribunal to explore and determine.
However, CICA's argument helpfully illustrates the inadequacy of the FTT's approach to why the applicant did not in fact know about Scheme until the Spring of 2016. The force of CICA's argument depends on the nature of "the matter" about which the applicant was seeking advice from the CAB, and that is not clear from the FTT's findings and reasons. This was (and remains) of importance as what exactly the applicant was seeking advice from the CAB about is, in my judgement, relevant to her knowledge at the time she sought that advice and the knowledge she then had, and might have been expected to gain, when the CAB referred her to see a solicitor. In other words, what she was seeking advice about was relevant to whether the applicant could reasonably have made enquiries earlier than 2016. For example, was the applicant seeking advice about any redress, including compensation , she could obtain for the index incident in June 2011, or was her search for advice limited to whether she could take any further action to force the police to prosecute the alleged assailant?
The deficit in the FTT's reasoning, in my judgement, was its failure to establish the context in which the applicant was seeking advice from the CAB about the "index event", and this then ties in to the reasons why she was not aware that a criminal injuries compensation scheme existed until earlyish in 2016.
As I have said, the context might have been whether the applicant could receive any form of redress or compensation for the incident, though it might be thought that if that were the context then the CAB would have been able to tell her about CICA's existence. The FTT's findings at 17(i) and (j) that the applicant was "focussing on justice" and "seeking justice rather than compensation" may have been relevant to what it was the applicant was seeking advice from the CAB about, as too might the FTT's finding in paragraph 17(d) that every so often the applicant got sufficient confidence "to ask the Police what they intended to do about the matter" (the underlining is mine and has been added for emphasis). But if this was the context in which the applicant (a) sought advice from the CAB and (b) could then have obtained further advice from a solicitor, CICA's argument may well have force.
If, however, the applicant was instead seeking advice from the CAB about getting justice from the police, which paragraphs 17(d), (i) and (j) pf the FTT's written reasons might support, her failure to consult with the solicitor on that issue may not establish that she ought to have found out about the existence of the criminal injuries compensation scheme in 2012 or before when she did in 2016.
The latter context therefore does not necessarily provide an answer for why the applicant did not know about the criminal injuries compensation scheme until on or just before April 2016 or to whether she could (not) reasonably have been expected to make enquiries earlier than 2016. The reasons why the applicant did not know the Scheme existed until 2016 were relevant to whether the paragraph 89(a) 'exceptional circumstances' existed because they frame the reasonableness of the applicant's actions (or her lack of action) in finding out about the Scheme's existence.
Take the hopefully extreme example, which I emphasise is not this case, of an applicant who was given wrong information from someone they were entitled to accept as an authoritative source that no such scheme existed. Why then, subject to any intervening event or contrary information, could the applicant's ignorance of the scheme not potentially amount to an exceptional circumstance under paragraph 89(a) of the 2012 Scheme? It is difficult in this example to see why it would be considered reasonable for that applicant to seek further advice or information about the existence of the criminal injuries compensation scheme. But even on the applicant's case, if she was not seeking advice from the CAB about financial compensation for injuries she considers she suffered due to the index incident, why that was so and why she did not in fact know (and did not take steps from the index incident occurring in 2011 to 2016 to find out about such compensation) were all, in my judgment, relevant to whether she satisfied the test in paragraph 89(a) of the 2012 Scheme.
I add here that I accept, as CICA argue, that the case law to which I referred when giving permission should be treated with caution in relation to paragraph 89(a) of the 2012 Scheme because that case law relates to the similar 'late claim' rules in earlier iterations of the Criminal Injuries Compensation Scheme and on any analysis the wording of paragraph 89(a) of the 2012 Scheme is both different and more restrictive than the wording used in those earlier rules.
However, the view I have expressed above about the importance of the FTT establishing why the applicant was in fact ignorant of the criminal injuries scheme between 2011 and before April 2016 is supported by one existing authority decided under the 2012 Scheme: MM v CICA [2018] CSOH 63 ; SLT 843. This a decision of the Outer House of the Court of Session. The key relevant passage in MM is at paragraph [45], which reads as follows (I have underlined the parts in it which I consider support my analysis):
I direct the new First-tier Tribunal to whom this appeal is being remitted to decide the appeal in accordance with MM and with what I have said above about why the applicant was 'ignorant of the law' is relevant to the overall assessment of whether she met the 'exceptional circumstances' test in paragraph 89(a) of the 2012 Scheme.
I note, lastly, what CICA's submission to the Upper Tribunal says about paragraph 89(b) of the 2012 Scheme. As I read it, it accepts the FTT's reasons were brief but argues that the evidence before the FTT supported, and very arguably only supported, paragraph 89(b) not being met. In other words, that evidence shows that further extensive enquiries would be required by a claims officer in order to determine the (late) application. Those points have not been the subject of any argument before me. I see the potential force in them, but they will now be part of the evidential considerations the new First-tier Tribunal will have to consider afresh.
Approved for issue by Stewart Wright
Judge of the Upper Tribunal
Dated 12 th April 2024