Criminal Injuries Compensation Authority v Hutton & Ors [2016] EWCA Civ 1305

Case No C3/2015/3262[2016] EWCA Civ 1305
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Upper Tribunal Judge H. Levenson
JR/2188/2013
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/12/2016
Before
LORD JUSTICE GROSSLADY JUSTICE RAFFERTYLORD JUSTICE FLOYD
Between
CRIMINAL INJURIES COMPENSATION AUTHORITYAppellant
Owain Thomas QC (instructed by Criminal Injuries Compensation Authority) for AppellantChris Buttler (instructed by Stephensons Solicitors LLP) for RespondentsHearing Hearing date : 07 December, 2016
JudgmentLord Justice Gross :INTRODUCTION
[1]This matter reaches us by way of an appeal by the Appellants (“CICA”), from decisions of the Upper Tribunal (“UT”), quashing decisions of the First-Tier Tribunal (“FTT”), itself refusing appeals against CICA decisions not to waive the time limit for claiming an award under the Criminal Injuries Compensation Scheme 2001 (“the Scheme”).[2]Though overlaid with important considerations as to the jurisdiction and role of the FTT, the UT and, indeed, this Court, the underlying question is whether the Respondents (“the claimants”) are entitled to an extension of time of some 40 years in order to advance their claims for compensation under the Scheme.[3]Sympathy and understanding cannot determine the outcome of these proceedings but the Court, as we indicated during the hearing, is very much alive to the family tragedy which has had a profound impact on the lives of all the claimants.[4]Since 1964, a scheme has been in place for the payment of compensation to, or in respect of, persons who have sustained a criminal injury, inter alia, personal injury directly attributable to a crime of violence. The version of the scheme with which this appeal is concerned is the 2001 Scheme (i.e., the Scheme). Where the victim of a criminal injury sustained on or after 1st August, 1964 has since died, compensation may be paid to an applicant who is a qualifying claimant within the meaning of the Scheme. CICA claims officers determine claims for compensation in accordance with the Scheme.[5]On the 4th December, 1966, Abraham Roy Hutton (“the deceased”) was stabbed and killed by De Courcey Griffiths (“Griffiths”) in Bedford. In the event, on 16th February, 1967, Griffiths, though charged with the deceased’s murder, was convicted of manslaughter and was sentenced to 18 months’ imprisonment.[6]The claimants, Vincent Hutton (“VH”) and Fiona Hutton (“FH”) are, respectively, the son and daughter of the deceased. Yvonne Akers (“YA”) is the mother of VH and FH. As will be seen below, a question arose as to the precise nature of her relationship with the deceased; that question is of importance to her position but not to that of VH or FH.[7]On the 2nd June, 2008, nearly 40 years out of time, VH made a claim under the Scheme, on his own behalf and on behalf of FH and YA as well.[8]Pausing here and insofar as material, the Scheme provides as follows:
“ Eligibility to receive compensation 13. A claims officer may withhold or reduce an award where he considers that: (d) the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made; … 15. Where the victim has died since sustaining the injury (whether or not in consequence of it), paragraphs 13 and 14 will apply in relation both to the deceased and any applicant for compensation under paragraphs 37-44 (fatal awards). Consideration of applications 18. An application for compensation under this Scheme in respect of a criminal injury (‘injury’…) must be made in writing on a form obtainable from the Authority. It should be made as soon as possible after the incident giving rise to the injury and must be received by the Authority within two years of the date of the incident. A claims officer may waive this time limit where he considers that, by reason of the particular circumstances of the case, it is reasonable and in the interests of justice to do so. 19. It will be for the applicant to make out his case including, where appropriate: (a) making out his case for a waiver of the time limit…. (b) satisfying the claims officer ….that an award should not be reconsidered, withheld or reduced under any provision of the Scheme. Compensation in fatal cases ….. 38. Where the victim has died since sustaining the injury, compensation may be payable, subject to paragraphs 13-15 (actions, conduct and character), to any claimant (a ‘qualifying claimant’) who at the time of the deceased’s death was: (a) the partner of the deceased, being only, for these purposes: (i) a person who was living together with the deceased as husband and wife….in the same household immediately before the date of death and who, unless formally married to him, had been so living throughout the two years before that date…. (c) a natural child of the deceased….. 64. The standard of proof to be applied by the Panel in all matters before it will be the balance of probabilities. It will be for the appellant to make out his case…..”
Consideration of applications

Compensation in fatal cases

[9]It may be noted that there are broadly three types of compensation for death payable under the Scheme. First, the “standard amount” of compensation, i.e., what may be termed a “conventional” award. Secondly, “dependency”, where the qualifying claimant has suffered financial loss flowing from the death. Thirdly, “loss of parental services”, where the claimant is a child under the age of 18.[10]As explained by the Guide to the 2008 Scheme (which was, so far as material, in the same terms as the Scheme), the conventional award:
“ …recognises the fact that someone very close to you has died as a result of a crime of violence. No amount of money can make up for the death of a close relative – the standard amount is a gesture of public sympathy for the grief caused by the death.”
The amount payable by way of a conventional award is a fixed sum: £11,000 if there is only one qualifying claimant; £5,500 for each person if there is more than one qualifying claimant.[11]Reverting to the history, on the 11th August, 2008, CICA rejected all the claims, saying this:
“ Under paragraph 18 of the Scheme we must receive all applications for compensation within two years of the date of the incident. We can only accept an application outside this time limit if it is reasonable and in the interests of justice to do so. In your case, because of the delay in sending us the application, we have been unable to get police information to confirm the facts surrounding the incident in which the deceased was involved. In these circumstances I am unable to waive the time limit.”
[12]The claimants requested and obtained an internal review. On the 10th February, 2009, CICA confirmed that it was unable to make an award under the Scheme. Its reasons were as follows:
“ Under paragraph 18 of the Scheme we must receive all applications for compensation within two years of the incident. We can only accept an application outside the time limit if it is reasonable and in the interests of justice to do so. In your case, there are no particular circumstances which make it reasonable or in the interests of justice for us to accept a late application. I note that you have applied for compensation 42 years after the incident. The ….Scheme has been in existence since 1964. Although you have provided us with information about the sad incident in which you lost your father, and I note that you were a child at the time, it is reasonable in the circumstances to expect an application to be submitted when you reached adulthood at the age of 21. I am therefore unable to waive the time limit.”
[13]Very protracted litigation has since ensued. On the 25th September 2009, the claimants’ appeals to the FTT failed. Subsequently, the UT refused the claimants permission to bring Judicial Review. That might have been the end of the road but the claimants enjoyed better fortune when the single Lord Justice granted permission to appeal to the Court of Appeal.[14]On the 14th June, 2012, a different constitution of this Court allowed the claimants’ appeals, granted permission to bring Judicial Review proceedings in respect of the FTT’s (2009) decision but remitted the matter to the UT to determine the actual Judicial Review: see, [2012] EWCA Civ 806. The crux of the Court’s reasoning appears from the judgment of Aikens LJ, at [41] – [42]:
“ 41. In my view Judge Ward undoubtedly erred in law in his construction of paragraph 18 of the Scheme terms. He considered that the first question he had to ask was whether there were any relevant ‘particular circumstances’ in this case and the second question was whether or not it was in the ‘interests of justice’ to waive the time limit. That misreads the last sentence of paragraph 18. That states that a Claims Officer ‘may waive’ the 2 year time limit where he considers that ‘by reason of the particular circumstances of the case, it is reasonable and in the interests of justice to do so’. To my mind, the words ‘particular circumstances’ mean the actual or distinct circumstances of this individual case. They do not mean ‘special’ circumstances in the sense of being unusual or extraordinary circumstances. So the task of the Claims Officer or Reviewing Officer is to establish the actual circumstances of this particular case. Having done so he has then to ask: given the circumstances of this particular case, is it reasonable and in the interests of justice to waive the time limit. 42. In performing that exercise, I think that the wording requires that the Claims Officer must consider all relevant factors. These may include the length of the delay in making the claim, the reasons for the delay and the nature of the claim itself. The relative importance of particular factors will depend on the particular circumstances of the case being considered. The Claims Officer has to make an overall decision bearing all those circumstances in mind. In doing so he will have to take account of the fact that the general rule is that claims should be brought as soon as possible and, in any event, within two years of the incident giving rise to the claim. ”
The Court went on to conclude it was arguable that (but for this error of law) the FTT might reasonably have concluded that the time limit should be waived. Via the UT, the matter then wound its way back to the FTT.

THE FTT DECISIONS OF 9th MAY, 2013 (“The FTT Decision”)

[15]I deal here compendiously with the FTT Decisions of 9th May, 2013 in respect of all three claimants. References are to paragraph numbers in the Decision on VH’s claim, unless otherwise stated. On this occasion, the claimants were represented by counsel. The FTT heard evidence from both VH and FH.[16]The FTT had the central issue clearly in mind. At [9] of the Decision, the FTT said this:
“The particular issue for the Tribunal to decide is whether in the particular circumstances of this case, it is reasonable and in the interests of justice to waive the time limit referred to in paragraph 18 of the Scheme.”
At [36] (repeated later under the heading “Conclusion”), the FTT answered this question:
“ The Tribunal finds it is neither reasonable and in the interests of justice to do so.”
[17]The route from question to answer appears from the FTT Decision. At [10] – [34], the FTT carefully focused on the facts and the evidence it had heard, including the very significant consequences for VH, FH and YA of the deceased’s death, at a time when VH was some 5 months old and FH 17 months old. Both were taken into care until they were 18 years old, thus 1984 and 1983 respectively. Within a month of the deceased’s death, YA began to suffer from mental health problems and was hospitalised for a time. At various points in time, it would appear that both VH and FH have themselves struggled with mental health problems, albeit while holding down various employments at other times.[18]At [35], the FTT made its “Findings of Fact”, before turning to its “Decision and Reasons” at [36] and following, correctly observing (at [37 i]) that the burden of proof rested on the claimants.[19]At [37 iv], the FTT found that there were inconsistencies in VH’s evidence “which undermined his credibility”. The FTT did not accept that it was not until 2006 – when VH had obtained counselling – that he was able to tackle the task of finding out how his father had been “murdered”. That evidence was not consistent with VH’s own evidence that he had started his inquiries at the age of 8 and that, from the age of 18, he had made annual enquiries of the Coroner’s Office, together with, inter alia, attending libraries and contacting social services. Moreover, in about 1998 (at [37 v]), he had a meeting with his paternal aunt, whom FH had traced in 1996 and who had given FH a “huge amount” of information about the deceased and the circumstances of his death. In the FTT’s view, it was “likely” that his aunt would have told him the name of his father’s killer “as by then it was known to her and her family”.[20]Next (at [37 vi] and following), the FTT addressed “delay”. VH had made no claim that any mental health issues affecting him were responsible for the delay. The FTT did not accept “as credible” that it was not until 2007/8 that he had sufficient information about his father’s death to submit an application for compensation. Instead the FTT concluded that VH “…could have easily ascertained, and probably did establish the identity of his father’s assailant from his maternal family or his sister at or around the time of his 18th birthday in 1984 when he was making renewed enquiries into the circumstances of his father’s death”. Further, YA, who had been a prosecution witness at the trial, knew many of the details surrounding the incident, including the identity of Griffiths. Still further (at [37 ix]), even if VH could not have discussed the matter with YA for fear of upsetting her, he could have obtained the necessary information for making a claim under the Scheme from members of her family. All that was required were the deceased’s personal details, his date and place of death, probably the police force dealing with the matter and the identity of his killer. Therefore (ibid):
“ ….the Tribunal finds that the appellant had all the information he required and did not need to wait to obtain any additional information or paperwork to complete a CICA application by 1986 and within 2 years of his 18th birthday.”
[21]In any event, given the amount of work undertaken by FH with her father’s family in the Caribbean and North America, she and VH would have had the relevant information by 1998 at the latest.[22]The lengthy delay of some 42 years in submitting a claim meant (at [37 xii]) that vital witnesses were either dead or could not be traced. Neither party could deal with any disputed aspect of the claim “fairly and justly”.[23]Accordingly (at [37 xiii and xiv]) and in consequence of the delay, the disputed dependency claim advanced by VH could not be properly quantified; it was, instead, wholly speculative.[24]Further, there was the conduct of the deceased, addressed by the FTT at [37 xv] and following. This too was a relevant factor in deciding whether to waive the para. 18 time limit. On the documentary evidence available to the FTT, the deceased had been abusive towards YA and assaulted her some three hours before his death. Griffiths, who was the caretaker of the house in which they lived, was fetched and called the police. The deceased threatened the police and then threatened Griffiths after the police had left. The deceased sought out Griffiths, with a view to a fight with him. Blows were exchanged and, in the event, Griffiths, who had armed himself with a knife (he told the police for his own safety), fatally stabbed the deceased. According to the pathologist’s statement (in the committal papers, to which our attention was directed), “very considerable force” was necessary for Griffiths to have inflicted the fatal wound with the knife in question.[25]Against this background, the FTT concluded (at [37 xx]) that it was “likely that the deceased was not the innocent victim of a crime of violence”. If matters rested with the information presently before the FTT, then it was “likely” (at [37 xxii]):
“ …that the conduct of the deceased….before and during the index incident was such that …[VH]…would be ineligible for an award in terms of paragraph 38 of the Scheme.”
[26]The FTT noted (at [37 xxi]) that VH and FH did not accept that there was any culpability on the part of the deceased. However, the lengthy delay in the case had prejudiced a “fair and just” inquiry into the conduct of the deceased:
“ ….which….the Tribunal can properly take into account when considering whether the conduct of the deceased before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made. ”
[27]The FTT went on to say (at [37 xxiii]) that, absent exceptional circumstances, ignorance of the Scheme was not an excuse for failing to submit a claim within the time limit. A Scheme had been in operation since 1964 and was “widely known” to all “particularly by those dealing with victims of crimes of violence such as the police, accident and emergency workers, Victim Support, Citizens Advice Bureaux”. The FTT repeated its earlier finding that VH and FH knew of Griffiths’ identity and the circumstances of the deceased’s death either before or not long after VH turned 18 (i.e., 1984). The “true reason” for the delay, the FTT concluded (at [37 xxiv]) was not “the perceived lack of information” but simply that VH was unaware (until 2007) that the Scheme existed.[28]Accordingly, the FTT came to the conclusion already recorded that, in the particular circumstances of the case, it was neither reasonable nor in the interests of justice to waive the time limit contained in para. 18 of the Scheme. The delay of 42 years had caused prejudice to the FTT’s ability to “fairly and justly enquire into other factors affecting the ….claim such as the conduct of …[the deceased]…before and during the incident in which he was fatally stabbed and any dependency claim”. The FTT, “in its considerable experience and expertise” did not accept the submission advanced by counsel for VH that he had not had sufficient information to advance his claim until 2007.[29]Only very brief additional reference needs to be made to the FTT Decision on FH’s claim. At [36 v], the FTT did not accept “as credible” FH’s oral evidence that she was not well enough to apply for compensation on her own behalf and was reliant on VH to do so. The FTT went on to conclude that there were no mental health issues which would have prevented FH submitting a claim within two years of her 18th birthday (thus around 1985).[30]With specific regard to the Decision on YA, her claim too failed. In her case as well, the FTT did not accept (at [40]) that mental health issues were such as to prevent her from submitting a claim timeously. The FTT drew attention to the evidence of YA’s ability to look after herself and her younger child alone, so that by 1979 at the latest, she had been in a position to submit a claim had she wished to do so.[31]Additionally, YA’s claim failed in any event because the FTT concluded (at [19] and following) that YA was not a “qualifying claimant” within para. 38 (a)(i) of the Scheme (set out above): YA was not married to the deceased nor was she living with him as man and wife in the same household for the two year period immediately prior to his unlawful killing. Having considered the conflicting evidence, the FTT preferred YA’s own written statement made in December 1966 and shortly after the deceased had been killed and which was itself consistent with other contemporaneous evidence. As recorded by the FTT (at [21]), YA there stated that “…she had left the deceased in the summer of 1966. This was approximately 18 months after she had first met him. Further, she was living with their two infant children at a separate address from the deceased at the time of the index fatality. She refers to the deceased having visited her ‘on occasions’.”

THE UT DECISIONS OF 16th July, 2015 (“The UT Decision”)

[32]Again here, I deal compendiously with the UT Decisions of 16th July, 2015 in respect of all three claimants. Again too, references are to the UT Decision on VH, unless otherwise indicated. VH appeared in person on behalf of all three claimants; CICA was represented by counsel. In the event and pursuant to the UT’s Judicial Review jurisdiction, UT Judge Levenson made quashing orders in respect of the FTT Decision(s) not to waive the Scheme time limit. The UT Judge remitted the matter to a differently constituted FTT panel.[33]At [7] – [20], the UT Judge set out the background facts, including the committal statements, as he explained, to place his decision in context. He was not to be taken as making any findings of fact on disputed matters. At [28] and following, the UT Judge developed his criticisms of the FTT Decision.[34]As I understand the UT Decision, the principal criticisms of the FTT Decision were these. First and going to when VH had sufficient information to claim compensation under the Scheme, the FTT had engaged in “speculation without evidence” as to what family members would have told him and when: see, [29], [31] and [46].[35]Secondly, as to the deceased’s conduct, the FTT’s approach was inconsistent; it held that the delay prejudiced a fair inquiry into the deceased’s conduct but also made findings as to his conduct. Further, the FTT failed to give reasons as to why a reduced award could not be made, rather than no award at all: see, [33], [34], [35] and [47].[36]Thirdly, the FTT was “unpersuasive” and “irrational” in assuming or concluding that because the delay had prejudiced an inquiry into a dependency claim, a conventional award could not be claimed. Nor had the FTT given reasons for not making a conventional award: see, [37], [38] and [48].[37]Fourthly, the FTT had erred in ruling out waiving the time limit “simply” because VH was unaware of the Scheme until 2007/2008. It was irrelevant that the Scheme was widely known if the claimants did not know about it: see, [32] and [46].[38]Fifthly, for these reasons the FTT Decision was “flawed” and its reasoning was “inadequate”: see, [46] and [49]. Accordingly, the claimants’ claim for Judicial Review succeeded.[39]One further aspect of the UT Decision should be mentioned here. At [5] and [40] – [42], the UT Judge made reference to the Three-Judge Panel decision in SB and Others v First-Tier Tribunal and CICA [2014] UKUT 0497 (AAC). The nub of this decision was that the FTT’s jurisdiction was limited to deciding the issue/s under appeal from CICA; it had no jurisdiction to decide any further matters, which should be remitted to CICA for a further decision.[40]At [45], the UT

Judge said this:

“ I accept CICA’s argument that, notwithstanding the decision in SB and Others there is no restriction on the factors that it or the First-tier Tribunal can take into account in deciding whether, if the time limit were to be waived, the claim would be hopeless for some other reason. However, the tribunal must be very careful in doing so if it takes account of matters not canvassed before or in the CICA review decision, especially if further evidence on those matters might be available. The rules of natural justice and fair procedure require that all parties be given proper warning of the issues to be considered by the First-tier Tribunal and a proper opportunity to present evidence and argument (for example, on whether, if the claim were to be admitted out of time, there should be a full deduction under paragraph 13 of the scheme or a partial reduction). There must be as clear a focus on such issues as there would be if one or more of them were the substance of the decision under appeal to the First-tier Tribunal.”
[41]As will be seen below, counsel for the claimants relied on this paragraph as his foundation for an argument that the UT had found procedural unfairness on the part of the FTT and was right to do so. Having highlighted [45] in the UT Decision, I defer discussion of that submission until later.[42]No separate reference needs to be made to the UT Decision in respect of FH.[43]As to the UT Decision on YA, the UT was critical of the FTT’s approach to the question of whether YA was a qualifying claimant within para. 38(a)(i) of the Scheme. At [46], the UT Decision criticised the FTT for concluding that YA had not been the deceased’s partner:
“ …..without considering the wider context of their relationship, without taking account of authority on the meaning of ‘household’ (for example in the context of social security law, where there is a great deal of discussion and authority), without taking cognisance of the fact that they had spent the night before Abraham’s death together, and without considering or investigating whether it was possible to obtain a transcript of the trial at which the witnesses who made the committal statements would have given further evidence and been subject to cross-examination.”
Further, at [47], the UT concluded that the FTT had misunderstood some of the medical evidence and made assumptions about the continuing state of YA’s mental health “….without enquiring whether there were more detailed medical or social work reports available.”

THE RIVAL CASES

[44]We were most grateful to both Mr Thomas QC, for CICA and Mr Buttler, for the claimants, for their excellent submissions.[45]It may be noted that, strictly, Mr Buttler represented VH and YA – not FH. However, before the close of the hearing, it was confirmed to us that FH did not wish to add anything to Mr Buttler’s submissions. For convenience, therefore, I shall refer to Mr Buttler as representing the claimants.[46]For CICA, Mr Thomas underlined that, with regard to appeals from CICA decisions concerning time limits, the FTT conducted a full merits review. The FTT was thus a fact-finding tribunal, as illustrated by its hearing evidence in the present case. Under the Tribunals,Courts and Enforcement Act 2007, there was no right of appeal from the FTT’s decisions in criminal injuries compensation cases. A challenge to an FTT decision in cases of this nature could only be pursued by way of Judicial Review proceedings to the UT; FTT findings of fact could not be set aside by the UT, absent some public law error. The question for the UT was whether, as a matter of law, the FTT had been entitled to reach its conclusions. The UT could not depart from the FTT Decision simply because it disagreed with the result. Although, as a specialist appellate tribunal the UT performed a valuable role when guidance was needed, this was not such a case.[47]As to the UT Decision’s principal criticisms of the FTT Decision, the FTT had not engaged in speculation as to the information available to VH. It had heard evidence, drawn permissible inferences and made specific findings of fact. Questions as to the weight of evidence were for the FTT, not the UT. There was no good reason to justify delay beyond 1986, alternatively 1998. Next, there was no inconsistency in the FTT’s approach to the deceased’s conduct and, hence, to the claimants’ eligibility to obtain an award (whether reduced or not). The deceased’s conduct impacted on an entitlement to a conventional award as well as a dependency claim; the FTT had not overlooked this – much of the FTT Decision was about this very point. Further, there was no basis for the UT’s finding that the FTT had ruled out waiving the time limit simply because VH was unaware of the Scheme; that was a mis-reading of the FTT Decision. The UT, at [45] had made no finding of procedural unfairness and, in any event, no procedural unfairness had been shown.[48]So far as concerned YA, the FTT’s Decision that she was not a qualifying claimant was based on the evidence before it. The Scheme simply did not support the UT’s suggested approach, contained at [46] of the UT Decision and set out above. There was nothing to gainsay the FTT’s Decision on this point. Further, the FTT had neither ignored nor misunderstood the medical evidence. It was entitled to take into account – in concluding that YA was mentally capable of bringing a claim well in advance of 2008 – YA’s ability, as early as 1979, to live and care for a child independently. Still further, it was not for the FTT to make further investigations or inquiries.[49]Overall, the FTT had directed itself impeccably and the FTT Decision contained no error of law. The UT had embarked on the wrong exercise, essentially one of challenging the FTT’s fact findings. The UT Decision could not stand and should be quashed; the appeal should be allowed and the FTT Decision reinstated.[50]For the claimants, Mr Buttler emphasised the underlying human story. It was important not to overlook that a conventional award played an important role as a mark of public sympathy for the claimants’ bereavement.[51]Mr Buttler grouped his submissions under six headings: i) This Court should exercise caution and restraint. The UT was a specialist appellate tribunal. The UT Decision should be respected and this Court should not intervene, provided its Decision was one it was entitled to reach and absent some public law error. ii) The UT was right to find that the FTT Decision was procedurally unfair. CICA had simply refused to waive the time limit. The claimants did not have notice of the matters subsequently held against them by the FTT. As to the medical evidence concerning YA, Mr Buttler told us (on instructions) that though YA was reluctant to give evidence, she would have attended the FTT hearing had she thought it would have made a real difference. In the light of the observations by the previous constitution of this Court as to the mental health of the claimants, it was “understandable” that she was not anticipating the FTT’s conclusion. The UT Decision, at [45], read with [46], furnished a foundation for the submission of procedural unfairness. Paragraph [45] was not “beating the air”. iii) The UT correctly found that the FTT erred in finding that delay had prejudiced the determination of the deceased’s contributory conduct. There was inconsistency, as the FTT had itself made contradictory findings in this regard (viz., that the claims were likely to fail). The UT was right or, at the least, entitled to reach the conclusion it did. iv) The UT was right to hold that the FTT erred in not considering allowing the claims to proceed for a conventional award, even if delay had prejudiced the determination of a dependency award. A conventional award would not have been prejudiced by lapse of time. The UT, as a specialist appellate tribunal, was well-placed to decide such an issue. v) The UT was right to decide that the FTT gave inadequate reasons as to why a reduced award should not be made, rather than no award. The UT, as a specialist appellate tribunal, was entitled to set the standard of reasoning to be expected from the FTT – and, indeed, this was not the first time that the UT had dealt with the adequacy of reasons as to reduced awards: see, R (SB) v First-tier Tribunal (CIC) [2010] UKUT 250 (AAC). On the evidence here, even if the deceased could have expected a violent reaction from Griffiths, what materialised was wholly disproportionate. Mr Buttler emphasised the pathology evidence as to the very considerable force needed to inflict the fatal knife wound. vi) Finally, if the claimants were entitled to succeed on any of ii) – v) above, then quashing the FTT Decision was justified.

DISCUSSION

[52](1) The approach to be adopted by this Court: My starting point is to consider the approach to be adopted when considering this appeal from the UT Decision.[53]In AH (Sudan) v Home Secretary [2007] UKHL 49; [2008] 1 AC 678, dealing with appeals which had come to the Courts from the Asylum and Immigration Tribunal, Baroness Hale of Richmond said this (at [30]):
“….This is an expert tribunal charged with administering a complex area of law in challenging circumstances. …..the ordinary courts should approach appeals from …[such expert tribunals]…with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right…. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”
Lord Hope of Craighead (at [19]) expressed his agreement as to the caution:
“…with which the ordinary courts should approach the decision of an expert tribunal. A decision that is clearly based on a mistake of law must, of course, be corrected. Its [i.e., the tribunal’s] reasoning must be explained, but it ought not to be subjected to an unduly critical analysis…..”
[54]R (Jones) v First-tier Tribunal [2013] UKSC 19; [2013] 2 AC 48 concerned CICA. The FTT denied a claimant recovery, holding, on the facts, that he had not sustained an injury directly attributable to a “crime of violence”. The UT dismissed a claim for Judicial Review, essentially holding that the FTT had properly directed itself. The Court of Appeal allowed the appeal, holding that the FTT had erred in law. The Supreme Court allowed CICA’s appeal. The FTT’s finding was one to which a rational tribunal could have come and was not open to review by the UT or the Court of Appeal. The FTT’s decision that the terms of the Scheme did not permit an award of compensation to the claimant would be restored.[55]In Jones, with regard to questions of whether a criminal offence had been committed and, if so, whether it constituted a crime of violence, Lord Hope of Craighead DPSC (at [16]) said that:
“ ….it is primarily for the tribunals, not the appellate courts, to develop a consistent approach to these issues, bearing in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals. ”
[56]Lord Carnwath JSC observed (at [31]) that because of the important principle involved that case was one of three heard together by a three-judge panel presided over by a High Court Judge. In “normal circumstances”, he continued (at [32]), “in the absence of some serious error of principle, one would not have expected there to have been a need for a further appeal to the higher courts.” It was in this context that Lord Carnwath went on to say the following (at [41]):
“ …Where, as here, the interpretation and application of a specialised statutory scheme has been entrusted by Parliament to the new tribunal system, an important function of the Upper Tribunal is to develop structured guidance on the use of expressions which are central to the scheme, and so as to reduce the risk of inconsistent results by different panels at the First-tier level.”
Staying with the same theme, Lord Carnwath (at [46]), applying his own extra-judicial writings, commented favourably on “expediency” or “policy” influencing the division between law and fact, so as to permit a specialist appellate tribunal to range more widely and thus ensure that its “…expertise should be used to best effect, to shape and direct the development of law and practice in the field”.[57]Pulling the threads together: i) First, this Court should exercise restraint and proceed with caution before interfering with decisions of specialist tribunals. Not only do such tribunals have the expertise which the “ordinary” courts may not have but when a specialised statutory scheme has been entrusted by Parliament to tribunals, the Court should not venture too readily into their field. ii) Secondly, if a tribunal decision is clearly based on an error of law, then it must be corrected. This Court should not, however, subject such decisions to inappropriate textual analysis so as to discern an error of law when, on a fair reading of the decision as a whole, none existed. It is probable, as Baroness Hale said, that in understanding and applying the law within their area of expertise, specialist tribunals will have got it right. Moreover, the mere fact that an appellate tribunal or a court would have reached a different conclusion, does not constitute a ground for review or for allowing an appeal. iii) Thirdly, it is of the first importance to identify the tribunal of fact, to keep in mind that it and only it will have heard the evidence and to respect its decisions. When determining whether a question was one of “fact” or “law”, this Court should have regard to context, as I would respectfully express it (“pragmatism”, “expediency” or “policy”, per Jones), so as to ensure both that decisions of tribunals of fact are given proper weight and to provide scope for specialist appellate tribunals to shape the development of law and practice in their field. iv) Fourthly, it is important to note that these authorities not only address the relationship between the courts and specialist appellate tribunals but also between specialist first-tier tribunals and appellate tribunals.[58]For my part, in applying this authoritative general guidance to this particular appeal, a number of considerations seem pertinent: i) First, it is the FTT – not the UT – which is the tribunal of fact and which heard the evidence. ii) Secondly, the UT’s jurisdiction is limited to one of judicially reviewing the FTT Decision. The UT had no jurisdiction to interfere with the FTT Decision, absent a public law error. iii) Thirdly, even with the observations in Jones well in mind, I cannot see that this case was one calling for guidance from the UT to shape the development of law and practice in respect of claims under the Scheme. It follows that in classifying issues before the FTT as those of “fact” or “law”, questions of context (designed to facilitate the giving of general guidance by the UT) can have, at most, only very limited bearing.[59](2) Applying the approach: Unfortunately for the claimants and notwithstanding the application of restraint and caution, I am unable to escape the conclusion that the UT Decision is untenable and cannot stand. In a nutshell, the UT, with respect, interfered with the FTT Decision without either the justification or jurisdiction for doing so. It is no kindness to the claimants to suggest otherwise. My reasons follow.[60](a) The position of YA: The FTT held that YA’s claim failed in any event because she was not a “qualifying claimant” within para. 38(a)(i) of the Scheme; by way of shorthand, she was not the deceased’s partner for the qualifying time period. If this conclusion was well-founded, no question arises of waiving the time limit; if YA has no claim, it would obviously be futile to extend time.[61]The UT Decision (at [46]) made a number of criticisms of the FTT Decision in this regard. With respect, those criticisms wholly fail to disclose any basis for the UT exercising its jurisdiction to review the FTT’s Decision. First, the Scheme at para. 38(a)(i) furnishes a simple factual test. Neither CICA nor the FTT was obliged to consider the “wider context of their relationship”, whatever that may mean, or authority on the meaning of “household”. Secondly, that the deceased and YA spent the deceased’s last night together is wholly irrelevant; plainly, that does not fulfil the qualifying requirement. Thirdly, it was not for the FTT to seek further transcripts of evidence; the burden throughout rested (as was common ground) on the claimants.[62]As it seems to me, the FTT’s conclusion in this regard was based on the facts and evidence before it – not least, YA’s own contemporaneous witness statement. The FTT Decision that YA was not a qualifying claimant was accordingly unassailable and not properly reviewable by the UT.[63]YA therefore drops out of the picture; the position of VH and FH remains to be considered.[64](b) A dependency award: The FTT ruled out the disputed dependency claim on the ground that the delay had prejudiced its proper quantification so that it would be wholly speculative. In fairness to the UT, it does not appear to have called this aspect of the FTT Decision into question. Its focus instead was the FTT’s failure to consider the making of a conventional award. To that topic I next turn. However, before doing so, it is appropriate to underline that if all that is in issue is a conventional award, then – notwithstanding the valuable public function played by such awards – the maximum total sum payable to VH and FH would be £11,000. (c) A conventional award: Plainly there is no difficulty in the quantification of a conventional award as such: the sum is fixed. However, it is at this point that the deceased’s conduct looms large. As appears from paras. 13(d), 15 and 38 of the Scheme (set out above), the deceased’s conduct may result in CICA withholding or reducing an award – including a conventional award. As is clear from the Scheme, the claimants can be in no better position than the deceased; his conduct impacts on their entitlement to an award.[66]In this regard, the UT criticised the FTT for “inconsistency”; the FTT was said both to have made findings as to the deceased’s conduct and to have held that the delay prejudiced a fair inquiry into the deceased’s conduct. If that criticism was made out, then an avenue for the UT reviewing the FTT Decision would or might be opened. With respect, however, the UT’s criticism is without foundation and is based on a mis-reading of the FTT Decision.[67]Fairly and sensibly read (AH (Sudan), supra), there was no inconsistency in the FTT Decision, which proceeded as follows. First, the FTT summarised the facts of the incident, so far as they appeared from the available materials: at [37 xv] and following. Secondly, the FTT concluded that on the information as to the deceased’s conduct available to it, it was likely that VH and FH would be ineligible for an award: at [37 xx] and [37 xxii]. Thirdly, insofar as VH and FH disputed the deceased’s culpability and sought to challenge the likely conclusions on the available information, the delay had prejudiced a “fair and just” inquiry into the deceased’s conduct: at [37 xxi]. Accordingly, the delay meant that the claimants could not now do better than the likely conclusions (no award) on the information available to the FTT. It was therefore inappropriate to make a full or any award. For completeness, the FTT’s reasons for not making a partial conventional award flow inexorably and clearly from the conclusions to which I have referred.[68]Thus understood, the FTT Decision rejecting a conventional award betrays no inconsistency and discloses neither irrationality nor any error of law. The UT was therefore itself in error in interfering with the FTT’s Decision. As is apparent from the FTT’s Decision in this regard, its conclusion goes to both the making of any or a reduced conventional award. It also follows that any question of extending the time limit is to be approached in the knowledge that the likely outcome of any claim would be no award.[69](d) When could a claim first have been made? The FTT Decision clearly held that VH had sufficient information to bring a claim by 1986 (within 2 years from his 18th birthday), alternatively by, latest, 1998. I am content to proceed on the assumption that FH too could have brought a claim by those dates, although on the FTT’s findings, it appears that she could have brought a claim by 1985 (rather than 1986). The difference is immaterial. The FTT further held that neither VH nor FH was prevented from bringing a claim earlier by reason of mental health issues or an inability to tackle the task of finding out the circumstances of the deceased’s death. As already outlined, the UT criticised the FTT for “speculation without evidence” as to what family members would have told him and when.[70]Proceeding on the assumption that the “speculation without evidence” here criticised is capable of giving rise to an error of law, nonetheless, the UT Decision in this regard is unsustainable. It is the UT rather than the FTT Decision which is flawed. As emphasised in AH (Sudan), it is of the first importance to identify the tribunal of fact. That tribunal here is the FTT not the UT. It is the FTT which heard and read evidence. On the basis of that evidence, the FTT made the findings it did. Those findings constituted legitimate inferences, not impermissible speculation. For my own part, the FTT findings as to what VH would have learnt from FH’s inquiries with family members were almost irresistible; given the close relationship between VH and FH and their focus on the events surrounding their father’s death, it would be remarkable if they had not discussed the matter with one another. Be that as it may, on any view it was a finding the FTT was entitled to make and a finding of fact with which the UT had no jurisdiction to interfere.[71]Accordingly, the FTT conclusion is unimpeachable that VH and FH had sufficient information to bring the claim by 1986, alternatively 1998 and were not prevented from doing so by mental health problems. It is noteworthy that, in reaching this conclusion, the FTT referred to its own “considerable experience and expertise”.[72](e) Procedural unfairness: Mr Buttler placed much emphasis on a submission that the FTT Decision was vitiated by procedural unfairness and that the UT was entitled to and did interfere on this ground. With respect, I am unable to accept this submission. To my mind, it fails at every step.[73]First, an essential premise of this argument was that at [45] of its Decision, the UT had made a finding of procedural unfairness on the part of the FTT. I do not agree. As it seems to me, the UT was there making various observations of a general nature but without taking the further step of concluding that the FTT had erred in any such respect. The UT did not say so in terms and I can see no warrant for reading such a conclusion into the UT Decision. Further, at [46] in the Decision relating to VH, the UT immediately moved to its conclusions that the FTT Decision was “flawed for a number of reasons”; those flaws were not based on procedural unfairness. Still further and in context, the first sentence of the UT Decision at [45] tells strongly against there being any procedural unfairness on the part of the FTT in the present case. If right so far, then Mr Buttler’s submission of procedural unfairness must fail; he lacks the UT finding he needs.[74]Secondly and in case I am wrong about that, I shall deal with the individual complaints advanced by Mr Buttler: i) The CICA rejection of the claims: The terms of both the initial CICA letter (of 11th August, 2008) and the letter written by CICA after its internal review (10th February, 2009) have already been set out. The complaint is that they only dealt with delay or delay plus the prejudice resulting from it. Accordingly, Mr Buttler submitted, the additional matters taken into consideration by the FTT (the mental health of the claimants, the conduct of the deceased and the status of YA as a qualifying claimant) took the claimants by surprise; they were not given proper notice of the issues before the FTT, so that the FTT Decision was procedurally unfair. Confining myself for the moment to the CICA rejection of the claims, I cannot accept Mr Buttler’s submission. The issue of whether or not to waive the time limit was squarely before CICA. On the face of it, the claims were many years out of time. In considering whether or not to waive the time limit, it is obvious that the FTT would need to take into account the particular circumstances of the case in order to rule on whether it was reasonable and in the interests of justice to waive the time limit. That this is a wide-ranging inquiry is readily apparent both from the judgment of Aikens LJ (esp., at [42]) on the previous occasion the matter was before this Court and from the first sentence of [45] of the UT Decision. It cannot be otherwise. I do not for a moment think that the claimants could sensibly have been lulled into any false sense of security as to the scope of the FTT appeal hearing by the terms in which CICA rejected their claims. It is to be remembered that the claimants were legally represented before the FTT (albeit not by Mr Buttler) and there is no suggestion whatever of any complaint at the time that they were somehow taken by surprise. ii) The mental health of the claimants: Here Mr Buttler, with respect, seized upon an observation of the previous constitution of this Court at [11] of the judgment of Aikens LJ that VH was the only one of the claimants capable of making an application on behalf of all three. Mr Buttler contended that YA (in particular) was taken by surprise and did not have notice that the FTT might take a different view (as it did in the FTT Decision); it was understandable in the light of that observation that YA did not attend to give evidence. In my view the observation of the previous constitution of this Court is not capable of bearing the weight Mr Buttler sought to put on it. As the Court said, its observation was “for the purposes of this appeal” (i.e., the appeal before it) – and, in my judgment, no more. In any event, so far as the FTT dealt with the mental health of the claimants, it did so (as we were told without objection by Mr Thomas) on the basis of material furnished by the claimants themselves; on that footing, the claimants can hardly complain of being taken by surprise in that regard. iii) The conduct of the deceased: Again, as it seems to me the FTT was bound to take into account the conduct of the deceased, so that the claimants could hardly (credibly) claim to have been taken by surprise when the FTT did so – quite apart from the lack of any record of protest by the claimants’ then legal representatives. Matters do not even end there; as we were again told by Mr Thomas without objection, the committal papers were placed before the FTT by the claimants. iv) YA as a qualifying claimant: Even if it could be said that this issue was not immediately apparent from the CICA rejection letters, it was manifestly a matter of threshold relevance. As already observed, it would be futile to extend time for a claim that is doomed to fail on other grounds. Moreover, the FTT dealt with this issue by weighing the contemporaneous evidence before it. Even if the claimants had sought to give oral evidence, it is fanciful to suppose that such evidence (decades later) could have outweighed the contemporaneous documentary materials.[75]Accordingly, I reject the complaint of procedural unfairness.[76](f) An extension of time? Against the background of all the matters already canvassed, I can finally come to this central issue. The Scheme provides, as a general rule, that claims should be brought as soon as possible and, in any event, within two years of the incident giving rise to the claim. In the event, VH made the claim on behalf of all the claimants in June 2008, thus nearly 40 years out of time. On the FTT’s findings of fact, that claim could have been brought by 1986, some 22 years earlier or, by latest, 1998, some 10 years earlier. It is plain that the extension of time sought is of remarkable length, even making full allowance as the FTT (rightly) did for the time between the fatal incident and VH and FH attaining the age of 18.[77]CICA declined to waive the time limit and the FTT Decision likewise refused to do so. The UT Decision criticised the FTT for refusing to waive the time limit simply because VH was unaware of the Scheme until 2007/2008. There is no basis whatever for that criticism; it is patently not what the FTT did. Very properly, Mr Buttler did not seek to support this criticism while maintaining his submissions that the FTT was in error in a variety of other respects.[78]As the wording of its conclusions makes clear, the FTT had well in mind the test as formulated by Aikens LJ (at [41] – [42] of his judgment) when the matter was previously before this Court. On the actual circumstances of the present case, the FTT held that it was neither reasonable nor in the interests of justice to waive the time limit.[79]As will be recollected, the circumstances were these: i) The claim was brought a decade ordecades out of time; ii) YA’s claim was bound to fail because she was not a qualifying claimant; iii) The prejudice caused by the delay precluded fair inquiry into disputed matters (the dependency claim and the deceased’s conduct); iv) VH and FH were confined to a conventional award and thus the most they could recover was a maximum of £11,000; v) Even that recovery was unlikely; instead it was likely that VH and FH would not recover any award by reason of the deceased’s conduct; vi) The FTT Decision was not vitiated by procedural unfairness.[80]For my part, the FTT Decision on this issue was plainly right, indeed almost inevitable - but it is unnecessary to go that far. It suffices that, on any view, the FTT Decision refusing to waive the time limit was manifestly one it was entitled to reach in accordance with the test laid down by Aikens LJ. Any contention to the contrary would be fanciful.[81](g) Any error would suffice to justify quashing the FTT Decision: I have not overlooked Mr Buttler’s final submission, that any material errors of law on the part of the FTT would have justified the UT’s Decision to quash the FTT Decision. I should not be taken as accepting this submission and express no view on its correctness. It is, however, unnecessary to say more of it, given my conclusion that the FTT Decision did not contain any material errors of law.

CONCLUSION

[82]Overall and for the reasons given, I am driven to the conclusion that the UT Decision is untenable and cannot stand. I would quash the UT Decision and reinstate the FTT Decision.

POSTSCRIPT

[83]In the event and notwithstanding natural sympathy for the claimants, CICA has prevailed on this appeal. I cannot, however, leave this matter without expressing deep regret that no attempt appears to have been made to mediate this dispute. It ought to have been readily apparent that, realistically, the sums in dispute were confined to at most three and, more probably, two conventional awards. Even that level of recovery was likely, if not extinguished, to be reduced on account of the deceased’s conduct. The public money spent in litigating this matter to a conclusion is likely to have far exceeded the sums realistically in issue.

Lady Justice Rafferty :

[84]I agree.

Lord Justice Floyd :

[85]I also agree.

Cited in 16 later judgments

and 7 more of the most senior