“A person may be eligible for an award under this Scheme if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence committed in a relevant place. The meaning of ‘crime of violence’ is explained in Annex B.”
“there has been so material a change in the medical condition of the applicant that allowing the original determination to stand would give rise to an injustice to the applicant.”
“Both Dr Iankov and Ms Rubbi make it very clear that your mental injuries are extensive, but attribute them almost wholly to a separate incident. On balance, I am satisfied [the CSA] is not the primary cause of these injuries”
“I have considered the report of Dr Pereira-Scott and it is clear that [LXR] has suffered longstanding and serious mental health problems, which were directly caused by the abuse he was subjected to as a child. Dr Pereira-Scott’s report does not indicate a material change in his condition since 19.8.19 (the date [LXR] accepted our offer of compensation). This means I am unable to re-open his claim on medical grounds. … The medical evidence available at the time the accepted decision was made, indicated that the childhood abuse was not the primary factor in [LXR’s] condition. I understand and accept that the new evidence overwhelmingly contradicts this, however there is no scope within the Scheme to re-open or correct an inadequate decision in these circumstances. …”
“This in itself is a significant change in [LXR’s] condition, because of its symptomatic consequences.”
“there has been a material change in his condition since the date of the original award. The change has occurred in three main ways: (i) diagnosis, (ii) the Appellant’s own, clinically significant, understanding, and (iii) symptomatic deterioration.” (Emphasis in original)
“The Appellant’s own clinically significant understanding of his own condition: the evidence of Dr Carolyn Law … explains that the Appellant is now able to understand and accept that the root of his injuries was the historic abuse. This in itself is a significant change in the Appellant’s condition, because of its symptomatic consequences. If something is considered clinically significant by the Appellant’s treating clinicians, the CICA would need a good reason for discounting that evidence. It is artificial in the context of the Appellant’s (and many others’) mental health condition, caused by historic abuse, to attempt a strict delineation between the condition and his understanding of its cause (as Dr Carolyn Law explains …). Indeed, where (as the evidence set out below shows) much of diagnostic work in psychiatric injuries relies on the patient’s own report of their symptoms and understanding of their traumas, a change in such understanding is of itself part of the one’s medical condition.” (Emphasis in original)
“This in itself is a significant change in the Appellant’s condition, because of its symptomatic consequences.” (Emphasis added)
“Taken together, a new diagnosis and primary presentation, marked deterioration in symptoms, and different understanding of one’s condition (which, in relation to psychiatric injuries will be directly linked to one’s condition) do amount to a significant change in medical condition. The appeal should therefore be allowed on this ground alone.” (Emphasis added)
“We find that it was the treatment itself which led to a change in [LXR’s] understanding of his condition and the origins of it rather than a serious change in his medical condition.”
“In summary [LXR’s] case is that there has been a serious/ material change in his medical condition since he accepted the original award. This is because there has been a change in [his] understanding of the cause of his mental health difficulties and this in turn has led to an increase in his symptomology and a significant deterioration in his mental health.”
“Medical condition relates to a person’s illness and treatment and it is clear therefore that a person’s change in understanding of their condition and ability to engage with treatment as opposed to treatment is not a ‘medical condition’.”
“In any case we do not accept that the evidence before us shows that there has been a material change in his medical condition between August 2019 and June 2021.” (Emphasis added)
“although his mental health has fluctuated over time it has not materially changed since 2019 when the award was accepted and 2021 when he applied for medical reopening. There is therefore no material change in his medical condition between August 2019 and June 2021.”
“Giving effect to the object and purpose of the provision, ‘medical condition’ must be read as relating to the reasonably ascertainable medical condition.”
“… If I have understood Dr Law’s evidence correctly, it is that LXR’s understanding of his [symptoms] and their causes was fundamental to the nature and treatment of his condition. I see no reason why that should not be a change in his condition, provided that the Tribunal accepts that evidence.”
“As noted by the UT, the provision is ‘loosely drafted’. Applying the modern purposive approach, it must bear a broader interpretation than the FtT’s dictionary-led approach. It is capable of referring to aetiology, diagnosis, symptoms, disablement, treatment and/or medication. Further or alternatively, correctly construed, the words ‘so material a change in the medical condition of the applicant’ in rule 114 of the 2012 Scheme can covermean a change in the reasonably ascertainable medical condition of the applicant.”
“... The correct questions for the decision-maker are: ‘Would there be injustice if the earlier decision remained in place and would that injustice be the result of a change in the applicant’s medical condition?’ If the answer to both these questions is ‘yes’ the officer may, and no doubt in practice will, reopen the case. In such cases, one possible approach would be to take the account of medical change at face value and then decide whether injustice would be caused if the original decision stood. If the conclusion is that injustice would not be caused regardless of any medical change, the decision cannot be reopened, and it will then be unnecessary to engage with the often complex question of whether or not there has been a sufficiently material medical change.”
“As to whether or not there is a change, that in my judgment is a matter for pure comparison between the condition of the applicant at the date of the original award, and his condition at the date when he is seeking reconsideration of his case. …”
“… Mis-diagnosis, or even mis-prognosis, in the original report is not of itself a justification for coming back for reconsideration. The test is of a serious change directly attributable to the original injury. Once that serious change is established, then the second question … for the Board will be whether or not ‘injustice would occur if the original assessment of compensation were allowed to stand’.”
“… It might from the outside appear odd (and supportive of a flexible interpretation of a fairly loosely drafted provision) that what might be regarded as more fundamental errors of legal approach or of mistakes of material fact at the time of the original decision cannot support a re-opening of a case, but that is the state of the schemes as approved by Parliament. And CICA would no doubt say that the remedy for an applicant is and was first to get the evidence in support of his case in order by the time that a review decision is made and, if he does not accept an award directed in a review decision, to appeal against it (with an extension of the normal time limit being available). In such an appeal the overall merits of the case on the circumstances down to the date of the appeal decision would be assessed free of the restrictive conditions … for a re-opening of the case where the award has been accepted. By a ‘pure comparison’ must be meant a comparison of the applicant’s actual medical condition as it is now known to have been at the date of the original decision with the current condition. That is how a mis-diagnosis is excluded. Williams is an example of a case where a mis-diagnosis at the time of the original award was later revealed, but nevertheless there was a later change in medical condition, in the effects of the two exacerbating incidents, to support a re-opening.”
“The power to re-open cases in paragraphs 56 to 57 will (subject to its limited availability after two years) readily accommodate the late manifestation of a new type of injury. But it is not clear that it would accommodate the late diagnosis of the requisite causal link between the crime and a medical condition which had not first appeared, or deteriorated, since the making of the claims officer’s decision: see R v Criminal Injuries Compensation Board, Ex p Williams [2000] PIQR 339, para 35, per Ward LJ (obiter). That question does not arise directly for decision in this case (any more than it did in the Williams case). In my view paragraph 56 would not accommodate late diagnosis but, in view of Arden LJ’s view, expressed tentatively during the hearing that it might do in some circumstances, I am content to leave the point open.”
“In Sainsbury’s Supermarkets Ltd v MasterCard Inc[2020] UKSC 24 at paragraph 242 of the judgment of the court, the Supreme Court cited with approval the first part of paragraph 21 of Dyson LJ in Al-Medenni (above), and also a related passage from Lord Wilberforce in Air Canada v Secretary of Trade[1983] 2 AC 394 , at 438F-G. Aside from the reference to these authorities, at paragraph 242, the Supreme Court said: ‘[242] In the adversarial system of litigation in this country, the task of the courts is to do justice between the parties in relation to the way in which they have framed and prosecuted their respective cases, rather than to carry out some wider inquisitorial function as a searcher after truth.’” ‘[242] In the adversarial system of litigation in this country, the task of the courts is to do justice between the parties in relation to the way in which they have framed and prosecuted their respective cases, rather than to carry out some wider inquisitorial function as a searcher after truth.’”
“There are other ways of looking at it. Which is to say, that has actually changed the condition itself in a way. That understanding is part of the condition.” (Emphasis added)
“But it seems to be simpler for you to argue if this is the case that understanding changes the condition. …” (Emphasis added)
“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. 42. Promotion of such consistency was part of the thinking behind the recommendation of Sir Andrew Leggatt for the establishment of an appellate tribunal: Tribunals for Users, One System, One Service (March 2001), paras 6.9-6.26. It was adopted by the government in the 2004 White Paper, paras 7.14-7.21, which spoke of the role of the new appellate tier ‘in achieving consistency in the application of the law’. Although the appeal from the First-tier Tribunal was to be limited to a point of law, it was observed that ‘for some jurisdictions this may in practice be interpreted widely, for instance to allow for guidance on valuation principles in rating cases. The general principle is that an appeal hearing is not an opportunity to litigate again the factual issues that were decided at the first tier. The role is to correct errors and to impose consistency of approach.’ (White Paper, para 7.19.)” ‘for some jurisdictions this may in practice be interpreted widely, for instance to allow for guidance on valuation principles in rating cases. The general principle is that an appeal hearing is not an opportunity to litigate again the factual issues that were decided at the first tier. The role is to correct errors and to impose consistency of approach.’ (White Paper, para 7.19.)”
“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.” (Emphasis in original)
“Exceptional circumstances are more likely to exist in cases involving sexual abuse, especially where the applicant was a child at the time of the offence. This is because the silence of the victim, and ongoing psychological and emotional trauma, are well known to be direct consequences of such crimes. These effects continue into adulthood.”
“PTSD can occur at any age, beginning after the first year of life. Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. There is abundant evidence for what DSM-IV called ‘delayed onset’ but is now called ‘delayed expression,’ with the recognition that some symptoms typically appear immediately and that the delay is in meeting full criteria.”
“In relation to the impact of the index incident with the station padre it is my impression this episode led to a further psychological decompensation of [LXR’s] psychiatric symptoms and resulted in an exacerbation of these symptoms. Although he denied significant impact of the childhood abuse on his mental health, it appears the psychiatric symptoms arising from the abuse have been transferred and solely attributed to the index incident with the padre and treatment by the forces since. Although clearly distressing at the time, it is however not my impression the index incident solely led to a separate presentation of post-traumatic stress disorder rather exacerbated his already vulnerable mental health. The symptoms of the PTSD when reported in the following years in the records were noted to focus predominantly on the childhood sexual abuse and anger in relation to this. His coping mechanisms arising from his personality disorder however have led him to focus on his dissatisfaction with his applications for redress and maintains his anger towards the padre and the forces. He remains solely focused on this and dismisses any other possible explanations for his psychiatric presentation.” (Emphasis in original)
“When [LXR] first began his work with me, it was a fundamental feature of his presentation that he ascribed his mental health issues to a single incident of sexual abuse suffered as an adult and while serving with the RAF. Indeed this is why he was referred to VMHCTS because he believed that it was his experiences as a service person that had caused his mental health problems. However, in my professional opinion, that interpretation of his condition was inaccurate and was affecting [LXR’s] presentation and ability to address and treat his condition. For the reasons I give below, I am of the view that [LXR’s] current presentation amounts to a material change in his condition. Since [LXR] and I have been working together, he is now able to understand and accept that the root of his psychological injuries is the childhood sexual abuse (CSA) that he experienced for 4 years during his childhood. Until recently, his ability to explore and examine the effect of the CSA on his adult life was very limited. It was an extremely painful process for him to think about, remember and connect with the feelings that recalling this abuse evokes. It is not unusual for those who have suffered severe ongoing trauma throughout their childhood to detach themselves from and block out these experiences for long periods of their life in order to attempt to protect themselves from these overwhelmingly painful emotions. During our time working together, however, [LXR] has slowly been able to reconnect with the parts of himself that he had shut off and exiled for many, many years, something he has previously been unable to do. This is not an easy process and has been painful and difficult for him. It is very common for people suffering from complex post-traumatic stress disorder to shut off parts of themselves that they feel are too frightening or overwhelming to confront, but then through long term therapy, be able to gradually accept and reconnect with these parts of themselves. This is the process that [LXR] is currently undertaking.”
“These changes have led to a significant deterioration in his condition …”
“In summary, it is my opinion that there are two aspects of the material change in [LXR’s] condition. One of these is [LXR’s] own understanding as to the cause of his mental health condition, which has changed. He now understands that the historic sexual abuse has had a profound impact on his life, personality development and ability to function within relationships. The other aspect is the change in symptomatology i.e., the increase in dissociative episodes, the decrease in rage and anger, and the increase in feelings of loss, grief, sadness, powerlessness and hopelessness.”
“4.1 [LXR] satisfies diagnostic criteria for Post-Traumatic Stress Disorder (ICD-10 F43.1). In [LXR’s] case there is evidence of delayed response to as stressful event of an exceptionally threatening or catastrophic nature which is likely to cause pervasive distress in almost anyone. It is clear from his medical records that his mental state deteriorated significantly following the alleged incident. However it is also evident that he was seeking psychiatric input prior to the incident and that [LXR] was experiencing mental health problems prior to the alleged incident with the padre. 4.2 [LXR] suffered childhood sexual abuse over a lengthy period of time which according to him did not affect him significantly during his adolescent years. It is possible that the alleged incident with the padre has unlocked memories from his traumatic childhood experiences. It is also possible that the alleged questioning has led to [LXR] reliving the abuse. [LXR describes the alleged incident with the padre as an extraordinary emotional event after which he was no longer able to function normally.”
“Mr [LXR’s] presentation was consistent with his previous diagnosis. I discussed this in full with him and he agreed that it encapsulated his long standing distress. It appears that his apparent sublimation of his feelings towards his childhood abuser are reflected in his transferential anger towards the army Padre. …”
“… it has to be shown by the claimant that a neutrally formulated measure affects a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination, so as to give rise to a presumption of indirect discrimination. Once a prima facie case of indirect discrimination has been established, the burden shifts to the state to show that the indirect difference in treatment is not discriminatory. The state can discharge that burden by establishing that the difference in the impact of the measure in question is the result of objective factors unrelated to any discrimination on the ground alleged. This requires the state to demonstrate that the measure in question has an objective and reasonable justification: in other words, that it pursues a legitimate aim by proportionate means …”
“In addition to the above conclusions and comments on Mr [LXR’s] case, my instructing solicitors have asked me a number of further questions, to which I provide the following responses: a. Determining clinical causality of psychiatric injuries can to a degree be dependent on the patient’s own understanding of their condition and its cause. The patient’s own insight into the cause of their condition is to be taken into account when assessing causality. This is much more the case in psychiatric than in physical medicine, as in physical medicine the cause of the illness is usually not linked to the patient’s understanding or insight. b. In my experience it is common for a patient’s own understanding of their psychiatric condition to change over time, particularly when they are receiving counselling or psychotherapy, which is a process that encourages reflection and insight. c. The patient’s own understanding of their medical condition can be of clinical significance in assessing psychiatric injury, as the presence or absence of insight can form part of the psychiatric symptoms and in turn may be linked to causality. d. In my experience, inaccuracies in determining causality may be linked to the fact that the aetiology of many psychiatric conditions is unclear and often there is a multifactorial aetiology. This is not so much the case in post traumatic stress disorder, as post traumatic stress disorder is a condition which originates from specific emotionally traumatic experiences, which can usually be identified. When however there is more than one significant post traumatic stress incident it may not be clear which traumatic experience is the most important or significant in an individual developing post traumatic stress disorder. …”
“It is my opinion that a person’s understanding of their condition can be a significant change and my view is that such is the case with Mr [LXR]. Insight and understanding is important in the majority of psychiatric conditions and is liable to form a component of therapy and recovery.”
“Explain whether, in your view, it is more difficult to determine causation of psychiatric injuries as opposed to physical injuries. For example, is it relevant that causation in psychiatric injuries relies on the veracity and understanding of self-reporting, rather than the observation of organic symptoms? It is my view that it is more difficult to determine causation of psychiatric injuries as opposed to physical injuries, and I believe this often leads to inequality in decision making. The diagnosis of psychiatric injury and disorder relies largely on self-reported symptoms, and there are fundamentally no objective tests that can reliably demonstrate the presence or absence of psychological disorder and injury. This can be contrasted to the vast majority of physical conditions where organic symptoms of injury can be objectively observed. I do believe, however, that when working with a person over a long period of time, differences in behaviour and thinking/feeling patterns can be reliably observed and reported, and I have worked consistently with [LXR] for 4 years. I believe it is generally quite difficult for a person to malinger consistently and convincingly over a long period of time, and in my opinion, [LXR] is not malingering. An additional problem with relying on self-reporting is that many people, including [LXR] do not have a full understanding of the genesis of their disorder. They do not have the knowledge or language to connect how they feel and behave to the things that have happened to them in their early lives. It can be very difficult for people to acknowledge and admit that past trauma continues to have a profound effect on their day-to-day life. It is not unusual for people to believe that if they ‘block out’ the incidents that they will cease to affect them. Unfortunately, this is not the case, and actually has an adverse effect. In my 16 years of experience working with patients with trauma, this is very common.”
“Can a bright line rule be justified in the context of this compensation scheme? In my view it clearly can. First, we are concerned with an area of policy in which a considerable degree of latitude is accorded to the legislator as to the form and scope of the CICS. Secondly, the object of the CICS, namely the allocation of limited resources to deserving victims of crime as an expression of public sympathy, is such that the legislator is entitled to adopt a scheme which operates by clearly defined rules. In particular, it is appropriate to lay down rules as to the seriousness of offences which will disqualify possible claimants as opposed to allowing a general discretion to be applied in individual cases by claims officers. The chosen approach has the considerable advantages of clarity and consistency. Thirdly, it is significant that the CICS was approved by Parliament following an extensive process of consultation and an equality impact assessment. The government did consider the extent to which there should be a discretion exercisable in individual cases and decided to retain such a discretion in respect of unspent convictions for minor offences within paragraph 4 of Annex D but not in respect of more serious unspent offences which resulted in a custodial or community sentence within paragraph 3. I consider that it was perfectly entitled to adopt such an approach.”