Kirste Andrea Grass, R (on the application of) v First-Tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation Appeals Tribunal) [2026] EWHC 541 (Admin)

[2026] EWHC 541 (Admin)Case No AC-2024-LON-002874
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11 March 2026
Before
MRS JUSTICE LANG DBE
Between
KIRSTEN ANDREA GRASSClaimantFIRST-TIER TRIBUNALDefendantCRIMINAL INJURIES COMPENSATION AUTHORITYInterested Party
Simon Howarth KC (instructed by Irwin Mitchell LLP) for ClaimantLouis Browne KC (instructed by the Government Legal Department) for Interested Party for The Defendant did not appear and was not representedHearing Hearing date: 18 February 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 11 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE LANG DBE
[1]The Claimant applies for judicial review of the Decision of the First-tier Tribunal (“the Tribunal”), dated 2 April 2024, to refuse her application to reconsider her case under paragraph 13 of the Criminal Injuries Compensation Scheme 1990 (“the Scheme”). The claim is resisted by the Interested Party (“the CICA”).[2]The Claimant is outliving her predicted life expectancy, upon which the original award was assessed in 2010. She submits, under Ground 1, that the increase in her life expectancy is a serious change in her medical condition which comes within the scope of paragraph 13 of the Scheme. Under Ground 2, she submits that the Tribunal erred in law in its approach, when rejecting her submission, that the renewed application could be considered without the need for extensive enquiries, in accordance with paragraph 13 of the Scheme.[3]Permission to apply for judicial review was initially refused on the papers, but granted at an oral renewal hearing by Sir Peter Lane (sitting as a High Court Judge) on 1 May 2025. History[4]The Claimant was born a healthy baby on 14 November 1994 and is now aged 31. She sustained a very severe brain injury in March 1995 after being shaken by her natural father. As a result she is severely disabled and needs intensive 24 hour care.[5]On her discharge from hospital, the Claimant was placed in the foster care of George and Margaret Grass, who later adopted her on 30 April 2001. It is agreed that they have provided her with care of the highest quality.[6]An application for criminal injuries compensation was made on behalf of the Claimant by Cambridgeshire County Council in March 1996. The application was determined at a hearing on 20 July 2010 (“the 2010 Decision”). The lump sum award was £510,084.48 net of deductible benefits of £200,685.28. After further deduction of the interim payments (£330,000), the balance of the award was £180,084.48. This sum was accepted by Mr Grass on 10 August 2010 in full and final settlement of the Claimant’s claim for criminal injuries compensation. Additionally Mr and Mrs Grass have been able to claim social security and other benefits for the Claimant.[7]The Claimant’s Deputy, Emma Truin of Barr Ellison Trust Corporation Limited, applied to the CICA to reconsider the case on 10 May 2018. The Claimant’s condition as assessed for the 2010 Decision[8]In the transdisciplinary report completed on 25 April 2009, Professor Sam Lingam, Consultant Neurodevelopmental Paediatrician, described the applicant as “... a child with severe disabilities and . . . severe management issues”. Her disabilities were summarised as follows: i) Cerebral palsy - spastic quadriplegia. ii) Severe learning difficulties - performing like a newborn baby at 14 years plus of age. iii) wind-swept deformity - severe scoliosis, dislocation of hips, flexion contractures of hip, knee, foot, elbow and wrist. iv) Non ambulant (wheelchair bound). v) Severe visual impairment - cortical blindness. vi) Epilepsy. vii) Reflux - had fundoplication - not orally fed, feeding for all practical purposes by gastrostomy tube and pump. viii) Precocious puberty - as part of severe brain damage. ix) Shaken baby syndrome. x) Hearing within normal limits for practical purposes.[9]In the same report, Sally Wright, Chartered Physiotherapist, added that the Claimant could be in pain which limits her attention, learning, comfort and quality of life, that she had no purposeful movement or independent mobility, was totally dependent on her carers for all positioning transfers and self-care needs, could only sit with full support, could not speak and could only communicate by jerking movements and facial flushing when distressed or in discomfort or by smiling and giggling. Her general health was pretty good though on occasion she suffered chest infections. She was uncomfortable lying on her left side, sounding ‘wheezy’ and secreting heavily from her mouth.[10]In her report of 14 August 2009, Ms Alison Dunning RGN, a care expert, advised that the Claimant was incontinent and noted she frequently woke at night, crying out and requiring repositioning. She had to be checked for incontinence at least twice a night. She occasionally suffered petit mal seizures at night. Assessment of life expectancy for the 2010 Decision[11]The 2010 Decision found, on the basis of the agreed expert evidence, that the Claimant was unlikely to live beyond 20 years of age.[12]Dr Elaine Lewis, Consultant Community Paediatrician, reported on 28 August 2007 “... Her life expectancy is difficult to predict but it is unlikely that she will live longer than her late teens or early adulthood. Undoubtedly the quality of care that she receives at home is maximising her life expectancy”. Professor Lingham advised in April 2009 “... Having now spoken to several colleagues on this matter the expert view is that her life expectancy will not exceed 20 years of age. In the rare possibility of [her] life going beyond 20 years it would be a great credit to the current carers ...”. Assessment of life expectancy for the Tribunal Decision in 2024[13]Professor Anthony Ward, a Consultant Physician in Rehabilitation Medicine, provided an assessment of life expectancy, in his report of 7 December 2018. He stated (footnotes omitted):
“Life expectancy 8.1 Kirsten has had a very severe brain injury, which will have had a significant effect on her life expectancy. It has been thought in 2010 that she would not achieve an age of 20 years, but she has exceeded that and the prospects of her further survival are based more now on someone with an acquired brain injury. Having said that, for the purpose of calculating her life expectancy, she also falls into the category of someone with a cerebral palsy, as there is very little data on survival following acquired brain injury at such an early age. 8.2 The features of note following an injury to the brain that have an impact on life expectancy are all or a combination of the following: i. Severe loss of mobility-particularly in relation to the ability to walk. ii. Epilepsy - The risk of death from epilepsy is heightened by further injuries from accidents and falls, status epilepticus, suicide and sudden death in epilepsy syndrome (SUDEP). Accidents, falls and suicide can be discounted in Kirsten's case, but the risk of the SUDEP accounts for 18% of all epilepsy related deaths in people with seizures. iii. Incontinence - This is well established as a negative prognostic factor. iv. Dysphagia People with swallowing difficulties get aspiration pneumonias and reflects the degree of underlying brain damage. v. Cognitive and intellectual damage - This is accepted as a major factor in limiting life expectancy in people with neurological disabilities and includes those following traumatic brain injury. ….. 8.3 Kirsten is a 24.0 year old woman living in the United Kingdom and the current Ogden Tables using the 0% discount, would give her life expectancy as 66.57 years. Using cerebral palsy survival data as the basis for calculating Kirsten's life expectancy, it was reasonable at that time to give her an estimate of life up to 20 years. The most recent evidence is that females aged 15 years, who cannot lift their head and are tube-fed have a 13 year survival whereas the same cohort at 30 years of age have a 14 year survival. This is probably the best currently available evidence and such a cohort would equate well to Kirsten's situation. However, she does have the added problem of her apnoea episodes and her bronchospasm, which, in my view, would reduce her life expectancy further to l0-12 years from this date. I have given a range, as it is difficult to be certain in this individual's case, because she has defied estimates previously. My impression ….. is, therefore, that the upper end of this range would be realistic at 12 years from this date.”
[14]On considering Professor Ward’s evidence, the Tribunal concluded that the Claimant, then aged 29, had already substantially outlived Professor Lingham’s assessment of her life expectancy by about 50%. If Professor Ward was right, she was likely to outlive it by over 75% (paragraphs 23 and 25 of the Decision (“Decision/23, 25”)). Assessment of the Claimant’s current condition for the Tribunal Decision in 2024[15]The Tribunal assessed the Claimant’s current condition at Decision/26-28, as follows:
“26. In arriving at his conclusion on life expectancy, Professor Ward described Kirsten's condition in very similar terms to how she was at the 2010 hearing …... He wrote: " ... Kirsten continues to have a severe disability and there has been no change in her level of personal functioning since her assessment for the 2010 hearing….. He preferred to describe her injury as an 'acquired brain injury' rather than 'cerebral palsy'. Professor Ward is not a neurologist. He is a Consultant Physician in Rehabilitation Medicine. The Tribunal understands that describing the injury as 'acquired brain injury' rather than 'cerebral palsy' amounted to a label change for the purposes of selecting another statistical cohort in the assessment of life expectancy, rather than a substantive change in her condition. Professor Ward explained in §8.1 of his report …. how, for the purposes of calculating Kirsten's life expectancy, she also falls into the category of someone with a cerebral palsy, as there is very little data on survival following acquired brain injury at such an early age. 27. Professor Ward and Philippa Fancourt, an occupational therapist who provided a care and rehabilitation report of 22 January 2019 …., described several aspects of Kirsten's condition in 2018 which appear to differ from those reported in 2010. For example, she now has bronchospasm symptoms, which have been described as asthma and has attacks once or twice a month. She has had apnoea episodes which are ameliorated by using a nebuliser, inhaler and/or suction when needed. Her weight has risen …. These changes probably reflect a deterioration of several symptoms she suffered in 2010, e.g. her 'wheeziness' when lying on her left, her excessive production of saliva and mucus, and her continued inactivity. On the positive side, the applicant now has a reduced incidence of chest infections ….. Further, she now hears better than she did and gets a lot of stimulation via her auditory system ….. However, her communication remains poor from both a language perspective and her severe learning disability ….. 28. The Tribunal concluded these changes do not substantially alter the overall nature and extent of Kirsten's disablement which remains severe and is substantially the same now as it was in 2010.”
Ongoing care[16]At the Tribunal, Ms Fancourt, an occupational therapist, assessed the gratuitous care provided by Mr and Mrs Grass at 43 hours per week, less an amount for time spent at a day centre and some respite care, funded by social services. Ms Fancourt advised that the Claimant would continue to require 24 hour supervision, and assistance with most tasks.[17]Mr and Mrs Grass are concerned that, because of their age and increasing infirmity, they will no longer be able to manage the physical nature of the Claimant’s care and will need increasing support from professional carers. George Grass was born on 1 January 1948, and is now aged 78. Margaret Grass was born on 18 August 1952, and is now aged 73. The Tribunal recognised this as a genuine concern and accepted that the delivery of the Claimant’s future care by professionals will be costly. Legal framework[18]The Scheme is a forerunner of the tariff schemes now in place. It is a non-statutory ex gratia scheme created under prerogative powers and designed to compensate innocent victims of crimes of violence on the basis, subject to its other provisions, of common law damages, usually in the form of a final lump sum payment (Decision/32).[19]The scope of the Scheme is described in paragraph 4. Applications for compensation may be made where the applicant has sustained personal injury directly attributable to a crime of violence, or the apprehension of an offender, or trespass on a railway. The term “directly attributable” is defined in paragraph 4 of “A Guide to the Criminal Injuries Compensation Scheme” (“the Guide”) as follows:
“Personal injury is “directly attributable” if the incident from which the injury arose would be considered by a reasonable person who knew all the facts to be a substantial cause of the injury, but not necessarily the only cause.”
[20]According to the Guide, “Personal injury” can include mental injury directly attributable to a crime or threat of violence.[21]Applications must be made within three years of the incident, though there is discretion to waive this requirement (paragraph 4 of the Scheme). Awards are intended to be final. However, the CICA may reconsider a case pursuant to paragraph 13 of the Scheme which provides:
“Although the Board’s decisions in a case will normally be final, they will have discretion to reconsider a case after a final award of compensation has been accepted where there has been such a serious change in the applicant’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand…. A case will not be reopened more than three years after the date of the final award unless the Board are satisfied, on the basis of the evidence presented with the application for reopening the case, that the renewed application can be considered without a need for extensive enquiries. A decision by the Chairman that the case may not be reopened will be final.”
[22]In R (Criminal Injuries Compensation Board), ex parte Williams [2000] PIQR Q339, the Court of Appeal held that a serving police officer who had been given an award for an injury to his back was entitled to apply, under paragraph 13 of the Scheme, for his case to be re-opened when he subsequently suffered exacerbations of his back injury, in 1994 and 1995, which rendered him unable to return to work. The Court accepted that, on the medical evidence, the claimant had sustained an injury to the lumbar spine which rendered him susceptible to further injuries, and so the events that triggered the exacerbations were not supervening new causes, but were part of an unbroken chain (per Ward LJ at Q347).[23]Ward LJ analysed the elements of paragraph 13 of the Scheme as follows (Q345):
“The first question of law that would arise is whether or not the serious change in the medical condition should itself be directly attributable to the crime of violence. The chairman was of the opinion that that was implicit in Article 13….. In my judgment Mr Crow is correct in submitting that, if the object of paragraph 13 is to enable a case to be reconsidered, it can only be reconsidered and reopened on the basis that paragraph 4 will apply to that reconsideration. Paragraph 13 has three separate elements. The first is that there should be a change in the applicant's medical condition; secondly, that change has to amount to a serious change; but, thirdly, I would accept that the change has to be directly attributable to the original crime. 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. The medical evidence is so overwhelming that the only conclusion that the Board could reach is that there had been a change…. The second question of evaluating the seriousness of the change, is a matter for a judgment on the facts of the particular case. …. The question is whether that serious change is directly attributable to the original injury…..” ……. “Mr Crow submits that mis-diagnosis is not the test in paragraph 13, the test is a change attributable to injury. Mr Crow is correct in that. 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 tribunal for the Board will be whether or not “injustice would occur if the original assessment of compensation were allowed to stand.”
The question is whether that serious change is directly attributable to the original injury…..”[24]Laws LJ agreed with Ward LJ’s judgment and added (Q348) that “directly attributable” is apt to excludes causes which are plainly secondary or subsidiary” but “does not necessarily bar from compensation a worsened condition which occurs upon the happening of some …. event where the original injury has rendered the claimant vulnerable to such a worsened state”. He concluded:
“That approach I believe is consistent with what Lawton L.J. said in R. v Criminal Injuries Compensation Board Ex p. Webb [1987] O.B. 74 at 78, cited by Dyson J. in Ex p. K at 1462A: “The government has made funds available for the payment of compensation without being under a statutory duty to do so. It follows, in my judgment, that the court should not construe this scheme as if it were a statute but as a public announcement of what the government was willing to do. This entails the court deciding what would be a reasonable and literate man's understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence.””
[25]The CICA referred to a redacted First-tier Tribunal decision identified by its reference number C1017/21/00042 (bundle page number Ma35-39), made under the Criminal Injuries Compensation Scheme (2008) (“2008 Scheme”). It had an equivalent provision to paragraph 13, save that it referred to a “material change” not a “serious change”. The appellant applied for a reconsideration because the CICA had wrongly assumed her life expectancy to be up to 30 years of age, whereas she had a normal life expectancy. There was no change to her physical or mental condition. The tribunal found that life expectancy was an aspect of prognosis and relied upon Williams where Ward LJ stated that misdiagnosis or mis-prognosis was not a justification for reconsideration (at [8] – [10]). The tribunal held, in the alternative, at [13]:
“….. the tribunal found that the term “medical condition”, as used in paragraph 56 of the Scheme, refers to the fact of the victim’s physical and/or mental condition. It does not include extraneous matters such as an opinion as to life expectancy. The tribunal found that this is the natural meaning of the phrase “medical condition”
. Opinions as to life expectancy can change from medical expert to medical expert without there being any change at all in the physical/mental condition of the patient.”[26]In Colefax v First-tier Tribunal [2014] EWCA Civ 945, the Court of Appeal considered the correct interpretation of the time limits in paragraph 18 of the 2008 Scheme. Briggs LJ held, at [16] and [19], that the provision should be interpreted “by reference to the ordinary meaning of the words used …. construed both in the context of the Scheme as a whole, and with due regard to its evident purpose”. Briggs LJ also considered the parallel provision to paragraph 13 of the Scheme, and observed, at [24]:
“But paragraphs 53 and 56-7 do display a less than open-ended provision for satisfying claims for compensation in respect of late manifested or diagnosed injuries, even where the victim has made an application in relation to other injuries within time. The general thrust of those provisions is to recognise and give effect to the underlying desirability of finality in relation to claims for compensation, and a need to protect the Scheme from the expense of the extensive investigation of claims in respect of deterioration in medical condition after an award has been made. I shall refer to those considerations as finality and economy.”
[27]In R (LXR) v First-tier Tribunal (Social Entitlement Chamber) & Ors [2025] EWCA Civ 1608, the Court of Appeal upheld an appeal by the CICA which had refused an application under paragraphs 114 – 116 of the 2012 Scheme. Singh LJ rejected the Upper Tribunal’s criticism of the First-tier Tribunal’s reference to a dictionary definition of the phrase “medical condition”. Singh LJ cited with approval the judgments in Williams (at [51] – [54]). At [70], Singh LJ also cited with approval the judgment of Gross LJ in Criminal Injuries Compensation Authority v Hutton & Ors [2016] EWCA Civ 1305, on the approach to take to a challenge to the decision of a specialist tribunal of fact:
“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.”
[28]The CICA also drew my attention to the judgment of Lord Lloyd-Jones in R (A) v Criminal Injuries Compensation Authority [2021] UKSC 27, [2021] 1 WLR 3746. Ground 1[29]Mr Howarth KC submitted that the Tribunal misdirected itself in law as to what can amount to “a serious change in medical condition”, in particular, by declining to accept that unexpected longevity can amount to a serious change in medical condition.[30]Mr Howarth KC submitted that the expected duration of a condition is part of the definition of the condition, as a matter of ordinary speech, and as the concept would be understood by the reasonable person in the street. A person consulting a doctor about a medical condition will likely ask how long it will persist; that is part of ascertaining the nature of the medical condition. Advice from a doctor that a patient has a terminal condition is a conclusion or at least a prognosis as to how long the patient has to live. It follows that if a person outlives the life expectancy predicted by medical opinion, there has been a serious i.e. significant change in that person’s medical condition. Furthermore, as at the date of the Tribunal hearing, the Claimant had already exceeded her life expectancy and her unexpected longevity was a matter of established fact, not merely a prediction.[31]The Tribunal, at Decision/58, accepted that the duration of a medical condition affects the level of disablement. Therefore it was irrational and incoherent to proceed to find that the Claimant’s life expectancy was different to the duration of her condition and that her life expectancy was not part of and did not affect her health. Conclusions[32]Pursuant to paragraph 12 of the Scheme, compensation is assessed on the same basis as common law damages, with some exceptions. The Tribunal rightly accepted the submission made by Mr Browne KC for the CICA, based on Colefax, that finality was a principle of common law damages and that finality should be modified by paragraph 13 of the Scheme only to the minimum extent necessary and only expressly or by necessary implication (Decision/48). However the Tribunal was also right to reject Mr Browne KC’s submission that paragraph 13 should be construed narrowly or strictly (Decision/50). It agreed with Mr Howarth KC that the words of paragraph 13 should be given their ordinary natural meaning (Decision/50). I also consider that, as Briggs LJ held in Colefax, the ordinary natural meaning of the words should be construed both in the context of the Scheme as a whole, and with due regard to its evident purpose. The Tribunal and Mr Browne KC did not accept Mr Howarth KC’s reliance on the understanding of the “reasonable and fair-minded taxpayer” (Decision/61, 62). However, I note that the test of a “reasonable and literate man’s understanding” was applied by Lawton LJ in R v Criminal Injuries Compensation Board ex parte Webb [1987] QB 74, at 78, and cited by Laws LJ in Williams. Therefore I have also applied it when construing the Scheme and its application to this case.[33]I note that if the Claimant had been able to bring a common law claim against the tortfeasor, she would not have been entitled to claim damages for loss of expectation of life, as a separate head of loss. The court, in assessing damages for pain and suffering, would have taken account of suffering caused by her awareness (if any) of the reduction in expectation of life (see section 1 of the Administration of Justice Act 1982). Save to that limited extent, loss of expectation of life would not have been treated as part of the personal injury sustained and not compensated. Damages for the cost of future care and other needs would have been assessed by reference to her life expectancy. As a young child, the Claimant would not have been allowed to claim for loss of earnings during the “lost years”: see Croke v Wiseman [1982] 1 WLR 71. The Supreme Court, in CCC (by her mother and litigation friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5, overruled Croke v Wiseman on 18 February 2026, placing children in the same position as adults and adolescents.[34]The Tribunal noted that the phrases “medical condition” and “serious change” were not defined in the Scheme (Decision/52). Their use of dictionary definitions as an aid to construction was helpful and appropriate (see Singh LJ in LXR at [42]). The Tribunal set out Ward LJ’s analysis of paragraph 13 in Williams and concluded:
“54. This is persuasive guidance from the Court of Appeal that a change in diagnosis or prognosis is not of itself a change in medical condition, indicating that it relates to the substantive state of health, as opposed to its label. This is consistent with the Oxford English Dictionary meaning for "condition" when used in a medical sense: " ... 'state of health' esp. one which is poor or abnormal; a malady or sickness. in a certain, delicate, interesting, or particular condition (see the adjectives): pregnant .... ". 55. We took the view that the word 'medical' qualifies the word 'condition' and directs our attention to the applicant's medical condition and away from any other aspect of her condition that is not medical or health related. A change in any other aspect of her condition, for example, her finances, accommodation, care regime or the correction of an earlier misdiagnosis, would not suffice. 56. For these reasons we considered the ordinary natural meaning of 'medical condition', as Mr Browne submitted orally, is 'state of health'. 57. The Court of Appeal's guidance also indicates that a 'very serious' change in a medical condition is one which greatly increases disability. That is consistent with the Oxford English Dictionary definition of 'serious' in the medical context: " ... Of an injury, condition, etc.: significant or worrying; giving cause for anxiety or concern; grave, threatening, or dangerous.". The Tribunal held that a serious change in the applicant's medical condition is one which significantly increases disability. 58. Mr Howarth argued that Kirsten's prognosis is an important part of her medical condition, and that a change in her life expectancy should be interpreted as a change in her medical condition. We agree with Mr Howarth that the CA in Williams was not trying to define 'medical condition' and did not exclude prognosis from its meaning ….: the duration of a medical condition clearly affects the level of disablement of the sufferer. However, in the Tribunal's view, Kirsten's life expectancy is different in kind from the duration of her condition: it is an assessment of how long she is likely to live by reference to statistics of cohorts of people with similar medical conditions. Kirsten's life expectancy is assessed in light of her state of health, but it is not part of, does not affect, her state of health. 59. Additionally, the Tribunal considered the change in Kirsten's life expectancy has been brought about by 2 factors: (i) the continued devoted care of her adoptive parents, as submitted by both leading counsel (la4, §18.iv and A22, §10), and (ii) Professor Ward's use of more recent statistical data (ES, §8.3). The Tribunal concluded that neither of these factors reflect any change in Kirsten's medical condition. 60. For these reasons, we held that outliving her previous life expectancy is not a change in Kirsten's medical condition.”
[35]Under the heading “Has there been a serious change in the applicant’s medical condition”, the Tribunal found as follows:
“68. Comparing Kirsten's medical condition at the date of the original award in 2010 and her condition today, the Tribunal concluded the changes, some for the worse and some for the better, as described above, do not substantially alter the overall nature and extent of her disablement which remains severe and is substantially the same now as then. This is consistent with what has been reported by Professor Ward. 69. The Tribunal could find no indication that Kirsten's prognosis has changed: her attributable medical condition was understood to be irreversible and permanent in 2010, as it is today. 70. What has changed is (a) that Kirsten has outlived the earlier assumed life expectancy, which has been re-assessed to age 36, and (b) the reduced ability of her adoptive parents to care for her, as submitted by Mr Howarth (la2, §13). 71. The Tribunal held Kirsten's life expectancy is different from her prognosis and is not part of her medical condition. 72. For these reasons we held there has not been a serious change in the applicant's medical condition.”
[36]In my judgment, the Tribunal correctly applied the requirements of paragraph 13 of the Scheme to the facts of this case. Although Williams was distinguishable on the facts, Ward LJ’s analysis of paragraph 13 is helpful and I consider it to be binding on me. Importantly, the Tribunal identified that a “serious change in the applicant’s medical condition” requires a change in the applicant’s “substantive state of health” and “a change in diagnosis or prognosis is not of itself a change in medical condition” (emphasis added). It was common ground that there was no significant change in the Claimant’s substantive medical condition. Therefore, even if life expectancy could be categorised as part of a patient’s prognosis, reflecting ordinary medical usage, it did not, of itself, engage paragraph 13.[37]Moreover, in this case the cause of the increased life expectancy was not a change in the Claimant’s medical condition. The causes were the continued devoted care of her adoptive parents, and Professor Ward’s use of more recent statistical data (Decision/59).[38]The Tribunal acknowledged that the duration of a medical condition affected “the level of disablement of the sufferer” and was well aware that the Claimant had already exceeded the life expectancy assessed in 2010. In my view, the Tribunal was entitled to conclude that the Claimant’s life expectancy was different in kind to the duration of her medical condition. Life expectancy was an assessment of how long she was likely to live, by reference to statistics of cohorts of people with similar medical conditions. It was assessed in the light of her state of health, but was not part of, and did not affect, her state of health.[39]The Tribunal agreed with Mr Browne KC’s submissions that, if the Scheme was intended to allow cases to be reconsidered on the basis of a change in life expectancy, it was reasonable to expect that express provision would have been made for this. It was in the nature of a lump sum payment for future loss that it may prove to be too little or too much, and the assessment of damages was not an exact science. As life expectancy is assessed by reference to the average survival time of a cohort with similar characteristics, it was not unusual for an individual to fail to reach an estimated life expectancy or to outlive it (Decision/51). In this Court, Mr Browne KC supported these submissions by reference to passages on “Projected Mortality” in the ‘Professional Negligence Bar Association Facts and Figures Tables for the Calculation of Damages 2025/2026’, at pages 19-21, and passages in Wells v Wells [1999] 1 AC 345, per Lord Lloyd at 363H-364A, 378D-E; Lord Steyn at 383A.[40]As I have already stated, the natural and ordinary meaning of the words in paragraph 13 must be construed in the context of the Scheme as a whole and with regard to its purpose. The Court of Appeal has held that previous schemes should be construed with regard to a “reasonable and literate man’s understanding” of the circumstances in which he could be paid compensation. In my view, the requirement in paragraph 13 of the Scheme that there must be a “serious change in the applicant’s medical condition” is deliberately restrictive. Paragraph 13 could have been drafted more broadly to refer, for example, to a “serious change in circumstances”. The Scheme’s choice of words, and the underlying intention to limit the scope of applications to re-open final awards, which are funded by the tax payer, must be respected by the court.[41]Mr Howarth KC submitted that paragraph 13 refers to a change, not a deterioration, but that submission did not address the additional requirement of seriousness. In my view, the natural and ordinary meaning of the phrase “a serious change in … medical condition”, construed in the context of a request to reopen an award, is an adverse change in medical condition i.e. an increase in disability (see Ward LJ in Williams and the Oxford English Dictionary definition of “serious” in the medical context, cited in Decision/57). The change relied upon by the Claimant, namely, an increase in life expectancy, did not significantly affect her level of disablement and her expected outcomes have improved. Therefore there was no serious change in her medical condition. The consequence of the increased life expectancy is likely to be serious in other senses (e.g. financially) but that is not a basis upon which an application under paragraph 13 was intended to be granted.[42]For the reasons set out above, I do not accept that the Tribunal misdirected itself on the scope of paragraph 13 of the Scheme, or misapplied it to the facts of this case. I consider that the Decision was soundly reasoned and rational. Therefore Ground 1 does not succeed. Ground 2[43]In view of my conclusions on Ground 1, Ground 2 falls away and I do not need to address it. Final conclusions[44]The claim for judicial review is dismissed.