AG v FTT and CICA [2013] UKUT 357 (AAC)

UKUT-AAC
AG v FTT and CICA
[2013] UKUT 357 (AAC) · 2013-07-23
[1]This application succeeds. Pursuant to the judicial review jurisdiction of the Upper Tribunal and in accordance with the provisions of sections 15 to 18 of the Tribunals, Courts and Enforcement Act 2007 I make a quashing order in respect of the decision of the First-tier Tribunal (Social Entitlement Chamber) to dismiss an appeal against the decision of the Criminal Injuries Compensation Authority (“the Authority”) not to make an award. The decision of the First-tier Tribunal was made on 8 th February 2012 on the basis of a consideration of the papers, under reference X / 11/200446, in respect of an incident in July 2008, the First-tier Tribunal having decided not to hold an oral hearing,[2]I refer the matter to the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision by a panel that does not include any judge or member who has considered this matter hitherto. I direct that the panel hold an oral hearing of this appeal at which the claimant is given a proper opportunity to attend and give and call evidence. I also direct that the panel consider the appeal on the basis that it was practicable for the application to be considered, but in other respects shall make its own findings of fact and decision irrespective of the views of any other judge or member who has considered the matter hitherto..[3]The parties should regard themselves as being on notice to send to the clerk to the First-tier Tribunal as soon as is practicable any further relevant written medical or other evidence.[4]I held an oral hearing of this application for judicial review in London on 2 nd May 2013. The applicant, who was the claimant for compensation, did not attend in person, but was represented by Amanda Weston of counsel instructed by Debaleena Dasgupta of Birnberg Peirce & Partners, solicitors. The Criminal Injuries Compensation Authority (the “Authority” or “CICA”), which is the interested party in this application, was represented by Jessica Simor QC, instructed by the Treasury Solicitor. I am grateful to them all for their assistance. The First-tier Tribunal is the respondent but had, quite properly, taken no part in the proceedings. The Scheme[5]The claim for an award was made under the Criminal Injuries Compensation Scheme 2008 (“the 2008 scheme” or “the scheme”), paragraph 18 of which provides that an application for compensation must be made on the appropriate form as soon as possible after the relevant incident and must be received by the Authority within two years of the date of the incident. The Authority (or, on appeal, the tribunal) may waive this time limit only when it considers that(a) it is practicable for the application to be considered and(b) in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period.[6]In Hutton & Others v First-tier Tribunal & CICA [2012] EWCA Civ 806 the Court fo Appeal made clear that the use of the phrase “particular circumstances” (in that case in the 2001 scheme) did not refer to any notion of exceptionality but was a reference to the specific facts of the specific case.[7]Paragraph 19 provides that it is for the applicant to make out her case, including the case for a waiver of the time limit. Conceptually this is difficult to apply in respect of paragraph 18(b), which requires a judgment of what is reasonable, but it can apply to the facts that are asserted and on which the judgment is to be based. The Procedural Rules[8]So far as is relevant to this particular application rules 1 and 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules provide as follows: 1(3) … “hearing means an oral hearing and includes a hearing conducted in whole or in part by video-link, telephone or other means of instantaneous two-way electronic communication … 27(1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless –(a) each party has consented to, or has not objected to, the matter being decided without a hearing; and(b) the Tribunal considers that it is able to decide the matter without a hearing. … 27(4) In a criminal injuries compensation case – (a) the Tribunal may make a decision which disposes of proceedings without a hearing ; and (b) subject to paragraph (5), if the Tribunal makes a decision which disposes of proceedings without a hearing, and party may make a written application to the Tribunal for the decision to be reconsidered at a hearing.

(a) not to extend a time limit (b) … Background and Procedure

[9]I set out the background facts and the applicant’s account as I understand them to be, but I am not to be taken to be making findings of fact on any disputed matter. The applicant, who is the claimant for criminal injuries compensation is a woman who was born on 20 th September 1974. She has four children (the youngest of whom was born in 2007) from two former relationships, each of which might be described as stormy, the earlier involving prolonged care proceedings (resolved in her favour) and the latter involving an abusive drug-addicted partner. She suffered from associated episodes of depression in the mid-1990s around the time of the births of her younger children. She had become a beauty therapist and it appears that by the time of the incident in respect of which the claim was made she had recovered, “rebuilt her life” and was running a number of beauty salons.[10]The applicant says that on the evening of 19 th July 2008, a Saturday, she went to nightclub with two female friends. She drove them there from her home in her car. She also had a drink with one of the doormen, whom she knew from a gym in which she was setting up a business in a room that she rented at the gym, but had never had any other kind of relationship with him. I refer to him below as “the doorman”. The applicant says that she had two or three glasses of wine but no drugs or medication. The doorman looked after her drink (I do not know what she was doing meanwhile – dancing? going to the toilet?). “I felt a bit out of control at times”. She felt tipsy and then disorientated, although she drank no more than a normal amount. At the end of the night, driving the applicant’s car, the doorman took the women back to the applicant’s home. One of her friends then went home and her other friend was downstairs and she went to bed upstairs. She remembers the doorman being in the bedroom and then not being there. She believes that her drink had been spiked by him because she awoke in her own bed, unable to move while the doorman got on top of her, had sexual intercourse with her and touched her. She blacked out and when she awoke again he was not there, and her other friend had gone. She had not consented to any of this. I refer to these events as “the incident”.[11]On 5 th August 2008 the applicant reported to the police that the man in question had been sending her threatening texts and made phone calls threatening to kill her (although presumably she did not mention the incident) and the police issued him with a harassment warning. She heard nothing more from him. In the middle of August she and her children moved home. On 26 th August 2008 the applicant contacted the police again, to tell them about the rape incident. The man was arrested and interviewed on 4 th September 2008 and denied that any sexual activity had taken place. After submission of the case file to the Crown Prosecution Service it was decided to take no further action. It is worth pointing out that the relevant police force was not the Metropolitan Police.[12]In early 2009 the applicant was contacted by a (male) journalist who was researching rape associated with spiked drinks. As a result a televised interview was broadcast in June 2009 and they remained in contact, partly because the journalist wanted to monitor her progress in setting a company to supply “date rape test kits”. Meanwhile, from his other research, the journalist had come across mention of the police complaints procedure and the criminal injuries compensation scheme. In about January 2010 he mentioned these to the applicant and “As far as I can tell she did not know about them”. He himself did not know anything about time limits and did not advise the applicant about them. The applicant also says that this was the first that she knew anything about the compensation scheme. I note here that this was considerably less than two years after the incident, so this is not one of those cases where a delay in claiming within the time limit is attributable to ignorance of the existence of the scheme. As I understand it the evidence from the journalist himself was not placed before the First-tier Tribunal until it came to considering an application to set aside its decision, but the claimant had already explained to the tribunal that she did not know about the relevant procedures until this time.[13]In March 2010 the applicant complained through the police complaints procedure about the inadequate way in which her initial complaint of rape had been investigated. This complaint was investigated and the original rape investigation was reviewed. It was not until 5 th July 2011 that a copy of the report of the complaint investigation was sent to the applicant by the police. The report found that a long list of potential lines of enquiry and actions had not been carried out. This included a lack of forensic scientific investigation, a failure to search the suspect’s home or consider his phone records, a failure to interview other potential witnesses, and a failure to interview the suspect again after other potential witnesses had been seen. The complaint was upheld and the report concluded: “36. The shortcomings were attributable to lack of experience and knowledge [of the investigating officer] rather than any wilful neglect and there is no case to answer in respect of misconduct … 37. The matter has undoubtedly caused the complainant a considerable degree of distress and anxiety and it is recommended that the Constabulary gives a formal apology to her”.[14]Meanwhile (according to a letter of 2 nd February 2012 from the police to the Authority) the applicant needed some information from the police for the purpose of making her claim and on 17 th June 2010 a police sergeant took away the form, undertaking to supply the information. This date was still within the two year time limit but the sergeant was unaware of the time limit and did not return the form with the required information for six months (the applicant states that she received it back on 14 th December 2010). The applicant then had to fill in some more details.[15]On 24 th December 2010 the applicant made a claim for compensation under the 2008 scheme. This was over five months after the end of the prescribed two year period for making a claim but was very shortly after the form had been returned by the police sergeant. In relation to the delay in claiming she stated that “I have started to get a little of a grip on things and [accepting] that I need closure as I was date raped by someone I knew” and that she had given the claim form to the police officer who was investigating the complaint. In relation to the delay in reporting the incident to the police she said “I was receiving death threats and he knew where I lived at the time and I was scared. I’m a single parent with four young boys. I waited till I moved but I did inform the police 2 weeks after of the threats”. She stated that the effects of the incident included depression and panic attacks. On 5 th April 2011 the Authority refused to make an award on the basis of the paragraph 18 time limit. On 1 st June 2011, in a review decision, the Authority maintained its refusal to make an award of compensation.[16]On 8 th August 2011 the applicant appealed to the First-tier Tribunal against the decision of the Authority. In her grounds of appeal she stated that she had been too traumatised to consider making an application directly without assistance, which she sought from the police. She also submitted a deal of medical evidence. The First-tier Tribunal exercised its power under its procedural rules to consider the appeal without an oral hearing and on 8 th February 2012 the First-tier Tribunal upheld the decision of the Authority. I discuss its decision below.[17]The applicant applied to the First-tier Tribunal to set aside its own decision and provided a deal of extra information and argument. In a letter of 29 th February 2012 from the “initial action team” the applicant was informed of the refusal to set aside the decision and the judge’s reasons, although the papers do not contain a copy of the judge’s decision or order.[18]Ms Weston has to a certain extent conflated the arguments about whether the First-tier Tribunal’s original decision was made in error of law and/or whether its refusal to set aside its original decision was made in error of law. The grounds for setting aside at that stage are quite limited and the two decisions cannot simply be run together. However, as I am in any event quashing the original decision it is not necessary for me to unpick these matters further.[19]On 8 th May 2012 the applicant applied to the Upper Tribunal for permission to apply for judicial review of the decision of the First-tier Tribunal. On 8 th June 2012 I granted such permission. On 16 th November 2012 I directed that there be an oral hearing of the substantive application, and this took place on 2 nd May 2013. It is unfortunate that there has been a long delay since this mater was completed in the First-tier Tribunal until it has been possible to make the present decision. The Authority opposes this application and supports the decision of the First-tier Tribunal.[20]In a statement of 8 th May 2012 in support of her application to the Upper Tribunal (which her solicitors helped her to draft) the applicant stated the following:
“ … When I started my application for compensation I was dealing with it all on my own, as I have had to do with everything following the rape. However, I can see that what I have said has not always been very clear. I’ve always struggled to put things in writing. I find that the words get all jumbled and I can’t express what I’m saying very clearly, especially when I’m really emotional … I left school at 16 with 6 GCSEs. I did much better in maths and science and have always had some difficulties with written expression so did not do well in these subjects. I went on to college but did only vocational courses … I have never been any good at expressing myself in writing … I have found the process intimidating”
. The First-tier Tribunal Decision[21]The First-tier Tribunal took the view (quite rightly in my opinion) that it was practicable for the application to be considered. However, it went on to decide that it would have been reasonable to expect the applicant to have made an application within the two-year period and that there was no good reason why it should not have been so made.[22]The First-tier Tribunal Judge set out ten reasons for reaching this conclusion:(a) the applicant had reported the nuisance calls and texts to the police as early as 5 th August 2008;(b) she had reported that her drink had been spiked and that she had been raped as early as 26 th August 2008;(c) the police caused some investigation to be made but decided that no further action was possible, following an interview with the suspect;(d) In March 2010 (20 months after the alleged incident took place) the applicant made a formal complaint to the police over their handling of the initial investigation;(e) during those 20 months the GP notes reveal no consultations relating to any psychiatric problems and only one mention (on 1 st September 2008) of the alleged rape;(f) the applicant only sought assistance from the police to help with information required for the authority on 13 th July 2010, by which time the two years had almost passed; “to blame the police for the delayed application seems rather disingenuous”;(g) at no time does the applicant suggest that she was unaware of the existence of the authority or ignorant of her right to claim compensation;(h) there is no duty on the police to prompt an application;(i) at no stage does the applicant suggest that her decision to delay the application was on account of the failure of the police investigation; nor does she explain why it was not until 20 months post-incident that she raised her complaint with the police;(j) no explanation acceptable to the First-tier Tribunal Judge had been advanced by the applicant in support of the issue.[23]I am bound to say that (c) appears to be neither accurate nor relevant (it was not a question of whether further action was “possible”) and (a) and (b) are not reasons why the applicant could have claimed compensation if she was unaware of the existence of the scheme at that time; in relation to (e) the First-tier Tribunal did have before it a psychiatric report from Dr Read, a consultant psychiatrist, which had been sent to the GP on 30 th April 2010, although it is not clear when the referral took place; (g) is simply not the case as is clear from the history that I have set out (and see page A4 of the review application). Ms Weston has made further trenchant criticisms of the reasons, some of which I have sympathy with, but it is not necessary for me to rule on them, given the basis of my decision. “Particular Circumstances”[24]At one stage in the oral argument before me Ms Simor suggested that the use of the phrase “particular circumstances” in paragraph 18(b) of the scheme is limited in reference to the circumstances of (or arising from?) the criminal injury. I think that she resiled from this but in any event it is not correct. Paragraph 18(b) refers to “particular circumstances of the case ” (my emphasis), not of the alleged injury. This is also clear from the Court of Appeal’s decision in Hutton . Lack of a Hearing[25]I was particularly impressed by one statement in the written submissions of 8 th May 2012 from Ms Weston (paragraph 16: “If the learned judge felt that the explanations given by the [applicant] were unclear or needed further clarification, in preference to casting aspersions on her bona fides in her absence by describing her as “disingenuous” he should have directed an oral hearing of the timeliness issue as it cannot have been appropriate to dispose of the matter without a hearing”.[26]Rule 27(4)(a) certainly gives the First-tier Tribunal power to make a decision without holding an oral hearing, but this is a power, not an obligation, and it is one which must be exercised fairly and judicially and in accordance with the rules of natural justice, especially as rule 27(5)(a) makes it, in effect, a final decision. In many (perhaps most) cases there will be no problem with the use of this power; the facts might be undisputed and straightforward, there might be no explanation at all offered for the relevant delay, or it might be simply impractical to have an oral hearing. However, that is not so in all cases.[27]In VAA v First-tier Tribunal & CICA JR/0685/2009 Mr Justice Walker, sitting as Chamber President of the Administrative Appeals Chamber of the Upper Tribunal, pointed out that a judge of the First-tier Tribunal must explain why a decision has been made not to have an oral hearing.[28]In the present case the First-tier Tribunal Judge gave a standard (or perhaps pro forma) list of reasons, including “consideration of the documents in the appeal bundle” without giving any reasons relating to the specifics of the case. He also referred (paragraph 10) to “the overriding objective of the Rules which is to enable the Tribunal to deal with cases fairly and justly” and “the need for discretion to be exercised judicially”, which seem to me to point in the opposite direction from refusing to have an oral hearing. In my opinion it is usually an error of law not to refer to the specifics of the particular appeal when exercising this discretion or explaining how it has been exercised.[29]In R(AM) v First-tier Tribunal & CICA JR/3406/2012 in paragraph 19 Upper Tribunal Judge Rowland pointed out that: “Many litigants in person are better at expressing themselves orally than in writing and, as a class, they are notoriously bad at understanding what evidence is required in order to support their cases and how it should be presented or obtained”.[30]I do not propose to offer an exhaustive list of the factors that the First-tier Tribunal must take into account in all cases but the particular factors in this case which should have prompted the First-tier Tribunal to offer the applicant the opportunity to have an oral hearing include the complexity of the factual background (including the bungled rape investigation and the police complaint investigation and the time that it took to carry out the latter), the substantial medical evidence, the fact that the police had held on to the claim form from a date within the time limit period to a date well beyond the expiry of that period, the fact that the applicant believed that she needed the police information before submitting the claim, and her difficulties in expressing herself in writing.[31]Above all it is not appropriate to challenge the honesty or integrity of an appellant where there has been no hearing and no chance to respond to the matters leading to such a challenge. I do not know what the First-tier Tribunal really meant by referring to a particular argument by the applicant (which she denies having made) to have been “disingenuous” but she has stated that she understands this to be challenging her honesty and integrity.[32]The Upper Tribunal will not hesitate to quash a decision of the First-tier Tribunal where the power in rule 27(4) has been exercised to deprive the claimant of an oral hearing where, in the judgment of the Upper Tribunal, it should not have been so used. Any case in which some or all of the factors such as those referred to in paragraphs 30 and 31 above (and/or other factors that do not arise in this case) are present, is likely to fall into that category. Conclusions[33]I can only substitute my own decision for that of the quashed decision where without the relevant error(s) of law “there would have been only one decision that the … tribunal could have reached” (Tribunals, Courts and Enforcement Act 2007 section 17(1)(b) and 17(2)(c)). In the present case it is possible that even after holding an oral hearing and taking account of all of the evidence and understanding it all correctly, the First-tier Tribunal could properly conclude that, in the particular circumstances of the case, it would have been reasonable to expect the applicant to have made an application within the two-year period. However, because of the failure to offer the claimant the opportunity of an oral hearing, and to explain adequately why this was not being done, and because of the other errors identified above, I make the order that I have indicated in paragraphs 1 to 3 above. H. Levenson Judge of the Upper Tribunal 23 rd July 2013

Cited in 1 later judgment