“(a) due to exceptional circumstances the applicant could not have applied earlier and (b) the evidence presented in support of the application means that it can be determined without further extensive enquiries.”
“for myself I consider that it might often be more helpful to reverse the order in which the questions are answered, enquiring first why the applicant was unable to make his application earlier than he did and then going on to ask whether the circumstances preventing an earlier application could be characterised as exceptional. No point of principle arises, and the result should always be the same, but taking them in this order enables the court or tribunal to focus more intensely on whether the actual thing that prevented the applicant making his application earlier is properly to be characterised as exceptional.”
“… In para.15 of its decision, the FtT conclude that such ignorance of the scheme could not reasonably be described as an exceptional circumstance insofar as the petitioner was not a child at the date of the incident, did not suffer from any intellectual or cognitive deficit and who was intelligent, educated and socially aware … Taken by itself this reasoning is unexceptional. As counsel for the respondent pointed out, the petitioner could have made enquiries and found out about the scheme. But this is to take too narrow a view. The petitioner’s ignorance of the scheme has to be taken as part of the bigger picture, which is that of a victim of rape manifesting the reticence commonly seen amongst such victims as described in the authorities to which I have referred. The question is whether such a person, who is ex hypothesi reluctant to speak to anyone about the incident let alone report matters to the authorities, could reasonably be expected to make enquiries about a compensation scheme which depended upon her telling others about what had happened.”
“to borrow from paragraph 17.2 of CICA’s written submissions on this judicial review: there may be exceptional circumstances which mean that an applicant could not reasonably have made enquiries earlier”, per MM v CICA[2018] CSOH 63 ;[2018] SLT 843 , (see further below), and in such a case it may be that rule 89(a) of the 2012 Scheme might be satisfied.
“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.”
“[t]he concept of “conduct” in section 31(2A) is a broad one, and apt to include both the making of substantive decisions and the procedural steps taken in the course of decision-making. It is not expressly limited to ‘procedural’ conduct” (3). most recently, Bradbury at [74]: “the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred.”
“In my view, the principle is based on the fact that judicial review in the High Court is ordinarily a remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective. However, since it is a matter of discretion for the court, where it is clear that a public authority is acting in defiance of the rule of law the High Court will be prepared to exercise its jurisdiction then and there without waiting for some other remedial process to take its course.”
“You may also find our guide to the Scheme helpful and this can be found at www.gov.uk”
“entirely possible that at any point from August 2016 down to October 2019 when the claim was made, the Appellant might have easily been able to find out about domestic abuse and its place within the scheme.”
“17(k) could have researched the question of whether or not compensation was available for an instance such as she had been involved in and could have done that by a majority of means eg ask the Citizens Advice Bureau, ask a solicitor or use a search engine on a computer. ... “17(m) Of course ignorance is no defence and no excuse for delay ... “17(p) There is a delay between the acquirement of actual knowledge and the claim date but as the appellant’s partner points out this is minimal compared to the five year delay[beforehand]. In any event that delay is immaterial as it is the period of almost five years which the Tribunal considers to be fatal to the application. 17(q) The Tribunal’s conclusion is that in the light of the above the Appellant chose to pursue other matters such as the swimming pool issue or to seek justice ie the prosecution of the “offender” in the index event rather than look into the possibility of compensation. 17(r) The Tribunal also calls in aid page C2005 to show the fact that the appellant knew about the use of solicitors for the purpose of obtaining compensation as that document is issued by Capita on the instructions of Pannone and Partners LLP in connection with a compensation claim. 17(s) Thus as the appellant was pursuing other matters at the time it is difficult to conclude that her health prevented her from looking into the question of being able to seek compensation ... 17(u) If, however, the Tribunal were incorrect in that conclusion they would also point out that the Appellant would fall foul of paragraph 89(b) because the evidence before the Tribunal and [CICA] in support of the application is not sufficient in the Tribunal’s view. 17(v) The Tribunal agree with the Presenting Officer [for CICA]’s view that despite the volume of documentation it is not clear that the causal injuries would fall within the tariff set out in the Scheme. 17(w) In addition, further medical evidence would be required in the form of reports because the Appellant refers to PTSD, multiple sclerosis and limb pain. It is also likely that psychological reports would be required. 17(x) In the Tribunal’s view this meant that paragraph 89(b) could not be satisfied.”
“given that the Applicant was expressly told by the CAB that she needed to see a solicitor about the matter in 2012, it is clear that the Applicant could have applied earlier than 2016. That is, she clearly could have applied earlier by doing that which she was advised to do in 2012, namely seek the advice from a solicitor. However, she chose not to do.”
“27. However, CICA’s argument helpfully illustrates the inadequacy of the FTT’s approach to why the applicant did not in fact know about Scheme until the Spring of 2016. The force of CICA’s argument depends on the nature of “the matter” about which the applicant was seeking advice from the CAB, and that is not clear from the FTT’s findings and reasons. This was (and remains) of importance as what exactly the applicant was seeking advice from the CAB about is, in my judgement, relevant to her knowledge at the time she sought that advice and the knowledge she then had, and might have been expected to gain, when the CAB referred her to see a solicitor. In other words, what she was seeking advice about was relevant to whether the applicant could reasonably have made enquiries earlier than 2016. For example, was the applicant seeking advice about any redress, including compensation, she could obtain for the index incident in June 2011, or was her search for advice limited to whether she could take any further action to force the police to prosecute the alleged assailant? 28. The deficit in the FTT’s reasoning, in my judgement, was its failure to establish the context in which the applicant was seeking advice from the CAB about the “index event”, and this then ties in to the reasons why she was not aware that a criminal injuries compensation scheme existed until earlyish in 2016. 29. As I have said, the context might have been whether the applicant could receive any form of redress or compensation for the incident, though it might be thought that if that were the context then the CAB would havebeen able to tell her about CICA’s existence. The FTT’s findings at 17(i) and (j) that the applicant was “focussing on justice” and “seeking justice rather than compensation” may have been relevant to what it was the applicant was seeking advice from the CAB about, as too might the FTT’s finding in paragraph 17(d) that every so often the applicant got sufficient confidence “to ask the Police what they intended to do about the matter” (the underlining is mine and has been added for emphasis). But if this was the context in which the applicant (a) sought advice from the CAB and (b) could then have obtained further advice from a solicitor, CICA’s argument may well have force. 30. If, however, the applicant was instead seeking advice from the CAB about getting justice from the police, which paragraphs 17(d), (i) and (j) of the FTT’s written reasons might support, her failure to consult with the solicitor on that issue may not establish that she ought to have found out about the existence of the criminal injuries compensation scheme in 2012 or before when she did in 2016. 31. The latter context therefore does not necessarily provide an answer for why the applicant did not know about the criminal injuries compensation scheme until on or just before April 2016 or to whether she could (not) reasonably have been expected to make enquiries earlier than 2016. The reasons why the applicant did not know the Scheme existed until 2016 were relevant to whether the paragraph 89(a) ‘exceptional circumstances’ existed because they frame the reasonableness of the applicant’s actions (or her lack of action) in finding out about the Scheme’s existence. 32. Take the hopefully extreme example, which I emphasise is not this case, of an applicant who was given wrong information from someone they were entitled to accept as an authoritative source that no such scheme existed. Why then, subject to any intervening event or contrary information, could the applicant’s ignorance of the scheme not potentially amount to an exceptional circumstance under paragraph 89(a) of the 2012 Scheme? It is difficult in this example to see why itwould be considered reasonable for that applicant to seek further advice or information about the existence of the criminal injuries compensation scheme. But even on the applicant’s case, if she was not seeking advice from the CAB about financial compensation for injuries she considers she suffered due to the index incident, why that was so and why she did not in fact know (and did not take steps from the index incident occurring in 2011 to 2016 to find out about such compensation) were all, in my judgment, relevant to whether she satisfied the test in paragraph 89(a) of the 2012 Scheme. 33. I add here that I accept, as CICA argue, that the case law to which I referred when giving permission should be treated with caution in relation to paragraph 89(a) of the 2012 Scheme because that case law relates to the similar ‘late claim’ rules in earlier iterations of the Criminal Injuries Compensation Scheme and on any analysis the wording of paragraph 89(a) of the 2012 Scheme is both different and more restrictive than the wording used in those earlier rules.”
“34. However, the view I have expressed above about the importance of the FTT establishing why the applicant was in fact ignorant of the criminal injuries scheme between 2011 and before April 2016 is supported by one existing authority decided under the 2012 Scheme: MM v CICA[2018] CSOH 63 ; SLT 843. This a decision of the Outer House of the Court of Session. The key relevant passage in MM is at paragraph [45], which reads as follows (I have underlined the parts in it which I consider support my analysis): “45. The other matter mentioned by the FTT is the reliance placed by the appellant on her ignorance of the criminal injuries compensation scheme until after she had been to see Rape Crisis and subsequently reported the matter to the authorities. In paragraph 15 of its decision, the FTT conclude that such ignorance of the scheme could not reasonably be described as an exceptional circumstance insofar as the petitioner was not a child at the date of the incident, did not suffer from any intellectual or cognitive deficit and who was intelligent, educated and socially aware. I have touched upon this already, though only briefly. Taken by itself this reasoning is unexceptional. As Mr Pirie pointed out, the petitioner could have made enquiries and found out about the scheme. But this is to take too narrow a view. The petitioner’s ignorance of the scheme has to be taken as part of the bigger picture, which is that of a victim of rape manifesting the reticence commonly seen amongst such victims as described in the authorities to which I have referred. The question is whether such a person, who is ex hypothesi reluctant to speak to anyone about the incident let alone report matters to the authorities, could reasonably be expected to make enquiries about a compensation scheme which depended upon her telling others about what had happened. There is no doubt that ignorance of the scheme can be a relevant factor ... But much will depend upon the underlying circumstances and the reason for that ignorance. It is wrong, therefore, to consider ignorance of the scheme as a self-contained point – rather it is part and parcel of the package of circumstances which resulted in the petitioner not applying for compensation earlier. I should add, however, that I do not accept the argument advanced by Mr Pirie to the effect that because a majority of victims of rape or other sexual assault do not know about the possibility of making a claim for criminal injuries compensation under the scheme until they have reported the matter to the authorities, then it follows that ignorance of the scheme cannot be an exceptional circumstance justifying an extension of the time limit for making an application. For the reasons outlined above, the question of exceptionality must be considered in relation to the whole package of circumstances relied on.” 35. I direct the new First-tier Tribunal to whom this appeal is being remitted to decide the appeal in accordance with MM and with what I have said above about why the applicant was ‘ignorant of the law’ is relevant to the overall assessment of whether she met the ‘exceptional circumstances’ test in paragraph 89(a) of the 2012 Scheme.” “45. The other matter mentioned by the FTT is the reliance placed by the appellant on her ignorance of the criminal injuries compensation scheme until after she had been to see Rape Crisis and subsequently reported the matter to the authorities. In paragraph 15 of its decision, the FTT conclude that such ignorance of the scheme could not reasonably be described as an exceptional circumstance insofar as the petitioner was not a child at the date of the incident, did not suffer from any intellectual or cognitive deficit and who was intelligent, educated and socially aware. I have touched upon this already, though only briefly. Taken by itself this reasoning is unexceptional. As Mr Pirie pointed out, the petitioner could have made enquiries and found out about the scheme. But this is to take too narrow a view. The petitioner’s ignorance of the scheme has to be taken as part of the bigger picture, which is that of a victim of rape manifesting the reticence commonly seen amongst such victims as described in the authorities to which I have referred. The question is whether such a person, who is ex hypothesi reluctant to speak to anyone about the incident let alone report matters to the authorities, could reasonably be expected to make enquiries about a compensation scheme which depended upon her telling others about what had happened. There is no doubt that ignorance of the scheme can be a relevant factor ... But much will depend upon the underlying circumstances and the reason for that ignorance. It is wrong, therefore, to consider ignorance of the scheme as a self-contained point – rather it is part and parcel of the package of circumstances which resulted in the petitioner not applying for compensation earlier. I should add, however, that I do not accept the argument advanced by Mr Pirie to the effect that because a majority of victims of rape or other sexual assault do not know about the possibility of making a claim for criminal injuries compensation under the scheme until they have reported the matter to the authorities, then it follows that ignorance of the scheme cannot be an exceptional circumstance justifying an extension of the time limit for making an application. For the reasons outlined above, the question of exceptionality must be considered in relation to the whole package of circumstances relied on.”
“ ... In this case, the questions which the FTT was required to answer in terms of paragraph 89(a) of the scheme (as a jurisdictional threshold before any question arose of exercising a discretion to extend time for making an application for compensation) were twofold: first, were there exceptional circumstances? and, second, did any of them mean that the applicant could not have applied earlier than he did? This is the “two part process” referred to by the UT in BC v First-tier Tribunal and Criminal Injuries Compensation Authority[2016] UKUT 155 (AAC) at paragraph 15. I am content to adopt that formulation, though for myself, I consider that it might often be more helpful to reverse the order in which the questions are answered, enquiring first why the applicant was unable to make his application earlier than he did and then going on to ask whether the circumstances preventing an earlier application could be characterised as exceptional. No point of principle arises, and the result should always be the same, but taking them in this order enables the court or tribunal to focus more intensely on whether the actual thing that prevented the applicant making his application earlier is properly to be characterised as exceptional.”
“2. The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled: i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract. 3. If authority for all these propositions is needed, it may be found in Piglowska v Piglowski[1999] 1 WLR 1360 ; McGraddie v McGraddie[2013] UKSC 58 ,[2013] 1 WLR 2477 ; Fage UK Ltd v Chobani UK Ltd[2014] EWCA Civ 5 ,[2014] FSR 29 ; Henderson v Foxworth Investments Ltd[2014] UKSC 41 ,[2014] 1 WLR 2600 ; Elliston v Glencore Services (UK) Ltd[2016] EWCA Civ 407 ; JSC BTA Bank v Ablyazov[2018] EWCA Civ 1176 ,[2019] BCC 96 ; Staechelin v ACLBDD Holdings Ltd[2019] EWCA Civ 817 ,[2019] 3 All ER 429 and Perry v Raleys Solicitors[2019] UKSC 5 ,[2020] AC 352 . … 65. This appeal demonstrates many features of appeals against findings of fact: i) It seeks to retry the case afresh. ii) It rests on a selection of evidence rather than the whole of the evidence that the judge heard (what I have elsewhere called "island hopping"). iii) It seeks to persuade an appeal court to form its own evaluation of the reliability of witness evidence when that is the quintessential function of the trial judge who has seen and heard the witnesses. iv) It seeks to persuade the appeal court to reattribute weight to the different strands of evidence. v) It concentrates on particular verbal expressions that the judge used rather than engaging with the substance of his findings. 66. I re-emphasise the point that it is not for an appeal court to come to an independent conclusion as a result of its own consideration of the evidence. Whether we would have reached the same conclusion as the judge is not the point; although I am far from saying that I would not have done. The question for us is whether the judge's finding that the money was a loan rather than a gift was rationally insupportable. In my judgment it was not. In my judgment the judge was entitled to reach the conclusion that he did. I would dismiss the appeal.”
“It has also been recognised that a generous interpretation ought to be given to a tribunal's reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.”