JR/1191/2010

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision

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 refuse an award under the Criminal Injuries Compensation Scheme 2001. The decision of the First-tier Tribunal was made at Victory House (London) on 13th February 2010 after a hearing on 12th January 2010 under reference X/06/24799. 

2. I refer the matter to a completely differently constituted tribunal in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision by a panel that does not include any member who has considered this matter hitherto. The new panel must consider all evidence afresh and make its own findings irrespective of previous findings. 
 
3. The applicant is a claimant for criminal injuries compensation. The respondent to this application is the First-tier Tribunal (Social Entitlement Chamber). The interested party is the Criminal Injuries Compensation Authority.

4. The claimant and/or his representatives 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. The fact that the application has succeeded at this stage is not to be taken as any indication as to what the First-tier Tribunal might decide in due course.

The Facts

5. The applicant is a man who was born on 28th January 1961. The incident occurred at about 10.20 am on 21st September 2006, while he was unemployed. According to the applicant, he was crossing Kingston Bridge when a man ran past him and hit him on the head, causing severe pain to his ear. The applicant pursued him and caught up with him. The next thing he knew was that he was being helped to his feet by some people who had stopped in a car who told him that he had been unconscious. He had blood running from his right nostril and believes that the other man had struck him on the mouth with a blunt instrument “but I remember nothing of how he hit me”. The driver of the car had said that he was a solicitor but no witnesses have actually been traced and a police survey of CCTV footage has produced no relevant material. The applicant reported the incident to the police on the afternoon of 24th September, the third day after it happened, and was given a crime reference number. The First-tier Tribunal found that the applicant had been the victim of a crime of violence (paragraph 9 of its decision).

6. On the claim form the applicant described the injuries received as “Lasting pain in right ear, painful and bruised coccyx, split upper lip with numbness of the teeth behind”. He did not seek any medical attention until he saw his GP on 4th October 2006. This was 13 days after the incident and by then the GP noted “currently – scar above left lip, no other bruises visible” (see report of 21st December 2009 from Dr O’Flynn).

Procedure 

7. The present claim was made under the Criminal Injuries Compensation Scheme 2001 (“the 2001 scheme”) on 9th October 2006 and received on 13th October. On 14th September 2007 the Criminal Injuries Compensation Authority (“the authority”) refused to make an award of compensation because there had been an unreasonable delay in reporting the matter to the police. On 29th December 2007 the applicant requested a review of this decision but the authority refused to review because the request to do so had been made out of time. On 4th July 2008 the Criminal Injuries Compensation Appeals Panel (whose jurisdiction was absorbed into the First-tier Tribunal on 3rd November 2008) decided to waive the time limit for a review of the decision made by the authority on 14th September 2007. On 28th May 2009 the authority carried out the review but confirmed the decision to refuse any award. It is unfortunate that all these procedures took so long, so that the final decision by the authority was made nearly three years after the incident.

8. On 15th June 2009 the applicant appealed to the First-tier Tribunal against the decision of the authority. The appeal was heard on 12th January 2010 and by its decision of 13th February 2010 the tribunal confirmed the decision of the authority. I can see no evidence in the file as to when notice of this decision was sent to the applicant. On 2nd May 2010 he signed an Upper Tribunal Judicial Review claim form and this was received either on 2nd May 2010 or 10th May 2010 (or possibly on some other unrecorded date). For the avoidance of doubt and in accordance with the provisions of the Tribunal Procedure (Upper Tribunal) Rules 2008, I accepted jurisdiction and waived any failure to comply with procedural requirements that would otherwise have prevented me from dealing with this application. 

9. On 12th August 2010 I held an oral hearing of the application for permission to apply for judicial review. The applicant attended in person but was unrepresented. Neither the respondent tribunal nor the interested party was represented. On 13th August 2010 I gave permission to apply and directed submissions, especially on the meaning of “disfigurement”. On 7th March 2011 I directed further submissions on how the tariff is to be applied. Final submissions were received by the Upper Tribunal on 8th April 2011 but the file was not referred back to me until 27th April.

The 2001 Scheme

10. So far as is relevant, the 2001 scheme provided as follows:

13. A claims officer may withhold or reduce an award where he considers that:  
(a) the applicant failed to take, without delay, all reasonable steps to inform the police … of the circumstances giving rise to the injury …

25. The injury … must be sufficiently serious to qualify for compensation equal at least to the minimum award under this Scheme in accordance with paragraph 26 …

26. The standard amount of compensation will be the amount shown in respect of the relevant description of injury in the Tariff … Level 1 [£1000] represents the minimum award under this Scheme …. 

11. The applicant’s case is that he is entitled to a level 3 award of £1500 for scarring of the face with minor disfigurement.

The Natural Justice and Fair Procedure Point

12. Throughout the history of this claim, right up to the First-tier Tribunal hearing on 12th January 2010, the focus had been on whether any award should be withheld under the provisions of paragraph 13 of the 2001 scheme. There was much argument and discussion as to why there had been a delay by the applicant in reporting the incident to the police. On this point the tribunal said (paragraph 13 of its decision):

	13. The Tribunal found as a fact that:
(1) There was a failure to report the assault under paragraph 13(a) [of the 2001 scheme] and that this was a culpable failure … He had the opportunity to report the assault on a number of occasions and by a number of means, but chose not to do so until 24th September 2006.
(2) Whilst this finding would have merited a reduction in the claim it would not, of itself have made it inappropriate to make an award.
(3) The appeal was not therefore dismissed under paragraph 13(a), but the further and more pressing issue was whether the injury was sufficiently serious to merit a minimum award under the scheme.

13. Of course, only sub-paragraph (1) was actually a finding of fact, but the natural justice point is that the applicant says that it was not until some way into the First-tier Tribunal hearing that the issue in sub-paragraph (3) was raised, it had never been raised before, he had had no warning of it and no advance opportunity to check the legislation and the rules, and that this was all very unfair. This is a reasonable point, but as I am quashing the decision in any event, the applicant will have a fresh opportunity to argue his case.

Scarring and Disfigurement

14. Having ruled out any other basis for an award (on which I make no comment) the tribunal considered “scarring of the face with minor disfigurement” and stated (paragraph 15):

15. At the hearing the [applicant] consented to the lip injury being visibly assessed … under direct and good lighting conditions at close quarters. That examination showed that the scar was about between 0.5 – 1 cm, barely visible, faint and non-raised. It was in fact difficult to identify without the assistance of the [applicant].

15. The tribunal recorded that the applicant expressly accepted that the scar was not disfiguring, and itself found as a fact that it was not disfiguring. In paragraph 16 the tribunal stated that “Acting within its discretion the Tribunal found that the scar on the lip did not qualify for an award as it was not “disfiguring” within the meaning of the Scheme”.

16. As I indicated when granting permission to make this application, I am not sure what the tribunal meant by “acting within its discretion”, nor by “within the meaning of the scheme”. The tribunal did not expand on what it understood “disfiguring” to mean or explain why the scar did not amount to “minor disfigurement”. At the oral hearing of the application for permission to apply, the appellant denied having accepted that the scar is not disfiguring and maintained that it is disfiguring. However, even if he did make this concession at the First-tier Tribunal it is not a very significant concession if he had no opportunity to consider what was meant by the word.

17. On 18th August 2010 the Solicitor to the Criminal Injuries Compensation Authority made written submissions which included the following paragraph:

“4. With regard to scarring, the Authority consider that if there is a permanent and noticeably visible disfigurement as a direct result of the incident, then an award should [be] made. The term “disfigurement” is considered by the Authority to mean a permanent change in an applicant’s body, particularly where a visible scar is left which affects an applicant’s appearance. It is not believed that the scar the applicant has been left with is a “noticeably visible disfigurement”.

18. I am not sure how far this assists. If a visible scar is left, then surely by definition it affects an applicant’s appearance, even if only to a very minor extent. The qualification “noticeably” begs questions as to noticeable to whom, at what distance and in what conditions. In the present case the First-tier Tribunal found that the scar was “barely visible”, which must mean that it was in fact visible, but found that it was not disfiguring. I admit to some difficulty with the concept of a non-disfiguring visible scar.

19. The Tariff of Injuries in the 2001 scheme includes the following under the general heading “Head and Neck”:

	Burns
	
Head
-	minor visible disfigurement
-	moderate 
-	severe
Face
-	minor visible disfigurement
-	moderate 
-	severe

Neck
-	minor visible disfigurement
-	moderate 
-	severe

Scarring

Head
-	minor visible disfigurement
-	significant disfigurement
-	serious disfigurement
Face
-	minor visible disfigurement
-	significant disfigurement
-	serious disfigurement
Neck
-	minor visible disfigurement
-	significant disfigurement
-	serious disfigurement

20. For each of the above descriptions there is specified a level and amount, ranging from level 3 and £1500 (including for all the “minor visible disfigurement” descriptions under the scarring” heading, to level 18 and £27,000 for “severe” under the “burns/face” heading. 

21. The Upper Tribunal Registrar has carried out some research from which I was surprised to find that not only is there no statutory definition for these purposes, but there is not really any case law either. Certainly the Criminal Injuries Compensation Authority has not referred to any. Accordingly, whether there is visible scarring and whether disfigurement is minor, significant or serious, are questions of fact for the First-tier Tribunal applying the ordinary meaning of the words “scarring”, “minor”, “significant” or “serious”.

22. However, if there is visible scarring of the face, there is a choice of three levels; it seems to me that if there is neither significant disfigurement nor serious disfigurement (which are questions of fact for the First-tier Tribunal), then as a matter of law there must be minor disfigurement because there is no category of scarring without disfigurement, and paragraphs 25 and 26 do not provide for such a category. If there is visible scarring, paragraph 25 of the 2001 scheme is thereby satisfied. The same analysis would apply to the other categories of description. The Criminal Injuries Compensation Authority disagrees with this analysis (and supports the decision of the First-tier Tribunal) but has offered no real contrary argument.

H. Levenson
Judge of the Upper Tribunal 

13th May 2011