IN THE UPPER TRIBUNAL	Case No.  JR/1917/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  This application for judicial review succeeds.  A quashing order is made in respect of the decision of the First-tier Tribunal dated 5 March 2013 and the case is remitted to a differently-constituted panel of the First-tier Tribunal who must re-decide the Applicant’s appeal against the review decision made by the Criminal Injuries Compensation Authority on 20 July 2011.

Directions:

1.	The Applicant is directed to send to the First-tier Tribunal, within one month of being sent a copy of this decision, a written submission as to the compensation to be awarded in respect of loss of earnings or lost earning capacity or in respect of special expenses (including care or private medical treatment).
2.	The Criminal Injures Compensation Authority is directed to send to the First-tier Tribunal, within one month of receiving a copy of the Applicant’s submission, a written submission in reply.
3.	The above Directions may be varied (by, for instance, extending time) or set aside (if, for instance, that appears appropriate in the light of any reconsideration by the Authority of the decision being challenged) by the First-tier Tribunal.  Any application for a variation or setting aside must therefore be made to the First-tier Tribunal.

REASONS FOR DECISION

1.	This is an application for judicial review, brought with my permission, of a decision of the First-tier Tribunal dated 5 March 2013 whereby it decided that the Applicant was not entitled to criminal injuries compensation in respect of an injury he suffered when assaulted on 26 March 2008.

2.	The Applicant’s claim for criminal injuries compensation was received by the Criminal Injuries Compensation Authority on 9 April 2008 and was therefore made under the Criminal Injuries Compensation Scheme 2001.  It initially resulted in an offer, on review dated 17 March 2009, of £1,837.50 in respect of corneal abrasions and facial scarring, after a deduction of 25% under paragraph 13(d) of the Scheme on the ground of the Applicant’s conduct before or during the incident.  That offer was accepted.

3.	However, the claim was then reopened on medical grounds and, after review and the making of an interim payment of £10,000, an offer of £23,156.25 was made on 20 July 2011 in respect of permanent disabling mental illness, partial loss of vision (less a 50% reduction in respect of pre-existing myopia), chronic fatigue syndrome, and special expenses in the form of the cost of a psychiatric report, again after an overall deduction of 25% under paragraph 13(d).  

4.	The Applicant appealed.  The original grounds of appeal were directed at the deductions.  However, at an otherwise abortive hearing in December 2011, the Applicant was encouraged by the First-tier Tribunal to pursue the question of loss of earnings or loss of earning capacity and to obtain legal representation and relevant evidence.  This suggestion may have been prompted by the Applicant’s curriculum vitae submitted with the notice of appeal.  Further interim payments totalling £5,000 were subsequently made.

5.	The appeal finally came before the First-tier Tribunal for determination on 5 March 2013.  Both parties were represented by counsel: Mr McBride for the Applicant and Mr Scott for the Authority.

6.	It is recorded in the First-tier Tribunal’s statement of reasons that –

“9.	Immediately before this hearing commenced, Counsel for the parties jointly informed the Tribunal that they had concerns about the capacity of the Appellant to deal with the hearing.  He was present and very distressed.  The Tribunal asked Counsel to take time to consider the matter further, and shortly thereafter was informed that the appellant had composed himself and was fit to proceed.

10.	The Tribunal was then informed that the Appellant was accompanied by his partner Ms M Burton who would be giving evidence as to the events giving rise to the index injury (the assault).  However, she asked to be present whilst the Appellant was giving his evidence in order ‘to help him with his evidence’.  The Tribunal considered and then refused that request and directed that Ms Burton should remain outside the hearing room until she was called to give her evidence, whereafter she could remain as moral support for the Appellant if that was what they both wanted.”

7.	The statement of reasons shows that the First-tier Tribunal first considered the evidence and arguments relating to the deduction under paragraph 13(d).  The issue was essentially whether the Applicant’s behaviour before the assault had contributed to the incident, which arose out of a dispute between the Applicant and his neighbours, “John” and “Janet”.  The statement of reasons shows that the First-tier Tribunal formed an unfavourable view of the Applicant and, rather than decreasing the deduction, it decided that it should be increased to 50%.  This was on the basis that the Applicant had deliberately gone to his neighbours’ house in anger in order to confront John but had not instigated the violence.  I understand that that decision was announced to the parties before the First-tier Tribunal turned to consider other issues.

8.	It is unnecessary to set out all the reasoning but it is noteworthy in the light of what the Tribunal had been told by counsel that it recorded the following findings in its statement of reasons –

“29.1	Whilst there was medical evidence that the Appellant was suffering from Post Traumatic Stress disorder, there was none to suggest that he was not mentally competent to give evidence.  He obviously understood the questions being asked and at no time was the Tribunal concerned that he was not able to answer them.

29.2	In light of the Appellant’s demeanour throughout, he was not a credible witness.  There were notable pauses whilst he thought about his answers to some questions – particularly about whether he had used a piece of wood to bang on the wall.  He had changed his mind about why he was not wearing glasses when he went next door.  He had told the Tribunal that he had never had any conversation with his neighbours and had never made any direct complaint to them, but that was contrary to Ms Burton’s evidence.  He had denied at the hearing that he had called John a cokehead, but had admitted doing so to the police.  He told the Tribunal that he did not touch Janet at all, but other evidence was that he had karate kicked her to the ground to get her off him.  He said at the time of the assault he was at arm’s length from the door.  Ms Burton said he was at the door.  Witnesses said that he was over the threshold and in the house.  He had greatly exaggerated his medical symptoms consequent on the assault to [a psychotherapist].

29.3	The Appellant was tearful and appeared agitated and distressed at various stages during the hearing.  For instance, he had asked to leave the room whilst Ms Burton gave her evidence, because he could not bear to hear about the assault again.  However, the Tribunal noted that he largely lost these symptoms when he was concentrating on answering questions – they returned when he was not directly engaged in the proceedings, such as when the police officer was giving evidence.  His distress was contrived and calculated to influence the Tribunal’s view of the Appeal.”

9.	The question whether there should be a deduction from the part of the award attributable to loss of vision due to the Applicant’s pre-existing condition appears to have been put on one side to be determined in the light of the documents and the First-tier Tribunal’s own expertise after the hearing had concluded.  

10.	The First-tier Tribunal then turned to the question of loss of earnings or earning capacity and began to hear evidence and argument on that issue.  The Applicant had been claiming benefits, mainly on the basis of incapacity for work, for some eight years prior to the incident and so his claim was for loss of earning capacity rather than loss of earnings from existing employment.  His case was that, after discharge in January 2008 from successful hospital treatment in respect of his poor vision, he had intended at the time of the assault to return to work as a self-employed plumbing and heating engineer.  His solicitors had submitted a letter to that effect, with a copy of a letter from the Applicant, his curriculum vitae, a letter dated 17 July 2012 from a former employer as to the Applicant’s earnings from 1994 to 1997, documents concerning the earnings of plumbers in general and an unrelated claim for the costs of moving house.  The Authority had obtained from HMRC, DWP and the relevant local authority documents relating to the Applicant’s National Insurance contribution record, tax affairs and benefits.

11.	The First-tier Tribunal’s statement of reasons states –

“37.	The Tribunal began to take the Appellant through the Curriculum Vitae which he had supplied and which was at T267-271 of the bundle. That showed that he had City and Guilds qualifications in plumbing and related skills and had served as an apprentice plumber between 1981 and 1985. For the period between 1994 and 1997 (the period covered by the letter) it showed that from January 1993 to June 1995 he had owned and managed a 48 seat take away and restaurant. From September 1995 to August 1997 he had been a self employed handyman and between August 1997 and February 2000 he became involved in computers, initially working from home and building up to a self employed shop owner/manager with 6 employees. He said that he had made a profit of £130,000 in that business. He had given it to someone to invest on the stock market but it had all been lost.

35.	At that point the Tribunal asked the Appellant where those profits were shown to have been disclosed to HM Revenue and Customs. His tax returns, details of which were in the bundle at T231 to T350, were for more recent periods but his National Insurance Contribution Record at T316/7 of the bundle showed the relevant earnings factor in relation to his contributions during this period to have been no more than £3,200 in any one year. His National Insurance Contribution Record also showed that between 1994 and 1997 he had received National Insurance credits for 50 weeks in 1994/5, 48 weeks in 1995/6 and 35 weeks in 1996/7 which meant that HM Customs and Excise understood that he was not working during that time and he had been in receipt of benefits.

36.	Mr McBride intervened at this point and, at his request, the hearing was briefly adjourned so that he could confer with the Appellant. When the hearing resumed, Mr McBride said that his instructions were that there was an inheritance of £30,000. There was no additional £100,000. He asked us to accept that in making the assertion of £130,000 of profit, the Appellant had made a mistake.

37.	The Tribunal warned the Appellant that if it was to take the view that he had sought to mislead the Tribunal, it would take a very serious view of that, and explained the provisions of paragraph 13(e) of the Scheme. It asked for representations from the parties.

38.	For the Respondent, Mr Scott said that it was clear that the Tribunal could not believe a word that the Appellant said. Mr McBride had no representations to make.

39.	The Tribunal found that the Appellant had wilfully sought to mislead it as to the nature of his past employment and earnings. In light of that finding, it considered that it was not appropriate to make any or any reduced award at all and dismissed the Appeal in its entirety. It was not therefore necessary to go on to make any finding as to the authenticity of the letter or the implications of the National Insurance Contribution Record to which I have already referred.”  

[The duplication of paragraph numbers is in the original.]

In both the decision notice and at the head of the statement of reasons, the First-tier Tribunal confirmed that paragraph 13(e) of the Scheme was the basis for its decision.

12.	Having received the statement of reasons, the Applicant sought permission to apply for judicial review of the First-tier Tribunal’s decision.  The application was refused on the papers by Upper Tribunal Judge Levenson but the Applicant asked for the decision to be reconsidered at a hearing that took place before me on 27 February 2014.  At the hearing, the Applicant was represented by Ms Burton, his partner, and the Interested Party was represented by Mr Andrew Wastall of counsel, instructed by the Treasury Solicitor.  The First-tier Tribunal, which is technically the Respondent to these proceedings, quite properly neither appeared nor was represented.

13.	Following the hearing, some further documents were submitted, in respect of which I issued directions and I also directed the First-tier Tribunal (i.e., the panel comprising a judge and two members who heard the case) to clarify whether the decision it made on 5 March 2013 was (a) that no award at all should be made or (b) that a reduced tariff award should be made but no award in respect of loss of earning capacity should be made.  Although I had read the decision notice and summary reasons as being to the effect that no award at all should be made (with the implication that the interim awards that have been made were recoverable) and I did not have any substantial doubt on the issue, I accepted that there was arguably an ambiguity because it was odd that the First-tier Tribunal should have set out its initial reasoning on the appropriate deduction in respect of the tariff award in such detail if it had subsequently decided that there should be no award at all for reasons that rendered that initial reasoning entirely academic.  It seemed fair to the Applicant (who did not appear to have appreciated that the interim awards might be recoverable from him), and no great inconvenience to the panel, that the panel should be afforded an opportunity to make it absolutely clear what it had intended to decide.  My initial direction, dated 25 March 2014, resulted in an unsatisfactory response from a different judge of the First-tier Tribunal and, after administrative prompting by the Upper Tribunal, I issued a further direction on 9 September 2014 which was simply ignored until in December 2014 I arranged for the matter to be drawn to the attention of the relevant principal judge.  The Upper Tribunal has now been informed that the judge who presided at the hearing on 5 March 2013 has sadly died.  The need for clarification of the decision has, in any event, passed.

14.	On 16 December 2014, I granted permission to apply for judicial review, giving the following reasons –

“Some considerable time ago, I drafted reasons for refusing permission to apply for judicial review, which is the decision I intended to make when the First-tier Tribunal had made clearer what it had decided.  The First-tier Tribunal still has not replied to my Direction dated 9 September 2014 and I have arranged for that matter to be drawn to the attention of the Principal Judge.

However, in R(SB) v First-tier Tribunal (CIC) [2014] UKUT 497 (AAC), a three-judge panel of the Upper Tribunal has meanwhile held that the First-tier Tribunal has no jurisdiction to consider a question that has not been considered by the Criminal Injuries Compensation Authority in the review decision under appeal.  It is therefore arguable that the First-tier Tribunal erred in law in this case in deciding first to embark on consideration of the claimant’s claim in respect of loss of earning capacity and secondly to consider whether the award or any element of it should be withheld under paragraph 13(e) of the 2001 Scheme, when neither of those issues had been addressed by the claims officer.”

15.	In the light of SB, now reported at [2015] AACR 16, it is now rightly conceded in a submission by Mr Michael Hanlon, solicitor, on behalf of the Authority that the decision of the First-tier Tribunal was wrong in law and must be set aside on the ground that the First-tier Tribunal had no jurisdiction to consider whether any award should be withheld under paragraph 13(e) of the Scheme, because that was not an issue considered by the Authority in its review decision or in respect of which the claimant had appealed.

16.	However, Mr Hanlon continued –

“25.	The CICA further submits that it was open to the FTT to consider the loss of earnings.  As it reached a decision as to the amount of an award in its review decision, the CICA has to be taken to have considered all relevant heads of claim.  If the FTT considered that the issue of loss of earnings had not been addressed appropriately in the review process, it was entitled to consider that matter.”

17.	On 31 March 2015, I issued a further direction expressing some doubt about that submission.  I said –

“3.	It seems to me to be arguable in the light of R(SB) v First-tier Tribunal (CIC) [2014] UKUT 497 (AAC) that, because the review decision was completely silent on the question of any award for loss of earnings or earning capacity and because the different elements of an award under paragraph 23 of the Criminal Injuries Compensation Scheme 2001 appear to be no less distinct than the different grounds upon which a claims officer may withhold or reduce an award under paragraph 13, the First-tier Tribunal did not have jurisdiction to consider a claim for loss of earnings without a claims officer having first considered the issue. 

4.	Arguably there are more practical advantages in this being the position under paragraph 23 than there are under paragraph 13, because claims for loss of earnings or loss of earning capacity can be complicated.  If, when issuing a decision to make a tariff award in a case where the claimant had not raised loss of earnings or loss of earning capacity as an issue, the Authority routinely expressly stated that it was not making an award in respect of loss of earnings or loss of earning capacity because none had been claimed or earning capacity was not affected for more than 28 weeks, as the case might be, the claimant would be alerted to the issue and on notice to raise it, if he or she wished, in an application for review or a request for reconsideration under paragraph 53.  This, however, raises the question whether there would be a public law duty to reconsider a case under paragraph 53 following such a request.

5.	I am not sure that the present case is the right one in which to determine such issues.  The question whether there should be an award in respect of loss of earnings or loss of earning capacity has now been clearly raised and should be determined, subject to the Applicant still wishing to pursue it and to any question there might about reducing or withholding the total award.  Even if the Interested Party is correct, it still seems to me to be desirable that there should be submissions by the parties on the question of the amount of any such award so that the case of each party is clear.  I observe that, despite having legal representation before and at the last hearing before the First-tier Tribunal, the Applicant had not quantified his claim before the hearing or sought the Authority’s agreement to a figure so that the area in dispute was clearly identified.  The lack of any written submission by the Applicant meant that there was no submission in reply from the Authority, in which an alternative figure could have been advanced and the inconsistencies in the Applicant’s documentary evidence exposed.  In practical terms, the hearing proceeded as though it was a claim brought before the First-tier Tribunal rather than an appeal against a decision of the Authority.  Where the issue is complicated, that can be to the disadvantage of both parties.  It might have been helpful had the First-tier Tribunal directed submissions.

6.	It seems to me that there is not a great deal of practical difference between, on one hand, requiring the Applicant and Interested Party to make submissions to the First-tier Tribunal and, on the other hand, requiring the Applicant to formulate a claim for compensation for loss of earnings or earning capacity and requiring the Interested Party to make a new decision incorporating a decision as to whether to award such compensation.   Indeed, a submission by the Interested Party could be treated as a decision of the Authority if that were technically necessary.

7.	Accordingly, rather than determine the jurisdictional issue in this case, I propose to make the decision suggested by the Interested Party (i.e., to quash the decision of the First-tier Tribunal and remit the case to a differently-constituted panel of the First-tier Tribunal to hear the Applicant’s original appeal to it) but also to direct the Applicant and the Interested Party to make sequential submissions to the First-tier Tribunal, as to compensation to be awarded in respect of a loss of earnings or lost earning capacity, before it hears the case.”

18.	I gave the Authority an opportunity to make a further submission but it has quite reasonably chosen not to do so.

19.	The Applicant, who is now represented by Irwin Mitchell, solicitors, has also not raised any objection to my proposal but he has raised the possibility of other heads of claim being considered and, in particular, the cost of care and private health treatment (see paragraph 35 of the Scheme).  I see no reason why any such claims should be treated any differently from the claim in respect of lost earning capacity.  Accordingly, I have included them in my directions above.

20.	In these circumstances, it is not necessary – and does not appear desirable – for me to explain why, in the absence of SB, I would have refused permission to apply for judicial review.  That the First-tier Tribunal may not have erred in law (apart from not anticipating SB), does not mean that it may not have erred in fact both in its findings as to the Applicant’s conduct at the time of the assault and in its findings in relation to his evidence about his business profit.  The Authority, if minded to reconsider its review decision under paragraph 53 of the Scheme, and the First-tier Tribunal must form their own judgements in relation to the evidence available to them.  I would merely comment that, if it considers that evidence given to the First-tier Tribunal on 5 March 2013 in connection with the Applicant’s loss of earnings claim justifies withholding all or part of the award that would otherwise be made, paragraph 13(c) of the Scheme (“the applicant has failed to give all reasonable assistance to the Authority or other body or person in connection with the application” may be a more obvious provision under which to make the decision than paragraph 13(e) (“the applicant’s character … makes it inappropriate that a full award or any award at all be made”).  

Mark Rowland
1 July 2015