[2024] UKUT 18 (AAC)

By an application form completed on 2 March 2022 (pages 2 to 11) and received by the Upper Tribunal on 23 March 2022, Miss S applied for permission to bring judicial review proceedings to challenge the First-tier Tribunal’s decision. The application was received by the Upper Tribunal just over one month late. The Upper Tribunal admitted it in view of Miss S’s illness.

In her application form to the Upper Tribunal, Miss S advanced the following grounds to challenge the First-tier Tribunal’s decision—

“I am fully disagree with the judge who made written reasons.

Miss S also sent to the Upper Tribunal emails on 9 August at 21.48, 9 August at 21.54 (enclosing a certificate of entitlement to Personal Independence Payment and letter from the police dated 10 December 2016), 10 August (a duplicate of the second of the 9 August) and 11 August 2023. In her email of 11 August, the applicant repeated her disagreement with the First-tier Tribunal’s decision and added that “On sick leave doctors written one of many problems on not all the issues” and that “Ps.I requested the letter from the Coty Airport(SSP) the letter with my attendance to work”. No letter from City Airport was supplied to the Upper Tribunal after that email.

I directed an oral hearing of the application because I wanted CICA’s input on certain matters.

The matters on which I wanted CICA’s input at the permission hearing related to how the back condition was dealt with by CICA and by the First-tier Tribunal. The First-tier Tribunal appeared to have rejected the notion that Miss S’s back condition was due to domestic abuse. But that tribunal had nonetheless upheld the CICA review decision (paragraph 5, written reasons). The CICA review decision had however increased the amount for the physical injury by departing from CICA’s original decision which had not accepted that the back condition was the result of domestic abuse, and instead CICA accepted in the review decision that the abuse was the “root cause” of the back problems (page A24, fourth paragraph). But having apparently disagreed with the review decision on that causation point, the First-tier Tribunal did not then decrease the physical injury award back down from what CICA had increased it to. If the reason the First-tier Tribunal did not do that was because it did in fact agree with CICA that the back condition was caused by the domestic abuse, that was material because there were in the medical notes more than 28 weeks of sickness absence that were caused by the back condition.

At the permission hearing before me, Miss S reiterated her disagreement with the First-tier Tribunal’s decision. She said that the First-tier Tribunal should have accepted that the back condition was from domestic abuse and should have accepted that she had had more than 28 weeks off work due to the domestic abuse (for the loss of earnings).

Miss S told me that her doctors in Poland all say she cannot work and that she will never be able to work. She had sent what appear to be Polish medical documents, but was unable to produce a letter from any of them to that effect, even in Polish. As to her GP in the UK, Miss S said “it is not my fault if doctors put back condition rather than mental health” in the GP notes as to cause of sickness absence. Miss S cited the parts of the GP letter dated 16 July 2020 “To whom it may concern” which said “This is to confirm that there is extensive documentation throughout [Miss S’s] notes regarding her problems due to domestic violence” and “She has had prolapsed disc in 2009 and this is reported as being a direct result of assault” (page C179). Miss S said that these extracts showed that her back condition was caused by the domestic violence. She argued that this case is not about the money but about what she went through and that she should be awarded more money.

Miss S pointed, at the permission hearing, to the part of the 10 December 2016 letter from the police which said that her husband “is currently on remand until a trial at Wood Green Crown Court in February 2017 charged with Threats the [sic] Kill and Threats to Cause Arson”. She submitted that this proved that her husband had tried to kill her.

For CICA, there was for the permission hearing a helpful and thorough written submission from Robert Moretto of counsel, in which he said among other things that Miss S is seeking to do no more than reargue her case. Ms Beesley made oral submissions in accordance with Mr Moretto’s written submission. She submitted that the findings were supported by the evidence and that, playing devil’s advocate, she could find no evidence to support the applicant’s contentions.

As to the back injury, Ms Beesley’s submissions for CICA at the permission hearing were to the effect that it was the RTA of 14 August 2014 (Footnote: ¹) – and not the domestic violence – that had caused any back injury and so no loss of earnings payment was merited because the time off work due to back pain, although exceeding 28 weeks (paragraph 44 of the scheme), was not attributable to the domestic violence (paragraph 43(1) of the scheme) and time off for anything attributable to the domestic violence did not exceed 28 weeks either. This reflected paragraphs 39, 41 and 42 of Mr Moretto’s written submission dated 3 March 2023.