[2024] UKUT 121 (AAC)

Given the stance of both parties, and in any event, I am prepared to accept that the FTT’s decision should be quashed under the third ground on which I gave permission for judicial review. The FTT erred in law in failing to show through its reasons that it had fully and properly ascertained the nature of the appellant’s vulnerabilities as a vulnerable adult and how they should be addressed. I agree with CICA, and for the reasons it gives, that this was particularly so in the context of the appeal being dealt with at a telephone hearing.

I am concerned, however, by the potential argument that the above would not have been a material error of law if, as CICA argues, the FTT did not err in law under either of the other two grounds of appeal. As Upper Tribunal Judge Perez pointed out when she refused to give permission for these judicial review proceedings, if the FTT directed itself correctly in finding paragraphs 89(a) and 89(b) could not be met on the applicant’s evidence, it may be difficult to see on what basis the third ground of appeal led the FTT into any material error of law. However, (a) neither party is arguing for such a result before me, (b) these proceedings are now of some vintage (for which in respect of my contributing delays I apologise) and it would be inappropriate to extend them by seeking further submissions or a further oral hearing, and (c) even on CICA’s case, and otherwise, the third ground of appeal has an overarching effect which means that the FTT may not have gathered all relevant evidence from the applicant under both paragraph 89(a) and (b) of the Scheme.

The above is therefore sufficient to dispose of these proceedings and allow the judicial review of the FTT’s decision of 1 February 2022.

I remain troubled, however, by the FTT’s view that being ignorant [of the existence of 2012 Scheme] is no defence and no excuse for any delay, and how that may have affected its approach to the overall question of whether due to exceptional circumstances the applicant could not have applied to CICA earlier than she did in April 2016. I am satisfied for the reasons I give below that the judicial review should also succeed on the first ground on which I gave permission.

In my judgment, that there can be no a priori exclusion of a person being ignorant of law from the exceptional circumstances which may show they were not able to apply to CICA any earlier than they did. Nor do I understand CICA to be arguing for such a result. Its argument is that the FTT, having found that the applicant did not in fact know about the Scheme, did enough to explore why the applicant did not and what she could have done to find out about the Scheme, and so ought to have known about it before April 2016. But, 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 enquires 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. That, however, is part of the overall evaluation of the circumstances under paragraph 89(a).

I can see that there may be force in CICA’s argument under the first ground of appeal that:

“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.”

This will now be an evidential matter for the new First-tier Tribunal to explore and determine.

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?

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.

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 have been 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.

If, however, the applicant was instead seeking advice from the CAB about getting justice from the police, which paragraphs 17(d), (i) and (j) pf 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.

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.

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 it would 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.

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.

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.”

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.

I note, lastly, what CICA’s submission to the Upper Tribunal says about paragraph 89(b) of the 2012 Scheme. As I read it, it accepts the FTT’s reasons were brief but argues that the evidence before the FTT supported, and very arguably only supported, paragraph 89(b) not being met. In other words, that evidence shows that further extensive enquiries would be required by a claims officer in order to determine the (late) application. Those points have not been the subject of any argument before me. I see the potential force in them, but they will now be part of the evidential considerations the new First-tier Tribunal will have to consider afresh.