[2024] UKUT 121 (AAC)

The incident for which the applicant is seeking compensation from CICA occurred on 2 June 2011. Given the narrow nature of the legal issues arising on this judicial review and the basis on which the application was refused by CICA, there is no need to consider the detail of that incident.

It is not disputed that the applicant did not apply to CICA for compensation until 29 April 2016. This is outside the two year time limit found in paragraph 87 of the 2012 Scheme, which provides, insofar as material, as follows:

“87……, an application must be sent by the applicant so that it is received by the Authority as soon as reasonably practicable after the incident giving rise to the criminal injury to which it relates, and in any event within two years after the date of that incident.”

The over two year delay was not however fatal to the application, if the applicant could satisfy paragraph 89 of the 2012 Scheme.

The applicant has succeeded before in a judicial review challenge to a decision of a previous First-tier Tribunal concerning her late application for criminal injuries compensation in respect of the incident on 2 June 2011. In those earlier proceedings (reference JR/1290/2019), Upper Tribunal Judge Levenson quashed the earlier First-tier Tribunal decision. Judge Levenson did so because that First-tier Tribunal had erred in law in (a) illogically relying on the applicant’s ability to engage in other procedures when her argument related to her lack of knowledge of the existence of the 2012 Scheme, and (b) by confusing the concept of needing to make enquiries with that of needing to analyse the considerable medical evidence already available. It was on this basis that the appeal came before the FTT on 1 February 2022.

For the reasons given by CICA, I accept that some caution needs to be taken in treating Judge Levenson’s decision as laying down any point of legal principle. This is because it was a decision given without sight of the submissions CICA had made in those judicial review proceedings. It was on this basis that Judge Levenson later accepted that there had been a procedural irregularity in those proceedings. However, Judge Levenson declined to set his decision aside because to do so would have lengthened those proceedings and both parties could make their submissions on the merits to the (new) FTT.

The FTT in the current judicial review proceedings made detailed findings of fact around the matters relevant to paragraph 89 of the 2012 Scheme. The relevant findings were as follows.

The FTT found that the applicant had reported the incident to the police on 2 June 2011 and had further ‘reported’ it to her GP the next day. She had had to push the police to make a statement, which she did on 12 June 2011. Then, in or about August 2011, she made a complaint to the police after it decided not to charge her alleged assailant. Ultimately, she and her partner spoke to the Commissioner for Thames Valley Police but this did not result in any charge being brought.

The applicant had spoken to “ordinary people” about the incident and also the CAB, seemingly in our about 2012, about it, but the CAB could not support her and advised she see a solicitor, which she was too nervous to do.

The FTT further found that the applicant had lost confidence but every so often when she had the confidence she asked the police what they were intending to do. It also found, crucially for these proceedings, that the applicant did not know about the existence of the 2012 Scheme until about two weeks before she made the application to CICA on 29 April 2016, after speaking to Zoe at ‘a voluntary organisation’ . (The FTT refers to the contact with Zoe being in “early Summer 2016”, but that cannot be correct.)

Further findings were made by the FTT that the applicant had a home computer on which she asked her partner to carry out research if required, that she used her local library for research into human rights matters, and she was not incapacitated between 2011 and 2013 such that she could not have made the application to CICA in time. Moreover, she was capable of making enquiries and her involvement with her complaint to the police and with the Information Communications Ombudsman, as well as her contact with the CAB and the advice to see a solicitor, showed “potentially knowledge was there for her to utilise”.

Furthermore, the FTT found that during the period concerned the applicant was involved in a campaign against the proposed closure of a local swimming pool, she was active in this activity and in seeking justice, and she wanted justice instead of compensation.

On the basis of the above findings, the FTT held that the applicant:

“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”.

It was at this stage in its fact-finding and reasons that the FTT stated:

“17(m) Of course ignorance is no defence and no excuse for delay.”

The FTT continued:

“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.”