[2024] UKUT 121 (AAC)

After an oral hearing on 13 July 2023, I gave the applicant permission to judicially review the FTT’s decision. I did so on the following three grounds.

“4.

First, it is arguable that the First-tier Tribunal erred in law in failing to ascertain why [the applicant]] was not aware of the Criminal Injuries Compensation Scheme (“the Scheme”) as part of its overall assessment of whether, per rule 89(a), due to exceptional circumstances [the applicant] could not have claimed earlier. This may be said to involve the same error Upper Tribunal Judge Levenson held the previous First-tier Tribunal to have made, namely illogically relying on [the applicant’s] ability to engage in other procedures when her argument related to her lack of knowledge of the Scheme’s existence.

5.

[The applicant’s] case, as I understand it, in essence was that she had no knowledge that any Scheme existed until she had been told about it by Zoe (from Victim Support) in the early summer of 2016. [The applicant] had looked to the police to tell her of the remedies available to her after the alleged assault. Her case is that the police did not tell her anything about there being a Scheme. It appears that a police officer accepted before the first First-tier Tribunal that he had not told [the applicant] about the Scheme. This evidence was apparently not noted or explored by the First-tier Tribunal on 1 February 2022. It was further [the applicant’s] case that when a police inspector told her that the CPS had decided against bringing a prosecution against her alleged assailant, the Inspector had limited the information about what remained for [the applicant] to do to seek redress to her bringing a private prosecution against her alleged assailant.

6.

The First-tier Tribunal’s approach to this issue appears to have been (i) that [the applicant] did not know about the Scheme, (ii) however ignorance of the law was no excuse, and (iii) given her other activities, she could have found about the Scheme had she researched matter online (i.e. she ought to have known about it). It is arguable the First-tier Tribunal erred in law in this approach in ruling out from its consideration why [the applicant] was ignorant of law and consequently focusing decisively on what she ought [to] have known. It is arguable that being ignorant of law was no more than a starting point for consideration of whether the rule 89(a) exceptional circumstances existed. The critical issue is arguably why the person did not know about the Scheme (see paragraph [11]-[12] of GS v FTT(Social Entitlement Chamber) [2013] UKUT 628 (AAC) and the other authorities cited therein) and not that such ignorance cannot assist the person.

7.

Second, it is arguable the First-tier Tribunal erred in law in law in its approach to the further test in rule 89(b) of the Scheme in:

a.

not applying the correct statutory test by stating in paragraph 17(u) of its reasons that the evidence before the Tribunal and CICA in support of the application was not sufficient;

b.

in taking account of an immaterial matter in paragraph 17(v), namely whether the causal injuries would fall within the tariff set out in the Scheme; and

c.

in failing to give adequate reasons for why the evidence presented in support of the application meant that it could not be determined without further extensive enquires by a claims officer. The reasons arguably fail to explain what the evidence was that was presented in support of the application (though reference is made by the First-tier Tribunal to the “volume of documentation), why that evidence meant that the application could not be determined, and why any further enquires would need to be extensive.

8.

Third, it is arguable the First-tier Tribunal erred in law in failing to properly ascertain from [the applicant] the nature of her vulnerabilities as a vulnerable adult: see R (NL) v First-tier Tribunal and Criminal Injuries Compensation Authority[2021] UKUT 158 (AAC). I appreciate that this ground may not have any determinative effect if the first two grounds cannot succeed (see further on this paragraphs 12 and 25 of Upper Tribunal Judge Perez’s refusal of permission of 3 April 2023). This ground covers the points made by [the applicant] in her written grounds under ‘procedural irregularities’. I may add, in so far as it may be considered relevant, that it was noticeable in the oral permission hearing before me the difficulties [the applicant] had in answering what I thought were clear and straightforward questions. She was much assisted by what Mr Gibson had told me, but First-tier Tribunal hearings usually (and rightly) wish to concentrate on the appellant’s evidence. The First-tier Tribunal’s reasons do not address [the applicant’s] potential vulnerabilities in giving evidence.”

In its written submissions on the judicial review, drafted by Robert Moretto of counsel, CICA consents to the judicial review being allowed but on the third ground only. It submits that the appeal should be remitted to a freshly constituted First-tier Tribunal for rehearing entirely afresh. CICA’s support for the judicial review being allowed on the third ground is for the following reasons.

“4….CICA agrees that the FtT failed to set out as required (either in the decision notice or written reasons when requested) what the FtT decided about the “Practice Direction: First-Tier and Upper Tribunal - Child, Vulnerable and Sensitive Witnesses” and how to apply it so as to facilitate the giving of evidence by the Applicant, who is clearly a vulnerable person as described by the Practice Direction. That is contrary to the decision of the Upper Tribunal in RT v SSWP (PIP) [2019] UKUT 207 (AAC) (esp. para 91), as applied in the criminal injuries compensation context in the R(NL) v FtT & CICA [2021] UKUT 158 (AAC), which require the FtT to do so, and record they have done so.

5.

The CICA should underline that it has now received and heard the recording of the hearing, and in no sense whatsoever can it be suggested that the FtT, or the presenting officer, bullied the Applicant in any way. The FtT and the presenting officer were at all times polite, considerate and reassuring to the Applicant, affording her time to answer questions and breaks. Indeed there were several breaks and at one time the Applicant was offered a break which she said she did not need.

6.

The concern however of the CICA is that:

6.1.

This was in fact (contrary to the Applicant’s application for judicial review), a telephone hearing and not a video hearing. There was therefore already some degree of disconnect as between the Applicant and the proceedings given that neither she, nor her partner, could see the FtT and presenting officer, and indeed they could not see her.

6.2.

Furthermore, key to the determination of whether time could be extended was the Applicant’s position as to why she did not follow up the advice she was given by the CAB to go and see a solicitor about recovering compensation. The finding of the FtT was that the Applicant made a choice to pursue other matters rather than look into the possibility of compensation (see Reasons, para 17(q). The FtT recorded the Claimant’s evidence at para 17(d) that she was too nervous to see a solicitor. That evidence was different to the evidence recorded in the first FtT decision, at paras 28 and 30 (namely that she did not go due to cost) (see [TD/12]. 6.3. In circumstances in which the Applicant’s evidence as to why she did not go to see a solicitor when she was advised to do so was key, and there was some degree of apparent inconsistency in the evidence given at various different stages, it appears to the CICA that it was incumbent to ensure that the requirements of the Practice Direction were met, and recorded as being met. That is in order to ensure that there could be no question that the evidence given by the Applicant was the evidence that she wished to give, rather than evidence which may have been impacted by any cognitive difficulty compounded by the stress of the hearing.

6.4.

Furthermore, this is not a situation in which it can be said that Ground 3 is academic if the other two Grounds are dismissed because Ground 3 goes to the fairness to the hearing as a whole.”

CICA’s submission did not agree with the judicial review being allowed on either the first or second grounds, and it sets out argument for why it considers the FTT did not err in law on either of those grounds.

Perhaps unsurprisingly, having seen CICA’s submission the applicant said in her submission in reply that, on the basis that CICA agreed to the application for judicial review being allowed and also agreed to another First-tier Tribunal, she had no additional comments to make.