[2024] UKUT 311 (AAC)

Error in failing to give sufficient weight to Ms H’s reminder to the tribunal that she had grown up at her Nana’s

The First-tier Tribunal failed to give sufficient weight to Ms H’s reminder to the First-tier Tribunal that she had grown up at her Nana’s.

The oral evidence in the First-tier Tribunal included the following—

“Dr - … And is it your mum or someone you’ve got close family haven’t you? You’re in touch with?

Miss H – My nana.

Dr – Nana, right. How far away is she?

Miss H – She lives about 15-minute drive away.

Dr – Right, do you go to see her?

Miss H – I used to go to see her, obviously that’s where I grew up and that’s like the house where the abuse took place and stuff. I used to go to see her all the time, I used to live there so it wasn’t… [sic]. I lived there until I was 16 and moved out and I still went and seen her and stuff.

Dr – Yeah.

Miss H – and it was fine and it was all right and then when he opened the CICA case, I stopped going down, I stopped seeing her really.

Dr – Right.

Miss H – Everything was just too much, it was just always there. Recently I’ve been down, [W] takes my son to football on a Sunday morning near my Nana whilst he’s taking him to football, I’ve been going sitting with my Nana and having a brew.

Dr – Right.

Miss H – It’s just one of those.

Dr – Right, so the football…[sic]. He’s near your nana’s?

Miss H – Yeah.

Dr – Is it weekends or how often?

Miss H – Just a Sunday morning.

Dr – Right. And how do you get to your nana’s? How do you travel there?

Miss H – I try, [W] drives in the car, so [W] will drop me off at my nana’s and then take [C] football and then pick me up. I didn’t have [W], I wouldn’t go out.

Dr – Yeah.

Miss H – I don’t go anywhere without him, anywhere.”.

The First-tier Tribunal failed to give sufficient weight to the part of Ms H’s evidence in which she reminded the First-tier Tribunal that she had grown up at her Nana’s. Of course, the First-tier Tribunal knew that she had used to live at her Nana’s. But Ms H seemed to be pointing out that, given that it was her childhood home, she had a positive reason still to go back there occasionally, despite the abuse, rather than avoiding it altogether as she might with another location where the abuse had happened (she told me that in fact it was grooming that happened at her Nana’s, although she now recognises that to be abuse too, and that the touching and ejaculation happened at her abuser’s sister’s house). Ms H’s evidence was however that, once she put the criminal injuries compensation claim in, she stopped going to her Nana’s: “Everything was just too much, it was just always there”. So her evidence was not that she was always able to visit her Nana’s without any flashbacks or bad memories; the implication was that the criminal injuries compensation claim had made it fresh again.

That she had since been able to resume visiting her Nana, bearing in mind she has an additional reason to now – to wait for her son – does not mean that Ms H had not been prevented previously from doing so by bad memories.

It is for the reasons at paragraphs 21 to 73 above that I find the First-tier Tribunal materially to have erred in law.

Disposal

I agree with CICA’s revised position that it is not open to the Upper Tribunal to remit direct to CICA in this case. Ms S did not oppose remittal to the First-tier Tribunal.