[2024] UKUT 387 (AAC)

The tribunal accepted that Miss [W] had been in an abusive relationship for several months in 2020. There had been violence used against Miss [W]. This was not in dispute. We noted that the final assault had taken place on 8.8.2020 at the […], Sunderland.

Miss [W] was assaulted by another female following an argument and she then approached the perpetrator, her ex-partner, and kicked him in the stomach. She said that the reason she did this was because there had been prior incidents where he had just “stood by and watched me be assaulted by other females” (S3). She said “I just lost my temper” in a statement to the Police (S2-3).

The perpetrator then proceeded to assault Miss [W] by punching her to the left side of her face. She needed four stitches to the left side of her head. The perpetrator alleged self defence and was never prosecuted. Nevertheless, the tribunal accepted that Miss [W] had been the victim of a crime of violence. Indeed, she had been assaulted by the perpetrator previously as she set out in her statement made to the Police (S2-3) which the tribunal accepted in its entirety.

It was therefore appropriate that the award suggested by Ms Thorburn -Physical Abuse of children, including domestic abuse, severe abuse – Level B6 was made.

The tribunal accepted, as did Ms Thorburn that there had been scarring to Miss [W’s] face and this was significant in the words of the Scheme. It was a scar of around two centimetres to her upper left eyebrow/forehead. It did not amount to a serious disfigurement of her face given the size and place of the scar and the appropriate tariff was therefore Level A4 of the Scheme.

As regards the Disabling Mental Injury (DMI), the tribunal accepted that there had been a DMI as set out within the report of Dr Konstantinidou. She refers to Post-Traumatic Stress Disorder symptoms and Anxiety and Depression. However, as noted within the Decision Notice, the tribunal found that the report of Dr Konstantinidou contained inconsistencies and failed to provide a full picture of Miss [W’s] life and her ability to function after the date of the assault.

For example, there was no reference to Miss [W] passing her driving test and driving independently with her daughter, maintaining her relationship with her daughter’s father (they went on holiday with wider family members as recently as June 2023) and the fact that she continued attending college after the date of the assault on 9.8.2020 until around May 2021 (the report states that she quit college in 2020 after the incident). The report was also factually inaccurate in terms of living arrangements.

Miss [W] has lived alone with her daughter, [name], who was born on 2.6.2022 since November 2022 and whilst she may have assistance from family members at times, she is, in essence, the sole carer of a young child with no social services input. She cares for her 18 month old daughter overnight most of the time which is to her great credit. The medical records showed that her mental health was much improved when pregnant. She was treated with a first line anti-depressant and the GP records show that Miss [W] to [sic] responding to first-line anti-depressants at a low dose in early 2022 (for example C49 entry on 5.1.2022 and C58 entry on 4.7.2022).

Note 2 to the Scheme refers to a mental injury being disabling if “it has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities for the time specified (e.g impaired work or school performance or effects on social relationships or sexual dysfunction)”. Hence, a normal day to day activity would be continuing education and the fact that Dr Konstantinidou had stated that Miss [W] had “quit college in 2020 after the incident” (C258) would certainly have had a bearing upon her conclusions as to the effect of the assault on Miss [W’s] mental health. On the balance of probabilities Dr Konstantinidou would have been reporting what she had been told. The tribunal pointed out that it was [Ms W’s mother] and Miss [W’s] own evidence whereby the dates were given that she had gone back to college after the assault and was certainly there when the further evidence was given to the CICA on 29.4.2021 (A9). This accorded with GP records and we accepted that this was true at the time. It could be that memories have faded however the document was signed at the time that Miss [W] was at college and therefore more accurate than a conversation with Dr Konstantinidou several months later.

We found that some of the findings upon which Dr Konstantinidou had based her report on were incorrect. This cast doubt as to the accuracy of her findings. If Dr Konstantinidou had known that Miss [W] had been able to attend college after the assault and could now live alone with her own young child (albeit accepting that some family members would support her on a day to day basis) would she have reached the same conclusion? In any event, it is for the tribunal to make our own findings and as set out in the Decision Notice we found that amongst other findings set out above,

All of which demonstrated to the tribunal that, considering all of the evidence, there was no substantial adverse effect on Miss [W’s] ability to carry out day to day activities in relation to her educational performance, social relationships or sexual function a short time after the index events and the Disabling Mental Injury caused by the criminal injury lasted for no more than 2 years and the award should be made accordingly.

The tribunal’s tariff injury description is set out in full in the tribunal’s Decision Notice. The highest tariff available for the first injury is given at 100%, the second at 30% and the third injury at 15% as set out within paragraph 37 of the Scheme. The tribunal found that given Miss [W’s] admitted conduct as set out above, the award should be reduced by 25%.”.