Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 208 (AAC)

Fecha: 26-Feb-2024

History and background

C.History and background

On 28 February 2019, LXR made two applications for compensation. I refer to them, for convenience, as the child abuse application and the RAF application.

The child abuse application

I begin with the child abuse application. This application concerned sexual abuse between 1982 and 1988 when LXR was a child. CICA made an award at level B9 (£11,000) with a reduction of £50 for a medical report paid for by CICA. No award was made for mental injury. The claims officer explained why:

As stated in Paragraph 34 of the 2012 Scheme, when someone has sustained a mental injury as a result of sexual abuse, 'they will be entitled to an injury payment for whichever of the sexual assault or the mental injury would give rise to the highest payment under the tariff.' To yield a higher award than the sexual abuse element offered, a prognosis or diagnosis would be required from a clinical psychologist or psychiatrist which stated any mental injury directly attributable to the abuse would be moderate and disabling for a period lasting 5 years or more.

Your medical records as well as the reports from Dr Boris Iankov in March 2017 and Joanne Rubbi in August 2019 detail the diagnoses of your mental injuries and their treatment. Both Dr Iankov and Ms Rubbi make it very clear that your mental injuries are extensive, but attribute them almost wholly to a separate incident. On balance, I am satisfied the period of sexual abuse between 1982 and 1988 is not the primary cause of these injuries. Therefore, though I recognise the impact it has had on your life, I am unable to make a separate award on this claim in relation to psychological trauma suffered, and have offered the highest award applicable.

LXR accepted the award on 19 August 2019, but applied for the application to be re-opened on 21 June 2021. Before I come to that, I will mention the other application, as it provides background for the case before me.

The RAF application

10.

This application concerned abuse in 1998 by a padre during LXR’s time in the RAF. CICA refused the claim and the First-tier Tribunal dismissed LXR’s appeal. In short, the padre had gained pleasure from listening to LXR describe his childhood experience of abuse. As listening to LXR did not involve contact, it had not amounted to a crime of violence under paragraph 4 of, and Annex B to, the Scheme. LXR could only show a crime of violence under paragraph 2(1)(c) of the Annex if there had been:

(1)

… a crime which involves:

…

(c)

a threat against a person, causing fear of immediate violence in circumstances which would cause a person of reasonable firmness to be put in such fear; …

The tribunal found that a person of reasonable firmness would have walked away much sooner than LXR did.

The application to re-open

11.

CICA refused to re-open the child abuse application on the ground that the evidence submitted did not show a material change in LXR’s condition since he accepted the award. LXR applied for a review, relying on a report by Dr Caroline Law, a Counselling Psychologist. This report contains the essence of LXR’s case. She wrote:

When LXR first began his work with me, it was a fundamental feature of his presentation that he ascribed his mental health issues to a single incident of sexual abuse suffered as an adult and while serving with the RAF. … However, in my professional opinion, that interpretation of his condition was inaccurate and was affecting LXR’s presentation and ability to address and treat his condition. For the reasons I give below, I am of the view that LXR’s current presentation amounts to a material change in his condition.

She concluded:

In summary, it is my opinion that there are two aspects of the material change in LXR’s condition. One of these is LXR’s own understanding as to the cause of his mental health condition, which has changed. He now understands that the historic sexual abuse has had a profound impact on his life, personality development and ability to function within relationships. The other aspect is the change in symptomatology i.e., the increase in dissociative episodes, the decrease in rage and anger, and the increase in feelings of loss, grief, sadness, powerlessness and helplessness.

12.

A different claims officer refused the review, which led to the appeal to the First-tier Tribunal and its decision that is now before me. Before I come to that, I will set out the relevant provisions of the Scheme.