[2025] UKUT 181 (AAC)

Since the decision in JA figured prominently in the submissions, it is convenient to explain what it decided (since it also sets out and deals with the decision in MM).

In JA the incident for which compensation was sought occurred on 2 June 2011. The applicant did not apply to CICA for compensation until 29 April 2016, well outside the 2 year limit.

The Tribunal 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 that did not result in any charge being brought. She had spoken to “ordinary people” about the incident and also to the CAB, seemingly in or about 2012, but the CAB could not support her and advised that she see a solicitor, which she was too nervous to do. The Tribunal further found that she had lost confidence, but every so often when she had the confidence she asked the police what they were intending to do. It found thatshe 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 someone at a voluntary organisation. The Tribunal also found that she 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. 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”. 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 that basis the Tribunal found 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.

...

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

...

“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.”

Before the Upper Tribunal CICA consented to the review being allowed on the ground that the Tribunal erred in law in failing to properly ascertain from the applicant the nature of her vulnerabilities as a vulnerable adult. That was sufficient to dispose of the proceedings, which were remitted for rehearing.

However, Judge Wright continued

“24.

I remain troubled, however, by the FTT’s view that being ignorant [of the existence of 2012 Scheme] is no defence and no excuse for any delay, and how that may have affected its approach to the overall question of whether due to exceptional circumstances the applicant could not have applied to CICA earlier than she did in April 2016. I am satisfied for the reasons I give below that the judicial review should also succeed on the first ground on which I gave permission.

25.

In my judgment, that there can be no a priori exclusion of a person being ignorant of law from the exceptional circumstances which may show they were not able to apply to CICA any earlier than they did. Nor do I understand CICA to be arguing for such a result. Its argument is that the FTT, having found that the applicant did not in fact know about the Scheme, did enough to explore why the applicant did not and what she could have done to find out about the Scheme, and so ought to have known about it before April 2016. But, to borrow from paragraph 17.2 of CICA’s written submissions on this judicial review, “there may be exceptional circumstances which mean that an applicant could not reasonably have made enquires earlier”, per MM v CICA [2018] CSOH 63; [2018] SLT 843, (see further below), and in such a case it may be that rule 89(a) of the 2012 Scheme might be satisfied. That, however, is part of the overall evaluation of the circumstances under paragraph 89(a).

26.

I can see that there may be force in CICA’s argument under the first ground of appeal that:

“given that the Applicant was expressly told by the CAB that she needed to see a solicitor about the matter in 2012, it is clear that the Applicant could have applied earlier than 2016. That is, she clearly could have applied earlier by doing that which she was advised to do in 2012, namely seek the advice from a solicitor. However, she chose not to do.”

This will now be an evidential matter for the new First-tier Tribunal to explore and determine.”

He continued:

“27.

However, CICA’s argument helpfully illustrates the inadequacy of the FTT’s approach to why the applicant did not in fact know about Scheme until the Spring of 2016. The force of CICA’s argument depends on the nature of “the matter” about which the applicant was seeking advice from the CAB, and that is not clear from the FTT’s findings and reasons. This was (and remains) of importance as what exactly the applicant was seeking advice from the CAB about is, in my judgement, relevant to her knowledge at the time she sought that advice and the knowledge she then had, and might have been expected to gain, when the CAB referred her to see a solicitor. In other words, what she was seeking advice about was relevant to whether the applicant could reasonably have made enquiries earlier than 2016. For example, was the applicant seeking advice about any redress, including compensation, she could obtain for the index incident in June 2011, or was her search for advice limited to whether she could take any further action to force the police to prosecute the alleged assailant?

28.

The deficit in the FTT’s reasoning, in my judgement, was its failure to establish the context in which the applicant was seeking advice from the CAB about the “index event”, and this then ties in to the reasons why she was not aware that a criminal injuries compensation scheme existed until earlyish in 2016.

29.

As I have said, the context might have been whether the applicant could receive any form of redress or compensation for the incident, though it might be thought that if that were the context then the CAB would havebeen able to tell her about CICA’s existence. The FTT’s findings at 17(i) and (j) that the applicant was “focussing on justice” and “seeking justice rather than compensation” may have been relevant to what it was the applicant was seeking advice from the CAB about, as too might the FTT’s finding in paragraph 17(d) that every so often the applicant got sufficient confidence “to ask the Police what they intended to do about the matter” (the underlining is mine and has been added for emphasis). But if this was the context in which the applicant (a) sought advice from the CAB and (b) could then have obtained further advice from a solicitor, CICA’s argument may well have force.

30.

If, however, the applicant was instead seeking advice from the CAB about getting justice from the police, which paragraphs 17(d), (i) and (j) of the FTT’s written reasons might support, her failure to consult with the solicitor on that issue may not establish that she ought to have found out about the existence of the criminal injuries compensation scheme in 2012 or before when she did in 2016.

31.

The latter context therefore does not necessarily provide an answer for why the applicant did not know about the criminal injuries compensation scheme until on or just before April 2016 or to whether she could (not) reasonably have been expected to make enquiries earlier than 2016. The reasons why the applicant did not know the Scheme existed until 2016 were relevant to whether the paragraph 89(a) ‘exceptional circumstances’ existed because they frame the reasonableness of the applicant’s actions (or her lack of action) in finding out about the Scheme’s existence.

32.

Take the hopefully extreme example, which I emphasise is not this case, of an applicant who was given wrong information from someone they were entitled to accept as an authoritative source that no such scheme existed. Why then, subject to any intervening event or contrary information, could the applicant’s ignorance of the scheme not potentially amount to an exceptional circumstance under paragraph 89(a) of the 2012 Scheme? It is difficult in this example to see why itwould be considered reasonable for that applicant to seek further advice or information about the existence of the criminal injuries compensation scheme. But even on the applicant’s case, if she was not seeking advice from the CAB about financial compensation for injuries she considers she suffered due to the index incident, why that was so and why she did not in fact know (and did not take steps from the index incident occurring in 2011 to 2016 to find out about such compensation) were all, in my judgment, relevant to whether she satisfied the test in paragraph 89(a) of the 2012 Scheme.

33.

I add here that I accept, as CICA argue, that the case law to which I referred when giving permission should be treated with caution in relation to paragraph 89(a) of the 2012 Scheme because that case law relates to the similar ‘late claim’ rules in earlier iterations of the Criminal Injuries Compensation Scheme and on any analysis the wording of paragraph 89(a) of the 2012 Scheme is both different and more restrictive than the wording used in those earlier rules.”

He then referred to the authority of MM in the Court of Session, which he regarded as supporting his analysis:

“34.

However, the view I have expressed above about the importance of the FTT establishing why the applicant was in fact ignorant of the criminal injuries scheme between 2011 and before April 2016 is supported by one existing authority decided under the 2012 Scheme: MM v CICA [2018] CSOH 63; SLT 843. This a decision of the Outer House of the Court of Session. The key relevant passage in MM is at paragraph [45], which reads as follows (I have underlined the parts in it which I consider support my analysis):

“45.

The other matter mentioned by the FTT is the reliance placed by the appellant on her ignorance of the criminal injuries compensation scheme until after she had been to see Rape Crisis and subsequently reported the matter to the authorities. In paragraph 15 of its decision, the FTT conclude that such ignorance of the scheme could not reasonably be described as an exceptional circumstance insofar as the petitioner was not a child at the date of the incident, did not suffer from any intellectual or cognitive deficit and who was intelligent, educated and socially aware. I have touched upon this already, though only briefly.

Taken by itself this reasoning is unexceptional. As Mr Pirie pointed out, the petitioner could have made enquiries and found out about the scheme. But this is to take too narrow a view. The petitioner’s ignorance of the scheme has to be taken as part of the bigger picture, which is that of a victim of rape manifesting the reticence commonly seen amongst such victims as described in the authorities to which I have referred. The question is whether such a person, who is ex hypothesi reluctant to speak to anyone about the incident let alone report matters to the authorities, could reasonably be expected to make enquiries about a compensation scheme which depended upon her telling others about what had happened. There is no doubt that ignorance of the scheme can be a relevant factor ... But much will depend upon the underlying circumstances and the reason for that ignorance. It is wrong, therefore, to consider ignorance of the scheme as a self-contained point – rather it is part and parcel of the package of circumstances which resulted in the petitioner not applying for compensation earlier. I should add, however, that I do not accept the argument advanced by Mr Pirie to the effect that because a majority of victims of rape or other sexual assault do not know about the possibility of making a claim for criminal injuries compensation under the scheme until they have reported the matter to the authorities, then it follows that ignorance of the scheme cannot be an exceptional circumstance justifying an extension of the time limit for making an application. For the reasons outlined above, the question of exceptionality must be considered in relation to the whole package of circumstances relied on.”

35.

I direct the new First-tier Tribunal to whom this appeal is being remitted to decide the appeal in accordance with MM and with what I have said above about why the applicant was ‘ignorant of the law’ is relevant to the overall assessment of whether she met the ‘exceptional circumstances’ test in paragraph 89(a) of the 2012 Scheme.”

MM and JA were therefore cases in which the applicant was ignorant of the existence of the Scheme (which is not the case here since the Applicant did know of the Scheme and indeed had claimed under the Scheme in relation to the stabbing injury; I shall revert to that aspect of the matter below). By contrast, the applicant in MM did not know of the existence of the criminal injuries compensation scheme between 1965 and 2014 and the applicant in JA did not know of is existence between June 2011 and April 2016.

What MM and JA establish is that ignorance of the 2012 Scheme can be a relevant factor under considering whether to extend time under paragraph 89, but that much will depend upon the underlying circumstances and the reason for that ignorance. Ignorance of the scheme is not a self-contained point; it is part and parcel of the package of circumstances which result in an applicant not applying for compensation earlier. As to the test which is to be applied under paragraph 89(a) of the 2012 Scheme, Lord Glennie said in the Outer House in MM at [33]:

“ ... In this case, the questions which the FTT was required to answer in terms of paragraph 89(a) of the scheme (as a jurisdictional threshold before any question arose of exercising a discretion to extend time for making an application for compensation) were twofold: first, were there exceptional circumstances? and, second, did any of them mean that the applicant could not have applied earlier than he did? This is the “two part process” referred to by the UT in BC v First-tier Tribunal and Criminal Injuries Compensation Authority [2016] UKUT 155 (AAC) at paragraph 15. I am content to adopt that formulation, though for myself, I consider that it might often be more helpful to reverse the order in which the questions are answered, enquiring first why the applicant was unable to make his application earlier than he did and then going on to ask whether the circumstances preventing an earlier application could be characterised as exceptional. No point of principle arises, and the result should always be the same, but taking them in this order enables the court or tribunal to focus more intensely on whether the actual thing that prevented the applicant making his application earlier is properly to be characterised as exceptional.”