[2025] UKUT 181 (AAC)

can the circumstances preventing an earlier application be characterised as exceptional?

An “exceptional circumstance” excludes those which are “routinely or regularly encountered” (MM v Criminal Injuries Compensation Authority [2018] CSOH 63 at [44] (“MM”)). The words “could not have applied earlier” are apt to cover a wide range of possibilities from absolute impossibility (due e.g. to physical or mental incapacity) at one end of the spectrum to a situation where, due to any number of factors (such as distress, societal objections etc), the person concerned could not reasonably have been expected to have made an application earlier than he did (MM at [34]).

Ignorance of the criminal injuries compensation scheme can be a relevant factor in determining whether there are “exceptional circumstances” (TG v First-tier Tribunal and Criminal Injuries Compensation Authority [2013] UKUT 0366 (AAC) at [26] (“TG”)). However, ignorance of a scheme must be taken as part of a wider picture. The question is whether such a person, who is 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 him telling others about what had happened. It is “part and parcel of the package of circumstances” (MM at [45]).

In JA the Upper Tribunal stated that there can be no a priori exclusion of a person being ignorant of law from the exceptional circumstances which may show that he was not able to apply to CICA any earlier than he did. In ascertaining the relevance of the Applicant seeking advice, what is relevant is for what she was seeking advice. As the Upper Tribunal put, “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?” (JA at [27]).

Accordingly, the following points of law can be extrapolated from the judgment:

any question of the ignorance of the Scheme must be closely examined to identify the context and the reasons underpinning that ignorance.

reporting matters to authorities cannot be considered in a vacuum. The necessary enquiry for a tribunal is to ascertain the purpose for that advice. Namely, is it for “compensation” or for other reasons?

the question for the Court is whether it is highly likely that there would be no substantial difference in the outcome if the legal error had not occurred (Bradbury at [74]).