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Paragraph 89(a)
Paragraph 89(a)
CICA’s position is that there is no complexity in the words used in paragraph 89(a) and (b). A Tribunal should simply apply the terms of the Scheme to the case before it. Here it did that: there were no exceptional circumstances which meant that the Applicant could not apply earlier.
Notwithstanding the simplicity of the terms used in the Scheme, there have been a number of Upper Tribunal decisions addressing it, e.g.
in BC at [15-17] Upper Tribunal Judge Levenson set out that:
- Heading
- Section 1
- The Tribunal’s Decision
- Conclusion
- The 2012 Scheme
- The Applicant’s Submissions
- The Tribunal Hearing
- General Principles
- can the circumstances preventing an earlier application be characterised as exceptional?
- the focus should be on the impact of the error on the decision-making process which the decision-maker undertook to ascertain whether it is highly likely that the decision taken would not have been su
- the Court should (in proper evidence) be given a full accurate and clear explanation of the decision-making process used by the public authority concerned and should not have to depend upon submission
- Grounds of Review
- Ground Two: The Tribunal made findings of fact which were erroneous on the basis they (i) had no evidential basis or (ii) were unreasonable
- Ground Three: Failure to take proper account of the impact of the abuse
- Ground Four: With respect to paragraph 89(b) the Tribunal made a finding of fact which was erroneous on the following bases: (i) it made material errors of fact giving rise to unfairness, (ii) a finding
- Alleged Adequate Alternative Remedy
- Conclusion
- CICA’s Submissions
- The 2012 Scheme
- Paragraph 89(a)
- whether the circumstances are exceptional is a question of fact (at [15])
- in R(JR) v FtT and CICA [2016] JR/1523/2016 at [6] Upper Tribunal Judge Ward suggested that the focus should be on what prevented the applicant applying sooner and then a Tribunal will be able to cons
- in MM v CICA at [33] the Outer House was content to adopt the two-part process formulation in BC , but said
- Lack of knowledge of the 2012 Scheme
- Lack of knowledge of suffering a crime
- Challenging factual decisions
- S.31 (2A) of the SCA 1981 provides that
- Gathercole v Surrey County Council [2021] PTSR 359 (Court of Appeal) at [38-39]
- R (Glatter) v North Herts Valleys CCG [2021] EWHC 12 (Admin) at [96]
- most recently, Bradbury at [74]
- Process/alternative remedy
- Ground 1
- he was able to, and did, make an application under the Scheme
- is not in any way, and cannot be suggested, that that was not put to him
- Ground 2
- Ground 3
- Ground 4
- the Level B3 award to which he refers requires there to have been (emphasis added) “ intermittent physical assaults resulting in an accumulation of healed wounds, burns or scalds, but with no apprecia
- Conclusion
- Analysis
- Ground 1
- Ground 2
- Ground 3
- Ground 4
- Alternative Remedy
- The Transcript
- Conclusions