[2025] UKUT 306 (AAC)

I granted TB permission on the grounds set out below.

Possible misdirection in law: It was not clear that the FTT’s approach was consistent with the approach indicated by Upper Tribunal Wright in R(JA) v FTT (CICA) [2024] 121 (AAC), including his reference in paragraph 37 of R(JA) to paragraph 45 of MM v CICA [2018] CSOH 63; SLT 843. This decision was published before the FTT hearing took place on 31 May 2024. It was a binding decision for the FTT determining TB’s appeal.

In R(JA), Judge Wright explained that the reasons that someone applying for criminal injuries compensation did not know about the 2012 scheme were relevant to whether there were exceptional circumstances under paragraph 89(a) of the 2012 Scheme. This was because the reasons framed the reasonableness of the applicant’s action (or lack of action) in finding out about the Scheme’s existence (paragraph 31 of his decision).

Judge Wright endorsed the reasoning in the earlier decision of MM that ignorance of the Scheme can be a relevant factor, but much will depend on the underlying circumstances and the reason for that ignorance. Judge Wright confirmed the principle that ignorance of the Scheme is part and parcel of the package of circumstances resulting in an applicant not applying for criminal injuries compensation.

Given this, it was unclear that the FTT correctly directed itself about the legal test it needed to apply in terms of TB’s position that she did not know about the 2012 Scheme. The explanation at paragraph 29 of the FTT’s written reasons suggested it disregarded TB’s ignorance of the Scheme, rather than treating it as part of the wider package of circumstances that were potentially relevant to her delay in applying for compensation. If so, the FTT might not have applied the legal test explained in R(JA) when making its decision.

Adequacy of factual findings and / or reasons for decision: Linked to the above, it was unclear whether the written reasons confirmed that the FTT evaluated the underlying circumstances and the reason for TB’s ignorance of the 2012 Scheme, including as part and parcel of the package of circumstances that resulted in her not applying for compensation earlier. This might indicate a failure to make adequate findings and / or provide adequate reasoning about TB’s failure to apply to the 2012 Scheme at an earlier time than she did, and her wider package of circumstances surrounding that failure to apply.