JR/0880/2012

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
ON AN APPLICATION FOR JUDICIAL REVIEW

Hearing and Decision 

1. This application succeeds. Pursuant to the judicial review jurisdiction of the Upper Tribunal and in accordance with the provisions of sections 15 to 18 of the Tribunals, Courts and Enforcement Act 2007 I make a quashing order in respect of the decision of the First-tier Tribunal (Social Entitlement Chamber) to dismiss an appeal against the decision of the Criminal Injuries Compensation Authority (“the Authority”) not to make an award. The decision of the First-tier Tribunal was made on 31st  March 2012 on the basis of a consideration of the papers, under reference X/08/252369, in respect of an incident in July 2006, the First-tier Tribunal having decided not to hold an oral hearing, 
 
2. I refer the matter to the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision by a panel that does not include any judge or member who has considered this matter hitherto. I direct that the panel hold an oral hearing of this appeal at which the claimant is given a proper opportunity to attend and give and call evidence. I also direct that the panel consider the appeal on the basis that it was practicable for the application to be considered, but in other respects shall make its own findings of fact and decision irrespective of the views of any other judge or member who has considered the matter hitherto..

3. The parties should regard themselves as being on notice to send to the clerk to the First-tier Tribunal as soon as is practicable any further relevant written medical or other evidence. 

4. I held an oral hearing of this application for judicial review in London on 9th May 2013. The applicant, who was the claimant for compensation, attended in person and was not represented. The Criminal Injuries Compensation Authority (the “Authority” or “CICA”), which is the interested party in this application, was represented by Jessica Simor QC, instructed by the Treasury Solicitor. I am grateful to them all for their assistance. The First-tier Tribunal is the respondent but had, quite properly, taken no part in the proceedings.

The Scheme

5. The claim for an award was made under the Criminal Injuries Compensation Scheme 2008 (“the 2008 scheme” or “the scheme”), paragraph 18 of which provides that an application for compensation must be made on the appropriate form as soon as possible after the relevant incident and must be received by the Authority within two years of the date of the incident. The Authority (or, on appeal, the tribunal) may waive this time limit only when it considers that 

(a)	it is practicable for the application to be considered and 
(b)	in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period.

6. In Hutton & Others v First-tier Tribunal & CICA [2012] EWCA Civ 806 the Court of Appeal made clear that the use of the phrase “particular circumstances” (in that case in the 2001 scheme) did not refer to any notion of exceptionality but was a reference to the specific facts of the specific case.

7. Paragraph 19 provides that it is for the applicant to make out her case, including the case for a waiver of the time limit. Conceptually this is difficult to apply in respect of paragraph 18(b), which requires a judgment of what is reasonable, but it can apply to the facts that are asserted and on which the judgment is to be based.

The Procedural Rules

8. So far as is relevant to this particular application rules 1 and 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules provide as follows:

1(3) … “hearing means an oral hearing and includes a hearing conducted in whole or in part by video-link, telephone or other means of instantaneous two-way electronic communication …

27(1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless –
(a)	each party has consented to, or has not objected to, the matter being decided without a hearing; and
(b)	the Tribunal considers that it is able to decide the matter without a hearing.

…
	
27(4) In a criminal injuries compensation case – 
(a)	the Tribunal may make a decision which disposes of proceedings without a hearing ; and
(b)	subject to paragraph (5), if the Tribunal makes a decision which disposes of proceedings without a hearing, and party may make a written application to the Tribunal for the decision to be reconsidered at a hearing.

27(5) An application under paragraph 4(b) may not be made in relation to a decision – 
(a)	not to extend a time limit
(b)	…

Background and Procedure

9. I set out the background facts and the applicant’s account as I understand them to be, but (at least at one stage) the police took the view that the there were inconsistencies in the applicant’s account and that she had consumed a large quantity of vodka. It also appears that some pages in the B section of the First-tier Tribunal file (eg B 24 and 25?) relate to a different case, and the parties should check this before the matter is heard again. Certainly I am not to be taken to be making findings of fact on any disputed matter. 

10. The applicant, who is the claimant for criminal injuries compensation is a woman who was born on 12th January 1988. She has a medical condition such that she has to use crutches to help her walk and her legs go into spasms. She works as an administrator but I think that it is fair to say that in her various written submissions and correspondence she has a tendency to write too much, stray from the point and be fairly easily distracted from the main issue. I have held two oral hearings in this matter, at both of which she has represented herself, and my experience is that it is far easier to understand the points that she wishes to make and to clarify them with her during an oral presentation and verbal exchanges.  

11. The alleged assailant, a man to whom I shall refer as S, was a friend of similar age whom the applicant had known for a number of years and with whom she had previously had consensual sexual intercourse. S was well known to the police, mostly for offences relating to cars, but at the relevant time he was on bail for robbery with a condition to be indoors at a specified address between 11.00 pm and 6.00 am. The applicant says that late at night (certainly after 11.00 pm) on 8th July 2006, she was alone at her grandparents’ house, where she lived, when S called round and she let him in. They had consensual sexual intercourse downstairs but then S kept going on about how the applicant did not appear to be satisfied and asked her to go upstairs with him. She said that she did not want to (and she says that she did not consent to anything that followed) but S picked her up and carried her upstairs, put her on the bed, held her arms down and ejaculated into her mouth. She then went downstairs to rinse her mouth out and look for her mobile phone, could not find it and was about to use the house telephone, when S came downstairs, took it from her, and raped her from behind. He then carried her back upstairs and raped her again. At no time was a condom used. At one point S threatened to stab the applicant with a knife and to kill her. Eventually S left the house and the applicant made her way downstairs with difficulty and telephoned her mother. The applicant vomited (and collapsed?) and that was how her mother found her. Her mother bathed her and the police were called and attended the house shortly afterwards, heard what the applicant said had happened and began investigations.

12. The applicant attended hospital on 9th July 2006 and states that she was treated for vaginal bleeding, inability to pass urine, suspected fractured ribs, a black eye and anxiety. I have not seen a narrative medical report although the file contains copies of some clinical notes. While at the hospital the applicant was using her stepfather’s phone and heard a message on it from S to the stepfather. S was agitated and abusive and referred to having an alibi for the previous night. It appears that he had already received a phone call telling him that he had been accused of rape, although I do not know who told him this. The applicant’s mother also received threatening phone calls from S and from his sister and from the sister’s partner. There were also later incidents between members of the two families, including an attack on the applicant’s mother in August 2009, which was reported to the police.

13. In the early hours of 10th July 2006 the police went to the specified address but S was not there at 4.10 am. He was there when police went back later that morning and he was arrested on suspicion of rape. He denied having raped anybody and said that he had not seen the applicant for two weeks and was released on bail pending further enquiries. He gave intimate and non-intimate samples, which turned out not to be incriminatory (although I note that these samples were taken perhaps 36 hours after the incident), and he produced alibi evidence. The police recorded (page B55) that:

“This allegation has been “No Crimed” because there is substantial evidence that the victim has made this report for some inappropriate purpose. There is also no Forensic Evidence when taking into account the fast retrieval of forensic exhibits from victim and suspect and on the account given by the victim this would not be the case. Evidence from an independent witness also fully alibis the suspect as being elsewhere at the time of the offence”.

14. The applicant has always regarded the police investigation as “bungled”. On 21st April 2007 she complained to the police and the Independent Police Complaints Commission about the handling of the investigation and a number of related matters (pages A3 to A19). I have not seen the official responses to these complaints, although the applicant might wish to place them before the new First-tier Tribunal panel. I have seen what I can only describe as a garbled second-hand summary in a police reply to a query from the Authority that “there is no liability – no evidence of malfeasance in public office” (page B66). 

15. In August 2008 the applicant instructed solicitors with a view to bringing an action against the police and pursuing her claim for compensation. It is not clear to me when the applicant became aware of the 2008 scheme. However, communications and trust between her solicitors and herself broke down and it was (and is) unclear (at least to me) what the solicitors actually did. 

16. On 9th December 2008 the applicant herself (without any assistance) made a claim for compensation under the 2008 scheme. This was five months after the end of the prescribed two year period for making a claim. On 17th June 2009 the Authority refused to make an award on the basis of the paragraph 18 time limit and because it was not satisfied that a crime of violence had actually been committed. On 23rd November 2009, in a review decision, the Authority maintained its refusal to make an award of compensation. 

17. On 1st December 2009 the applicant appealed to the First-tier Tribunal against the decision of the Authority. In her grounds of appeal she stated that she had had no advice from the police or any kind of victim support agency and had been under psychological pressure from S’s family and had been trying to secure S’s conviction. She enclosed several pages of detailed comment on the police account.

18. The First-tier Tribunal exercised its power under its procedural rules to consider the appeal without an oral hearing and on 31st March 2010 the First-tier Tribunal upheld the decision of the Authority. I discuss its decision below.

19. On 21st March 2012 the applicant applied to the Upper Tribunal for permission to apply for judicial review of the decision of the First-tier Tribunal. On 18th April 2012 I directed that there be an oral hearing of her application for permission and this took place in the absence of the other parties on 20th August 2012. I granted permission to proceed in the following terms:

1. … I accept jurisdiction and waive any failure to comply with procedural requirements that would otherwise prevent me from dealing with this application. I accept that the delay in making this application was due to the breakdown in communications between the applicant and her solicitors and she did not realise that they had not pursued judicial review proceedings until shortly before she made the application herself.

2. …  The First-tier Tribunal found that it was practicable for the application to be considered late but that it would have been reasonable for the application for compensation to have been made in time. The applicant’s case is that the relationship of trust between her and the police did not exist, that they never advised her of the possibility of making such an application, that she had no contact with any victim support scheme and no other source of advice until she herself discovered the existence of the scheme shortly before she made the application. The First-tier Tribunal neither enquired whether the applicant had received any advice in relation to the scheme, nor took such factors into account. These matters merit full consideration

20. On 30th November 2012 I directed that there be an oral hearing of the substantive application, and this took place on 9th May 2013. The Authority opposes this application and supports the decision of the First-tier Tribunal.

The First-tier Tribunal Decision

21. The First-tier Tribunal took the view (quite rightly in my opinion) that it was practicable for the application to be considered. However, it went on to decide that it would have been reasonable to expect the applicant to have made an application within the two-year period and that there was no good reason why it should not have been so made.

22. The First-tier Tribunal Judge set out reasons for reaching this conclusion:

(a)	the Appellant reported the alleged offence to the police immediately after it had occurred;
(b)	after the date of the alleged criminal injury the Appellant made extensive efforts to have her alleged assailant prosecuted and made a complaint to the IPCC in relation to the police investigation;
(c)	the Appellant is clearly intelligent but offers no explanation for her failure to submit her explanation in time other than to say that she was fully engaged in trying to have her alleged assailant detailed.
(d)	This explanation is inadequate to persuade me that in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have … made an application within the two year period and no other explanation acceptable to me has been advanced by he Appellant in the Notice of Appeal in support of this issue.

These reasons do not seem to have included consideration of the matters to which I referred when granting permission to proceed with the application for judicial review.

The Arguments

23. The applicant argued that just because she was able to pursue particular courses of action does not necessarily show that she could have made a criminal injuries claim in time. I thin that as a general principle this must be correct.

24. The Authority argued that ignorance of the scheme was no reason for extending the limitation period, that a conviction is not necessary to an award and that an application could be made while criminal proceedings were pending. This latter is, of course, correct, but the question is what is reasonable in all of the circumstances and in a case where the police have not accepted a claimant’s account of what happened, it might be thought that from the point of view of the claimant it would be reasonable to wait until her position had been better established in relation to police and prosecution authorities.

25. Ms Simor cited authority on the desirability of finality in decision making but conceded that there was no specific authority in relation to the relevance of ignorance to the existence of a criminal injuries scheme to the delay in making a claim. 

26. I acknowledge the desirability of finality but that must give way to the interests of justice, and the scheme specifically provides for an extension of the time for making a claim if in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made a claim within the two-year period. The concept of “the particular circumstances of the case” must include circumstances relating to the state of the claimant’s knowledge. It is a question of what is reasonable, not as matter of some abstract legal principle but in the very particular circumstances of the particular case. 

Lack of a Hearing

27. In my decision in AG v First-tier Tribunal and CICA JR/1453/2012 (23rd July 2013) I said (paragraphs 26 to 32)

“26. Rule 27(4)(a) certainly gives the First-tier Tribunal power to make a decision without holding an oral hearing, but this is a power, not an obligation, and it is one which must be exercised fairly and judicially and in accordance with the rules of natural justice, especially as rule 27(5)(a) makes it, in effect, a final decision. In many (perhaps most) cases there will be no problem with the use of this power; the facts might be undisputed and straightforward, there might be no explanation at all offered for the relevant delay, or it might be simply impractical to have an oral hearing. However, that is not so in all cases.

27. In VAA v First-tier Tribunal & CICA JR/0685/2009 Mr Justice Walker, sitting as Chamber President of the Administrative Appeals Chamber of the Upper Tribunal, pointed out that a judge of the First-tier Tribunal must explain why a decision has been made not to have an oral hearing.

28. In the present case the First-tier Tribunal Judge gave a standard (or perhaps pro forma) list of reasons, including “consideration of the documents in the appeal bundle” without giving any reasons relating to the specifics of the case. He also referred (paragraph 10) to “the overriding objective of the Rules which is to enable the Tribunal to deal with cases fairly and justly” and “the need for discretion to be exercised judicially”, which seem to me to point in the opposite direction from refusing to have an oral hearing. In my opinion it is usually an error of law not to refer to the specifics of the particular appeal when exercising this discretion or explaining how it has been exercised.

29. In R(AM) v First-tier Tribunal & CICA JR/3406/2012 in paragraph 19 Upper Tribunal Judge Rowland pointed out that:

“Many litigants in person are better at expressing themselves orally than in writing and, as a class, they are notoriously bad at understanding what evidence is required in order to support their cases and how it should be presented or obtained”.

30. I do not propose to offer an exhaustive list of the factors that the First-tier Tribunal must take into account in all cases but the particular factors in this case which should have prompted the First-tier Tribunal to offer the applicant the opportunity to have an oral hearing include the complexity of the factual background (including the bungled rape investigation and the police complaint investigation and the time that it took to carry out the latter), the substantial medical evidence, the fact that the police had held on to the claim form from a date within the time limit period to a date well beyond the expiry of that period, the fact that the applicant believed that she needed the police information before submitting the claim, and her difficulties in expressing herself in writing. 

31. Above all it is not appropriate to challenge the honesty or integrity of an appellant where there has been no hearing and no chance to respond to the matters leading to such a challenge. I do not know what the First-tier Tribunal really meant by referring to a particular argument by the applicant (which she denies having made) to have been “disingenuous” but she has stated that she understands this to be challenging her honesty and integrity.

32. The Upper Tribunal will not hesitate to quash a decision of the First-tier Tribunal where the power in rule 27(4) has been exercised to deprive the claimant of an oral hearing where, in the judgment of the Upper Tribunal, it should not have been so used. Any case in which some or all of the factors such as those referred to in paragraphs 30 and 31 above (and/or other factors that do not arise in this case) are present, is likely to fall into that category.”

Conclusions

28. In the present case the First-tier Tribunal gave no reasons at all for not having an oral hearing. That by itself constitutes an error of law, but I go further. The particular factors in this case which should have prompted the First-tier Tribunal to offer the applicant the opportunity to have an oral hearing include the complexity of the factual background (including the applicant’s complaints about the nature of the investigation, her very lengthy (if not always accurate) analysis of the case, her belief that the investigation was bungled, the police complaint investigation, and the continuing trouble between the two families) and the applicant’s obvious difficulties in keeping to the most relevant matters when expressing herself in writing. 

29. I can only substitute my own decision for that of the quashed decision where without the relevant error(s) of law “there would have been only one decision that the … tribunal could have reached” (Tribunals, Courts and Enforcement Act 2007 section 17(1)(b) and 17(2)(c)). In the present case it is possible that even after holding an oral hearing and taking account of all of the evidence and understanding it all correctly, the First-tier Tribunal could properly conclude that, in the particular circumstances of the case, it would have been reasonable to expect the applicant to have made an application within the two-year period.

30. However, because of the failure to offer the claimant the opportunity of an oral hearing, and to explain why this was not being done, and because of the other matters referred to above, I make the order that I have indicated in paragraphs 1 to 3 above.

H. Levenson
Judge of the Upper Tribunal 
30th July 2013