ON APPEAL FROM Upper Tribunal (Administrative Appeals Chamber)
Upper Tribunal Judge Levenson
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE COULSON
| Criminal Injuries Compensation Authority
|- and -
|First-Tier Tribunal (Social Entitlement Chamber) & Anr
|- and –
|Kenneth Mailer & Lewis Haigh
Tom Goodhead (instructed by Thompsons Solicitors) for the Interested Party (Mailer)
The Interested Party (Haigh) did not appear and was not represented
Hearing date: Wednesday 16th May 2018
Crown Copyright ©
Lord Justice Coulson :
The Powers of the Upper Tribunal
"15. Upper Tribunal's "judicial review" jurisdiction
(1)The Upper Tribunal has power, in cases arising under the law of England and Wales or under the law of Northern Ireland, to grant the following kinds of relief—
(a) a mandatory order;
(b) a prohibiting order;
(c) a quashing order;
(d) a declaration;
(e) an injunction.
(2) The power under subsection (1) may be exercised by the Upper Tribunal if—
(a) certain conditions are met (see section 18), or
(b) the tribunal is authorised to proceed even though not all of those conditions are met (see section 19(3) and (4)).
(3) Relief under subsection (1) granted by the Upper Tribunal—
(a) has the same effect as the corresponding relief granted by the High Court on an application for judicial review, and
(b) is enforceable as if it were relief granted by the High Court on an application for judicial review.
(4) In deciding whether to grant relief under subsection (1)(a), (b) or (c), the Upper Tribunal must apply the principles that the High Court would apply in deciding whether to grant that relief on an application for judicial review….
17. Quashing orders under section 15(1): supplementary provision
(1) If the Upper Tribunal makes a quashing order under section 15(1)(c) in respect of a decision, it may in addition—
(a) remit the matter concerned to the court, tribunal or authority that made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the Upper Tribunal, or
(b) substitute its own decision for the decision in question.
(2) The power conferred by subsection (1)(b) is exercisable only if—
(a) the decision in question was made by a court or tribunal,
(b) the decision is quashed on the ground that there has been an error of law, and
(c) without the error, there would have been only one decision that the court or tribunal could have reached.
(3) Unless the Upper Tribunal otherwise directs, a decision substituted by it under subsection (1)(b) has effect as if it were a decision of the relevant court or tribunal."
i) Once a material error of law has been established in the way a decision-maker has reached a decision, the decision is ultra vires and prima facie cannot stand: see R v Hull University Visitor ex parte Page  AC 682.
ii) In most cases in which a decision has been found to be flawed, it would not be a proper exercise of the court's discretion to refuse to quash that decision: see R (Edwards) v Environment Agency  1 All ER 57 at paragraph 63.
iii) The function of judicial review is not to substitute the reviewing court as the decision-maker over the authority prescribed in law to make the decision: see Chief Constable of North Wales Police v Evans  1 WLR 1155.
iv) The reviewing court or tribunal may substitute its own view for that of the relevant decision-maker but usually only if, once allowance has been made for the error, only one decision was open to the decision-maker: see CPR r.54.19(3) and Governing Body of the London Oratory School v Schools Adjudicator  EWHC 1842 (Admin).
Mailer: The Facts
"We decide that on the evidence if it had been known in advance by the fire officer in charge who ordered the appellant to enter the flat building that the seat of the fire was not in a flat on the first floor with people in it whose lives were in danger, but in fact a storeroom on the first floor which contained highly flammable materials including paint and thinners, he would not have expected the appellant or any fire-fighter to enter the building and that storeroom.
Therefore entering the storeroom where the appellant's injury occurred was exceptional because within para 5(2) what he was doing was not a duty that "would normally be expected" of fire-fighters in the course of their duties. Had the true position been known then the fire would have been fought externally and he would not normally have been expected to enter the building."
"(a) At the conclusion of the hearing, Mr McKenna [representing the appellants] made two important concessions…he accepted that the risk taken by Mr Mailer as Firefighter in entering the building which was on fire was a 'justifiable risk' because of the danger to human life" ;
(b) Turning then to the crucial issues. First, as we have identified, Mr McKenna accepted that there was a justifiable risk. It is clear that was justifiable since the purpose in entering was, as it was believed at the time the men entered, in order to save life. The situation was clearly a dangerous one and on any view there were people hanging out of the building which was on fire and there was smoke coming from the apertures of the building." ;
(c) However, the real issue here is whether there was an 'exceptional risk'…we find on the evidence of Mr Mailer, which we fully accept, that if the true position had been known before he and his colleague were directed by the Senior Fire Officer to enter the building, he would not have been directed to do so. He would not have been directed to enter the building because it was not 'a normal part of his duties' to enter a building unless there was a situation as originally perceived, namely one where it was necessary to put out a seat of fire which was directly endangering the life of people within the relevant flat. The normal course of practice which he would have followed in the course of his duties in the actual situation where the fire was in a highly flammable and dangerous storeroom would have been to fight the fire externally and to remove the occupants of the building externally using ladders. That would have precluded the necessity for him to enter the building. Therefore we find as a matter of fact that to enter the building in the actual true position of a fire in a storeroom which was not occupied and contained flammable liquids was not part of what would 'normally be expected of [him] in the course of [his] work'". 
(d) We find that the risk he took was clearly exceptional. He entered a building which was on fire which was laden with smoke using infrared and breathing equipment where he could literally only see a hand in front of him and where he was in danger, as it transpired, of the paint and/or thinners igniting." 
"18. I agree with the Authority's contention that the correct test is to determine the question by reference to what was believed to be the position at [the] time the risk was taken. The concept of "taking" a risk in its very nature requires a subjective view of what the risk is. Were this not so, a person could be said to be taking a risk when it never crossed their mind that there was any risk at all, and I do not understand that to be what the language means.
19. Thus, the Authority is correct when it argues that at the time the claimant entered the building believing that life was endangered, the risk taken was not exceptional within the requirements of paragraph 5."
"However, the parties have been wrong to focus exclusively on the time that the claimant entered the building. The First-tier Tribunal accepted and found that once the claimant opened the door of the room that had been assumed it to be a flat and discovered it to be a storeroom full of debris and flammable material he continued to extinguish the main fire and ensure that any remaining hot spots in the storeroom were also put out, working in a smoke-logged, very hot conditions, wearing a full fire kit and heavy, cumbersome breathing apparatus in hazardous underfoot conditions. It had been established that this room was not living accommodation and it is clear that the First-tier Tribunal regarded these actions as continuing to take an exceptional risk which would not normally be expected of the claimant. The tribunal was wrong about the continuation aspect in that paragraph 5 was not satisfied when the claimant entered the building, but there did come a point when the subjective view of the claimant and the objective reality coincided. That is why I have refused to interfere with the outcome decision of the First-tier Tribunal in relation to paragraph 5 of the 2012 Scheme." (Emphasis supplied).
Mailer: Did the UT act unlawfully?
i) As I have explained at paragraphs 10 and 11 above, the FTT decision focused entirely on the situation when Mr Mailer entered the building. That was doubtless because that was the aspect of this case on which the parties themselves had concentrated. There was no consideration of or evidence about the changing nature of any risk facing Mr Mailer as he remained in the building. Neither party made any case to the FTT based on the situation after entry.
ii) Moreover, the fact that neither of the parties, nor the FTT, had addressed the position at any time other than when Mr Mailer entered the building was expressly noted by UTJ Levenson in the phrases shown in bold at paragraph 15 above. He said that everyone had been "wrong" to focus on the question of entry. Those comments demonstrate that any claim based on the nature of the risk being run by Mr Mailer at a time other than entry of the building was, by definition, new. I consider that paragraph 20 of his decision is eloquent testimony to the fact that this was a new point which nobody had addressed before.
iii) This is supported by an analysis of the detailed matters of fact that underpinned the original FTT decision. It is plain that the appellant's concession that the risk was justified related only to Mr Mailer's entry into the building. It is not clear whether the same concession would have been made for any subsequent period. As to whether or not any decision to remain could be described as exceptional, Mr Goodhead properly conceded that this was not something which the FTT had addressed.
Haigh: The Facts
"(iii) The risk taken by the appellant in the course of his work was exceptional namely it was not normally to be expected of him in the course of his work for the following three distinct reasons:
1. Thomas Lee had an 'extremely violent' marker against him on the police national computer records. This is significant in its rarity: the appellant had only come across one offender with the marker, namely Thomas Lee; and
2. The size of the cage in the Ford Connect van is so small that it now accepted to be unacceptably dangerous: it has been known to positional asphyxia and its use has been discontinued by the police; and
3. Police protocol and training dictates that at least two, and usually three, police officers are to be deployed in the arrest [of] an offender who is showing signs of violence and resisting arrest. Despite Thomas Lee showing signs of violence and resisting arrest, police protocol was not followed as only the appellant was involved in his arrest whilst his two colleagues stood by;
(iv) In summary, the cumulative effect of (a) Thomas Lee's extremely violent marker, (b) the use of a police van now discontinued as it is known to be dangerous and (c) the breach of police protocol and training in the appellant acting alone while his colleagues stood by caused the risk taken by the appellant in the course of his work was exceptional and not normally expected of him."
"As I have also stated in my decision in JR/2338/2015 [the case involving Mr Mailer] I agree with the Authority's contention that the correct test is to determine the question by reference to what was believed to be the position at [the] time the risk was taken. The concept of 'taking' a risk in its very nature requires a subjective view of what the risk is. Were this not so, a person could be said to be taking a risk when it never crossed their mind that there was any risk at all, and I do not understand that to be what the language means. Thus, the Authority is correct when it argues that that the label on the police national computer and the dangerousness or otherwise of the van and/or cage were not relevant factors."
"However, it is clear the First-tier Tribunal accepted and found that 'police training and protocol dictates that colleagues assist whenever an offender is resisting arrest. His colleagues' failure to help him when [Thomas Lee] began to resist arrest was most unusual and against police training and protocol'. The claimant continued trying to deal with [Thomas Lee] on his own and (regardless of the irrelevant matters) it was this that really amounted to taking an exceptional risk that would not normally be expected of the claimant in the course of his work. That is why I have refused to interfere with the outcome decision of the First-tier Tribunal in relation to paragraph 5 of the 2012 Scheme."
Haigh: Did the Upper Tribunal act unlawfully?
Lord Justice Gross :