OUTER HOUSE, COURT OF SESSION
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P1298/12
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OPINION OF LORD BOYD OF DUNCANSBY
in the Petition of
J M
Petitioner;
against
ADVOCATE GENERAL FOR SCOTLAND
Respondent:
________________
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Petitioner: R Sutherland; Drummond Miller LLP
Respondent: Duthie; Solicitor to the Advocate General
29 October 2013
[1] The petitioner
was born on 13 March 1974. She was the victim of sexual abuse between September
1982 and August 1986, i.e. between the ages of 8 and 12 years of age. Her
abuser was her next door neighbour. On 28 May 2008 she reported the abuse to
the police. On 18 January 2010 a man was convicted of a number of offences of
sexual abuse including rape of two young girls, one of whom was the petitioner.
He was sentenced to 17years in prison.
[2] On about 5
December 2008 the petitioner made an application to the Criminal Injuries
Compensation Authority ("the CICA") for criminal injuries compensation. The
application fell to be dealt with under the Criminal Injuries Compensation
Scheme (2008) ("the Scheme") which applies to applications received on or after
3 November 2008. Paragraph 18 provides that an application must be
received within two years of the incident. However this time limit may be
waived by a claims officer where he or she considers that it is practicable for
the application to be considered and 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. On 2 April 2010 the CICA
decided not to waive the two year time limit and refused to make an award. The
petitioner sought an internal review of the decision. That was refused on 20
April 2010. The petitioner appealed to the First-tier Tribunal (Social
Entitlement Chamber) ("the Tribunal"). On 27 July 2010 the appeal was refused.
The appeal was decided on the basis of written material alone. There was no
oral hearing.
[3] Paragraph
3 of the petition seeks a number of orders. The petitioner averred that there
was a policy of not holding oral hearings in respect of appeals against
decisions of the CICA where it had refused a claim for compensation on the
basis that it was not made within the two year time limit. The petition sought
a declarator that such a policy was operated and an order for its reduction. Mr
Sutherland, for the petitioner, informed me that, having seen an affidavit from
a Tribunal judge which explained that there was no such policy, he no longer
insisted on these orders. He also made no submission in respect of an order for
reduction of a purported decision of HM Courts and Tribunals Service of 6 May
2011 that the decision of the Tribunal judge was a final decision and could not
be reconsidered at an oral hearing. As Mr Duthie, for the respondent, explained
there was no such decision. Accordingly the judicial review was confined to
the decision of the Tribunal judge of 27 June 2010.
[4] Mr
Sutherland advanced two arguments. The first concerned the interpretation of
rule 27(4) and (5) of the Tribunal Procedure (First-tier Tribunal)(Social
Entitlement Chamber) Rules 2008 (SI 2008/2685) ("the Rules"). In essence he
argued that on a proper interpretation of these Rules, the Tribunal was not
precluded from holding a hearing and must do so if there is a written
application for its decision to be reconsidered at a hearing. His second
argument was that on the merits the Tribunal judge had erred in law in refusing
the appeal.
[5] Mr Duthie
appeared for the Advocate General for Scotland representing the Lord Chancellor
and Secretary of State for Justice as the person having responsibility for the
Rules. He explained that his concern was only in relation to the interpretation
of the Rules. He had no interest in the decision of the Tribunal judge. That
was not to suggest that the respondent had any adverse view of the decision;
merely that he did not consider that it was for him to defend the individual
decisions of Tribunal judges. There was no formal intimation of the petition
on the CICA but Mr Duthie informed me that those instructing him had had
extensive discussions with the CICA and he could inform me that they did not
wish to enter the process. Accordingly the discussion proceeded in two parts.
Mr Sutherland presented his first argument in the presence of Mr Duthie, to
which he responded. Mr Duthie then withdrew and Mr Sutherland then
presented his second argument without a contradictor.
Background
[6] Where
an application for compensation is made outwith the two year period the
applicant must give reasons why the application had not been made before. The
petitioner's explanation was, "Didn't say anything because fear that neighbour
would kill my parents and I would have to live with him forever". She further
explained that she had been abused and raped by the neighbour over a four year
period and that she had lived in fear of him during that period as she believed
that he would kill her parents if she said anything. In section 7 of the
application the petitioner narrated the injuries which it is said she suffered.
In respect of current symptoms the petitioner had put down "depression, flash
backs, anxiety, low esteem, loss of confidence". She indicated that she was
still receiving treatment and that the injuries had left permanent scarring. Mr
Sutherland submitted that these answers should have alerted the CICA and the
Tribunal judge that there were continuing issues. He submitted that these were
classic signs of post-traumatic stress disorder, something not unknown in
victims of abuse. The application form in section 7 states "We will get
medical reports from your doctor and, if we need to, the hospital which treated
your injury." The petitioner had filled in the name and address of her general
practitioner and signed an authorisation permitting the CICA to request
personal information about her from amongst others, medical authorities.
Contrary to the expectation the statement might engender, no reports were
obtained. The petitioner also stated in a section headed "Your remarks" that
the abuse had affected all aspects of her life. She said that she felt she
wanted to end her life as a result of what he had done to her. He had scarred
her for life. She feared that he may have done it to others. She continued,
"I feel guilty I couldn't come forward before, as it was too hard to talk about
it."
[7] While the
CICA did not obtain medical reports it appears that they did obtain a number of
statements including some given by the petitioner to the police. One of the
issues dealt with in the statements is whether she had made any disclosure
before speaking to the police and if so to whom. In a statement dated 8
September 2008 taken by a Strathclyde police officer the petitioner is recorded
as saying, "I told M (her sister) about 2 years ago when I first started
suffering from depression." This was in a telephone conversation and she told
her, in the context of a conversation generally about abuse that it happened to
her and she mentioned C, the former next door neighbour. The sister then hung
up. About two weeks later M told the petitioner that C had tried it on with
her but she had got away. The petitioner went on to state, "I was in total
shock and was trying to deal with all my emotions and feelings so I never
questioned her then." Later she says, "Although over the years I have told
people about the abuse I have never went into details. I just find it too
difficult to do." She continued, "I have been dealing with the abuse every day
since it happened but I'd say it all came to a head about 2 years ago." She
then narrates an incident concerning a member of the family who had been
imprisoned for a sexual offence coming to her door. "It kicked something off
and I started having flash backs". She then goes on to say that it was at that
point she told her doctor of the abuse. She was put on anti-depressants and
signed off sick from work. She had not been back since. She then says, "I got
sent to a psychologist but I stopped going because they wanted to go in depth
and I was (not) ready to do that with anyone yet. About 6 months ago I decided
I was ready to tell my dad. After I told him I realised I had nothing to hide
now and made the decision to report it to the police." She continued, "I told
my husband at the very beginning of our relationship but again I have never
discussed it in any detail with him because I can't."
[8] The
application for compensation was rejected on 2 March 2010. The reasons that
were given were that it was not practicable to waive the time limit and that
she was claiming for abuse that had happened over twenty years ago and no
convictions were obtained regarding the disclosure. The petitioner requested a
review. In an accompanying letter she repeated the reason for her fear and
added that even as a teenager she could not rationalise the threats to kill her
parents. She said that the first time she spoke about the abuse was when she
was having a conversation with her parents and she finally revealed to them
what had happened and with whom. Her father had told her she should report it
to the police and she finally screwed up the courage to speak to them. She had
thought she might be able to speak to a family doctor on one occasion but her
mother was with her and the opportunity was lost. She said that her first
husband knew that she had a problem of some kind from childhood but she could
not discuss it with him - nor with her second husband until it all came out in
the open.
[9] The
application for a review was rejected. The reviewer accepted that as the
petitioner was a child at the time it would not have been reasonable to expect
that she submit an application within two years. However the reviewer
continued that in a case such as this it would be considered reasonable to
expect her to submit an application within 2 years of disclosure of abuse or
within 2 years of turning 18. The reviewer then points to the part of the
statement where she said that she had told M about 2 years previously and other
people over the years. The reviewer states that the criteria which would have
allowed the case to be considered as exceptional had not been met and the two
year time limit could not be waived.
The petitioner then appealed to the Tribunal under paragraph 61 of the Scheme. Through this process she had the help and assistance of Victim Support. I was informed that before the papers are put to the Tribunal judge the appellant is given an opportunity to consider the papers that are to be submitted and is given an opportunity to place any papers that she wishes before the judge. At this point it should have been obvious to those advising the petitioner that, contrary to what might have been expected from the terms of the application, no medical reports had been obtained. It is unfortunate that the opportunity was not taken then by her advisers to obtain such reports and submit them to the Tribunal judge for her consideration. After the appeal was refused the petitioner got legal advice. On 17 March 2011 solicitors acting for the petitioner wrote to Tribunal Service enclosing GP records which they said showed long term mental health difficulties. Clearly these came too late. I should add that Mr Sutherland was scrupulous in not taking me to the reports themselves as these were not before the Tribunal judge. Accordingly, although they were lodged as productions, I have not read them. Mr Sutherland confined his remarks to saying that had the CICA sought these records they would have supported the petitioner.
[10] The
Tribunal judge's decision so far as relevant is in the following terms:
"Rule 27(4)(a) Decision which disposes of the proceedings without a hearing
10. I consider that, taking into account:-
(a) the 'overriding objective' of the Rules which is to enable the Tribunal to deal with cases fairly and justly (Rule 2);
(b) the Tribunal's case management powers (Rule 5);
(c) the need for discretion to be exercised judicially;
(d) the underlying presumption that statutory time limits can ensure certainty and finality and are to be complied with;
(e) oral hearings to deal with time limit appeals can cause or contribute to an inefficient tribunal system;
(f) the documents in the appeal bundle, a copy of which has been sent to the Appellant, in particular the Respondent's review decision letter, the Appellant's Notice of Appeal, the Respondent's Reply to the Notice of Appeal and the appellant's response to that reply deal sufficiently fully with the issues in this appeal,
it is appropriate to make a decision in this appeal without an oral hearing.
The issues
10. In summary, the Appellant's case is that she was terrified as a child that her abuser would kill her parents and since then has not felt strong enough to report the abuse.
11. The Respondents' case, set out in the review decision letter and its response, is that in her statement to the police the Appellant says that she told various people about the abuse over the years and if she was able to do that she could have reported the matter to the police and applied for compensation long before she did.
12. It is evident that the application was not made within two years of the incident. The questions I have to decide are:-
a. is it practicable for the application to be considered?
b. in the particular circumstances of this case, would it have been reasonable to expect the applicant (the Appellant in this case) to have made the application for compensation within the two-year time limit?
13. For this appeal to succeed, the answer to the first question in the last paragraph must be YES and the answer to the second question must be NO.
The decision
14. With regard to the first question, I do not need to make a decision because my decision in answer to the second question is YES.
15. My reasons for deciding that it would have been reasonable to expect the Appellant to have made the application within the two year period are:-
(a) the Appellant was a child at the time of the abuse which occurred during four years while her abuser lived next door. She says that he threatened to kill her parents if she told anyone about the abuse and for four years she lived in fear. Thereafter he moved away and her application to the CICA suggests that thereafter she no longer lived in fear;
(b) according to the evidence from the Appellant and her brother D she told him about the abuse when they were children and according to her own evidence she told her brother Robert when she was about 24, that is in about 1998. It was therefore quite incorrect to say, as she did in her application for a review, that the first time she spoke about her abuse was to her parents immediately before she reported it to the police;
(c) as the Appellant was a child when she was abused I would not necessarily expect her to have reported the abuse or to have applied for compensation within two years of the abuse happening but I would expect her to have both reported it and applied for compensation within about two years of reaching the age of eighteen, that is by about 1994;
(d) this Appellant makes it clear that she was telling other people about her abuse over the years, including telling her brother when she was a child and accordingly I do not accept that she was unable to report the matter to the police or make a claim for compensation by 1994;
(e) while I recognise that it is not easy to report abuse, the Appellant seems to have been able to talk about her abuse to various people over the years and there is no medical evidence to suggest that she had any psychological problems that would have prevented her either from reporting the abuse to the police or applying for compensation;
(f) the Appellant claims that she was afraid that her abuser would kill her parents but it is clear that fear subsided when he moved away and by the time she was an adult I am unable to accept that she had any real far that reporting the abuse would result in any harm to anyone.
(g) it follows that no explanation acceptable to me has been advanced by the Appellant in the Notice of Appeal and subsequent submission in support of this issue.
16. In respect of this appeal, and in accordance with Rules 27(4)(b) and 27(5)(c) of the Rules, this is a final decision and the Tribunal has no power to reconsider it at an oral hearing".
Rule 27 is in the following terms:
"27.- Decision with or without a hearing
(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.
(2) This rule does not apply to decisions under Part 4.
(3) The Tribunal may in any event dispose of proceedings without a hearing under rule 8 (striking out a party's case).
(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, any party may make a written application to the Tribunal for the decision to be reconsidered at a hearing.
(5) An application under paragraph (4)(b) may not be made in relation to a decision -
(a) not to extend a time limit;
(b) not to set aside a previous decision;
(c) not to allow an appeal against a decision not to extend a time limit; or
(d) not to allow an appeal against a decision not to reopen a case.
(6) An application under paragraph (4)(b) must be received within 1 month after the date on which the Tribunal sent notice of the decision to the party making the application".
Interpretation of rule 27
Petitioner's submissions
[11] Mr
Sutherland submitted that the Tribunal judge's finding that her decision was
final and the Tribunal has no power to reconsider it at an oral hearing was an
error of law. There is a distinction to be drawn between a time limit which is
in effect a limitation on making an application and a procedural time limit. The
limitation may be waived in the circumstances provided for in paragraph 18.
Procedural time limits may be extended. Rule 27(5)(c) only applies to appeals
against a decision to refuse to extend procedural time limits. It does not
apply to an appeal against a decision to refuse to waive the time limit for
making an application. This distinction is clear from a proper reading of the
Scheme. Paragraph 19 provides that it is for the applicant to make out his or
her case for the waiver (my emphasis) of the time limit in paragraph 18.
Paragraph 58 provides that an applicant may seek a review of any decision not to
waive or extend (my emphasis) the time limit in paragraph 19 or
paragraph 59. Paragraph 59 provides that an application for review must be
made within 90 days of the date of the decision but that an extension of the
time limit may be granted. Paragraph 63 deals with what happens when a
Tribunal allows an appeal against a decision taken on review. Paragraph 63(2)
provides that where the appeal is against a decision not to waive the time
limit in paragraph 18 then the Tribunal will direct that the application be
dealt with as if the time limit had been waived. The language there can be
contrasted with the language in the next sub-paragraph which provides that
where the appeal is against a decision not to extend the time limit in
paragraph 59 the Tribunal will direct that a review be conducted. Accordingly
"waive" and "extend" were separate processes in terms of the Scheme. Turning
to rule 27(5) Mr Sutherland submitted that each of the headings could be
related back to specific provisions in the Scheme and that omitted any waiver
of a time limit. Had the drafters of the Rules wished to include waiver in rule 27(5)
they could have done so without any difficulty. The use of the word
"extension" in the Rules should have the same meaning as in the Scheme. Both
were made on the same day and came into force at the same time. He referred me
to Craies on Legislation, 10th edition, at paragraph 20.1.38 for the
proposition that where the same expression is used in two separate contexts, a
statutory definition in one context may be persuasive in another. Applying
this principle in the present case it was clear that rule 27(5) did not include
an appeal against a refusal to waive a time limit. Accordingly the petitioner
had a right to request and be granted an oral hearing under rule 27(4)(b).
Respondent's submissions
[12] Mr Duthie
submitted that rule 27(5)(c) covered waiver of a time limit under paragraph 18.
He described the difference between waiver and extension as being one without
content. The attempt to tie in the individual provisions of rule 27(5) with
provisions in the Scheme was not warranted. While both the Rules and the
Scheme came into force on the same day, the Rules applied beyond the narrow
confines of the 2008 scheme. They had to be generic. If he was wrong in that
interpretation the application was nevertheless caught by rule 27(5)(b) which
states that an application under paragraph 4(b) cannot be made in relation to a
decision not to set aside a previous decision. This was a previous decision. Rule
27(2) specifically excluded decisions under Part 4 which is headed "Correcting,
setting aside, reviewing and appealing Tribunal decisions". That indicated
that paragraph 4(b) must apply to other decisions. The only decisions that it
could apply to were decisions such as the one complained of not to hold a
hearing. If he was wrong in that submission in any event rule 27(6) provides
that an application for a hearing had to be made within 1 month and no
application had been made. Accordingly the petitioner was either barred or
simply too late in bringing this petition. In support of his interpretation he
referred me to Criminal Injuries Compensation Claims 2008, A Guide to the New
Scheme by Begley, Downey and Padley, published by the Law Society at section
10.8 where the authors state in reference to an appeal against a refusal to
waive the time limit for submission of an application that the "Tribunal
Procedure Rules suggest that the Tribunal has a discretion to deal with the
matter on paper". Mr Duthie accepted that this was simply their
interpretation of the rule and was in no way binding on me.
The decision of 27 July 2010 - the petitioner's submissions
[13] Mr
Sutherland submitted that the Tribunal judge had erred in law in her decision
to reject the appeal by the petitioner. The critical issue for the Tribunal
judge was whether it was reasonable to expect the petitioner to have made the
application within the two year time limit. Of importance to this issue is the
reason that was given for not disclosing the abuse earlier. The Tribunal judge
considered that there was no medical evidence to suggest that she had any
psychological problems that would have prevented her from reporting the abuse
to the police or applying for compensation.
[14] Mr
Sutherland accepted that no medical evidence as such had been placed before the
Tribunal judge but he argued that there was sufficient within the papers before
her to indicate that there was a reasonable explanation as to why there had not
been earlier disclosure. The approach of the Tribunal judge had to be to
consider all the relevant factors and apply then to the particular
circumstances of this; Hutton v First-tier Tribunal [2013] 1 WLR 124 per Aikens LJ, paragraphs 41 and 42. He took me through the application
for compensation and other papers before the Tribunal judge. In relation to
the judge's finding that the petitioner could have made an application within
two years of attaining the age of 18 years, he submitted that while that may be
true in other contexts it did not acknowledge the emotional and psychological
effects of sexual abuse. He referred me to R v Criminal Injuries
Compensation Board ex parte S [1995] ALR 693 where the court found that
Criminal Injuries Compensation Board had failed to take into account the mental
trauma of the violent sexual assault to which the applicant had been subjected
in considering whether it was fair to reduce an award; per Sedley J at pp 703,
704. In his submission there was plenty of material before the Tribunal judge
which gave a strong indication of severe trauma. There was reference to her
inability to speak in detail until she spoke to her father. There was
reference to her being referred to a psychologist but not continuing with this
as she was unable to go into the abuse in the detail that was required. The
impact of the abuse on her clearly continued into adulthood. Any effort that
she made to discuss it was limited until she was able to make the full
disclosure.
[15] Mr
Sutherland took me through the detail of the Tribunal judge's reasoning in
paragraph 15 of the decision letter. In heading (a) he submitted that the
Tribunal judge had wrongly inferred that the petitioner no longer lived in fear
once her abuser had moved away. He referred me to a letter that the petitioner
had written in support of her appeal dated 19 May 2010 and which was before the
Tribunal judge in which she said that she was still scared that he would come
and hurt or even kill her family. The statement did not acknowledge any
psychological stress on the petitioner. In sub-paragraph (b) he submitted that
the judge had failed to draw any distinction between telling a close friend or
family member and making a disclosure to police or other authority. He further
submitted that she had failed to take into account what it was that was said on
these occasions. In sub-paragraph (c) there was no explanation given as to why
she would expect the petitioner to make an application within two years of the
petitioner reaching her eighteenth birthday. That, he submitted, was a plain
error of law. In sub-paragraph (d) he submitted that the only disclosure made
by 1994 was to her brother D when they were both children. His statement made
it clear that the threat to kill his parents was as real to him as it had been
to his sister. The conclusion which the judge reached, that in some way this
disclosure supported the proposition in sub-paragraph (c) was irrational. So
far as sub-paragraph (e) was concerned he accepted that there was no medical
evidence as such but submitted that this conclusion did not bear scrutiny given
the statements that he had referred me to. If the Tribunal judge was
dissatisfied with the material before her she could either have requested
further information under rule 5(3)(2) or have held an oral hearing. Sub-paragraph
15(f) was merely a repeat of (a) and paragraph (g) was not a reason but a
conclusion.
[16] He also
referred me to the first paragraph 10 and submitted that the judge's reasoning
took no account of the particular circumstances of the petitioner. While (d)
and (e) were appropriate so far as they went they did not acknowledge that
hearings can also assist the tribunal.
Decision - The Determination of the Tribunal Judge
[17] It
is always difficult to consider submissions without the assistance of a
contradictor. However I am in no doubt that the submissions of Mr Sutherland in
relation to the reasoning of the Tribunal judge must be upheld.
[18] In R v
Criminal Injuries Compensation Board, Sedley J said in relation to the
trauma suffered by victims of sexual crime, "It is not a question of simply
having regard to the fact and circumstances of the trauma but of reasoning out
whether a woman, who on the face of the evidence, has been emotionally and
mentally frozen by a terrifying and degrading experience should have the
consequent delay in reporting it held against her." (p. 704).
[19] In
paragraph 15 the Tribunal judge starts by stating "her reasons for deciding
that it would have been reasonable to expect the appellant to have made the
application within the two year period." That of course was not what she
decided. At sub paragraph (c) she states that as she was a child she would not
necessarily have expected her to have reported the abuse within two years or to
have made a claim for compensation. She goes on however to say that she would
have expected her to have both reported it and applied for compensation within
about two years of reaching the age of eighteen; that is by about 1994 (when
she would have been twenty). So contrary to what she says in the preamble to
paragraph 15, the judge accepted that the petitioner could not be expected
to have made a claim within the two year period.
[20] Other than
eighteen being the age of majority there is no reason to select that age to
make a disclosure any more than 16 or 20 or 30. There was no evidence before
the Tribunal judge which entitled her to reach that conclusion. On the
contrary; those who have presided over trials of historic sex abuse of children
are only too aware of the deep psychological and emotional trauma that
surrounds such criminal activity. In order to carry off such abuse the victim has
to be cowed or otherwise subdued into remaining silent. That is a continuing
effect of the crime. Disclosure may be made years or even decades after the
abuse has ended. As Sedley J remarked in R v Criminal Injuries
Compensation Board at 702, one of the fruits of crimes of sexual violence
is the silence of the victim. That is a direct consequence of the crime and is
widely recognised as such in the criminal justice system. To suggest that this
effect disappears once the child has reached adulthood is to misunderstand the
pervasive nature of the trauma which victims of childhood sexual abuse
invariably suffer.
[21] Moreover,
the Tribunal judge has failed to consider whether there is any distinction to
be drawn between disclosure to police or other authorities and what might be
said over the years to close confidants. Disclosure to authority inevitably
puts the complainer into a formal process of investigation and possibly
prosecution of the defender. That may involve renewed trauma for the victim reliving
the abuse and possibly having to confront her abuser in an adversarial
process. While the justice system has made great efforts to try and allay
victims' fears of the judicial process it remains a psychological barrier which
someone complaining of sexual abuse has to overcome before making a complaint
to police. On the other hand a victim who shares a confidence with a close
friend or family member faces none of these challenges. Such "disclosures" to
friends or family may be made to ease the burden or even to test whether, if
they do make a complaint to police, they would be believed. In considering
whether or not it would have been reasonable to expect a victim of historic sex
abuse to make an earlier disclosure it is important to consider the context in
which disclosures are made.
[22] The issue
for the Tribunal judge was whether, in the particular circumstances of this
case, it would not be reasonable to expect the applicant to have made an
application within the two year period. Having conceded that it was not
reasonable, as she was a child at the time of the abuse, it was then necessary
to determine at what point it would have been reasonable to make an
application. In support of her finding that an application could have been
made within two years of reaching eighteen i.e. before 1994, the Tribunal judge
cites the fact that "she was telling other people over the years including
telling her brother when she was a child". It should be noted that the only
disclosure of any sort before 1994 was to her brother when they were both
children. His statement makes it clear that he believed that if he told anyone
both of their parents would be killed and that both of them would have to live
with the petitioner's abuser. Although it is not entirely clear it appears
that this disclosure to her brother was made during the time that the abuse was
happening and they were both children. In my opinion it is quite irrational to
hold that that disclosure while she was a child to a sibling who was also a
child at the time and was in turn in fear of the abuser should point to a
conclusion that it was reasonable to expect the petitioner to make an
application within two years of her eighteenth birthday.
[23] It is
accepted that there was no direct medical evidence before the Tribunal judge. I
have to say that I find that mildly astonishing in a case such as this where
there were clear indications of psychological trauma. In my judgement the
Tribunal judge should have been put on notice by the statements within the papers
that the petitioner had psychological problems. Indeed it seems to me that
this is one of the first things to look for in a case of historical sexual
abuse where there is delayed disclosure. If the Tribunal judge considered that
she required further information then she had the power to seek it. Alternatively,
or in addition, she could have set down an oral hearing where this could have
been explored. Indeed in my opinion this case almost cried out for the holding
of such a hearing.
[24] For these
reasons I consider that the Tribunal judge erred in law and that the decision
falls to be reduced.
[25] While Mr
Sutherland did not press any point in relation to the exercise of the judge's
discretion in not holding a hearing I consider that there are problems with her
reasoning on this issue. In (the first) paragraph 10 of her decision the
Tribunal judge considers the factors which she takes into account in
determining that she could make a decision without an oral hearing. These
include "(d) the underlying presumption that statutory time limits can ensure
finality and are to be complied with". As a general proposition it is correct
so far as it goes. However as stated it admits of no exception; it simply
states that time limits are to be complied with. More fundamentally, however,
it is difficult to see what a presumption about compliance with a time limit
has to do with a decision as to whether or not to have an oral hearing. It may
be a factor in the decision itself, though it does not re-appear in paragraph
15, but it is irrelevant in considering whether or not to hold an oral hearing.
At "(e)" the Tribunal judge states that "oral hearings to deal with time limit
appeals can cause or contribute to an inefficient tribunal system". It may
well be that they cause further work but such a statement fails to acknowledge
that the aggrieved party has a right to request such a hearing and that an oral
hearing can both contribute to a party being able to participate fully in the
proceedings (see rule 5(2)(c) and help elucidate issues more fully than is
possible on paper.
Interpretation of Rule 27
[26] While
that is sufficient to dispose of the matter in deference to counsel and their
submissions I should give my views on the proper interpretation of rule 27. I
consider that the submissions of Mr Sutherland on this point are to be
preferred. It is clear from looking at the Scheme as a whole that "waiver" and
"extend" are used in two different and distinct ways. Paragraph 18 of the
Scheme provides that "[An application] should be made as soon as possible after
the incident giving rise to the injury and must be received by the Authority
within two years of the date of the incident. A claims officer may waive this
time limit only where he or she considers that...." Thus waiver is used in
relation to the exercise by the claims officer to admit an application after
the expiry of the two year limit. "Extend" where it appears in the Scheme on
the whole relate to issues of case management. While Mr Duthie contended that
the two year rule was a procedural rule in my opinion it is more fundamental
than one designed to ensure the effective case management of an application once
accepted. There is in my opinion a qualitative difference between the two. Moreover,
while the effect of the words in question may be similar there is a conceptual
difference between waiver, which has as its underlying theme the giving up of a
right or the decision not to enforce a rule, and the extension of a time limit.
[27] Rule
27(4)(b) gives a right to a party to make a written application for a decision
which disposes of proceedings to be reconsidered at a hearing. That right is
however limited by the provisions of 27(5). I consider that where a provision
excludes a right it should be done in clear and unambiguous language. The
failure to include an appeal against a decision not to waive the two year time
limit in rule 27(5) clearly points to an applicant who is aggrieved by a
decision not to waive the time limit having the right to request that the
decision be reconsidered at a hearing.
[28] Mr Duthie
had two esto arguments. Neither was pressed hard. Neither
Mr Duthie nor Mr Sutherland were able to elucidate on the meaning of
rule 27(5)(b). In any event as there are clear rules about appealing decisions
to the Tribunal I cannot see that it has any application in this case. So far
as rule 27(6) is concerned it is true that no application was made within the
time limit. That is because the Tribunal judge held, erroneously in my view,
that there was no right to a hearing.
[29] Accordingly
I shall repel the pleas in law for the respondent and grant the prayer of the
petition to the extent of reducing the decision of the First-tier Tribunal
judge dated 27 July 2010. The matter should be re-considered by the First-tier
Tribunal. I shall reserve the question of expenses.