Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. JR/1001/2009

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Rowland

Decision: The decisions of the First-tier Tribunal dated 20 November 2008 and 10 December 2008 are quashed. The consequence is that there must be a new hearing before a differently-constituted panel.

REASONS FOR DECISION

1. These proceedings were started by an application for permission to apply for judicial review of a decision of the First-tier Tribunal dated 10 December 2008 not to set aside an earlier decision of that tribunal given on 20 November 2008. (The application also referred to a letter by the principal judge, dated 16 January 2009, but that does not add anything.) However, when I gave case management directions in this case, I observed that the procedure adopted by the First-tier Tribunal on 20 November 2008 caused me some concern and I suggested that that decision might be challengeable. No party has dissented from that suggestion and I have given permission to apply for judicial review in respect of both decisions.

2. The issue before the First-tier Tribunal on 20 November 2008 was whether the claimant had suffered an injury “sufficiently serious to qualify for compensation” (para 25 of the 2001 Scheme), which, in the context of this case, in turn required that the claimant have been suffering at least either from (a) a “moderately disabling disorder” that was a “medically recognised” illness or condition (other than mental illness) or from (b) temporary mental anxiety lasting at least six weeks that was “medically verified” or from (c) a “mental illness, confirmed by psychiatric diagnosis” or from (d) “multiple minor injuries” necessitating “at least 2 visits to or by a medical practitioner” and leaving residual effects after six weeks. The First-tier Tribunal considered that the necessary evidence in support of the claimant’s case had not been obtained before the hearing on 20 November 2008 but the claimant pointed out that there could be more evidence in his medical records and the First-tier Tribunal clearly decided that he should be given the opportunity to provide such evidence.

3. The First-tier Tribunal sought to achieve that by making a decision adverse to the claimant but indicating that, if the evidence was forthcoming, the decision could be set aside by the principal judge (who had not been a member of the panel hearing the case) under “Rule 41”. The Applicant duly provided evidence but, on 10 December 2009, a different tribunal judge declined to set aside the earlier decision, on the ground that the new evidence was insufficient. He, too, considered “Rule 41” to be the material provision.

4. However, as I suggested when giving case-management directions and as is now conceded by the respondent tribunal, rule 41 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (S.I. 2008/2685) does not confer any substantive power to set aside a decision of the First-tier Tribunal: it merely provides that an application for one form of relief under Part 4 of the Rules may be treated as an application for another type of relief. The only power to set aside a decision in a criminal injuries compensation case is conferred by rule 37 and the provision of new evidence that had not previously been sent to the First-tier Tribunal could not justify a setting aside under that rule. (The power of reconsideration under rule 27(4)(b) is not material to this case.) The proper procedure for the First-tier Tribunal to have adopted on 20 November 2008 would have been to postpone issuing its decision until the claimant had had the opportunity to provide the additional evidence and then to consider the significance of the expected evidence not having been produced or having been only partially produced.

5. In fact, the evidence subsequently produced by the claimant did not advance his case at all. It consisted of a list of all his consultations with his general practitioner from 16 October 2004 to 1 March 2005. There was no reference in it to anxiety or a psychiatric condition and it did not show that there had been either a “moderately disabling disorder” or “multiple minor injuries”. Therefore, had the proper procedure been followed and the new evidence been placed before the members of the tribunal who had sat on 20 November 2008, that tribunal would inevitably have decided that it was unnecessary to have a further hearing and it could have issued a decision based upon its provisional views formed on 20 November 2008. Thus it can be said with confidence that the procedural defect did not make any difference to the outcome.

6. However, one consequence of the First-tier Tribunal’s approach is that the Applicant was led into thinking that the decision he needed to challenge was the decision of 10 December 2008, which may be the reason that he did not apply for a statement of reasons for the decision of 20 November 2008. When giving case management directions, I suggested that that was potentially a serious detriment because the lack of reasons made it difficult for the claimant to challenge the decision of 20 November 2008, which was the substantive decision in his case. Had the proper procedure been followed, the substantive decision on the claim for compensation would not have been made until 10 December 2008 and the claimant might well have sought reasons before attempting to challenge it. I pointed out that the Criminal Injuries Compensation Authority appeared to have taken the view that the relevant injury in this case was mental anxiety whereas the claimant had complained also of other matters. In the absence of a statement of reasons, it was not clear whether the First-tier Tribunal considered whether such other matters might have amounted to “multiple minor injuries” or, perhaps, a “moderately disabling disorder” and, if so, whether it erroneously believed that corroboration from medical records was required as a matter of law. I suggested that a full statement of reasons would, or should, have provided the explanation but that the form of its decision on 20 November 2008 might tend to suggest that the First-tier Tribunal considered that the medical evidence was required as a matter of law, whatever the nature of the claimed injury. As it was not obvious that the First-tier Tribunal had not made an error of law in its approach to the central issue in the case, I suggested that it might be appropriate simply to set aside its decision of 20 November 2008 on account of the procedural defect.

7. However, the respondent tribunal not only filed an acknowledgment of service but has also helpfully produced a statement of reasons for the decision of 20 November 2008. In its acknowledgement of service, it conceded the procedural error but it submitted that the production of the statement of reasons meant that the claimant had suffered no disadvantage and that permission to apply for judicial review should be refused.

8. I agree with the respondent tribunal that the production of the statement of reasons has the consequence that, in this particular case, the procedural defect identified above has ceased to have any significance. However, questions do arise as to whether the statement of reasons reveals an error of law in the First-tier Tribunal’s reasoning on 20 November 2008 or whether the statement of reasons is itself inadequate.

9. The claimant had claimed compensation in respect of injuries that he said had been caused during the course of a number of incidents involving a neighbour. The First-tier Tribunal’s reasoning is neatly summarised in paragraph 10 of the statement of reasons –

“The reasons for the decision were:-

·       The appellant claimed only to have suffered mental effects from this series of incidents.

·       Under the terms of the Scheme any such effects can only be compensated if there is either medical verification or psychiatric diagnosis (page 27 of the Scheme).

·       In this case there was neither and the only medical evidence available to us from the appellant’s GP stated that there was no evidence that the appellant had ever told his GP that he had been terrorised since 16th October 2004.”

10. The claimant has said that the First-tier Tribunal kept mentioning the event on 16 October 2004 and not the subsequent events, but it seems clear from the first bullet point of those reasons that the First-tier Tribunal was well aware that it was concerned with a series of events.

11. Secondly, the claimant has explained that the general practitioner he saw at the time had left the practice and was not the one to whose letter the First-tier Tribunal referred. Unfortunately, the Authority did not include with the papers sent to the First-tier Tribunal a copy of the letter it had written to the doctor. It was not essential to the claimant’s case that a doctor have recorded that the claimant had complained of being terrorised, although a failure to do so might have some implications when it came to findings on causation or, in some cases, as to whether alleged incidents occurred at all. The letter from the doctor therefore does not show that “there is no record of [the claimant] seeking medical treatment for [his] injuries” as the Authority appears to have thought (although the Authority may have had some other, unexplained, reason for that statement). Whether or not they contained any reference to the claimant being terrorised, the medical records would have been relevant if they contained any diagnosis of anxiety in the relevant period, any psychiatric diagnosis, any evidence of a moderately disabling illness or condition (other than mental illness) or multiple minor injuries necessitating at least two visits to a doctor.

12. However, the problem facing the claimant lies in the definitions of the conditions that are regarded as sufficiently serious to justify a payment of criminal injuries compensation and are listed in the “Tariff of Injuries” attached to the Scheme.

13. Any claim in respect of “temporary mental anxiety” or “mental illness” requires a formal diagnosis. Not only was none made available to the First-tier Tribunal but the claimant has never even suggested that there has been a formal diagnosis. At the hearing before me to which I will refer in more detail below, the claimant explained that the doctor he saw said that the effects of any medication would be worse than any condition from which he might be suffering. He said that he had been terrified of what might happen to him at the hands of his assailant but that his terror subsided when the police took him seriously and spoke to his assailant. Meanwhile, he said, he had been visiting his doctor but speaking informally to her, which is why there is no computer record of consultations. None of this suggests that there was, or should have been, any formal diagnosis. The First-tier Tribunal’s decision is therefore unassailable on the issue it considered.

14. On the other hand, the claimant has also said that the attacks were both “mental and physical”. The First-tier Tribunal clearly thought that the claimant had been made only in respect of mental injuries, which is what the Authority had said. However, that is not what the claim form shows. The claimant failed to complete box 7(a), where he was asked to describe his injuries, but in box 12 (“your remarks”), he attributed “pains in my side” to the attacks, in which he said he had been “assaulted”. In his letter of appeal to what became the First-tier Tribunal, he referred specifically to two assaults and attributed his injuries to the first of them, on 16 October 2004. It seems to me that the First-tier Tribunal erred in restricting the scope of its enquiries.

15. However, the claimant still would not be entitled to relief in these proceedings if he had no prospects of success on his claim in respect of physical injuries. In conventional judicial review proceedings in the courts, one might expect an applicant to explain in an affidavit why he had prospects of success but where an applicant is acting in person in the Upper Tribunal, it may be more satisfactory for the information to be obtained orally. I considered that to be the position here and for that reason I held an oral hearing of the claimant’s application for permission.

16. The claimant explained that the reason that the police accepted that he had been the victim of a crime of violence and that the incident on 16 October 2004 had not been a simple road traffic accident, was that they had been persuaded that his assailant, a drug dealer, had wrongly believed that the claimant had given the police information about him. The claimant told me that only the first two incidents in the series had actually involved physical violence. On the first occasion, he had been forced to swerve while driving a car and had felt a pain in his side from which he is still suffering and his foot had been hurt slightly. He produced a recent letter from St George’s Hospital, recording that he had been “troubled by left-sided abdominal pain that occurs intermittently for at least the last five years that started after his road traffic accident”, that “he is fairly sure that stress makes his pain worse” and that the doctor “would not plan any further investigation into this pain but would advise directing further treatment to his symptom relief and reassurance that we have not found anything sinister”. He thought his foot, which had been caught by a pedal, had been painful for three or four months. In the second incident, his assailant had tried to grab his camera and his hand and neck had been hurt, pain lasting for three or four weeks in the case of his hand and six to eight weeks in the case of his neck. He accepted that these estimates were vague.

17. Note 12 to the Tariff of Injuries says –

“Minor multiple physical injuries will qualify for compensation only where the applicant has sustained at least three separate physical injuries of the type illustrated below, at least one of which must still have had significant residual effects 6 weeks after the incident. The injuries must also have necessitated at least 2 visits to or by a medical practitioner within that 6-week period. Examples of qualifying injuries are:

(a) grazing, cuts, lacerations (no permanent scarring)

(b) severe and widespread bruising

(c) severe soft tissue injury (no permanent disability)

(d) black eye(s)

(e) bloody nose

(f) hair pulled from scalp

(g) loss of fingernail.”

Presumably, where there has been a course of conduct, the injuries need not all have been caused in the same incident and the six week period has to be considered in relation to each relevant incident within the course of conduct. It seems to me that, if the claimant’s evidence were to be accepted, he might have suffered at least three relevant injuries. I also take the view that it is sufficient if some only of the injuries required visits to the doctor. There is no documentary evidence that the claimant visited the doctor at all within six weeks of the first incident and the injuries in respect of which he appears to have visited the doctor on 2 December 2004 were attributed by the claimant to that first incident. However, the claimant said to me that he had visited the doctor on other occasions and that he was prescribed painkillers, although he was already using painkillers in respect of an unrelated hip problem.

18. I appreciate that there are weaknesses in the claimant’s case. However, I do not consider it to be unarguable. When I granted permission, I suggested that I was constrained by section 17 of the Tribunals, Courts and Enforcement Act 2007 to remit this matter to the First-tier Tribunal. Both the Respondent and the Authority have decided not to put in responses. It is possible that I read section 17 too narrowly but, in any event, I am satisfied that this case should be considered afresh by the First-tier Tribunal. I therefore quash the decision of 20 November 2008 and the decision of 10 December 2008 (which depended upon the earlier decision) with the consequence that the First-tier Tribunal must make a fresh decision following a new hearing, which should be before a differently constituted panel.

MARK ROWLAND

29 April 2010