JR/2104/2009
1. I refuse permission to apply for judicial review of the decision of the First-tier Tribunal (Social Entitlement Chamber) to strike out the claimant’s appeal against a decision of the Criminal Injuries Compensation Authority. The decision of the First-tier Tribunal was made at Fox Court (London) on 8th May 2009 under reference X/08/225652. I refuse permission because although the decision of the First-tier Tribunal was made in error of law, the criminal injuries claim has no prospect of ultimate success.
2. I heard the applicant in person at a hearing on 25th February 2010 at which neither the respondent tribunal nor the interested party was represented. Following that hearing I received further written submissions and it was not necessary to hold a further hearing.
Background and Procedure
3. The applicant is a woman who was born on 19th February 1966. She attended a special school and she has stated that from 1978 to 1981:
“I was emotionally abused by a member of staff who shouldn’t have been at the school because the staff member is a danger to children physically and mentally … had fits of rages towards me … This affected me psychologically and mentally, it made my stress related illness a lot worse …”.
4. It appears that no complaint to the police was made at the time, but correspondence from the relevant County Constabulary (page A5 of the file) has confirmed that as a result of complaints made by others in later years a relatively large scale police investigation was carried out in 1992. Several members of staff of the school, including the person in respect of whom the applicant’s comments were made, were prosecuted for conspiracy to falsely imprison the children at the school (including acts of violence) but were acquitted by the jury after a lengthy trial.
5. The applicant stated in relation to the present criminal injuries claim that she had made a criminal injuries claim in 1994 in respect of these incidents. After the hearing before me I indicated that because she has throughout maintained that she has been in a poor psychiatric state and has been suffering from a stress disorder, it might be unwise to rely on her own recollection. I asked whether there was adequate documentation to show that she did in fact make an effective claim at an earlier stage. I am grateful to the Legal Adviser to the Criminal Injuries Compensation Authority for investigating this and searching the records (her evidence is on pages 65 to 74 of the file). I accept that enquiries in relation to that earlier claim began on 27th April 1994, that a solicitor acted for the applicant, that the file reference number was 94/22741, that the application was refused on 21st May 1996 and that the case was closed on 6th June 1996.
6. The present claim was made under the Criminal Injuries Compensation Scheme 2001 (“the 2001 scheme”) on 16th June 2008. On 6th July 2008 the Criminal Injuries Compensation Authority (“the authority”) refused to make an award of compensation because a claim had been made for the same injury under a previous scheme. On 8th September 2008 the authority maintained this decision after a review requested by the applicant. On 2nd December 2008 the applicant appealed to the Social Entitlement Chamber of the First-tier Tribunal against that decision and on 5th March 2009 a judge of that tribunal gave notice that it was intended to strike out the appeal for lack of jurisdiction. Notwithstanding the applicant’s objection to that course of action, her appeal was struck out on 8th May 2009. The applicant applied to the Administrative Appeals Chamber of the Upper Tribunal for permission to apply for judicial review of that action by the First-tier Tribunal and on 8th November 2009 a judge of the Upper Tribunal considered the matter on the papers and refused permission. The applicant applied for reconsideration of that refusal at an oral hearing, which took place before me on 25th February 2010.
The 2001 Scheme
7. So far as is relevant, paragraph 7 of the 2001 scheme provided as follows:
7. No compensation will be paid under this Scheme in the following circumstances:
(a) where the applicant has previously lodged any claim for compensation in respect of the same criminal injury under this or any other scheme for the compensation of the victims of violent crime in operation in Great Britain …
8. It is clear that the present claim is in respect of the same injury or injuries as the earlier claim (and the applicant has not suggested otherwise), and for that reason it cannot possibly succeed, irrespective of whether it would have succeeded had an earlier claim not been made.
Jurisdiction
9. The First-tier Tribunal and the Upper Tribunal Judge who initially considered the papers relied on rule 8(2) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, which provides as follows:
8(2) The Tribunal must strike out the whole or part of the proceedings if the Tribunal –
(a) does not have jurisdiction in relation to the proceedings or that part of them …
10. However, reliance on that provision begs the question of whether the First-tier Tribunal does in fact have jurisdiction. Paragraph 2 of the 2001 scheme appointed persons who were appointed as adjudicators under section 5 of the Criminal Injuries Compensation Act 1995 to be members of the Criminal Injuries Compensation Panel (“the Panel”). Paragraphs 61 to 65 of the 2001 scheme conferred rights of appeal and paragraph 61 provided as follows:
61. An applicant who is dissatisfied with a decision taken on a review … may appeal against the decision by giving written notice of appeal to the Panel …
11. There then followed many procedural provisions, time limits, a requirement for reasons and so on. However, the actual substantive right of appeal is unlimited in that it is not restricted to errors of fact, errors of law, or particular grounds, other than that the applicant “is dissatisfied”.
12. By virtue of section 30(1)(a) of and Part 2 Schedule 6 to the Tribunals, Courts and Enforcement Act 2007, and paragraph 3(1) of and Table 1 of Schedule 1 to The Transfer of Tribunal Functions Order 2008, the functions of a adjudicator (and thereby of the panel) were transferred to the First-tier Tribunal with effect from 3rd November 2008. No further restriction (in the sense that I have been using the word) of the right to appeal against a decision of the authority was introduced either by those measures or by The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.
13. Thus it is clear on first principles (at least to me) that the First-tier Tribunal did have jurisdiction to decide the appeal to it and that it confused the concepts of (a) lack of jurisdiction to hear an appeal and (b) hearing an appeal that it thought was bound to fail. The undated submissions of the First-tier Tribunal, which accompany the Tribunals Service letter of 3rd March 2010, show that it persists in this confusion.
14. This issue has been the subject of much judicial and academic comment. I just refer to two of the better known dicta in the House of Lords. In R v Nat Bell Liquors Ltd [1922] AC 128 at 151, Lord Sumner said of a magistrate:
“If his jurisdiction to entertain the charge is not open to impeachment, his subsequent error, however grave, is a wrong exercise of jurisdiction which he has, and not a usurpation of jurisdiction which he has not”.
15. In R v Governor of Brixton Prison ex parte Armah [1968] AC 192 at 234 Lord Reid said,
“If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right then he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.”
16. The point is that whatever decision it though it should or was obliged to reach, the First-tier Tribunal here had jurisdiction to do it or not to do it. It had jurisdiction to “enter on the inquiry”. The applicant exercised a right of appeal, the tribunal was seized of the matter, and it should have made a proper decision. To do as it did was to run the risk of denying the claimant a hearing on the facts and merits of her appeal.
17. The First-tier Tribunal would only be without jurisdiction to consider an appeal when no right of appeal to it had been created in respect of a particular matter or where the exercise of such a right was subject to a condition precedent which had not been satisfied.
18. However, for the reasons explained above, I refuse permission in this particular application.
H. Levenson
Judge of the Upper Tribunal
18th May 2010