Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. JR/1927/2009

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is a claim by the Applicant, brought with the permission of Upper Tribunal Judge Rowland, for judicial review of a decision of a First-Tier Tribunal made on 22 April 2009 whereby the Tribunal refused to extend the time for appealing against a decision by the Criminal Injuries Compensation Authority (CICA), on review, refusing to make an award under the Criminal Injuries Compensation Scheme 2001 (“the Scheme”) in favour of the Applicant. For the reasons set out below I refuse the claim for judicial review.

 

2. The Applicant (Chloe) is a girl who was born on 25 October 2001. The alleged crime of violence in respect of which compensation was sought was that on one or more occasions down to April 2005 (at which time she was about 3½ years old) her brother (Charlie), then aged about 12½, pushed a metal pole or rod up her bottom, causing a degree of injury.

 

3. I held an oral hearing of the judicial review claim on 27 May 2010 at which Chloe was represented by her adoptive father (Dr D) and CICA was represented by counsel, Mr Ben Collins, instructed by the Treasury Solicitor. Page references in this decision are to the bundle of documents which was helpfully prepared by Mr Collins for the purposes of the hearing before me. That bundle in fact includes, in divider 1 (described as “First-Tier Tribunal Bundle”) some documents which had been provided to CICA but were not before the First-tier Tribunal at the time of its decision on 22 April 2009. It is of course important that, in determining whether the First-tier Tribunal exercised its discretion to extend time in a manner which is judicially reviewable, I focus on what was before it at the time when it made the decision. What was before it is apparent from the First-tier Tribunal file, which I have. A copy of the documents in the First-tier Tribunal file was sent to Dr. D by the Upper Tribunal on 7 September 2009.

 

4. Chloe and her siblings were placed in foster care on 27 April 2005 under the auspices of Northamptonshire County Council (“the Council”). On 29 April 2005 Chloe made statements to her foster carer about what had happened to her which caused investigations to be made, and statements to be taken. The investigations concluded, it seems, with the Crown Prosecution Service advising in about the middle of July 2005 that there was not enough evidence to prosecute anyone (p.59 of the bundle). Chloe was placed with her proposed adoptive parents soon after 25 October 2006, and the adoption Order was made on 15 May 2007.

 

5. The claim to CICA was made on 15 March 2007, by the Council on Chloe’s behalf. Her representative was stated on the claim form to be the “head of legal services” at the Council, and the address given for the representative was PO Box No. 104, County Hall, Northampton, and also a DX Number. A box was ticked saying that CICA should deal directly with the representative. The signature at the end of the form was that of a Mr M Pratt, described as “head of services for children”. The claim was made nearly two years after the incident(s) on which it was based – i.e. towards the end of the two year time limit within which claims were required to be made.

 

6. On 21 June 2007 CICA issued an assessment decision disallowing an award of compensation, on the ground that there was insufficient evidence to show that Chloe had been the victim of a sexual assault. In accordance with paragraph 59 of the Scheme the Council was advised in the decision letter that if they disagreed with the assessment they could apply to have the application reviewed and that the review application must be received by CICA within 90 days of the date of the decision letter – i.e. by 19 September 2007. The decision of 21 June was sent to the Council, c/o Mr Pratt, at PO Box 93, County Hall, Northampton. It is not clear where CICA got that PO Box number from, but in any event it is clear that it reached the Legal Services Department of the Council.

 

7. On 25 September 2007 CICA received from the Council a letter dated 18 September 2007 enclosing an application for review. The letter was signed by Jo Balderson, from the Legal Services Department of the Council, the address on the letter again being the PO box 104 address. The letter enclosed short grounds of review settled by counsel on behalf of the Council.

 

8. CICA waived the time limit and considered the review application. On 19 March 2008 a letter was sent by CICA to the Council stating that, having carried out the review, CICA was unable to make an award under the Scheme, on the ground that there was not enough evidence to show that, on a balance of probability, Chloe had been the victim of a sexual assault:

“In regard to the alleged sexual assault, it is simply that, an allegation with no substantive or corroborative evidence. Unfortunately Chloe could not be medically examined and there is no other available evidence which would help in assisting with this claim. I am not saying that Chloe was not a victim. What I am saying is that there is not enough objective evidence to support the application.”

 

That letter of 19 March 2008 was again sent to the Council, c/o Mr Pratt, at PO Box 93, County Hall.

 

9. Under Rule 22 of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 (“the 2008 Rules”) an appeal was required to be made by sending notice of appeal to the Tribunal “so that it is received within 90 days after the date of the decision being challenged”. The notice of appeal, to be in time, was therefore required to be received by the First-tier Tribunal by 17 June 2008. The letter of 19 March 2008 drew attention to this time limit, and enclosed an appeal form.

 

10. On 4 July 2008 Jo Balderson wrote to CICA saying that she had made an application for a review on 18 September 2007, and asking when CICA would be in a position to make a decision. Plainly, she was not aware that a decision had already been made.

 

11. CICA did not reply to that letter, and on 21 November 2008 Ms Balderson telephoned CICA, and understood from the telephone conversation that an offer of an award had been sent to Mr Pratt on 19 March 2008, and that a copy would be sent to her. Having received nothing, on 3 December 2008 she wrote to CICA requesting them to “restore the case” and forward a copy of the correspondence and offer to her.

 

12. On 8 December 2008 CICA replied enclosing a copy of the letter of 19 March 2008, and stating that “as we received no response with regards to any appeal application, the case was “auto-accepted” and closed.” The letter further stated that if the Council wished to appeal the review decision, application should be made to the First-tier Tribunal, stating the reasons for lateness.

 

13. On 27 January 2009 Chloe wrote a note stating that when she was in bed Charlie had shoved a stick up her bottom, and that she screamed because it hurt like mad, and that her mother came running down the stairs and she was bleeding a lot. A drawing was included on the note. On 11 February 2009 Chloe’s GP replied to a letter from Ms Balderson, and apologised for the delay in replying. The information which the doctor gave was unhelpful to the claim in that it indicated that (i) there was no record of any anal problems prior to Chloe joining that practice in November 2006 and (ii) those problems might well be caused by constipation.

 

14. On 5 March 2009 Ms Balderson wrote to CICA (not to the First-tier Tribunal) as follows:

 

“I enclose an application for appeal together with the following additional evidence:

 

1. Police records

2. [GP] letter

3. [Chloe] letter [this was the note dated 27 January 2009 referred to above].

 

I would be grateful if you could add the documents to the CICA bundle.”

 

15. The letter enclosed grounds of appeal settled by counsel on 4 March 2009, and the other documents referred to. It did not, however, include any reasons for the delay.

 

16. It is apparent from the First-tier Tribunal file that CICA forwarded the letter of 5 March 2009 and enclosed documents to the First-tier Tribunal, which on 19 March 2009 wrote to Ms Balderson stating that the appeal was late, and that if she wished to appeal the review decision she should complete the enclosed Notice of Appeal Form, including section 4 to request an extension of the 90 day time limit.

 

17. On 3 April 2009 Ms Balderson replied enclosing a completed notice of appeal form. In Section 4 of the Form the following was stated:

 

“Application for appeal already submitted to CICA

 

This is a case where review decision went astray in the post during March 2008 and CICA allowed the case to be reinstated.”

 

18. In the letter of 3 April 2009 it was further stated as follows:

 

“You will see from the correspondence attached that a Review of the application was completed and sent to Mr Martin Pratt on 19 March 2008

 

Mr Pratt had left the Authority and the paperwork didn’t reach the Legal caseworker, the Writer.

 

…………………………………………………..

 

As the Appeal is out of time because the CICA Review letter was lost in the post and caused the delay I would be grateful if, in the interest of justice, the Tribunal Service would grant the Appeal application and set the same down for Appeal hearing in due course.”

 

19. On 22 April 2009 the Tribunal Judge made the decision, of which judicial review is sought, refusing to extend the time for making the appeal and therefore not admitting the appeal.

 

20. On 25 June 2009 Dr D signed a judicial review claim form, naming Chloe as the applicant. He explained that he had been informed that day that due to budgetary reasons the Council could not continue with Chloe’s case, and that he needed to get the claim form in immediately. It appears that he had very little documentation at that time: he said that he would have to request copies of all correspondence to be able to represent Chloe properly. (I note also his explanation as to his lack of access to documentation in his letter dated 16 August 2009 to the Upper Tribunal). The grounds for the judicial review claim were stated as follows:

 

“(i) CICA either did not send its responses to the correct person at [the Council], or did not send responses at all. In either case Chloe was deprived of (a) natural justice and (b) the right to appeal.

 

(ii) Invoking a time limit when there is no evidence that CICA has complied with its obligations is perverse

 

(iii) Refusing a time extension denies Chloe a chance to present her case.

 

(Though this is not directly relevant to this request for Review, it appears CICA were wrong in rejecting Chloe’s claim in the first place:

(a) Chloe’s statement and drawing;

(b) The admission by the brother who assaulted her).”

 

21. I have referred above to Rule 22(2) of the 2008 Rules, which lays down the 90 day time limit for appealing. Rule 22(6) provides that if the notice of appeal is out of time (a) the notice of appeal must include a request for an extension of time and the reason why the notice of appeal was not provided in time; and (b) unless the Tribunal extends time for the notice of appeal under rule 5(3)(a) the Tribunal must not admit the notice of appeal.

 

22. Rule 5 is headed “case management powers”, and Rule 5(3)(a) provides that the Tribunal may “extend or shorten the time for complying with any rule, practice direction or direction.”

 

23. In paras. 8 and 9 of her reasons for not extending time the Tribunal Judge said:

 

“8. Taking into account the overriding objective of the Rules to deal with cases fairly and justly, as set out in Rule 2, and in accordance with the power vested in me by Rule 5(3)(a), I do not find that it is appropriate to admit this appeal for the following reasons

 

9. Although Ms Balderson of [the Council] states in her letter of 3 April 2009 that the original legal caseworker, Mr Pratt, who was dealing with the case and to whom the Review letter was sent had left [the Council] and the paperwork did not reach her, the new legal caseworker, until later, I note that in the Notice of Appeal Ms Balderson states that the original Review letter “went astray in the post”. I also note that on 8 December 2008 the [CICA] advised her that because no response was received to the Review letter the case was “auto-accepted” and closed. On that date she was advised that should she wish to appeal an application to the Tribunal Service should be made stating reasons for the lateness of it. Despite that, it took Ms Balderson a further three and a half months to submit the Notice of Appeal. In doing so she averred that [CICA] had “allowed the case to be reinstated.” In my opinion, [CICA’s] letter of 8 December 2008 cannot be construed as re-instating the case. In any event [CICA] did not have jurisdiction to do so. In my opinion, given the history of delay in this case, there was no good reason why Ms Balderson could not have submitted the Notice of Appeal before 31 December 2008. Accordingly I do not find the arguments made by Ms Balderson on behalf of the Appellant either persuasive or compelling and I am not prepared to admit this appeal late. Separately, I note from the file and from the report of Dr J Taylor dated 11 February 2009 that there is insufficient evidence and no medical evidence available to show, on the balance of probabilities, that Chloe Daniel was the victim of a crime of violence in terms of paragraph 8 of the 2001 Scheme.”

 

24. On this application for judicial review I am of course not in the position of considering afresh how the Judge should have exercised the power to extend time. I can only grant relief by way of judicial review if the Judge’s exercise of the discretion was wrong in law or flawed in a respect which permits interference by way of judicial review.

 

25. Mr Collins, on behalf of CICA, invites me to hold, by way of guidance for future cases, that the correct approach for a Tribunal Judge who is considering whether to grant an extension of time for appealing is to have regard to the matters listed in CPR Rule 3.9. That provides that on an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or order the court will consider all the circumstances including ….” and there then follows a list of 9 matters. Mr Collins referred me to the decision of the Court of Appeal in Sayers v Clarke Walker [2002] EWCA Civ 645; [2002] 1 WLR 3095, in which it was held that, on an application for an extension of time for appealing to the Court of Appeal, it was appropriate to have regard to that checklist, because the effect of not granting an extension was similar to the effect of not granting relief from a sanction.

 

26. However, it does not seem to me to be appropriate to give guidance in that form. There is no provision in the 2008 Rules in the terms of CPR Rule 3.9, and it does not seem to me right to import it by way of analogy. The power to extend time is unfettered, and the circumstances which will be relevant in exercising it will vary from case to case. Black J was of that view in Howes v Child Support Commissioner [2007] EWHC 559 (Admin). That was a claim for judicial review of a decision of my own, sitting as a Child Support Commissioner, refusing to admit out of time an application for permission to appeal against a decision of a child support appeal tribunal. The procedural rules then in force were not the same as those now applicable, in particular in that the Commissioners’ power to admit the application was one expressed to be exercisable for “special reasons”. In para. 39 Black J said:

 

“Mr Burrows does not produce any authority for importing the CPR 3.9 approach or even simply the checklist in CPR 3.9(1) into the Child Support Commissioners (Procedure) Regulations 1999. I note that in the case of Sayers v Clarke Walker upon which he relies as a useful explanation of the operation in practice of CPR 3.9, the Court of Appeal referred back to the earlier case of Audergon v La Baguette in which it had deplored the creation of judge-made checklists which it considered an approach which carried the inherent “danger that a body of satellite authority may be build up … leading in effect to the rewriting of the relevant rule through the medium of judicial decision.” It seems to me that the danger potentially exists as much when one imports a checklist from one set of rules to another as when one invents one’s own checklist. There was no reason why the Child Support Commissioners (Procedure) Regulations could not have contained an equivalent provision to CPR Rule 3.9(1) of a checklist of some sort for the use of Commissioners considering the issue of special reasons if that had been thought appropriate. No doubt the sort of matters to which reference is made in CPR 3.9(1) may quite often also be relevant in cases considered by Commissioners under regulation 11(3) but I do not think it appropriate to impose upon Commissioners an obligation to refer to CPR 3.9(1). The concept of special reasons is a broad and flexible one and the factors that are relevant will be dependent upon the circumstances of the individual case.”

 

27. I respectfully agree with all of that, and it seems to me that that reasoning is if anything even more applicable in relation to the 2008 Rules, where the First-tier Tribunal’s power to extend time is not even limited by reference to a broad consideration such as “special reasons”, but is left wholly unqualified.

 

28. I did not at the hearing refer Mr Collins to Howes v Child Support Commissioner, as I rediscovered it only in the course of writing this decision. However, as it supports the conclusion which I was minded to reach without its aid, I have not thought it necessary to invite his comments on it.

 

29. In support of the claim for judicial review Dr. D made the following points, which he helpfully summarised in a typed submission.

 

30. The first two points concern the issue of the relative degrees of blame which should be attached to CICA and the Council respectively for the fact that Ms Balderson at the Council did not become aware until about 9 December 2008 that the application for review had been refused on 19 March 2008. Dr D contends that, if the decision of 19 March 2008 was posted at all, it was posted to the wrong address, and further that the DX should have been used.

 

31. These considerations cannot affect the question whether the appeal was out of time at all, because the 90 day time limit in Rule 61 of the Scheme runs from “the date of the review decision”, not from the date when it is sent or communicated. Dr D asks how this can be fair if the decision was not in fact communicated. The answer lies of course in the First-tier Tribunal’s power to grant an extension of time.

 

32. I do not think that the Tribunal’s approach to the part of the delay consisting of the period between the date of the review decision (19 March 2008) and the date (about 9 December 2008) when Ms Balderson of the Council became aware of the decision can be criticised. In my judgment it is reasonably clear from the first three sentences of para. 9 of the Tribunal’s reasons that it did not seek to make any findings as to where the responsibility lay for Ms Balderson not having become aware of the review decision until about 9 December 2008. The Judge accepted, it seems to me, that as Ms Balderson had not in fact become aware until shortly after 8 December 2008 that a review decision had been made, and as the letter of 19 March 2008 enclosing the decision might have got lost in the post, there would have been good reasons for extending time if the appeal had been made promptly after 8 December 2008.

 

33. Next, Dr D relies (in points 3 and 6 of his submissions) on the delay reasonably and necessarily caused by the need for the Council to consult with the adoptive parents and to take into account their views in relation to the effect on Chloe of pursuing the claim. He says:

 

“There were inevitable small delays whilst we were consulted about the effect the application might have on Chloe in the short and long term. She missed her birth mother and half-brothers a lot. Bathing her was difficult as she was very resistant to her bottom being washed. The statement she made [on 27 January 2009] and the picture she drew were entirely unprompted by us: she was sitting at the kitchen table one day talking to me when she said she wanted to tell me why it hurt her when she went to the toilet. (She didn’t know that we had been told). She then said she hadn’t wanted to talk about it as it might mean Charlie would get into trouble and she wouldn’t be able to see him ever again.”

 

34. There is in my judgment no doubt that the essence of the Tribunal’s reasoning was that, in the light of the substantial delay (albeit explained and excusable) which had occurred down to 8 December 2008, the delay which occurred between then and 3 April 2009, when the properly completed notice of appeal (with a request for extension of time) was received, was inexcusable. The Judge considered that the appeal should have been made by the end of December 2008.

 

35. That raises the issue, to which the points made by Dr D which I have just set out are relevant, whether there was any error of principle by the Tribunal in that approach. In particular, the Judge did not expressly consider what was being done by the Council between 8 December 2008 and 2 April 2009. From the information which was before the Tribunal it was apparent that during that period the statement by Chloe of 22 January 2009 had been made, and the letter from the GP of 11 February 2009 had been obtained. It may be that the information from the police had also been obtained during that period. Grounds of appeal were drafted by counsel on 4 March 2009, and further delay was then caused by the fact that the notice of appeal, without a request for an extension of time, was sent to CICA rather than the First-tier Tribunal.

 

36. However, neither Ms Balderson’s letter dated 3 April 2009, nor the enclosed Notice of Appeal, had expressly sought to explain the delay after 8 December 2008. The explanation given was for the delay down to 8 December. It can be said, however, that in stating, on the second page of the letter, that “an application for review [by which was meant “appeal”] was submitted on 5 March 2009, together with additional evidence namely ……”, the writer was implicitly relying on the time which had been needed in order to obtain that additional evidence, and indeed also on the time taken for counsel to draft the grounds of appeal.

 

37. In my judgment the Judge was entitled to take the view, as she appears to have done, that in the particular circumstances of this case, where there had already been substantial delay, the notice of appeal could and should have been sent without additional evidence, so that the only additional work needed to be done in order to submit it was the drafting of the appeal grounds, which could have been done without the additional information. It is true that the standard form of notice of appeal provided by the Tribunals Service requires not only (in accordance with the Rules) that grounds of appeal be stated, but also contains a Section 5, headed “Supporting documents”, which states that there must be sent with the Notice of Appeal “any documents in support of your appeal that you have not already supplied to the Authority.” However, the guidance on the First-tier Tribunal (Criminal Injuries Compensation) website states: “If you are still waiting to receive documents from someone else, please advise us of when you expect to be able to send them to us. Unless you need these documents to help you to decide whether or not to appeal, please do not wait until you have them to send in your appeal form.”

 

38. It does not seem to me that, in those circumstances, there is anything in Dr D’s point that the Judge should expressly have recognised that additional delays might have been caused by the fact that the claimant was a child who had been adopted, with a need for the Council to consult the adoptive parents. Again, no such factor was relied upon in the reasons for delay in the notice of appeal. It is even now not clear that this factor was the cause of any of the additional delay after 8 December 2008.

 

39. I have also considered whether the Judge can be considered to have erred in saying that despite CICA’s letter of 8 December 2008 “it took Ms Balderson a further three and a half months to submit the Notice of Appeal.” That statement was clearly made on the basis that no notice of appeal was submitted until the Council’s letter of 3 April 2009 to the First-tier Tribunal, enclosing a notice of appeal with reasons for delay. That is technically correct, but it could be argued that it showed no recognition of the fact that on 5 March 2009, nearly a month earlier, the Council had sent to CICA an appeal form, grounds of appeal and additional evidence, and that (as is apparent from the First-tier Tribunal’s file) that was forwarded by CICA to the Tribunals Service on 9 March 2009, where it was received on 11 March 2009. I do not think that the way in which the Judge framed her reasons indicated that she failed to take into account this history. It is in my view likely that she had it in mind. The points to which she attached greatest importance, as in my view she was entitled to do, were that the notice of appeal should have been sent by the end of December 2008, and that there was nothing on which the First-tier Tribunal could act until receipt of the letter dated 3 April 2009.

 

40. There is then the question whether the Judge went wrong in law in the last sentence of paragraph 9 of the Statement of Reasons, which related to the merits of the claim. It can be argued that (i) that was a fairly firm view that the appeal would have failed in any event and (ii) the Judge was not in a position to express a concluded view on the merits, and she should at least have expressly recognised that. In particular, the grounds of appeal relied in para. 3 on a statement by a social worker in the care proceedings as to her interpretation of what Charlie had said to her about the incident: “The statement of the SW in the care proceedings makes clear that she was of the opinion that Charlie was admitting to her that Chloe was telling the truth but that he did not consider putting a pole up her bottom sexual abuse.” That seems to be a reference to the statement dated 17 June 2005 by Kate Brady which was referred to in section 12 of the initial claim for compensation (page 12 of the bundle). No copy of that statement dated 17 June 2005 was before the Tribunal, or indeed is before me even now, and no copy of the initial claim form was before the Tribunal. I do not know whether the statement itself it was ever provided to CICA, but it seems to have been before counsel when she drafted the application for review and the grounds of appeal. The references to it in the grounds of appeal ought to have been a clear indication to the Tribunal that there was or might well have been potentially important documentation, relevant to the merits of the appeal, which had or might have previously been provided to CICA, and which would be in evidence on the appeal, but which the Tribunal did not have.

 

41. I have reached the conclusion that the Judge did not go wrong in law in this respect. In my view it is sufficiently clear from the structure of her reasons that her conclusion was reached independently of the merits of the proposed. It was in the penultimate sentence of para. 9 of the Statement of Reasons (i.e. before the mention of the merits of the appeal) that the Judge said: “Accordingly I do not find the arguments made by Ms Balderson on behalf of the Appellant either persuasive or compelling and I am not prepared to admit this appeal late.” The conclusion was reached at that point, independently of the merits. Hence the last sentence begins with the word “separately.” I do not therefore think that point 5 in Dr. D’s submissions, which relates to the merits of the compensation claim, assists him on the issue whether the Judge’s reasoning is open to attack on judicial review grounds.

 

42. Further, I do not read the last sentence of para. 9 of the Judge’s reasons as intended to set out her own view on the merits. I do not think that she was doing more than stating the basis on which the claim had been rejected by CICA, and further drawing attention to the inescapable fact that the recent evidence from the GP did not assist the claim. It was on any view a claim which faced very considerable difficulties of proof, and where even if an award was made it was likely to be small (the appropriate tariff would appear to be level 7 or 9 (£3,300 or £4,400) – page 31 of the Scheme).

 

43. At the time of granting permission to bring the judicial review claim Judge Rowland raised the issue whether it should have made any difference to the FTT’s decision that the claimant was a child. Plainly that was relevant, but it does not seem to me that it can mean that the First-tier Tribunal Judge’s decision was one which was outside the bounds of reasonableness. Nor in my view did the Judge err in not expressly stating what significance she had attached to it. She plainly would have had in mind that it could not have been Chloe’s own fault that there had been delay.

 

44. For those reasons I consider that the Tribunal did not err in law in the course of deciding not to grant an extension of time, and I therefore make the decision set out in paragraph 1 above.

 

 

 

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

1 June 2010

 

Corrected on 18 June 2010, as indicated by underlining in paragraph 44.