Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. JR/2707/2009

ADMINISTRATIVE APPEALS CHAMBER

Before : Upper Tribunal Judge Rowland

Order: The decision of the First-tier Tribunal dated 5 February 2007 is quashed and the case is remitted to that Tribunal for reconsideration by a differently-constituted panel.

REASONS FOR DECISION

1. This is an application for judicial review, brought with my permission, in which the applicant asks that a decision of the First-tier Tribunal in respect of criminal injuries compensation should be quashed. The First-tier Tribunal has not played any part in the proceedings. Neither the Applicant nor the Criminal Injuries Compensation Authority, which, as the Interested Party, opposes the application, has complied with my direction that they indicate whether they want an oral hearing. I am satisfied that I can properly determine this case without a hearing.

2. The Applicant was a victim of a crime of violence when, on 27 August 2002, at the age of 19, she was raped and then sustained injuries when she jumped from a window to escape her attacker. On 21 May 2003, she made a claim for compensation under the Criminal Injuries Compensation Scheme 2001. In her claim form, in answer to the question “Have you been, or do you expect to be off work or similarly incapacitated for more than 28 full weeks as a result of the injury?”, she ticked the box marked “NO”.

3. On 2 August 2004, she was informed that compensation had been assessed at £14,450. The Applicant did not accept that offer and asked for a review. In her application, she said –

“… Before this incident I was a very happy young girl with a college course to look forward to doing, getting married, getting my own place and finding a job. By now I would have achieved all this if it wasn’t for that incident.

Everything in my normal day-to-day life has changed. I can’t sleep, eat properly anymore because I am very low on motivation and confidence. Being around strangers makes me really uncomfortable whereas before I was very confident and able to speak to anybody. I can’t socialize so I find it impossible to work and go to college because I am so depressed and down all the time. I am unable to do anything because I am completely lacking in motivation before this I was such a motivated person that I would have been able to work in two jobs. I was so enthusiastic and happy too.

How am I supposed to do a course or find a job when I find it so hard to interact with people? …”

4. On 9 April 2008, she was informed that compensation had been assessed at only £3,612.50, because the award had been reduced in the light of the fact that the Applicant had been convicted of criminal offences on what I suspect were five separate occasions (notwithstanding the two different dates in 2007 given on the list) between November 2005 and September 2007: twice for theft (shoplifting), when community orders were imposed; once for a breach of a community order, when she was fined; once for both a battery and a failure to surrender to custody, when suspended sentences of imprisonment totalling three months were imposed; and finally once for another battery and breach of the suspended sentences, when another community order was imposed and no action was taken on the breach. Normally, the standard points system operated by the Authority would have led to an award being completely withheld in the light of so many offences but the claims officer apparently decided that the effects of that system should be mitigated.

5. The claimant appealed. She said –

“… I have been very depressed and angry because my physical injuries are getting me down. I have been very stressed about not finishing my education and not being able to work. I have pain in my legs and feet. The doctor has said I could be getting arthritis. Can you please reconsider my claim. I do not feel they have awarded me the correct amount. I fell even more depressed now about what has happened with the police, and everything else in my life. I can give more details about everything if I have a panel hearing I can attend.”

She added –

“I have never been in trouble with the police before this happened. I am 25 years old and this only happened because of being stressed and depressed.”

6. Her case came before the First-tier Tribunal on 5 February 2009. The tribunal first considered whether the tariff assessment of £14,450 was correct. It dealt with this fully and I have not granted permission to apply for judicial review in respect of that part of its decision. The First-tier Tribunal then –

“16. … went on to consider the criminal convictions and the extent to which if at all they warranted a reduction in the award. The Authority’s points scheme was not binding on us and we had a complete discretion in that matter.

17. We noted that the convictions were numerous and recent and that two of them were for offences of violence. Two were for failure to comply with the terms of a previous sentence and one was for failing to surrender to custody at the appointed time, showing in our view a disregard of the justice system. We also noted however that the Appellant had been of good character before the rape and that her consequential injuries were severe.

18. Taking all things into account we concluded that it would not be appropriate to interfere with the Authority’s review decision, which we confirmed accordingly in reducing the Tariff award by 75%.”

7. It was on this issue that the claimant focussed her challenge to the First-tier Tribunal’s decision. I granted permission on the ground that it was arguable that the First-tier Tribunal should have taken into account the fact that the first offence for which the claimant was convicted was not committed until 1 November 2005 and the first of the batteries was not committed until 26 May 2006. Even the first of those dates was over a year after the application for review. The delay in making the review decision has not been explained to me and it is only because there was delay that the offences could be taken into account. The Authority, however, responds by submitting that paragraph 13(e) of the 2001 Scheme required it and the First-tier Tribunal to consider reducing the award and that, under the points system to which the First-tier Tribunal referred, the Applicant had accumulated three times the number of points that would usually have led to the award being withdrawn altogether. I have also been referred to R. v Criminal Injuries Compensation Board, ex parte Thomas [1995] PIQR 99, where an application was made in 1985 by a claimant of good character and was not finally determined in 1992, by which time the applicant had been convicted of a number of offences from 1988 onwards. Popplewell J held that the Board was entitled to have regard to the offences, notwithstanding a submission that the claim should have been determined within two or three years.

8. I accept that the Authority and First-tier Tribunal ought to have regard to offences committed by an applicant after the date of the crime of violence in respect of which an award is being considered. However, the Authority’s own points scheme has the effect that, in some instances, the number of points accumulated depends on how long before the relevant crime of violence an offence was committed and I do not see why, in principle, the First-tier Tribunal should not be entitled to have regard to any very substantial period of time that has elapsed either between the relevant crime of violence and the commission of a subsequent offence or between the date on which an offence was committed and the date of a decision awarding compensation. Whether any such period will be significant will depend on the circumstances of each case and the view that the First-tier Tribunal, in the exercise of its discretion, takes. Popplewell J’s decision shows that the First-tier Tribunal may well find that even very substantial periods are not significant. However, it does not follow that it must always do so. The First-tier Tribunal must give effect to the obviously intended principle that those who commit crimes themselves should not necessarily expect compensation for crimes committed against them but in my judgment it is also entitled, in appropriate cases, to have regard to the general principle that an authority ought not unreasonably to profit through its own unjustified delay. On the other hand, I accept that the First-tier Tribunal was not bound to reach a different conclusion in this case from the one it did reach or even to consider the delay in this case significant and I also accept that it was not bound to consider in its reasons all arguments that might have been made to it but were not. Accordingly, I do not grant judicial review on this ground.

9. I do, however, consider that the First-tier Tribunal erred in law in not considering whether to make an award in respect of loss of earnings or loss of earning capacity. This was the second ground on which I granted permission. The Authority argues that the First-tier Tribunal was not required to consider an award in respect of loss of earning capacity because the Applicant’s grounds of appeal to the First-tier Tribunal did not include any complaint that a loss of earnings award should have been made, that the hearing summary did not include a claim for loss of earnings as an issue to be determined, that the Applicant had never provided sufficient evidence to substantiate a loss of earnings and that the burden was on her both to set out her grounds of appeal and then to substantiate them.

10. I do not understand what relevance the hearing summary can possibly have. It is a document produced by the Authority and the Authority’s identification of the relevant issue can hardly bind the First-tier Tribunal.

11. As to the grounds of appeal, I simply do not accept that they did not raise the question whether a loss of earnings award should be made. An unrepresented claimant is not expected to plead his or her case like a lawyer. Here, the grounds of appeal made it abundantly clear that the claimant thought the award of compensation to be too low because, among other reasons, it failed adequately to compensate her for her loss of earning capacity. If one pays attention to what she was actually saying, both in her grounds of appeal and her application for review, she was making it clear that, but for the injuries she suffered as a victim of the relevant crime of violence, she would be working. The necessary implication is that she was claiming to be unable to work because of those injuries, including the mental injuries. Both the Authority and the First-tier Tribunal should have recognised that that raised the question whether an award should be made in respect of loss of earning capacity.

12. I wholly accept that there was insufficient documentary evidence before the First-tier Tribunal to enable them actually to make an award in respect of loss of earning capacity, but that was largely because the Authority had not asked the claimant to produce any evidence. Had the claimant ticked the right box on the claim form, she would have been asked to provide “further details” and the Authority might have asked different questions of her doctor. The Authority should have treated her application for review in the same way because it then should have become apparent to it that the Applicant had made a mistake in her original claim form. The First-tier Tribunal could have asked questions at the hearing but I suspect that it would still have felt that it had insufficient evidence. In those circumstances, it would have had to adjourn. It is not appropriate to rely on the burden of proof without giving unrepresented claimants an indication of the type of evidence that they need to provide and an opportunity to provide it, particularly where, as here, there may be a considerable amount of money at stake. Usually, claimants get sufficient guidance from the enquiries made by the Authority. However, where the Authority has not asked the right questions, the First-tier Tribunal needs to do so.

13. Accordingly, I must quash the First-tier Tribunal’s decision and remit the case for rehearing. Before the hearing, the Authority should seek the necessary evidence from the claimant, and others. The claimant needs to show that she was either incapable of work or had a reduced capacity for work and that that was a result of the attack on her. Evidence of how long she would have remained in education and the type of work she would have sought afterwards will be relevant. So will evidence of her benefit claims, which can be obtained from Jobcentreplus if necessary. I note that doc C48 shows that she was accepted as being incapable of work for social security purposes in June 2003 but there is no indication for how long that was the case. More medical evidence may be required. The claimant may wish to seek advice from a citizens advice bureau or similar organisation if she finds herself out of her depth.

MARK ROWLAND

20 May 2010