Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/377/2009

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Mr Justice Walker CP

 

An oral hearing of Ms JC’s application for permission to apply for judicial review was held at Harp House, London on 28 October 2010. Ms JC appeared in person. Neither the respondent First-tier Tribunal nor the interested party (the Criminal Injuries Compensation Authority) appeared, nor was either of them represented.

 

Order:  1.  Mrs JC is granted permission to proceed with her application for judicial review of the decision of the Criminal Injuries Compensation Appeal Panel dated 3 October 2008.

 

2. The decision of the Criminal Injuries Compensation Appeal Panel dated 3 October 2008 is quashed.

 

3. Under s 17(1)(a) of the Tribunals, Courts and Enforcement Act 2007 the matter is remitted to the First-Tier Tribunal (Criminal Injuries Compensation) to reconsider the matter and reach a decision in accordance with the Upper Tribunal’s findings.

 

 

REASONS FOR DECISION

Introduction

 

1.               On 25 June 2010 I issued directions in Ms JC’s application for permission to apply for judicial review of the decision of the Criminal Injuries Compensation Appeal Panel (“the Panel”) dated 3 October 2008. I directed that it was to be the subject of a “rolled-up” oral hearing. A “rolled-up” hearing is one at which the tribunal may consider both the question of permission and, if permission is granted, the question whether the application for judicial review succeeds. The functions of the Panel were transferred to the First-tier Tribunal on 3 November 2008, and accordingly it is the First-tier Tribunal which is the respondent in this matter. Ms JC’s appeal to the panel concerned a decision of the Criminal Injuries Compensation Authority (“CICA”), and accordingly CICA had the status of interested party. The procedural history up to and including 25 June 2010 is set out in my reasoned decision of that date.

 

2.               In the written reasons for my decision and directions of 25 June 2010 I said:

I am concerned that [Ms JC] may have an arguable basis for challenge in that the reasons given by the [Criminal Injuries Compensation Appeals Panel] are brief and do not at first sight explain why her evidence was rejected or grapple with what was said about her medical condition by her and her doctor.

 

3.               The First-tier Tribunal filed an acknowledgement of service under cover of a letter dated 13 February 2009. With that letter it supplied a copy of the written reasons for the Panel’s decision. By letter dated 20 July 2010 the First-tier Tribunal stated, entirely properly, that it would not be submitting any further grounds for supporting or contesting the application at that stage, and did not propose to attend the hearing.

 

4.               Under cover of a letter dated 22 July 2010 CICA enclosed a written submission in response to my directions of 25 June 2010. The written submission stated that CICA supported the Panel’s decision dated 3 October 2008 as confirmed in the Panel’s written reasons. It stated, entirely properly, that CICA would not propose attending any hearing in the matter.

 

5.               In response to requests by the Upper Tribunal Ms JC on 23 August 2010 advised that she would be able to attend on 27 October 2010. The hearing before me duly took place that day. Ms JC appeared in person. In accordance with the indications mentioned above, neither the First-tier Tribunal nor CICA appeared, nor was either of them represented.

 

6.               At the conclusion of the hearing I explained to Ms JC that I had concluded that the Panel’s decision of 3 October 2008 must be quashed, and that I had reached this conclusion because the reasons given by the Panel did not in my view sufficiently explain why her arguments had been rejected. I added that the result would be that the matter would be remitted to the First-tier Tribunal, it would be for that tribunal to decide the outcome of her appeal, and that in the first instance it would be for that tribunal to give directions for future conduct of the matter.

 

7.               My decision in this case involves no new or controversial legal principles. As I explain below, my conclusion is based on the application of established principles to the facts of the case.

 

The facts

 

8.               In June 2003 Ms JC was employed by Network Rail. In February 2006 she made a claim for compensation from CICA under the Criminal Injuries Compensation Scheme 2001 (“the Scheme”), alleging that she had suffered mental injury as the result of a crime of violence. In broad terms her claim had two elements. The first was that on 4 June 2003 she was lured to a room at her place of work, was physically held there against her will by three senior employees with a fourth acting as sentry outside the door, and while in the room was subjected to physical assaults and to mental torment including verbal sexual abuse. The second was that this incident was immediately followed by criminal intimidation and harassment.

 

9.               Ms JC’s application to CICA was supported by a psychological report by Dr Jennie Metaxa-Barham, a chartered clinical psychologist at the South London and Maudsley NHS Trust. The report recorded that Ms JC was first seen by psychiatric services in February 2004, adding:

She was assessed by Dr Raj Persaud, consultant psychiatrist, and his team. Ms [JC] described  difficulty in sleeping, decreased appetite, decreased functioning and experiencing everything tasting and smelling of blood. She also described having nightmares,flashbacks and avoidant behaviours. She was diagnosed as suffering from Post Traumatic Stress Disorder (PTSD) and was given medication.

 

10.           Dr Metaxa-Barham’s report explained that she had assessed Ms JC in February 2005. Ms JC had described how, during a period of two and a half hours on 3 June 2003 three male colleagues had spat, shouted and put their fists against her face ‘black in the face with rage’. She had been subsequently harassed by anonymous and silent calls at her home day and night.

 

11.           The second to last paragraph of Dr Metaxa-Barham’s report confirmed that Ms JC’s symptoms met the criteria for PTSD. It added that her symptoms “fell within the very severe range.”

 

12.           The last paragraph of Dr Metaxa-Barham’s report included the following:

I believe what created the trauma was the unpredictability of the attack and the great discrepancy between what was happening and what Ms Challenger expected to happen. In that situation she became confused, without any control and extremely scared.

 

13.           On 4 November 2006 CICA rejected the claim on two grounds. The first was that paragraph 13(a) of the Scheme required CICA to assess whether Ms JC had taken all reasonable steps to report the incident without delay to the police or to another appropriate authority. CICA said in this regard that there was unreasonable delay in reporting the incident to the police. The second was that in most cases compensation was only payable for an injury directly attributable to a crime of violence. In that regard CICA said there was not enough evidence to support the claim.

 

14.           On 13 November 2006 Ms JC sought a review, saying that after the attack she was so severely traumatised by what had happened to her that she was paralysed with fear. The review decision was set out in a letter from CICA dated 2 July 2007. As regards the first ground of rejection the reviewing officer asserted that the evidence showed unreasonable delay, but at the same time accepted that delay in reporting may have been due to Ms JC requiring psychological treatment during the interval. As regards the second ground of rejection the reviewing officer said, among other things, that Ms JC’s account was uncorroborated, that there was no evidence to prefer charges, and that “I cannot be satisfied, even on the balance of probabilities,  as to the full circumstances surrounding this incident.”

 

15.           Ms JC lodged a notice of appeal with the Panel in September 2007. In her reasons for appealing she relied at the outset upon the diagnosis of severe PTSD directly due to the violent assault she suffered at work on 4 June 2003. She added that this was compounded by criminal intimidation and harassment immediately afterwards. In a later part of her notice of appeal Ms JC said that Mr Robert Smith, Strategy Manager for the Safety Department of Network Rail, had witnessed her traumatic state and learnt of the assault not only from her but also from the “assailants themselves.

 

16.           As to delay, in her notice of appeal Ms JC described things she had been able to do during the period June to December 2003. Copies of relevant documents were attached. She had sought to have matters resolved with the help of the TSSA Union, and by an investigation by Network Rail. She recorded that her union representative was a friend of the fourth man (the “sentry”) and refused to accompany her to a disciplinary meeting. As to Network Rail, Ms JC explained that Mr Robert Smith had insisted that human resources arrange for her to be seen by Network Rail’s Harley Street medical consultants. The medical examination took place but even after that, she said, she had to plead that Network Rail expedite its investigation. Additional extenuating circumstances she relied upon as regards delay included an explanation of events from January 2004 referring to her being very unwell, and staying in hospital for 6 weeks with a diagnosis of PTSD. She acknowledged that hospital and medical staff urged her to go to the police. Her explanation for not doing so was:

I was reluctant since I had been sufficiently intimidated on a continuous basis merely for having gone to my GP in the first instance.

 

17.           Ms JC added that she reported the matter to Croydon police on 5 February 2005 after her discharge from hospital, at a time when she was still receiving anonymous telephone calls. Some time later, however, Croydon police handed the matter over to British Transport Police (“BTP”). The notice of appeal made adverse comments about BTP’s investigation by contrast with that conducted by Croydon police. In several places the notice of appeal asserted that as Network Rail was represented on the authority overseeing BTP there was a conflict of interest leading BTP not to perform its duties.

 

18.           Also in support of her appeal Ms JC lodged a copy of the decision of a Social Security Appeal Tribunal (“SSAT”) on 15 June 2007. The SSAT, having heard Ms JC and her representative and read written evidence, allowed Ms JC’s appeal from a decision on her claim for disablement arising from industrial injury and accepted that what occurred gave rise to psychological trauma. The decision said, no doubt referring to Dr Metaxa-Barham, that the SSAT accepted the contents of “the reports from the Clinical Psychologist who has been seeing [Ms JC] since February 2005.”

 

19.           The hearing of the appeal to the Panel took place on 3 October 2008. Ms JC gave oral evidence, as did a detective inspector from BTP. Both Ms JC and her son made oral submissions in support of her case. The chairman announced that the appeal had failed and gave short oral reasons. These were amplified in written reasons dated 17 October 2008.

 

20.           The second to last paragraph of the written reasons was paragraph 7. It set out findings of fact which included:

7e. The [BTP] concluded that no criminal offences had occurred;

7f. [Ms JC] had had ample opportunity to report her allegations to the police much earlier and there was no reason why she coul not have reported to the police within 24 hours of the incident;

7g. [Ms JC] had discussed the incident with her doctor who she told us had advised her to report the incident to the police;

7h. There was no evidence to support [Ms JC’s] allegation that she was the victim of a crime of violence.

 

21.           The last paragraph of the written reasons was by oversight also numbered as paragraph 7. For convenience I shall refer to it as if it had been paragraph 8. It set out “reasons for the decision” as follows

8a. The Panel accepted the evidence of [the detective inspector from BTP] that the delay in reporting had made it difficult for the police to establish what had happened;

8b. The Panel rejected the evidence of [Ms JC] that she had been too unwell and traumatised to report to the police until February 2005;

8c. The Panel relied on the copy correspondence in the hearing bundle which made it clear that [Ms JC] was in command of her faculties in June 2003 and quite capable of reporting to police had she wished to do so;

8d. The long delay in reporting this matter to the police made it impossible for any proper investigation to be carried out and the contemporaneous documents in the hearing bundle do not support the evidence which [Ms JC] has given us today.

 

The legal principles as to sufficiency of reasons

 

22.           A convenient summary of relevant principles can be found in paragraph 6 of the judgment of the Upper Tribunal in BB v South London & Maudsley NHS Trust [2009] UKUT 157 (AAC):

6. The legal test when determining the adequacy of reasons is not in doubt.  It is fully discussed in the decision of the Court of Appeal in R (Ashworth Hospital Authority) v Mental Health Review Tribunal and R(H) v. Ashworth Hospital Authority [2002] EWCA Civ 923, [2002] MHLR 314.  Adopting what was said in English v. Emery Reimbold & Strick Limited [2002] EWCA Civ 605, [2002] 1 WLR 2409, the essential requirement is that what the tribunal says should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the decision. The tribunal should provide an explanation as to why it has accepted the evidence of one expert and rejected that of another.  As these cases make clear, the test is the same regardless of subject matter. Accordingly if tribunals are unsure about what is required when giving reasons they may find assistance from cases outside the specific area of law that they are dealing with.

 

 

Application of relevant legal principles to the facts

 

23.           I start with the first ground relied upon by CICA for rejecting the claim. This concerned whether the case fell within paragraph 13(a) of the scheme, allowing compensation to be refused if Ms JC had not taken all reasonable steps to report the incident without delay to the police or to another appropriate authority. As noted earlier, there had been an acknowledgement by CICA’s reviewing officer in this regard that delay in reporting may have been due to Mrs JC requiring psychological treatment during the interval.

 

24.           In paragraph 7 of the Panel’s written reasons relevant findings of fact are 7f (“ample opportunity to report her allegations to the police much earlier and there was no reason why she could not have reported to the police within 24 hours of the incident”) and 7g (“her doctor ... had advised her to report the incident to the police”).

 

25.           In paragraph 8 relevant reasons are 8a (“delay in reporting had made it difficult for the police to establish what had happened”), 8b (rejection of claim that Ms JC “had been too unwell and traumatised to report to the police until February 2005”), 8c (“correspondence in the hearing bundle … made it clear that [Ms JC] was in command of her faculties in June 2003 and quite capable of reporting to police had she wished to do so”), and the first part of 8d (“long delay in reporting this matter to the police made it impossible for any proper investigation to be carried out”).

 

26.           These passages in the written reasons do not grapple with salient parts of Ms JC’s notice of appeal. She had explained what she did from June to December 2003, the difficulties she encountered in doing those things, and the state she was in. The Panel’s written reasons are silent on whether any of the things she said in these respects were accepted by the Panel, and if accepted whether the Panel considered that  they nevertheless did not give a reasonable explanation for not reporting to the police at that time – and if so why not.

 

27.           As to the doctor’s advice to report the matter to the police, Miss JC had explained why she did not follow that advice – “I was reluctant since I had been sufficiently intimidated on a continuous basis merely for having gone to my GP in the first instance.” The Panel’s written reasons appear to overlook this – for they make no mention of it. Nor do they recognise that at the time the doctor was giving the advice to go to the police the patient was – according to the written evidence – suffering from severe PTSD.

 

28.           I turn to the second ground relied upon by CICA for rejecting the claim,. This concerned paragraphs 6  and 8 of the Scheme, requiring Ms JC to show that she had sustained a criminal injury directly attributable to a crime of violence.

 

29.           On this aspect paragraph 7 of the Panel’s written reasons contained relevant findings of fact at 7e (“the [BTP] concluded that no criminal offences had occurred”) and 7h (“no evidence to support [Ms JC’s] allegation that she was the victim of a crime of violence”).

 

30.           On this aspect paragraph 8d identified relevant reasons as being “long delay in reporting this matter to the police made it impossible for any proper investigation to be carried out and the contemporaneous documents in the hearing bundle do not support the evidence which [Ms JC] has given us today”.

 

31.           Here too the written reasons do not grapple with salient parts of Ms JC’s notice of appeal. First, the assertion in paragraph 7h that there was no evidence is difficult to understand. The Panel had both Ms JC’s written evidence and her oral evidence. I think that in paragraph 7h the Panel must have intended to say that they had no sufficient evidence. If so, why is Ms JC’s evidence not sufficient? What aspects of her evidence were not supported by the documents? It is said that delay made it impossible for a proper police investigation to be carried out – but delay is a not uncommon feature in both criminal and civil trials. What was it about delay in this case that caused difficulty? Ms JC argued that Croydon police were investigating the matter well and BTP were investigating it badly. There is no reference to this in the Panel’s written reasons. Nor is there any reference to Ms JC’s very serious allegations that BTP’s relationship with Network Rail led to a conflict of interest.

 

32.           Second, a feature which Ms JC relied on was her evidence that Mr Robert Smith, Strategy Manager for the Safety Department of Network Rail, had witnessed her traumatic state and learnt of the assault not only from her but also from the “assailants themselves”. The Panel’s written reasons do not explain what if any attempt BTP had made to contact Mr Robert Smith.

 

33.           Third, the written evidence included Dr Metaxa-Barham’s report. That report recorded a relatively early diagnosis by an eminent consultant psychiatrist, Dr Raj Persaud, of PTSD. It confirmed that this was Dr Metaxa-Barham’s diagnosis as well, and added that Ms JC’s symptoms were severe.  It set out expressly Dr Metaxa-Barham’s belief that what created the trauma was the unpredictability of the attack and the great discrepancy between what was happening and what Ms Challenger expected to happen, a situation in which Ms Challenger became confused, without any control and extremely scared. The Panel does not seem to have recognised that this evidence was supportive of Ms JC’s account.

 

34.           Fourth, Ms JC had taken the trouble to include with her notice of appeal a copy of the decision of the SSAT. On the face of it that decision constituted an acceptance by an independent tribunal of the correctness of Ms JC’s account. No reference whatever is made to this by the Panel.

 

Conclusion

 

35.           The Panel’s written reasons do not refer to salient arguments advanced by Ms JC or explain why they failed. I recognise that the Panel were faced with a very long and discursive written account from Ms JC. I have asked myself whether an omission to deal with a particular matter may reflect failure on Ms JC’s part to rely upon that matter at the hearing. I do not think that is the case. First, I have seen notes of the hearing which suggest that the most of the points identified above were relied upon orally. Second, when dealing with an unrepresented appellant, especially one who had been diagnosed as suffering from PTSD, I am sure that the Panel would not have proceeded on the basis that it could ignore points made in writing merely because they were not repeated orally.

 

36.           The result is that the Panel’s written reasons do not comply with the legal principles set out above. Accordingly I grant permission to apply for judicial review and quash the Panel’s decision. There must be a fresh hearing before the First-tier Tribunal, whose constitution for this purpose should not include those who dealt with this matter on 3 October 2008.

 

(signed on the original)

Mr Justice Walker

President of the Administrative Appeals Chamber

 

3 November 2010