Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL ON JUDICIAL REVIEW

 

The application for judicial review is allowed. The Upper Tribunal’s order is to quash the decision of the Criminal Injuries Compensation Appeal Panel dated 23 September 2008 and to remit the applicant’s appeal against the decision of the claims officer refusing to re-open the review decision dated 7 August 2007 to a differently constituted First-tier Tribunal within the Social Entitlement Chamber – Criminal Injuries Compensation for reconsideration in accordance with the findings below and with the directions in paragraph 33 below (Tribunals, Courts and Enforcement Act 2007, sections 15(1)(a) and 17(1)(a)).

 

 

REASONS

 

1. The application for permission to apply for judicial review of the decision of the Criminal Injuries Compensation Appeal Panel (CICAP) of 23 September 2008, constituted by Mr M P Anderson without an oral hearing, was originally made to the Upper Tribunal, along with an application directed against a decision of the First-tier Tribunal (Social Entitlement Chamber) issued on 8 December 2009 refusing to interfere with the CICAP decision. After some directions to clarify the views of the parties on how to proceed, the present application was transferred to the High Court under section 18(3) of the Tribunals, Courts and Enforcement Act 2007. That transfer was mandatory, as the Upper Tribunal only has direct jurisdiction under section 18(2), by way of a practice statement by the Lord Chief Justice, in relation to decisions of the newly created First-tier Tribunal from 3 November 2008 onwards. By an order dated 25 June 2010 Mr Justice Walker, sitting in the Queen’s Bench Division (Administrative Court) of the High Court of Justice, then transferred the case to the Upper Tribunal pursuant to section 31A(3) of the Supreme Court Act 1981. He made these observations:

 

“All parties consider that this case is best dealt with in the Upper Tribunal. That tribunal has expertise in judicial review of Criminal Injuries Compensation matters. In the exercise of my discretion I consider that transfer to the Upper Tribunal is the just and convenient course.”

 

2. On 25 June 2010 a notification of the transfer to the Upper Tribunal was signed and I gave the applicant permission to apply for judicial review of the CICAP decision, having extended the time for the making of the application for permission under rule 5(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Directions were given for written submissions after I had identified a number of issues that required attention. For completeness, I note that permission to apply for judicial review of the decision of the First-tier Tribunal issued on 8 December 2009 (given file number JR/1500/2010) was refused by the Upper Tribunal on 25 June 2010.

 

Background

3. The incident in which the applicant was injured occurred as long ago as 15 October 2000, when he was 42 years old. He was a taxi driver. A passenger who said that he was going into his house to get the money to pay the fare returned to the taxi and instead pushed a 12” bread knife through the open driver’s-side window. The applicant was able to grasp the knife with his left hand to protect himself. The assailant then pulled the knife back, causing a laceration to the left hand, which required six or seven stitches. What is in dispute in the present case is what account can be taken of the mental effects of the incident.

 

4. The applicant applied for compensation on 15 December 2000. The case therefore comes under the 1996 Criminal Injuries Compensation Scheme. The initial decision on 18 February 2002 was not to make an award on the ground that the injuries were not serious enough to merit an award at the lowest level. A medical report was provided to the applicant’s then solicitors by Dr Jeremy Evans MBBS, DRCOG, DCH following an interview and examination of 17 December 2002. The report itself was dated 22 December 2002. It described the injuries resulting from the incident as laceration to left hand (not resolved) and anxiety (not resolved) and said this under the heading “chronological progression of psychological symptoms”:

 

“The [applicant] could not drive at night for the first six months because of anxiety and nervousness. He had no panic attacks.

However, he had flashbacks on a regular basis over the first three months and now once every two to three weeks.

When he sees a kitchen knife he gets very shaky and anxious. He actually hides the kitchen knives in the kitchen where he can’t see them.

He feels very low and he has been waking up at 2.00 a.m. in the morning three to four times per week but then going back to sleep after he has got up for a while. I would describe this as interrupted sleep rather than early morning wakening.

His appetite is normal and his concentration is normal, however, his mood is depressed. He is also tearful.

He has been married for twenty years and has had a very happy marriage over the first eighteen years and now he has been shouting at his wife and she gets very fed up with him.

He can’t watch films if knife attacks are involved.

He describes the symptoms of anxiety and depression as being static and not changed since the [incident]” (emphasis in the original)

 

Dr Evans’ psychological prognosis was that on the balance of probabilities the applicant would be fully recovered in six months from the date of the report. Following some considerable delays the applicant was allowed by a CICAP decision to re-open the case.

 

5. CICA then assessed the compensation payable to the applicant at £1,250, for minor scarring to upper limbs. The notification letter dated 30 November 2005 gave the explanation that there was no evidence to link any ongoing symptoms, apparently in the left hand, with the incident. An application for review was refused as notified in a letter dated 7 August 2007, which included this much more extensive explanation:

 

“All awards under the scheme include compensation for the degree of shock that a person might normally suffer when they have been injured in an assault. We would make a specific award for the psychological effects of an incident only if this would be equal to or higher than the award for the physical injuries or if there were no qualifying physical injuries.

An award for psychological injury depends on the severity of your client’s condition. The higher levels of compensation for mental injury in the tariff are payable only if a psychiatrist (or other suitably qualified person) diagnoses a disabling mental disorder. In assessing the level of disability we will also take into account whether the need for some form of specialist treatment had been identified and pursued by the applicant’s medical advisors. As I have not received confirmation by a psychiatrist that your client has a disabling mental disorder, I can make an award only for the physical injuries.”

 

6. If the case had fallen under the 2001 Scheme, that explanation would have been a reflection first of Note 5 to the Tariff:

 

“5. When compensation is paid for physical injury or for any sexual offence described in the tariff, a separate award for mental injury will not be made (as the tariff award includes an element of compensation for this): save that in the case of an award for physical injury, if the compensation for mental injury is the same as, or higher than, the level of compensation for the physical injury, the applicant will be entitled to awards for the separate injuries calculated in accordance with paragraph 27 of the Scheme (the serious multiple injury formula). When compensation is paid for any sexual offence, a separate award for mental injury will not be made.”

 

However, there was no provision to that effect in the 1996 Scheme. Paragraph 26 of the 1996 Scheme provided:

 

“26. Minor multiple injuries will be compensated in accordance with Note 1 to the Tariff. The standard amount of compensation for more serious but separate multiple injuries will be calculated as:

 (a) the Tariff amount for the highest-rated description of injury; plus

 (b) 10 per cent of the Tariff amount for the second highest-rated description of injury; plus, where there are three or more injuries,

 (c) 5 per cent of the Tariff amount for the third highest-rated description of injury.”

 

That is the same rule as in paragraph 27 of the 2001 Scheme, except that that allowed 30% and 15% for the second and third highest rated descriptions of injury. Paragraph 4.9 of the Guide to the 1996 Scheme, issued by CICA, was as follows:

 

“4.9 The Tariff includes an element of compensation for the degree of shock which an applicant in normal circumstances would experience as a result of an incident resulting in injury. If the shock (as defined in Note 2 in the tariff of Awards) is such that it would attract an award from a higher Tariff level than the injury itself, then the award for shock will be paid rather than the award for injury.”

 

The explanation therefore appears to have been a reflection of that approach to the application of the 1996 Scheme adopted by CICA. I shall have to return below to the question of whether that approach was consistent with paragraph 26 of the 1996 Scheme.

 

7. The explanation in the letter of 7 August 2007 was also a reflection of the tariff amounts then allowed for various degrees of seriousness of shock (defined in Note 2 to the Tariff to include post-traumatic stress disorder, depression and similar generic terms covering most sorts of psychological and related physical symptoms, including anxiety). “Disabling, but temporary, mental anxiety, medically verified” attracted an award of £1,000 (level 1). “Disabling mental disorder, confirmed by psychiatric diagnosis” attracted awards at three varying levels, according to whether the disorder lasted up to 28 weeks (£2,000), over 28 weeks to one year (£4,000) or over one year, but not permanent (£7,500). Permanently disabling mental disorder confirmed by psychiatric prognosis attracted an award of £20,000. Neither the 1996 Scheme nor the Guide said anything about what medically verified or psychiatric diagnosis or prognosis meant. By contrast, Notes 9 and 10 to the Tariff in the 2001 Scheme provided:

 

“9. `Medically verified’ means that the mental anxiety has been diagnosed by a registered medical practitioner.

 10. `Psychiatric diagnosis/prognosis’ means that the disabling mental illness has been diagnosed or the prognosis made by a psychiatrist or clinical psychologist.”

 

The explanation therefore reflected the approach that, since at the time the applicant’s psychological symptoms had only been diagnosed by a registered medical practitioner, not amounting to a psychiatric diagnosis, the maximum award that could have been attracted was £1,000, less than the £1,250 for lacerations, so that nothing was payable for the shock, not even a 10% award under paragraph 26.

 

8. So far as was revealed in the papers before Mr Anderson on 23 September 2008, the next formal step was taken by the applicant’s current solicitors, HilliersHRW Solicitors, in a letter to CICA dated 2 September 2008 to saying that they had been told by CICAP that they needed to request that the applicant’s case be medically re-opened in the light of additional medical evidence, ie a report dated 16 January 2008 (interview 10 October 2007) by Elise Lawrence MA MSC MBA AFBPsS, chartered psychologist. No curriculum vitae or statement of qualifications or expert status was sent with the copy of the report enclosed with the letter dated 2 September 2008. The summary in Ms Lawrence’s report included the opinion that the applicant had suffered from post traumatic stress disorder (PTSD) as a result of the incident of 15 October 2000 (subsequently exacerbated by 10% by the effects of another incident in June 2001), which had persisted at a significant level for at least two years and that, although the symptoms she described had since eased, they were still evident. She recommended cognitive behavioural therapy and gave the prognosis that, without such treatment, the applicant would continue to experience the symptoms described for the foreseeable future, albeit on a slowly diminishing basis. With treatment, the symptoms should diminish to a minimum level within eight to ten months of commencement, although with some remaining wariness of customers.

 

9. There must be very great doubt about what happened in September 2008, because it is inconceivable that between 4 September 2008, the date of receipt stamped on the letter dated 2 September 2008, and 23 September 2008, when Mr Anderson signed his CICAP decision, there could have been a decision by a claims officer refusing to re-open the case under paragraph 56 of the 1996 Scheme, an unsuccessful application for review, an appeal against the review decision and the preparation of the papers for consideration by CICAP. No such decisions, application or appeal appear in the hearing bundle apparently prepared on 10 September 2008. Copies of some correspondence produced by HilliersHRW in the course of the proceedings before the Upper Tribunal throw some light on the matter. On 18 June 2008 HilliersHRW had written by fax to CICAP enclosing a notice of appeal and Ms Lawrence’s report (page 74 of the Upper Tribunal papers). On 24 June 2008 a CICAP caseworker wrote back as follows:

 

“I am writing to advise you that your appeal received on 18/6/2008 will be referred to the Chairman or another adjudicator nominated by the Chairman as to whether your case should be medically reopened. The adjudicator may decide that your application should be reopened under paragraph 57 of the Scheme or he may decide to refuse the application.”

 

There was an invitation to make further submissions or produce further evidence within three weeks. There were several further letters from HilliersHRW chasing up the position. I take all that as a clear indication that a proper appeal was in existence against a review decision on the issue of re-opening the applicant’s case. The terms of the letter dated 2 September 2008 are therefore something of a mystery, as is its inclusion in the hearing bundle and the absence of the decision actually under appeal and the appeal against it.

 

10. Paragraph 56 of both the 1996 and 2001 Schemes provided (with the differences in paragraph 56 of the 2001 Scheme in square brackets):

 

“56. A decision made by a claims officer and accepted by the applicant, or a decision made by the Panel [or a direction made by adjudicators], will normally be regarded as final[, except where an appeal is reheard under paragraphs 79 – 82]. A claims officer may, however, subsequently re-open a case where there has been such a material change in the victim’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand, or where he has since dies in consequence of the injury.”

 

Paragraph 57 imposed a further test for re-opening a case more than two years after the date of the final decision. There is therefore a further potential mystery why, when HilliersHRW received Ms Lawrence’s report some time after 16 January 2008, they did not apply for the 30-day time limit under paragraph 61 for appealing against a review decision to be waived by CICAP in the interests of justice under paragraph 62. For all I know they may have made such an application which was refused (although CICA has said that no appeal was sought), but if the solicitors were put off by purely administrative advice or information, that might be something to be considered separately at a later stage, depending on the outcome of the rehearing that I have directed.

 

The CICAP decision of 23 September 2008

10. Mr Anderson’s decision notice was headed by a reference to the 2001 Scheme and in particular paragraphs 56 and 66(b) to 67. He set out paragraph 56 of the 2001 Scheme and continued:

 

“5. In order for the case to be re-opened, I have to be satisfied that there has been such a material change in the Applicant’s medical condition that injustice would occur if the original assessment were allowed to stand. That material change must, of course, be directly attributable to the injuries sustained in the incident giving rise to the application.”

 

 He then referred to the original award having been based only on the physical injury and scarring to the applicant’s hand and to Ms Lawrence’s report. He concluded in paragraph 8 that there had not been the necessary material change in the applicant’s medical condition for the following reasons:

 

“A report from a Chartered Psychologist is not sufficient for the purposes of the Scheme to establish disabling mental illness confirmed by psychiatric diagnosis. Note 10 to the Scheme states [as in paragraph 7 above]. A Chartered Psychologist is not a clinical psychologist and there is nothing in the report to indicate that Ms Lawrence’s qualifications fall within those which are acceptable to support a claim for disabling mental illness or any other medical condition which is sufficiently material to justify re-opening this case.”

 

The application for judicial review

11. It is not entirely clear when HilliersHRW or the applicant received a copy of the decision notice signed on 23 September 2008. I took that into account when extending the time for applying to the Upper Tribunal for permission to apply for judicial review. On 5 August 2009 the solicitors wrote to CICA enclosing what it said was clarification that Ms Lawrence was a clinical psychologist and asking for a re-hearing as the appeal had been decided on an erroneous assumption. The clarification consisted of a note from Ms Lawrence to the effect that, as seen in her curriculum vitae, her qualifications and experience in working as a clinical psychologist were acceptable to support a claim for disabling mental illness. Her curriculum vitae, headed “educational and clinical psychologist” detailed her work as a psychologist from 1994 onwards, having acquired chartered psychologist status and become an associate fellow of the British Psychological Society in 1992.  CICA replied to the solicitors on 24 August 2009 to say that any application should be directed to the Tribunals Service – Criminal Injuries Compensation. That was done, culminating in the notification on 8 December 2009, on the authority of Judge Goodier, that the decision of 23 September 2008 was final and that the First-tier Tribunal had no power to interfere with it. As noted above, permission to apply for judicial review of that decision of the First-tier Tribunal has been refused, but permission has been given in relation to the decision of 23 September 2008.

 

12. My reasons for giving permission included the following:

 

“B5.  In my view there is sufficient of a case that there was a breach of the principles of natural justice to deserve consideration after CICA and the claimant’s solicitors have had the opportunity to make further submissions. The award of 30 November 2005, as confirmed on review on 7 August 2007, was given despite the existence of a report dated 21 December 2002 from a Dr Evans including the opinion that the claimant was suffering from anxiety and depression as a result of the incident of 15 October 2000, with a prediction that he would be fully recovered from all injuries within nine months from the date of the report. The claimant’s solicitors had raised the question of compensation for mental illness in the request for review, but the decision-maker said that no award could be made because there had been no confirmation from a psychiatrist of disabling mental illness. The subsequent application prior to June 2008 to re-open the case with the support of Ms Lawrence’s report was refused by a claims officer and confirmed on review in decisions of which I cannot see copies in the papers before the adjudicator on 23 September 2008. On the face of it there was therefore nothing to specifically indicate to the claimant’s solicitors that Ms Lawrence’s report as submitted might be deficient in failing to set out her qualifications and experience and entitlement to the title of clinical psychologist. Accordingly, it is at least arguable that when Mr Anderson was minded on 23 September 2008 to disallow the claimant’s appeal on the ground set out above the principles of natural justice required him to give the claimant’s solicitors the opportunity to come forward with evidence on Ms Lawrence’s qualifications.

 

B6.  There may well be other difficulties with the claimant’s case that point against the quashing of Mr Anderson’s decision. For instance, there is the question of “clinical psychologist” being a designated title within the Health Professions Order 2001 requiring appropriate registration with the Health Professions Council. It may be arguable that the Scheme’s reference to a clinical psychologist is limited to persons who satisfy that requirement of registration, so that the test is not simply the kind of work that the person in question does. There is no evidence currently before me that Ms Lawrence was registered as a clinical psychologist and her curriculum vitae mentions only acquiring chartered psychologist status, which is something different. In addition, there may be questions whether paragraph 56 of the Scheme requires there to have been a material change in the claimant’s medical condition after the date of the latest operative decision (7 August 2007 in this case?) and whether there was evidence in the present case only of changes before that date. That point might also affect any possible argument that Mr Anderson should have considered whether the claimant qualified for an award for disabling but temporary mental anxiety, which does not require diagnosis by a psychiatrist or clinical psychologist. However, all such questions should only be considered after the parties have had the opportunity to put forward further submissions and evidence.”

 

The natural justice point

13. The initial submission on behalf of CICA accepted that the decision of 23 September 2008 should not have been made on the particular ground set out in paragraph 8 of the decision notice without giving the applicant’s solicitors the opportunity to produce evidence of Ms Lawrence’s qualifications. It was submitted that to be a clinical psychologist for the purposes of the 2001 Scheme she would have to be registered with the Health Professions Council as such. But it was further submitted that, even if she were so registered, that should not lead to the quashing of the decision of 23 September 2008 because her report did not support a material change in the applicant’s medical condition subsequent to 7 August 2007. It showed an improvement, not a deterioration.

 

14. In their submission dated 9 September 2010, HilliersHRW showed by reference to specific information from the Health Professions Council that, since Ms Lawrence had been practising as a clinical psychologist since 1998, she was entitled to practice using the protected title under the “grandparenting” provision in regulation 13(2) of the Health Professions Order 2001. The reply for CICA dated 7 October 2010 stated that it was on that basis content to accept that Ms Lawrence was a clinical psychologist for the purposes of the 2001 Scheme, but re-iterated its other objections to quashing the decision of 23 September 2008.

 

15. The upshot is as follows. There was a breach of the principles of natural justice. The point about whether Ms Lawrence was a clinical psychologist was sufficiently new that the requirements of a fair hearing demanded that the applicant be given the opportunity to produce evidence that she was. Normally, such a breach would require the setting aside of the decision in question. However, if the evidence before the Upper Tribunal was that the only possible outcome if the applicant had been given that opportunity at the time would have been the conclusion that Ms Lawrence was not a clinical psychologist, then if there was no other flaw in Mr Anderson’s decision that would be a powerful argument for exercising the discretion not to make a quashing order despite the existence of that error of law. It is the relevance of the evidence to the exercise of discretion that makes the concerns expressed in CICA’s submissions about consideration of Ms Lawrence’s report amounting to consideration of fresh evidence on appeal beside the point. The evidence is now clear that there is no such basis for exercising the discretion in the way mentioned above. I deal in paragraphs 18 to 29 below with the other possible basis for not interfering with the decision of 23 September 2008.

 

16. As it turns out, I failed to spot at earlier stages of this case that the natural justice point had been approached on a mistaken basis, as a result of which it may not have been material to Mr Anderson’s decision whether Ms Lawrence was or was not a clinical psychologist within the meaning of the 2001 Scheme. Whether he was misled by the way in which the case was presented to him or not, Mr Anderson plainly (with the benefit of hindsight) went wrong in applying the terms of the 2001 Scheme instead of the 1996 Scheme. In some cases such a mistake will not matter, because the substance of the schemes is the same, but here there are significant differences between the two, noted so far as relevant to the present case in paragraphs 6 and 7 above. The application for compensation was made under the 1996 Scheme and as such the case had to continue to be dealt with under that Scheme, even though what was in issue was its potential re-opening in 2008. If confirmation in the 2001 Scheme is needed, it is in paragraph 84. Neither paragraph 56 nor any of the provisions of the Tariff are included in those listed in paragraph 84(c), mainly to do with procedure, where the 2001 Scheme provisions take over.

 

17. The difference affecting the natural justice point is that neither the 1996 Scheme nor CICA’s published Guide defined what “psychiatric diagnosis” means. The terms of the letter of 7 August 2007 suggest that at the time CICA regarded the phrase as requiring a diagnosis by a psychiatrist or other suitably qualified person. Since the phrase was used in contrast to “medically verified”, in my judgment it cannot merely mean diagnosis by reference to some psychiatric disease or disorder, possibly by a medically qualified person. That would add nothing to the notion of a diagnosis of a mental disorder. The phrase must impose a limit on the persons by whom the diagnosis had to be made, but in my view it would put too much weight on the use of the word “psychiatric” to require the diagnosis to have been made by someone with the formal title of psychiatrist. I therefore tend to think that the apparent approach of CICA to accept diagnosis by other suitably qualified persons as well as by psychiatrists was right. If so, then the question of whether Ms Lawrence was such a suitably qualified person would have to be answered by reference to her substantive qualifications and experience, especially clinical experience. I do not think that it would be proper to read back into the 1996 Scheme the specific restriction to psychiatrists or clinical psychologists introduced in the 2001 Scheme. Therefore, in so far as Mr Anderson relied on Ms Lawrence not having been shown to be a clinical psychologist, rather than not having been shown to be a suitably qualified person to make a psychiatric diagnosis, he went wrong in law. But that would merely have altered the nature of the breach of the principles of natural justice to not having given the applicant the opportunity to come forward with evidence about Ms Lawrence’s suitability, leaving the outcome of the exercise of the discretion whether or not to quash the decision of 23 September 2008 as a result the same as in paragraph 15 above.

 

 

 

The material change point

18. The essence of the point made on behalf of CICA is that, although the decision of 23 September 2008 might have been flawed in relation to the status and/or suitability of Ms Lawrence  by a breach of the principles of natural justice, the only possible outcome if her report had been taken into account and accepted would nonetheless have been to refuse to re-open the case because her report showed that there had not been a material change in the applicant’s medical condition subsequent to 7 August 2007. Therefore, it was submitted, either the decision should, as a matter of discretion, not be quashed or, if it was, a decision to the same effect should be substituted. I find this a question of some difficulty, where there is some relevant Court of Appeal authority to which I was not referred by the parties.

 

19. The matter was put in this way in CICA’s submission dated 22 July 2010, and confirmed in the submission dated 7 October 2010:

 

“4. … In this case the Review decision of the Authority was made on 7 August 2007 at which time a medical report from Dr Evans stating that the claimant suffered from anxiety and depression as a result of the index incident was on the file and the Claims Officer considered the claimant’s claim for compensation for mental illness. The claimant accepted the award offered at the Review decision despite the element of the claim for mental illness being rejected and did not seek an appeal. As the claimant’s mental illness existed, and was considered in the Review decision, the evidence of mental illness produced to support the claimant’s application for re-opening of the case under Paragraph 56 of the Scheme cannot be considered to show a material change in the claimant’s medical condition.

 

5. Further, the content of Ms Lawrence’s report does not support a material change in the claimant’s medical condition. At Page 7 of the report it is noted that the claimant had suffered from Post Traumatic Stress Disorder for two years following the incident at which point an improvement was noted. Therefore, following the Authority’s final decision of 7 August 2007 there was no deterioration of the claimant’s mental illness.”

 

20. In between those two submissions for CICA, HilliersHRW had in their submission dated 10 August 2010 identified in paragraph 6 a number of elements of Ms Lawrence’s report which they said indicated a deterioration in the applicant’s mental state, including the following:

 

“(viii) A diagnosis of Post Traumatic Stress Disorder is made which is more serious than `anxiety and depression’ as commented on by Dr Evans. This diagnosis is a material change.

 (ix) A recommendation for CBT treatment has been made – this is a material change as Dr Evans stated that a full recovery would be made within 9 months of his report (ie by September 2003) – clearly this did not happen and the Claimant’s mental health has deteriorated to the point where Ms Lawrence has recommended treatment / expert intervention.

 (x) Ms Lawrence confirms that the Claimant will continue to suffer for the foreseeable future. This is a material change as Dr Evans predicted a full recovery by September 2003.”

 

21. I have omitted many of the elements of Ms Lawrence’s report relied on by HilliersHRW because it appears from the report that the symptoms described were said to be present before 7 August 2007 and possibly before December 2002. Further, I have no doubt that the mere making of diagnosis of PTSD cannot in itself constitute a material change in the applicant’s medical condition. What seems to me the strongest part of the argument for the applicant is that the continuation of mental symptoms at a disabling level beyond the period forecast by Dr Evans and apparently accepted in the decision of 7 August 2007 did constitute a material change in the applicant’s medical condition.

 

22. Before addressing that point directly it is helpful to look at the decision of the Court of Appeal in R v Criminal Injuries Compensation Board, ex parte Williams, 27 June 2000. The case appears only to have been reported in the Personal Injury and Quantum Reports, but the official transcript is available on Westlaw (and possibly other databases) and there is discussion in Padley & Begley, Criminal Injuries Compensation Claims (2005), section 19.2.3, and in Begley, Downey & Padley, Criminal Injuries Compensation Claims 2008 (2010), section 9.3.4.

 

23. The applicant in Williams had suffered an injury in 1985 when, while he was a serving police officer, he was savagely kicked in the back. A medical report in 1987 described jarring of the facet joints in the lumbar spine and his being left with an intermittent and episodic facetal problem in his low back meriting an assessment of disablement of 1½- 2%, with the likelihood of developing a little degenerative change in the joints at the levels noted. The applicant was awarded compensation of £2,500 under the then ex gratia scheme. In 1994 and 1995 he suffered exacerbations of the injury in carrying out routine duties. He applied to re-open his case, which was then a matter of discretion when there had been “such a serious change in the applicant’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand”. Consultants’ opinions were that the exacerbations reflected precipitating factors in a syndrome of chronic back pain arising from the injury in 1985, which was now identified as having involved a disc prolapse or rupture. The Board declined to re-open the case on the ground that the exacerbations were new incidents, not directly attributable to the initial injury. The Court of Appeal upheld the decision quashing the Board’s decision.

 

24. On the question of whether it was implicit in paragraph 13 of the Scheme (the predecessor of paragraph 56 of the 1996 Scheme) that the serious change in the applicant’s medical condition had to be directly attributable to the original crime of violence, Ward LJ said this in paragraph 25 of his judgment (with which Laws LJ agreed in substance):

 

“In my judgment [counsel for the Board] is correct in submitting that, if the object of paragraph 13 is to enable a case to be reconsidered, it can only be reconsidered and reopened on the basis that paragraph 4 [the predecessor of paragraph 8 of the 1996 Scheme including the requirement that an injury be directly attributable to a crime of violence] will apply to that reconsideration. Paragraph 13 has three separate elements. The first is that there should be a change in the applicant’s medical condition; secondly, that the change should be a serious change; but, thirdly, I would accept that the change has to be directly attributable to the original crime.”

 

He continued in paragraph 29 that `directly attributable’:

 

“is the antithesis of indirectly attributable. It seems to me that [counsel for the applicant] is correct in saying that, properly construed, what is required is an unbroken line of causation, unbroken … by some new and intervening or supervening event which of itself is so powerful or dominant as to render the initial operating cause to be wholly nugatory. It must be a matter of fact and degree in every case.”

 

It was for that reason that the Board had gone wrong in holding that the chain from the original injury, rendering the applicant susceptible to further insults, had been broken. More important for the present case, those propositions show that Mr Anderson did not misdirect himself in saying that any material change had to be directly attributable (in that sense) to the incident of 15 October 2000.

 

25. In relation to whether there had been a change, Ward LJ (with whom Laws LJ expressly agreed on the point) said in paragraph 26 that that was:

 

“a matter for pure comparison between the condition of the applicant at the date of the original award, and his condition at the date when he is seeking reconsideration of his case. The medical evidence is so overwhelming that the only conclusion that the Board could reach is that there had been a change. The man was living an ordinary life, subject only to mild discomfort, now his life is pretty well utterly ruined.”

 

He continued in paragraphs 35 and 36:

 

“[Counsel for the Board] is anxious to attack the judge’s approach in this case, which may lead to it being available for suggestion that the emphasis should be on whether or not there was an original mis-diagnosis of the exact nature of the injury. [He] submits that mis-diagnosis is not the test in paragraph 13, the test is a change attributable to injury. [He] is correct in that. Mis-diagnosis, or even mis-prognosis, in the original report is not of itself a justification for coming back for reconsideration. The test is of a serious change directly attributable to the original injury. Once that serious change is established, then the second question … for the Board will be whether or not `injustice would occur if the original assessment of compensation were allowed to stand’.

 

 36. That requires the tribunal to consider whether the change is so serious that injustice would occur. In considering where the injustice of the case lies, it would be appropriate, and [counsel for the Board] does not submit otherwise, for the court to have regard to whether there was an original error in the diagnosis and whether that counts for the failure correctly to forecast the consequences of the injury. To that extent it may be that Latham J erred but it does not in my judgment undermine his conclusion that, upon the evidence available to the Board, the only reasonable conclusion was that the case fell within paragraph 13.”

 

26. The principles accepted in Williams pose serious problems for the case sought to be made for the applicant in the present case.  They confirm that what is required for paragraph 56 of the 1996 Scheme and succeeding schemes is a change in the applicant’s medical condition that has happened after the date of whatever decision authorises the award of compensation accepted by the applicant. That is what must be meant by “the original award”, so that in the present case the crucial date for comparison is 7 August 2007. Then there must be a “pure comparison” between the applicant’s medical condition at that date and at the date when re-opening is being considered. It might from the outside appear odd (and supportive of a flexible interpretation of a fairly loosely drafted provision) that what might be regarded as more fundamental errors of legal approach or of mistakes of material fact at the time of the original decision cannot support a re-opening of a case, but that is the state of the schemes as approved by Parliament. And CICA would no doubt say that the remedy for an applicant is and was first to get the evidence in support of his case in order by the time that a review decision is made and, if he does not accept an award directed in a review decision, to appeal against it (with an extension of the normal time limit being available). In such an appeal the overall merits of the case on the circumstances down to the date of the appeal decision would be assessed free of the restrictive conditions in paragraph 56 for a re-opening of a case where the award has been accepted. By a “pure comparison” must be meant a comparison of the applicant’s actual medical condition as it is now known to have been at the date of the original decision with the current condition. That is how a mis-diagnosis is excluded. Williams is an example of a case where a mis-diagnosis at the time of the original award was later revealed, but nevertheless there was a later change in medical condition, in the effects of the two exacerbating incidents, to support a re-opening.

 

27. I find it particularly difficult to work out the implications of what was in some ways a throwaway reference in paragraph 35 of Ward LJ’s judgment to mis-prognosis not in itself being a justification. In a case where the facts have not yet been established it would be undesirable for me to seek to set out any definitive answers rather than raise questions. I would be prepared to say that a person’s medical condition at any particular time includes the prognosis for future that could reasonably be made. If the prognosis accepted at the time of the original decision (in the present case, apparently Dr Evans’ opinion that the applicant would recover fully from his depression and anxiety by September 2003) turns out to be wrong because of a mis-diagnosis of the underlying condition at that time, Williams appears to require that that in itself cannot amount to a change of medical condition. But it could be argued that if an applicant continues to be affected for longer than could reasonably have been predicted at the time of the original decision if what is now known to be the correct diagnosis had been made, that does amount to a change in the applicant’s medical condition. In the present case there has not yet been any evaluation of the substance of Ms Lawrence’s report by any appellate authority. Mr Anderson did not on 23 September 2008 make any findings of fact about what the applicant’s medical condition was at any date. It is within the realms of possibility that he would not have accepted that the applicant had actually ever suffered from PTSD, but “merely” from anxiety and depression. In those circumstances I cannot say that the only possible conclusion was that the mis-prognosis represented by the applicant’s mental health symptoms continuing beyond September 2003 stemmed entirely from a mis-diagnosis of his condition.

 

28. Even on that basis there remains the fundamental problem for the applicant that by 7 August 2007 his symptoms had already, on his own case, persisted many years beyond the date predicted by Dr Evans in 2002. The pure comparison required by Williams has to start with the applicant’s actual medical condition, including any prognosis that could reasonably be made, on 7 August 2007. That seems to rule out any notion of there being a continuing state of the applicant’s medical condition having changed on each succeeding day that the applicant’s mental health symptoms persisted beyond September 2003 that could then regarded as occurring beyond 7 August 2007.  However, despite the great practical difficulties for the applicant, I am still reluctant to express a conclusion about the outcome when no findings of fact have been made by the tribunal that has the expertise and experience in these matters. It is not impossible, for instance, that it could have been found that as at 7 August 2007 the prognosis was for the symptoms of anxiety and depression to continue for a year, but that they persisted to September 2008, constituting a change of medical condition subsequent to 7 August 2007.

 

29. Accordingly, I am not sufficiently sure of the outcome on the material change point to treat it as justifying either not quashing Mr Anderson’s decision of 23 September 2008 on the natural justice point or substituting a decision to the same effect. In addition, it seems to me that the applicant would be left with a sense of injustice if he were not allowed a further opportunity to argue for the re-opening of his case and to come forward with further evidence now that the nature of the issues that need to be addressed, in the light of the decision in Williams, have (I hope) become clearer.

 

The interpretation of the 1996 Scheme

30. This point will only become relevant if the new tribunal rules in favour of re-opening the case and there is a reconsideration by CICA or if the new tribunal is considering whether injustice would result from leaving the existing assessment of compensation to stand, having found the other conditions of paragraph 56 of the 1996 Scheme met. Williams (see paragraph 25 above) allows a wider range of factors to be taken into account at that stage. I therefore give only a provisional and preliminary view.

 

31. The point stems from the terms of the 1996 Scheme set out in paragraph 6 above as being different from those of the 2001 Scheme, and in particular the absence of any equivalent to Note 5 to the Tariff in the 2001 Scheme. The question that arises is whether the approach taken by CICA in the decision notified and explained in the letter of 7 August 2007 (paragraph 5 above) – that an award for psychological injury would only be made if its amount exceeded that of any award that would otherwise have been made for a physical injury – was allowed under the 1996 Scheme. The argument for that approach being right must rest on paragraph 4.9 of the Guide to the Scheme. But in principle the Guide cannot fetter a discretion properly to be exercised by CICA or, even more so, a tribunal on appeal or encroach on an unqualified entitlement given by the Scheme. And paragraph 22 of the 1996 Scheme in terms provided for the payment of the tariff amount for any injury under paragraphs 25 to 29, of which only paragraph 26 allowed any deduction from the full tariff amount for each injury listed. It is therefore clearly strongly arguable that paragraph 4.9 of the Guide could not be implemented as it was inconsistent with the Scheme itself.

 

32. The authors of Padley & Begley, Criminal Injuries Compensation Claims (2005) certainly thought that the introduction of Note 5 in the 2001 Scheme marked a substantial change in the operation of the scheme (section 8.11). They also in section 8.7.1 gave an example of the operation of paragraph 26 of the 1996 Scheme which would have been inaccurate if paragraph 4.9 of the Guide had been applicable. The example simply treated the one out of four injuries which fell within the then definition of “shock” as subject to the rule about counting only the three highest rated injuries at the proportions of 100%, 10% and 5%. There was no suggestion that since the shock only attracted £4,000 and the highest rated physical injury £7,500, no award at all would be payable for the shock. Section 8.7 referred to what was described as a worked example set out in the judgment in R v Criminal Injuries Compensation Appeal Panel, ex parte Bennett, The Independent 2 October 2000 (transcript available on Westlaw). There, CICAP had awarded the applicant £2,500 for disabling mental disorder confirmed by psychiatric diagnosis lasting up to 28 weeks, plus 10% of £1,000 for a chipped tooth and 5% of £1,000 for multiple minor injuries. Her challenge was to the £2,500 award and the issues were the meaning of “disabling” and for how long the necessary level of effect lasted. But there was no mention of the secondary awards being improper, although they were not consistent with paragraph 4.9 of the Guide (not mentioned either). All of that suggests, to put it at the lowest, that in the present case, if the applicant had satisfied the conditions for “disabling but temporary mental anxiety medically verified” (£1,000) as well as those for scarring of the upper limbs with minor disfigurement (£1,250), he should at least have been awarded 10% of the £1,000 in addition to the £1,250.

 

Conclusion and directions

33. For the reasons given above, the CICAP decision of 23 September 2008 must be quashed. In the circumstances, the applicant’s appeal against the claims officer’s review decision relating to the refusal to re-open the case following the review decision of 7 August 2007 must be remitted to the First-tier Tribunal for reconsideration afresh of the question whether. Neither Mr Anderson, if he is still a tribunal judge, nor Judge Goodier should be a member of the new tribunal. Under rule 27(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 it is a matter of discretion whether any decision should be made without a hearing. It seems to me, although I make no direction, that in view of the convoluted history of this case, it would be best if there was an oral hearing. The applicant and his solicitors could be asked for their views as well as being asked whether they wish to put forward any further written medical or other evidence (for instance as to the applicant’s medical condition currently and in the past) or to make further written submissions. CICA should also be asked to produce copies of the review decision under appeal and the appeal document itself, plus the application for re-opening and decision that preceded it. I leave it to a tribunal judge of the First-tier Tribunal to make whatever procedural directions, with time-limits, are thought fit. So far as the substance goes, the new tribunal is to apply the legal approach set out above and, where questions have been posed rather than definitive answers given, address itself to those questions in so far as they arise. In particular, the new tribunal must pay close attention to the implications of the case falling to be determined under the 1996 Scheme and not the 2001 Scheme, in particular as mentioned in paragraphs 6 and 7, 16 and 17 and 31 and 32 above, and to the meaning of paragraph 56 of the Scheme in the light of paragraphs 21 to 28 above. The evaluation of all the evidence will be entirely a matter for the judgment of the member(s) of the new tribunal.

 

34. The applicant must understand that the fact that he has been successful in this application for judicial review does not carry any implication that he will necessarily be successful before the new tribunal. The decision on the facts in this case is still open.

 

 

 

 

(Signed) J Mesher

Judge of the Upper Tribunal

 

(Dated) 16 November 2010