Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL ON JUDICIAL REVIEW

 

The application for judicial review is allowed. The Upper Tribunal’s decision is to quash the decisions of the First-tier Tribunal dated 3 September 2009 and 27 October 2009  and to remit the applicant’s appeal against the review decision of the claims officer notified in the letter dated 10 December 2008 to a differently constituted First-tier Tribunal within the Social Entitlement Chamber – Criminal Injuries Compensation for reconsideration in accordance with the directions in paragraph 21 below (Tribunals, Courts and Enforcement Act 2007, sections 15(1)(a) and 17(1)(a)).

 

 

REASONS

 

1. Permission to apply for judicial review of both decisions was given by Judge Rowland on 9 July 2010. There has been an unfortunate delay since the First-Tier Tribunal made its directed written response on 17 August 2010, to which the applicant has made no reply (although she had written earlier on 4 August 2010 welcoming the giving of permission and giving a little additional information). The Criminal Injuries Compensation Authority (CICA) has not taken any part in the application. The file has only recently been referred to me. In those circumstances I do not go into all the detail of the background of the case.

 

2. The decision made by the tribunal of 3 September 2009 followed a hearing on that date which the applicant did not attend. The decision was to disallow her appeal against the claims officer’s decision that she was not entitled to an award of compensation in relation to incidents said to have occurred between 30 January 2005 and 25 August 2005. The letter of 10 December 2008 referred mainly to the rule in paragraph 13(b) of the 2001 Criminal Injuries Compensation Scheme that an award could be reduced or withheld if an applicant had failed to co-operate with the police or another authority in attempting to bring the assailant to justice. It also referred to the condition in paragraphs 6 and 8 of the Scheme that the applicant has been the victim of a criminal injury and to the rule in paragraph 9(a) that compensation may only be awarded for mental injury alone if the applicant were put in reasonable fear of immediate physical harm or the case fell into certain other categories (not applicable here). In its statement of reasons the tribunal dealt with paragraphs 6, 8 and 9(a) as well as 13(b), but recognised that because the hearing summary prepared by CICA referred only to paragraph 13(b) it should not rely on any of the other paragraphs to exclude the claim without having given the applicant the opportunity of an adjournment to consider the case against her under those paragraphs. However, it concluded in paragraph 32 of the statement of reasons that her claim failed in its entirety on paragraph 13(b) grounds alone. Therefore, I shall in what follows regard the tribunal’s decision as turning on paragraph 13(b) alone.

 

3. The decision made by the tribunal of 27 October 2009 was to refuse the applicant’s application for the decision of 3 September 2009 to be set aside under rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 on the grounds that she had not attended the hearing on 3 September 2009 and that it was in the interests of justice to set the decision aside. The applicant had apparently said that she was unable to attend because of ill-health, but had not at that time supplied any medical evidence in support.

 

4. CICA sent the applicant a copy of its hearing bundle on 10 March 2009, indicating that it was opposing the appeal and including the information in the covering letter that she now had one month from the date of the letter to send in any more information that she would like the Tribunals Service to take into account when making a decision. That was in accordance with rule 24(6) and (7) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 and that general time-limit would probably have been included in a leaflet sent to the applicant or available on the First-tier Tribunal’s Criminal Injuries Compensation website.

 

5. The applicant wrote first to the Tribunals Service on 4 April 2009 asking for an adjournment of the hearing fixed for 10 April 2009 because she needed more time to gather evidence. She said that an Inspector Paul Mahoney had been able to find more information on the various incidents in the period in question than had been disclosed by reference to the police computer records in the hearing bundle, but was still in the middle of sorting things out. The adjournment was granted.

 

6. On 12 June 2009 she wrote quite a long letter, which started as follows:

 

“Please find enclosed information supplied by Inspector Paul Mahoney 1367 (Pontypridd Police Station) regarding complaints made about [the assailant] by myself. Letters you received from the Police before were not correct as matters were not investigated fully as stated. Also a lot of blame has been put on the `new computer system’ police have employed which only had the minimum of information recorded.

I had a few meetings with Inspector Paul Mahoney who worked very hard gathering the relevant information regarding complaints I had made. I have therefore included names of police who attended and incident/crime no’s etc on attached paperwork. To confirm enclosed information I suggest you contact Inspector Mahoney – details on attached letter that he sent to me following our meetings. New computer system was put in place in 2007 – only limited info transferred to new computer system.”

 

The letter then listed incidents on an unstated date (when she said that she had teeth knocked out but the police would only interview her over the telephone), 19 February 2005, 20 April 2005, 8 May 2005, 3 August 2005, 4 August 2005, 25 June 2007, 9 July 2007, June 2008 and 29 April 2009. The last four incidents were outside the date-range of the claim under consideration (received on 26 May 2006 and given the reference X/06/225708), so I shall say no more about them. Since there had, so far as I can see, been no mention of the first incident on the claim form or in the further letters and documents produced before the initial decision on the claim, I also leave that out of account. The documents included with the letter of 12 June 2009 included a copy of a letter dated 11 November 2005 to the applicant from a witness care officer with the Crown Prosecution Service about the prosecution of the assailant for harassment following an incident occurring between 3 August 2005 and 25 August 2005. The letter informed the applicant that the assailant had pleaded not guilty and that she would be required to attend court to give evidence, but she had written on the letter that he had not had to attend because he pleaded guilty and received four months re nuisance phone calls and threats to damage property. So far as I know there was no reply to the letter of 12 June 2009 by the First-tier Tribunal administration, but it and the enclosed documents were added to the hearing bundle as pages T1 to T13.

 

7. The applicant did not attend the hearing on 3 September 2009, when the tribunal decided to proceed, being satisfied that the applicant had received notice of the hearing. On the point of co-operation with the police the tribunal relied in particular on the evidence of PC Davies-Thomas, both in person at the hearing and in a letter to CICA dated 6 July 2006 as follows:

 

“I have trawled through and researched the force computer system and my own pocket book and there is no trace at all of any incident which has been generated involving any offence of crime against the complainant.

There was one incident within the time frame given where the applicant and the alleged offender had severed their relationship which led to [the assailant] being escorted from the premises to prevent breach of the peace. This did not lead to any arrest or process.

The only other incident involving both complainant and the alleged offender which did lead to an arrest was between the 8th May and 25th August 2005 where [the assailant] had issued threats against the applicant none of which were carried out. This was allocated Divisional Crime Number BA/05/15015 and dealt with by Police Constable 2110 Peter Lewis.

At no stage was a complaint made of assault and when [the assailant] was arrested and processed pleaded guilty at court.”

 

PC Davies-Thomas’s oral evidence included not only that the assailant was regarded by the police as a very dangerous person, but that the police had made repeated attempts to get the applicant to follow things through properly, but she would not.

 

8. The tribunal found as facts in paragraph 25 of its statement of reasons that:

 

“(b) On one occasion when the relationship [between the applicant and the assailant] had ended the police attended to remove the alleged offender from the appellant’s property to prevent a breach of the peace.

(c) The appellant had reported the alleged offender but this seems to have been in respect of threats to damage property belonging to the appellant (and possibly nuisance telephone calls) and charges were brought which resulted in the alleged offender pleading guilty.”

 

Paragraphs 29 and 30 of the statement, under “Reasons”, were as follows:

 

“29. The appellant had not cooperated with the police. While the Tribunal did not have the benefit of hearing oral evidence from the appellant on this matter, it did have the highly credible oral evidence of PC Davies-Thomas. In light of his evidence and the documents provided to the Authority by the police, the Tribunal was not satisfied that the appellant had cooperated with the police or made them aware of any possible allegations of physical injuries to herself or threats to her person (other than one incident to which the alleged offender pleaded guilty and on the applicant’s case appears to relate to nuisance calls and damage to property) despite reporting various incidents to the police concerning the alleged offender. This was particularly so in respect of the incident on 19 February 2005 which had involved the police.

 30. Further, given the conflicting evidence between the appellant and the police, the Tribunal had no satisfactory independent evidence (the only possible evidence being the letters/attendance note from the appellant’s solicitors) to corroborate the appellant’s complaints.”

 

9. As already noted, on 27 October 2009 a First-tier Tribunal refused the application to set aside the decision of the tribunal of 3 September 2009 on the ground that she had been too ill to attend.

 

10. When giving the applicant permission to apply for judicial review, Judge Rowland said this in paragraph 2 of his reasons:

 

“[I]t appears from the letter that was document T5 (now doc 94) that the Applicant expected the First-tier Tribunal to contact Inspector Mahoney for further information. The letter that was document T10 (now doc 99) was not adequate and seems to have been provided as much because it contained Inspector Mahoney’s details as anything else. The First-tier Tribunal appears not to have responded to the letter at T5 and, if it did not write to Inspector Mahoney on the basis that it was open to the Applicant to obtain the evidence herself, the Applicant was not made aware that that was the position and she says [in a letter dated 4 February 2010 attached to her JR1 claim form] that in fact Inspector Mahoney would not give her the information because he expected a request from CICA or the First-tier Tribunal. The first ground upon which I grant permission is that there may have been an inadvertent breach of the rules of natural justice because it is arguable that the Applicant could not have been expected to realise that she should have made it plain to the First-tier Tribunal before the hearing that she was unable to obtain for herself what she believed to be key evidence.”

 

11. The principle behind Judge Rowland’s reasoning has a long and well-established basis in the Administrative Appeals Chamber’s jurisdiction dealing with appeals from tribunals in the social security and other areas. It stems from the very common belief amongst unrepresented individuals that if they supply a tribunal with the details of a person (often a doctor or some other professional) who they say is willing to provide relevant evidence, the tribunal itself will contact the person to ask for it. It is also quite common, especially when the individual cannot afford to pay the standard professional fee for providing a report, for the professional to tell the individual that they will only provide the report if specifically requested by the tribunal.

 

12. The classic statement of the principle is in paragraphs 7 and 8 of Social Security Commissioner’s decision R(M) 2/80:

 

“7. In Decision R(I) 1/65, paragraph 15, claimants appealing to medical appeal tribunals were advised to examine the schedule of evidence relative to such appeals showing the evidence to be submitted to the tribunal and it was emphasised that it was for the claimant to put forward any further evidence he wished to have considered and that it would not suffice for a claimant merely to draw attention to a possible source of additional evidence. In a recent unreported decision of the Chief Commissioner (CA 3/78), however, a decision of the Attendance Allowance Board was set aside as erroneous in law on the ground of breach of natural justice where a claimant who had suggested that the evidence of a particular doctor be obtained was not informed that it was not intended to follow up his suggestion and that the responsibility for obtaining such evidence therefore remained with him. The Chief Commissioner said (in paragraph 9) --

 

`No doubt the question whether action should have been taken on receipt of the claimant’s letter concerning (the doctor’s) evidence was for the authority - the Board, or their delegate (who accepted it as a request for a review) to decide. It may be the rule that it was for the claimant to secure the evidence upon which he proposed to reply, but having written as he had he was at least entitled to an acknowledgement, and a reply indicating what course it was proposed to take, so that he could act accordingly. I would not dissent from the proposition that the Board or its delegate was entitled to take no action to secure what may have been thought irrelevant to what the review would entail, but in my view the claimant was entitled to be told whether such action would be taken, or be told that the responsibility was his to secure the evidence upon which he wished to rely. He was told nothing.’

 

  8. No doubt it would have been possible for the claimant in the present case to ascertain by reference to the schedule of evidence that no further evidence had been obtained from the consultant, but that could equally well have been said of the claimant in CA 3/78 who received a list of the documents considered by the Board along with their provisional determination on the application for review. I note that in that case it was thought that the claimant might have misapprehended the situation. Equally in the present case the claimant may have been misled by the acknowledgement which she did receive of the receipt of the Mobility Allowance Unit of the consultant’s letter. In any event, however, the claimant in the present case is in my opinion in a stronger position than the claimant in CA 3/78 since she was aware that the consultant was, on his own initiative, in direct contact with the Unit. I have no doubt that she was entitled to be informed in clear terms whether the consultant’s suggestion had been followed up, and if it had not, that the responsibility for any further action would lie with her. She was not so informed and while I do not suggest that the medical appeal tribunal were not entitled to determine the appeal on the evidence before them, this prior defect in communication with the claimant (of which the tribunal may have been unaware) was in my opinion a defect in the proceedings leading to the decision which amounted to a breach of natural justice. Upon that ground I consider that the decision of the tribunal is erroneous in law and should be set aside.”

 

13. Whether there is unfairness amounting to a breach of the principles of natural justice in any particular case will of course depend on all the circumstances of that case, including what the claimant or applicant had been told about who is responsible for obtaining evidence in leaflets or other documents received before the suggestion (express or implied) is made that the tribunal seek the evidence. In the present case, the helpful observations dated 17 August 2010 on behalf of the First-tier Tribunal (CICA not having taken any part in the proceedings) put forward this view in paragraph 4:

 

“It is not the function of the FTT [First-tier Tribunal] to make enquiries or carry out investigations: it is the function of the Tribunal to adjudicate. It is the function of CICA to carry out investigations. At best the FTT can grant an adjournment to enable either party to make further enquiries or obtain further evidence.”

 

It was then suggested in paragraphs 5 and 6 that all that the applicant was saying was that Inspector Mahoney would do was to confirm the details given in her letter of 12 June 2009, not provide additional evidence, and that there was no suggested line of enquiry for the tribunal. It was submitted that the tribunal of 3 September 2009 had not failed to consider any key evidence. Those last submissions seem to me to miss the essence of the natural justice point raised by Judge Rowland, perhaps because the point was put in slightly shorthand form without the fuller exposition in decision R(M) 2/80. The point is that, if the tribunal’s view was that it would not contact Inspector Mahoney itself, because it did not regard that as part of its functions, fairness required the applicant to be told specifically that was the case, contrary to her apparent assumption, so that she could then take whatever steps she could to obtain a report from Inspector Mahoney or request his attendance at the hearing as a witness. I do not consider that the general statements in the First-tier Tribunal’s Guide to the Appeal Process – Your Hearing (available on its website) about applicants having to send documents they wished to rely on within a month of issue of the hearing bundle and about the Scheme providing that it is for applicants to make out their case could affect that point even if the First-tier Tribunal had submitted that that or similar guidance had actually been issued to the applicant here.

 

14. I do, though, agree that whether such unfairness was sufficient to amount to a breach of the principles of natural justice justifying the quashing of the tribunal’s decision depends to a large extent on what evidence it was being suggested that Inspector Mahoney could add. It is true that the applicant only suggested that he be contacted to confirm the information contained in the letter of 12 June 2009 and enclosures, but there might well have been further details that he could have added whose relevance the applicant might not have appreciated. The letter is not be interpreted as if it were some formal legal document and the applicant could be taken as including that possibility in her suggestion. Further, I consider it relevant that the tribunal mentioned in its reasons the lack of satisfactory independent evidence to corroborate the applicant’s complaints where they conflicted with the police evidence. It is not entirely clear how far the tribunal’s reliance on that point extended to the issue of cooperation with the police under paragraph 13(b) of the Scheme as well as to the issue of whether the applicant had been the victim of any crimes of violence as defined in the Scheme. However, although Inspector Mahoney was another policeman, the applicant would have regarded him as able to corroborate her case on at least some of the incidents she had described. The answer is far from being clear-cut. I am just persuaded that the potential value of Inspector Mahoney’s evidence was such that there was a breach of natural justice in the applicant’s being deprived of the opportunity to put his evidence forward herself. Fortunately I do not have to decide whether that alone would justify quashing the decision of the tribunal of 3 September 2009 because in my judgment there is another error of law in its treatment of the evidence that it did have.

 

15. This relates to the incidents that led to the assailant’s prosecution and conviction for harassment. It seems to me that from the terms of the letter of 11 November 2005 from the Crown Prosecution Service and the applicant’s having made a statement (see B8) and evidently being willing to give evidence (short-circuited by his later change of plea to guilty) that she had cooperated with the police in bringing the assailant to justice in relation to these incidents. The tribunal dismissed those incidents in paragraph 29 of its statement as apparently relating to nuisance telephone calls and damage to property, with the implication that that they did not amount to a crime of violence for the purposes of the Scheme. However, in my judgment further explanation was required of that conclusion, in relation mainly to evidence that the tribunal mentioned elsewhere in the statement. The incident(s) were what PC Davies referred to in his letter of 6 July 2006 (paragraph 7 above) as occurring between 8 May 2005 and 25 August 2005 and involving threats none of which were carried out (see the police records at B8, B19 and B20). The statement referred to what the applicant said in her letter of 12 June 2009 about 3 August 2005, when she said that the assailant had been banging on her window and threatening her and another girl, saying “You’re gonna get it”, “You’re in trouble” and “I’m gonna do time for you”. The tribunal’s statement did not mention what the applicant had said in her letter about 4 August 2005, that the assailant had been harassing her via telephone. At B20 the police report was of threatening telephone calls and, I think, that she believed that he would carry out threats to damage (possibly her property).

 

16. The assailant was prosecuted for the crime of harassment, which under sections 1 and 2 of the Protection from Harassment Act 1997 is constituted by pursuit of:

 

“a course of conduct—

(a)           which amounts to harassment of another, and

(b)           which he knows or ought to know amounts to harassment of the other.”

 

“Harassment” is not defined in the Act, but can include causing alarm or distress, and I do not see why it cannot include actions that might also constitute assaults, despite the existence of the separate offence of putting another in fear of violence on at least two occasions (section 4). A course of conduct requires there to have been offending conduct on at least two occasions. It is of course relevant that the assailant was only prosecuted for harassment and not for assault (although the length of the sentence indicates that it was not regarded as a trivial case). However, the additional detail given about the incidents is not incompatible with the crime of assault having been committed, which the Crown Prosecution Service could have decided not to pursue in the light of the easier route of getting the whole of the incidents within the broad scope of harassment. As is well-known, assault as opposed to battery is an act causing the victim to apprehend (or fear in that sense) an immediate application of force to her. It is not necessary that the force actually be applied. The House of Lords held in R v Ireland and Burstow [1998] AC 147 that the offence may be committed by words or gestures alone. The House of Lords went further in the part of that decision concerning Ireland, where what the person had done was to make silent telephone calls to the victim over a period of three months, causing her psychiatric injury. Lord Steyn (at 162B) said that a silent caller could be guilty of assault, depending on the facts, and continued:

 

“After all, there is no reason why a telephone caller who says to a woman in a menacing way `I will be at your door in a minute or two’ may not be guilty of assault if he causes his victim to apprehend immediate personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstances and in particular the impact of the caller’s potentially menacing call or calls on the victim.”

 

17. Applying those principles to the present case, there was at least an argument that the threats made by the assailant on 3 August 2005 were assaults, even though he was on the other side of the window. The applicant could have been put in fear of the immediate application of force to her. Similarly, the threatening telephone calls on 4 August 2005 and possibly on later dates, the exact content of which has not been yet made clear, could also have put her in such fear, using Lord Steyn’s approach to immediacy where the victim does not at the time know where the telephone caller is. Nor am I sure how realistic it is to distinguish between a threat to smash up a person’s property, if the person is in or near the property, and an act causing the apprehension of the immediate application of force to the person concerned. Therefore, I do not think that the tribunal was able simply to dismiss the incident(s) leading to the prosecution as irrelevant to the issue of cooperation with the police in the way it did. Much more explanation would have been needed to justify that conclusion.

 

18. Further, and perhaps more important, the tribunal’s dismissal of those incidents on the above basis would necessarily have involved it in considering whether the incidents involved constituted crimes of violence and whether the rule in paragraph 9(a) of the Scheme, that compensation may be paid for mental injury alone only if the victim was put in reasonable fear of immediate physical harm to herself, applied. Those were issues that the tribunal expressly recognised in paragraph 32 of its statement of reasons that it would not have been fair to decide against the applicant without having given her the opportunity to consider the points and to put forward further argument and/or evidence. On that combined reasons and natural justice basis I conclude that the tribunal of 3 September 2009 erred in law in the way in which it rejected the case that could be made for the applicant on paragraph 13(b) of the Scheme in relation to the incidents leading the assailant’s prosecution for harassment.

 

19. The combination of that error and that identified in paragraphs 10 to 14 above requires the quashing of the tribunal’s decision.

 

20. The practical and legal effect of the decision of the tribunal of 27 October 2009 therefore falls away. The decision of the tribunal of 3 September 2009 having been quashed, there is nothing left for the decision of 27 October 2009 to bite on and it must fall with the earlier decision. I need not consider the natural justice point raised by Judge Rowland about the procedure adopted by the tribunal of 27 October 2009. For the sake of completeness, that decision is quashed also.

 

Directions

21. The applicant’s appeal against the claims officer’s review decision of 10 December 2008 must be remitted to the First-tier Tribunal for reconsideration afresh at an oral hearing. No-one who was a member of the tribunal of 3 September 2009 or that of 27 October 2009 is to be a member of the new tribunal. The applicant must now regard herself as on notice that the new tribunal may well be considering not only paragraph 13(b) of the Scheme, but also paragraphs 6 and 8 (in the sense of raising the question whether she had been the victim of any crimes of violence as defined) and 9(a) (the extra condition for making an award for mental injury only) and that she must be prepared to put forward whatever evidence and arguments she can on all those issues in relation to the incidents identified in her claim received on 26 May 2006. She should be prepared in particular to give evidence about the circumstances of the incidents leading to the prosecution of the assailant for harassment and what she was in fear of in those incidents. The applicant now also knows that the First-tier Tribunal will not be asking Inspector Mahoney for evidence. In her letter dated 4 August 2010 (page 220 of the Upper Tribunal bundle) she says that another officer at Pontypridd Police Station had told her that it would be acceptable and appropriate for Inspector Mahoney to appear at a tribunal hearing as a witness to the relevant police records. She should contact the First-tier Tribunal administration as soon as possible to find out what she needs to do to arrange for Inspector Mahoney to attend the rehearing as a witness on her behalf. I do not need to give the new tribunal any directions of law as to the meaning of any provisions of the 2001 Scheme beyond the reminder to have regard to the points made in paragraphs 15 to 17 above.

 

22. The applicant must understand that the fact that she has been successful in this application for judicial review does not carry any implication that she 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) 14 January 2011