Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/2611/2010

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an application, brought with the permission of Upper Tribunal Judge Bano, for judicial review of a decision of a First-tier Tribunal made on 2 August 2010. For the reasons set out below I dismiss the application.

 

Introduction

2. I held an oral hearing of the application in Manchester on 18 May 2011 at which Mrs Amanda Yip of counsel, instructed by GLP solicitors, appeared on behalf of the Applicant and Mrs Avril Watkins, a solicitor employed by the Criminal Injuries Compensation Authority (“the Authority”), appeared on behalf of the Authority, the Interested Party. The Respondent, the First-tier Tribunal, was not represented, having indicated that it wished to play no part in the proceedings.

 

3. Two questions arise for decision. The first is whether the Applicant is prevented from applying for judicial review by reason of the fact that the full amounted awarded by the First-tier Tribunal was paid to him by the Authority, following signature by him of a form (“the Acceptance Form”) in which he stated that he accepted payment “in full and final settlement of my application for compensation …….” The second question is whether, if he is not so prevented, the First-tier Tribunal’s decision was wrong in law so far as concerns its rejection of any entitlement to compensation in relation to the cost of care. I have concluded that the answer to the first question is yes; the Applicant is so prevented. However, in case this should go further, and also because it may be of significance in relation to any claim which the Applicant may have against his solicitors and/or counsel, I consider it sensible that I should also deal with the second question. The answer to that is in my view also yes; the First-tier Tribunal’s decision was wrong in law.

 

The facts

4. On 28 October 2000 the Applicant, a man now aged 30, was assaulted by three men, sustaining serious injuries, including a significant brain injury. The reports of the medical experts detailed a number of permanent cognitive and neuropsychological deficits.

 

5. At the time of the assault the Applicant was in the Army. He was in hospital until 22 November 2000 before being transferred to a Neurological Rehabilitation Centre. He remained there until 4 January 2001, with some days at home, and was then transferred to the Army Rehabilitation Centre at Hedley Court. He attempted to return to light duties within the Army in March 2001 but was unable to sustain his service and was formally discharged in August 2002.

 

6. He made strenuous attempts to take up other work and attempted a number of different employments, but was unable to sustain employment. The medical evidence before the Tribunal attributed this to his brain injury. He has not worked for several years.

 

7. Since his discharge from the Army the Claimant has lived with his grandmother, Mrs G, who has provided considerable day to day support to him. The Applicant’s father has also provided support. Mrs G is now aged 74 and unhappily has recently had a minor heart attack and stroke.

 

8. The claim for compensation from the Authority was made on 3 September 2001, and so fell to be considered under the 2001 Scheme. The Applicant was assisted from the time of the claim, down to the time of appealing against the Authority’s review decision, by Victim Support (now Victim Support & Witness Service). His current solicitors began to represent him in March 2009, after the notice of appeal against the review decision had been lodged.

 

9. The Authority’s original decision was made on 6 March 2007, and assessed compensation in the total sum of £106,195. It is not necessary to go into the details of how that was made up. The difference between that and the higher amount awarded on review was attributable entirely to the sums awarded in respect of loss of earnings.

 

10. The letter from the Authority dated 6 March 2007 notifying Victim Support of the award gave a similar explanation, as far as the options available to the Applicant were concerned, to that given in the later letter notifying them of the review decision (see para. 12 below). In other words, it made clear that the Applicant had the option of either accepting the award or (in this case) applying for a review. It made clear that payment of the award could not be made until the signed acceptance had been received.

 

11. By the review decision made on 28 October 2008 the Authority made an award totalling £145,680, under the following heads:

 

(i) a tariff award of £11,260, made up as follows:

 

(a) disabling mental illness – level 12 – 100% = £8,200

(b) brain injury minor - level 12 - 30% = £2,460

(c) depressed skull fracture – level 9 - 15% = £ 660

 

(ii) past loss of earnings, para. 31 =£69,360

 

(iii) future loss of earnings, lump sum under para. 33=£65,000.

 

12. The Applicant had received interim payments of £16,000, so that the additional sum payable under the Authority’s review decision was £129,680.

 

13. Having set out the total amount of the award made on review, the notification letter from the Authority to Victim Support dated 28 October 2008 continued as follows:

 

“WHAT YOU SHOULD DO NOW

 

If your client wishes to accept this award –

 

they should complete the enclosed acceptance form and return it without delay. Payment cannot be made until we have received their signed acceptance. We will then aim to issue a cheque within four weeks. This will be made payable either to your client or, if they wish, to you. …………………

 

If your client disagrees with this award –

 

they may appeal to the Criminal Injuries Compensation Appeals Panel (the Panel). The enclosed information explains how to appeal and the procedure involved in an appeal hearing. It is important that it is read carefully before deciding what to do.

 

If your client decides to appeal they must

 

-        complete and sign the enclosed appeal form, giving their reasons, within 90 days of the date of this letter

-        send any further information that they want the Panel to consider.

 

The Panel must receive the appeal form by 26 January 2009 …………………………………..

 

Please read carefully all the information in this letter and the documents enclosed with it. They will help your client decide whether to accept the award or to appeal to the Appeals Panel.”

 

14. The completed notice of appeal appears to have been enclosed with a letter   from Victim Support dated 22 January 2009.

 

15. By letter dated 23 March 2009 GLP Solicitors notified the Authority that they had taken over as representative for the Applicant. The letter included a request for a further interim payment of £10,000, and in relation to that said:

 

“On review, compensation has been assessed at a figure in excess of £145,000 we would be grateful if you would confirm that you are now prepared to make a further interim payment to [the Applicant] within 21 days.

 

We look forward to receiving the appropriately worded acceptance form.”

 

16. It appears that a further interim payment of £10,000 was made, making £26,000 in total.

 

17. The hearing before the First-tier Tribunal took place on 2 August 2010. The Applicant was represented by Mrs Yip, instructed by GLP Solicitors.

 

18. The First-tier Tribunal allowed the appeal and awarded compensation in the total sum of £351,443.94. That was made up as follows:

 

(i) A total tariff award of £24,610, made up as follows:

 

(a)  mental illness, permanently disabled - level 16 – 100%= £19,000

 

(b)  moderate brain damage – level 15 – 30% =  £ 4,950

 

(c)  depressed skull fracture – level 9 – 15% = £  660

 

(ii) past loss of earnings £107,627.47

 

(iii) future loss of earnings and pension £245,376.47

 

(iv) past net special expense/care costs £ 360

 

Less (a) interim payments £   26,000

(b) court compensation £ 540

 

19. As regards the tariff award, the First-tier Tribunal accepted the Applicant’s “secondary position”. The primary position advanced on his behalf had been that the award should be based on “serious brain damage”, and would have given a total tariff award of £45,815. The amounts awarded by the Tribunal in respect of past and future loss of earnings were those which had been contended for on behalf of the Applicant. The expert evidence was uniformly to the effect that the Applicant would not realistically be able to obtain and retain paid employment, whether full time or part time.

 

20. The main respect in which the First-tier Tribunal did not accept the Applicant’s case was in relation to the cost of past and future care. Broadly, it had been contended on behalf of the Applicant that, although he did not require care in relation to basic bodily functions, he would require substantial support in order to assist him to live independently. The expert evidence was to that effect.

 

21. The Schedule of Costings claimed before the First-tier Tribunal had included sums of £27,719 in respect of past care, £449,733 in respect of future care and case management and £23,308 in respect of future occupational therapy.

 

22. Those sums, in addition to the ones which the First-tier Tribunal actually awarded as set out in para. 18 above, would of course have taken the total to very substantially in excess of the statutory maximum of £500,000.

 

23. The First-tier Tribunal’s decision was announced on the day of the hearing (2 August 2010), with brief oral reasons. At the end of the hearing Mrs Yip asked the Tribunal to produce a written statement of reasons.

 

24. A standard form of “Final Decision Notice” was completed on that day and signed by the Presiding Tribunal Judge. It contained boxes for insertion of (1) the “standard amount of compensation under the tariff of injuries” (in which the figure of £24,610 was inserted in manuscript) and (2) “financial loss” (in which the figure of £326,823.94 was inserted). The total of £351,433.94 was then inserted in the box “Amount now payable to Appellant”.

 

25. At the foot of the form are “Notes to the Appellant and Respondent”, which give information about the time limit for applying for a full written statement of the reasons for the decision, and about the possibility of applying for permission to bring judicial review proceedings.

 

26. There is then provision for inserting the date on which a copy of the completed Decision Notice was “handed/sent to” each of the parties. That was not filled in on the only copy which is before me (which is the copy which was either handed to or sent to the Applicant’s solicitors). (There is no evidence before me as to whether the completed Decision Notice was in fact handed to the parties’ representatives on the day of the hearing, or sent to them by post. I do not think that it can matter which it was).

 

27. On the day of the hearing the Applicant signed the Acceptance Form, being a standard form proffered to him by the Authority. The details of the First-tier Tribunal case number and the Applicant’s name were inserted in the appropriate spaces at the top of the form. The form then continued as follows (italics indicating the details inserted in manuscript):

 

 

“PART ONE. ACCEPTANCE OF FINAL AWARD

 

I, [ Claimant’s name], of [Claimant’s address inserted] hereby accept the sum of £351,433.94 (three hundred fifty one thousand four hundred and thirty three pounds ninty four pence) which the Criminal Injuries Compensation Appeals Panel has directed shall be paid in full and final settlement of my application for compensation for the injuries suffered by me on 28/10/00.

 

I understand that the Criminal Injuries Compensation Authority (CICA) will deduct from this sum any money I have received by way of a compensation order, and may ask any criminal court responsible for enforcing a compensation order in my favour to pay all further sums received under the order direct to the CICA. I further undertake to repay the CICA from any damages, settlement or other compensation I may receive from the same injuries.

 

Date: 2/8/2010 Signature of applicant: [Applicant’s signature inserted]

 

ONLY COMPLETE THE PAYMENT INSTRUCTIONS BELOW IF NECESSARY

 

PART TWO (Payment to Bank or different address from the one above)

 

[Part Two was crossed through in manuscript].

 

PART THREE. (Payment to Solicitor)

 

If payment is to be made in favour of your solicitor please complete the following mandate: I hereby request and authorise the Authority to pay the sum awarded to me, as stated above, to:

 

GLP Solicitors

[Address set out]

 

Date: 2/8/2010 Signature of Applicant: [Applicant’s signature inserted]

 

PLEASE NOTE THAT PAYMENT WILL BE MADE BY CHEQUE AND SENT BY MEANS OF ORDINARY LAND POST”

 

28. The circumstances in which the Acceptance Form was signed are set out in a statement, made for the purposes of this judicial review claim, by Mr Neil Sugarman, the partner of GLP Solicitors who was at the hearing. After stating that his practice is almost exclusively in the field of personal injury compensation law, and that he has “a special interest in the Criminal Injuries Compensation Scheme, having conducted many applications on behalf of injured victims over a number of years”, the statement continues as follows:

 

“3. …….Following the conclusion of the hearing the Presenting Officer Nicola Hattie came to see the Appellant with the standard acceptance form issued by the Interested Party which appears at page 61 of the hearing bundle. The Appellant was asked to sign the form. In my experience this is entirely standard practice and happens in the vast majority of appeal hearings.

 

4. At the time, I was with the Appellant in conference with counsel beginning an initial consideration of the implications of the decision. I can say that it was not in the contemplation of counsel, solicitor or the Appellant that signature of the form would preclude the Appellant from pursuing further remedies, including the possibility of beginning proceedings for Judicial Review.”

 

29. The handwriting in Part Three of the Acceptance Form (i.e. setting out GLP Solicitors as the payee of the award, and giving their address) is clearly different from that at the beginning of the form (setting out the Applicant’s name and address), and Mrs Yip accepted that Part Three was no doubt completed by Mr Sugarman.

 

30. A cheque for £351,433.94 was sent by the Authority to GLP Solicitors on about 13 August 2010, and duly presented.

 

31. The First-tier Tribunal’s Statement of Reasons was signed on 14 October 2010, and was presumably sent to the parties on or shortly after that date.

 

32. The JRC1 Form, applying for permission to bring judicial review proceedings, completed on behalf of the Applicant by GLP Solicitors, was received by the Upper Tribunal on 4 November 2010. A copy was sent by the Upper Tribunal to the Authority, as an interested party, on 5 November 2011. On 11 November the Authority wrote to the Upper Tribunal to acknowledge receipt, and stated:

 

“According to our records the applicant received a final award of compensation on 13 August 2010. Can you please confirm whether his application for Judicial Review has been accepted as valid by the Upper Tribunal, and if so why?”

 

33. That point was not picked up at the time when permission to bring the Judicial Review claim was given by Upper Tribunal Judge Bano, or at any rate he did not refer to it when giving permission. However, the Authority made the following submission in para. 9 of its response to the claim:

 

“Furthermore, the Authority notes that following the decision of the First-tier Tribunal the [Applicant] accepted a final award of compensation from the Authority on 13 August 2010. The Authority would therefore argue that the [Applicant] is personally barred from seeking judicial review against the decision of the First-tier Tribunal. To find otherwise would mean that the Authority can never effectively rely on a Claimant’s acceptance of a final award. In accepting the award the Claimant gave the Authority a legitimate expectation he would not seek Judicial Review. The Authority believed in good faith that the [Applicant] was satisfied with the award and that he considered it to be a final settlement. The [Applicant] has acted inconsistently by subsequently seeking Judicial Review.”

 

34. When giving directions, on 1 March 2011, for an oral hearing of the judicial review claim, Upper Tribunal Judge Mesher stated as follows:

 

“The second issue is that raised in paragraph 9 of [the Authority’s] response, including the question of whether any provisions of the 2001 Criminal Injuries Compensation Scheme are relevant where the award has been directed by a First-tier Tribunal.”

 

He directed the Authority to supply a copy of any documents relied upon, in response to which the Authority provided a copy of the Acceptance Form.

 

35. It has not been suggested on behalf of the Applicant that, if he was prevented by the signature of the Acceptance Form and receipt of payment of the award from proceeding for judicial review, that is a point which ceased to be available to the Authority once permission was granted. Although it is a point which, if valid, should probably have led to permission being refused, it is in my view clear that, in the circumstances set out above, permission must be taken to have been granted without prejudice to the question whether the Applicant was debarred from claiming judicial review.

 

The first issue: the effect of signature of the Acceptance Form and payment of the award

(1) The parties’ submissions

(a) General

36. It was agreed at the hearing that Mrs Watkins should speak first on this issue. As noted in para. 33 above, the Authority’s brief written response had not in terms contended that the Applicant had entered into a contract not to challenge the First-tier Tribunal’s decision, although I think that such a contention could be taken to be encompassed in that response. Shortly before the hearing Mrs Watkins provided to the clerk a copy of the decision in Johnson v Gore Wood (referred to below). (It and the IM case (also referred to below) were the only authorities referred to by either advocate). At the outset of her oral submissions Mrs Watkins stated that she relied upon estoppel. I queried whether the Authority needed to rely on estoppel if there was a contract. It did not appear that Mrs Watkins had intended to rely on an argument based on contract, but (as appears below) she did adopt and rely on it in her submissions in reply. Mrs Yip did not in her submissions contend that she had been taken by surprise by the suggestion that there was a contract. I do not see how the suggestion could have come as a surprise to any lawyer. Had she been taken by surprise, she could of course have asked for the opportunity to put in subsequent written submissions, or indeed for the hearing to be adjourned for additional argument.

 

(b) Opening submissions for the Authority

37. Mrs Watkins’ opening oral submissions can be summarised as follows.

38. The Applicant is estopped, by signature of the Acceptance Form and the receipt of payment, from proceeding for judicial review. The only authority to which Mrs Watkins referred me was the decision of the House of Lords in Johnson v Gore Wood & Co [2002 2 AC 1. However, she cited that purely for the purpose of referring to the  citation, in Lord Bingham’s speech at p. 33, of the well known passage, relating to what is generally known as estoppel by convention, in the judgment of Lord Denning MR in Amalgamated Investment and Property Co v Texas Commerce [1982] QB 84 at 122. Mrs Watkins highlighted in particular the following part of that passage:

 

“When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or law – whether due to misrepresentation or mistake makes no difference – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.”

 

39. The Authority had relied on the signature of the Acceptance Form to its detriment by paying the money. If the Applicant or his advisers had said that judicial review was being considered, the Authority would not have paid the whole of the award, but would merely have considered a further interim payment.

 

40. Mrs Watkins submitted that this was a matter of some general importance for the Authority. If a claimant could accept an award and then challenge it, this would have practical implications for the Authority. If the Authority pays the amount of the award, and there is then a successful application for judicial review, the new First-tier Tribunal to which the matter was remitted might make no award, or a smaller one, but the Authority might be unable to recover the excess because it had been spent. In practice the Authority would need to delay payment for 3 months, or possibly even longer given the possibility of the time for applying for permission to bring judicial review proceedings being extended. To permit the Applicant in this case to proceed for judicial review would be unfair to other claimants who have applied for judicial review and as a result have not been paid the amount of the award.

 

41. Mrs Watkins submitted that in Scotland the doctrine of personal bar operates in the same way as estoppel. There is no time limit for applying for judicial review in Scotland, and, if the Acceptance Form does not bar the possibility of an application for judicial review, there would be no time after which the Authority could safely pay an award.

 

(c) Submissions for the Applicant

(1) The Acceptance Form does not, on its natural construction, mean that the applicant is to be debarred from proceeding for judicial review:

 

(a)  The words “in full and final settlement of my application for compensation” do not mean that judicial review cannot be applied for. The Acceptance Form is dealing merely with the question of to whom and how the money is to be paid. The Authority gets a good receipt by paying in the agreed manner, but the applicant is not intended to be debarred from applying from judicial review. If that had been the intention, one would have expected it to be expressly stated. In the absence of such an express statement, it would be unfair if a claimant were prevented from applying for judicial review.

 

(b) The true meaning must be judged in the light of the circumstances in which the document was signed. The Authority gave no warning that signature would prevent a claim for judicial review. The document was presented as a formality which was necessary in order to enable the mechanics of payment to be dealt with. Further, the parties were aware that a Statement of Reasons had been applied for.

 

(2) Even if the Acceptance Form does mean that the applicant will not apply for judicial review, it does not give rise to an enforceable contract that he will not do so because the Authority gives no consideration for the applicant’s agreement:

 

(a) Payment of the amount of the award is not consideration because the Authority is bound to pay the amount awarded by the First-tier Tribunal. The Authority is not entitled to delay payment merely because there is the possibility of the claimant applying for judicial review, or indeed even if the claimant has actually applied for permission to bring judicial review proceedings. In para. 21 of R(CICA) v First-tier Tribunal and IM (CIC) [2011] UKUT 70 (AAC) Judge Mesher had criticised the Authority for not making payment of amounts not in dispute, merely because judicial review proceedings were on foot.

 

(b) In any event, there was in the present case no real possibility that, if the First-tier Tribunal’s decision was quashed, the amount ultimately awarded would be less than that awarded by the First-tier Tribunal. In reality either the Upper Tribunal would substitute its own decision to award the maximum of £500,000, or the matter would be remitted to the First-tier Tribunal with a direction that the new tribunal should consider only whether to award additional amounts in respect of the cost of care. There was no chance that the other heads of compensation would be reduced.

 

(c) If the Authority’s real concern was that the ultimate award might be for less than that awarded by the First-tier Tribunal, it could have covered that possibility by, for example, asking for the sum awarded to be paid into a joint account, pending any judicial review proceedings.

 

(d) In any event, even in the absence of judicial review there is the possibility of the amount of the award being reduced, even after payment: the Authority can apply to re-open it. There is therefore always the risk for the Authority that it will have paid more than the applicant is ultimately found to have been entitled to.

 

(3) As regards estoppel, the Authority would suffer no prejudice or injustice if the Applicant is permitted to proceed for judical review. On the contrary, the Applicant would suffer gross injustice if he is not permitted to do so, in that he will be deprived of the possibility of challenging the First-tier Tribunal’s decision for error of law and obtaining the correct amount of compensation. The Authority will in effect receive a windfall by being relieved of the need to pay some £150,000.

 

(c) Submissions for the Authority in reply

(1) Payment by the Authority of the full amount of the award did amount to consideration:

 

(a) There is nothing in the legislation or the 2001 Scheme stating whether the Authority is bound to pay the amount of a First-tier Tribunal’s award which is subject to judicial review. In practice, the Authority might feel it necessary to consult counsel for advice as to whether it should pay.

 

(b) It is not correct to say that there was no realistic possibility of the amount of the award being reduced if the First-tier Tribunal’s decision were quashed. Circumstances might have changed by the date of the re-hearing. For example, the Applicant might have obtained some form of employment, or might have been convicted of a criminal offence, causing a nil or reduced award to be appropriate.

 

(c) It would be unrealistic to expect the Authority to ask for some form of undertaking in order to protect itself against the possibility of having paid out too much and being unable to recover the excess;

 

(d) The way in which applicants can be protected against being deprived of their money pending judicial review proceedings is by way of an interim payment. The Authority is often prepared to make interim payments.

 

(e) Apart from judicial review, the only way in which an award can be reduced once payment has been made is by way of what Mrs Watkins referred to as “a medical re-opening”.

 

(2) As to estoppel, it would not be unfair to the Applicant to hold him bound by what he signed; he had the benefit of advice from his solicitors and counsel. Further, it would be unfair to other applicants if it were to be held that acceptance of an award after signature of an Acceptance Form does not prevent proceedings for judicial review, because the Authority would feel unable to make unconditional payment of amounts awarded by a First-tier Tribunal.

 

 

(2) Relevant provisions of the 2001 Scheme

42. Despite the express invitation to do so given in the Direction of Judge Mesher, neither advocate referred me to any provisions of the 2001 Scheme. One must of course have in mind the basic adjudication structure under the Scheme. Decisions on claims are made by a claims officer of the Authority (para. 50). The applicant has a right to ask for a review of that decision by a more senior claims officer (para. 60). By s.5 of the Criminal Injuries Compensation Act 1995 an applicant dissatisfied with a decision on review had a right to appeal to adjudicators (termed “the Panel” in the 2001 Scheme). As from 3 November 2008 that right of appeal was instead to the First-tier Tribunal and the procedural provisions relating to appeals set out in the 2001 Scheme were in effect replaced with the provisions of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008 (“the 2008 Rules”). (The provisions of the 2001 Scheme were not, as far as I am aware, formally amended to reflect that change, but they must clearly be read in the light of and subject to it). There is no statutory right of appeal from decisions of the First-tier Tribunal (and was no such right in relation to decisions of adjudicators) in relation to criminal injuries compensation matters. The only possibility of challenging such a decision at a higher level is that of proceeding for judicial review in the Upper Tribunal.

 

43. In addition, I think that I should set out at least the following provisions of the 2001 Scheme as relevant by way of background.

 

“Determination of applications and payment of awards

50. An application for compensation under this Scheme will be determined by a claims officer, and written notification of the decision will be sent to the applicant or his representative. The claims officer may make such directions and arrangements, including the imposition of conditions, in connection with the acceptance, settlement or trust, payment, repayment and/or administration of an award as he considers appropriate in all the circumstances ……………..Subject to any such arrangements ……….. title to an award offered will be vested in the applicant when the Authority has received notice in writing that he accepts the award.

 

51. Compensation will normally be paid as a single lump sum, but one or more interim payments may be made where a claims officer considers this appropriate. ………………………..

 

Reconsideration of decisions

53. A decision made by a claims officer (other than a decision made in accordance with a direction by adjudicators on determining an appeal under paragraph 77) may be reconsidered at any time before actual payment of a final award where there is new evidence or a change in circumstances. In particular, the fact that an interim payment has been made does not preclude a claims officer from reconsidering issues of eligibility for an award.

 

55. Where a decision to make an award has been made by a claims officer in accordance with a direction by adjudicators on determining an appeal under paragraph 77, but before the award has been paid the claims officer considers that there is new evidence or a change in circumstances which justifies reconsidering whether the award should be withheld or the amount of compensation reduced, the Authority will refer the case to the Panel for rehearing under paragraph 82.

 

Re-opening of cases

56. A decision made by a claims officer and accepted by the applicant, or a direction by adjudicators, will normally be regarded as final, except when 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 died in consequence of the injury.

 

57. A case will not be re-opened more than two years after the date of the final decision unless the claims officer is satisfied, on the basis of evidence presented in support of the application to re-open the case, that the renewed application can be considered without a need for further extensive enquiries.”

 

(3) Analysis and conclusions

(i) Did the signature of the Acceptance Form, and the payment by the Authority, give rise to a contract whereby the Applicant agreed not to seek judicial review?

 

44. The first question here is whether, as a matter of construction, the Applicant agreed in the Acceptance Form that he would not seek judicial review if the sum awarded were paid. The Applicant stated that “I accept the sum of £……… which the Criminal Injuries Compensation Panel has directed shall be paid in full and final settlement of my application for compensation for the injuries suffered by me on 28/10/00”.

 

45. In my judgment it is clear that that one must read those words as if there were commas inserted, as follows: “I accept the sum of £ ……, which the Criminal Injuries Compensation Panel has directed shall be paid, in full and final settlement of …..” In other words, it is in my judgment clear that the sum is agreed to be accepted in full and final settlement. (The document is not purporting to state that the First-tier Tribunal directed that the sum be paid in full and final settlement).

 

46. I do not accept Mrs Yip’s submission that the purpose of the Acceptance Form was merely to deal with the mechanics of payment. The words “in full and final settlement of my application for compensation” must in my view be given some effect.

 

47. The possibilities for challenging or disputing the decision of the First-tier Tribunal seem to me to have been as follows:

 

(i) Under para. 55 of the Scheme, if the Authority considered that there was new evidence or a change in circumstances, it could refer the matter to the First-tier Tribunal for re-hearing. However, that provision ceased to apply once payment had been made;

 

(ii) Even after payment, the Authority could re-open the matter under para. 56 of the Scheme in the event of there being “such a material change in the victim’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand.”

 

(iii) Either party could apply to set aside the First-tier Tribunal’s decision for procedural error under reg. 37 of the 2008 Rules. Such an application was required to be made within one month from the date of notification of the decision.

 

(iv) Either party could apply to the Upper Tribunal for permission to bring judicial review proceedings.

 

(v) In addition, there was the possibility (I think entirely theoretical in this particular case) of either party applying to the First-tier Tribunal for clarification of the terms of its decision, for example in the event of it not having dealt with a head of compensation which had been argued before it, or having made some arithmetical error in arriving at the total sum awarded.

 

48. In my judgment the natural meaning of the words “in full and final settlement of my application for compensation” is that the applicant is agreeing not to seek to argue, by any means, that he is entitled to more than the First-tier Tribunal has awarded. I do not think that it can be argued that the applicant is only accepting that, subject to a challenge by means of judicial review, the total amount awarded is correct (i.e. is only precluding himself from raising arguments under head (v) above). Challenge by way of judicial review is the most obvious means by which an applicant might seek to contend that the total sum awarded was incorrect. If it had been intended that the possibility of a challenge by way of judicial review should remain open, that would in my judgment have been stated expressly. One purpose of the Acceptance Form was plainly to enable the Authority to be satisfied, so far as reasonably possible under the Rules of the Scheme, that if it paid the sum awarded it would not subsequently find itself in a position where the First-tier Tribunal’s decision had been set aside and a lower sum awarded, but where the applicant was unable to repay the excess.

 

49. In my judgment that conclusion is, if anything, reinforced when one looks at the options which the Applicant was given when the Authority’s original decision, and its decision on review, were made (see paras. 10 and 13 above). If, for example, the Applicant had accepted the total sum of £145,680 which had been awarded on review, having signed the form referred to in para. 13, it is in my judgment clear that signature of the form and payment of the award would have given rise to an agreement not to appeal.

 

50. The question is then whether there was any reason why, once the money had been paid by the Authority, the Applicant was not bound, as a matter of contract, by what he had agreed to.

 

51. I do not accept Mrs Yip’s contention that the Authority gave no consideration for the Applicant’s agreement. In my judgment it plainly did so by paying the entire sum awarded.

 

52. If the Applicant had refused to sign the Acceptance Form on the ground that he was considering applying for judicial review, the Authority would probably have withheld payment or all or part of the sum awarded. (It is apparent from para. 21 of the IM case that it did just that in that case). The 2001 Scheme says nothing about the Authority’s obligations, so far as payment is concerned, in the event of judicial review being applied for.

 

53. In the case of a money judgment in the ordinary courts, the general position is that execution is not stayed merely because there has been an appeal. The defendant must make an application for a stay, which would only be granted for good cause. However, the position in relation to a sum awarded by a First-tier Tribunal under the 1995 Act seems to me to be much less clear. On the face of it, it is well arguable that an applicant cannot seek to bring proceedings to have the First-tier Tribunal’s decision quashed, but at the same time seek payment of the full amount awarded by the decision.

 

54. It is true that in the present case it seems likely that, subject to a change in circumstances or in the evidence available, the only argument before a new First-tier Tribunal, were the First-tier Tribunal’s decision of 2 August 2010 be quashed on judicial review, would be whether an additional amount should be awarded in respect of care. However, while that was overwhelmingly likely to be the position, it was entirely possible that, by the date of a rehearing, the Applicant’s circumstances might have changed, or additional evidence might have come to light, which showed the decision of 2 August 2010 to have awarded too much.

 

55. It may be that the ordinary courts, or possibly the Upper Tribunal, would have jurisdiction to determine what sum should be paid to an applicant pending the outcome of his application for judicial review and (if successful) a subsequent rehearing before the First-tier Tribunal. The Applicant could not have been confident that, in the event of the Authority withholding payment, and his applying, in whatever is the appropriate jurisdiction, for an order that the full sum be paid to him, he would have succeeded. In my judgment the immediate payment to the Applicant of the full amount of the award, without further argument, constituted a benefit to him, and so constituted consideration moving from the Authority.

 

56. It is true that, even after payment, there remained the possibility of the Authority being able to re-open the matter under para. 56 of the Scheme in the event of a substantial change in the Applicant’s medical condition. In the event of it doing so successfully, it might find itself in the position of being unable to recover the excess. However, that does not seem to me to be a reason why it should not permissibly wish to protect itself, by means of the Acceptance Form, against a different risk, namely that of the Applicant seeking to challenge the First-tier Tribunal’s decision, and the amount subsequently awarded turning out to be less, which could be for reasons other than a change in the Applicant’s medical condition. 

 

57. In my judgment the payment by the Authority also amounted to consideration in that it thereby gave up the possibility of itself applying for judicial review of the First-tier Tribunal’s decision. I accept that, in the light of the contentions of the parties before the First-tier Tribunal, that possibility was in this case somewhat theoretical. But it was nevertheless a possibility open to the Authority.

 

58. The only question is then whether there is any other reason why what appears to be an agreement by the Applicant, made for consideration, that he would not seek to challenge the First-tier Tribunal’s decision is not binding on him. No authority has been cited to me which would enable me to hold that it is not.

 

59. There does not appear to me to be any public policy reason why the contract should not be held binding. It is true that the Authority is statutorily bound to pay whatever is determined, under the adjudication and appeal mechanism laid down in the Scheme, to be the right amount of compensation. The possibility of applying for judicial review of a First-tier Tribunal’s decision is one given to an applicant by law. But I do not see why, in order to enable the Authority to make payment in full without risks of the nature referred to above, it should not be entitled to ask an applicant to agree not to challenge a First-tier Tribunal’s decision.

 

60. I would assume that, if the Applicant had been acting in person, the Authority would not have asked the Applicant to sign the Acceptance Form unless and until it was satisfied that he had been given an explanation of the possibility of challenging it by means of judicial review, and so understood what he was giving up. In the absence of such an explanation a way would no doubt be found to enable the Applicant to resile from the agreement. The Authority must, it seems to me, owe a duty to an unrepresented applicant to ensure that he at least has the opportunity to ascertain the significance of what he is signing, and if that duty were not performed the Authority would not be able to rely on the agreement.  But considerations of that sort do not enter into the matter in the present case, where the Applicant was represented by solicitors, and moreover solicitors who are experienced in this type of work.

 

61. I note Mr Sugarman’s statement that it was not in the contemplation of counsel, solicitor or the Applicant that signature of the Acceptance Form would preclude the Applicant from pursuing further remedies. That must have been so, but it can only be because neither solicitors nor counsel read the Form properly, or properly considered its significance. The words “in full and final settlement” should surely operate as a red flag to any lawyer considering the possibility of contending, by whatever avenue, that his client is entitled to more than is going to be paid.

 

62. It has not been contended on behalf of the Applicant, nor could it have been, that the agreement is in some way voidable, or cannot be relied upon, because the Authority was or must have been aware that the Applicant was ignorant of or under a mistake as to its effect. There is no evidence suggesting that the Authority had any reason to believe that, notwithstanding signature of the Form, the Applicant nevertheless intended to challenge the First-tier Tribunal’s decision. It is true that Mrs Yip had applied, at the conclusion of the hearing, for a written Statement of Reasons. The usual reason for doing that is in order better to identify whether the Tribunal made an error of law which could form the basis of an application for judicial review. The Statement of Reasons had of course not been provided when the Acceptance Form was signed and the money paid. However, a desire to examine the possibility of challenging the decision is not necessarily the only reason for asking for a Statement of Reasons, and in any event the Applicant and his advisers could well (as far as the Authority were concerned) have thought better of it by the time that the Acceptance Form was signed, a fortiori by the time when the money was received.

 

63. I am not aware of any other jurisdiction or doctrine which would enable me to permit the Applicant to resile from the agreement on the ground that it would in all the circumstances be just to do so.

 

(ii) Estoppel

64. In view of my conclusion that there was a binding contract, I do not find it necessary to consider in any detail the Authority’s submissions based on estoppel. I incline to the view, however, that if the Authority had needed to rely on one or other branch of estoppel, it would not have succeeded.

 

65. As regards promissory estoppel (i.e. reliance by the authority on a representation by the Applicant that he would not apply for judicial review), the promisor will only be prevented from resiling from his promise where it would be unconscionable to permit him to do so: Halsbury’s Laws, Vol 16(2), para. 1086. That would not appear to be so in the present case.

 

66. I very much doubt whether this is a situation in which the doctrine of estoppel by convention is applicable, but in any event the requirement of unconscionability is again a feature: see para. 1065 of Vol 16(2).

 

67. I have also given some consideration to the principle that a person cannot approbate and reprobate (see generally para. 962 of Vol. 16(2)). The argument would be that, even putting the Acceptance Form to one side, an applicant cannot accept payment of the full amount awarded by a First-tier Tribunal while at the same time intending to seek to have it quashed. However, I very much doubt whether that argument could succeed, especially in the circumstances of the present case where the likelihood (but not certainty) was that the rehearing before the First-tier Tribunal, were the existing decision to be set aside, would be limited to whether the Applicant should be awarded a greater amount. The reasoning in, for example, Lissenden v Bosch [1940] AC 412, (whether acceptance of payment of the amount awarded by a county court under the Workmen’s Compensation Act prevented an appeal) seems to me to militate strongly against application of the principle. Further, it seems that the principle can only apply where the person said to be estopped was in fact aware of the rights with which he is said to have acted inconsistently: see para. 962, text to footnotes 12 and 13. That may not have been so in the present case.

 

The second issue: did the First-tier Tribunal err in law in relation to compensation for the cost of care?

(1) The evidence before the First-tier Tribunal

68. Dr Walton, a consultant physician in rehabilitation medicine, stated as follows in her report dated 20 July 2009 (T48):

 

“6.1 He is independent in all personal activities of daily living, ie washing, dressing, bathing, shaving etc.

 

6.3 He does not participate in routine domestic activities. He informed me that his grandmother “looks after him”. She is responsible for shopping, cooking and cleaning. [The Applicant] has never had to cook meals but is competent at using a microwave.

 

……………………………………………..

 

8.7 He does not require further rehabilitation with regards to personal activities of daily living. In my opinion he would not benefit from inpatient brain injury rehabilitation at this stage. It is my opinion that he requires skilled support to live in the community, and that in order to provide this a Case Manager should be appointed.

 

8.8 In my opinion he is capable of living in accommodation away from his grandmother, however, he would not be able to live totally independently. He would require some assistance with managing the more complex aspects of everyday life, such as organising domestic chores, washing, shopping etc. He would not require a live-in carer as he has demonstrated by managing when his grandmother is away. He does require support from another person which has been his father, a Support Worker would suffice. I cannot give details as to the time commitment required and advise that a Case Manager addresses this.

 

………………………………………………………………………..

 

9.3 [He] has the mental capacity to manage simple everyday finances. He does so currently, and I see no reason why he should not continue to do so.

 

9.4 Without a detailed neuropsychological report, I cannot say whether or not he has the mental capacity to manage large sums of money. In addition to the complexities of doing so, this is likely to cause him additional stress and upset, which could affect his capacity for decision making in respect of his finances.”

 

69. The report of Mr Peter Lewis, consultant clinical neuropsychologist, dated 3 February 2010, (T60 onwards) included the following:

 

“The results of a psychometric assessment of [the Applicant’s] memory reveal significant deficits to virtually all aspects of function. This applies both to his “verbal” or “auditory” memory (for what he “hears”) and to “visual” memory (for what he “sees”) both over the short and long term ….

 

Despite the consistency between the test results and [his] descriptions of the difficulties he faces with regard to his every day memory, he appears to be coping reasonably well. However he does so by a marked reliance of his mobile phone (which he uses as a memory aid), and on his grandmother (who is “used”) likewise.

 

…………………………………………………………………….

 

While [his] acquired difficulties are now almost certainly permanent, there is still a great deal that can be achieved in terms of how he can be helped to deal with or cope with them, (to compensate for them), and to establish a meaningful, organised, independent and fulfilling quality of life.

 

…………………………………………………………………….

 

[He] does not need any sort of live-in full-time or part-time care. However I support the recommendations made in Ms Naven’s report concerning Case Management. From my point of view [he] will need training and support in a number of areas, notably:

 

·       using appropriate memory aids in an organised and consistent way;

·       the “nuts and bolts” of living independently

·       organising his financial affairs

·       developing a meaningful structure to his life

·       developing an improved quality of life.”

 

70. In a letter dated 8 April 2010 (T665-6) Dr Walton commented on Dr. Lewis’ report, stating that she agreed with his conclusions, and in particular:

 

“v) [The Applicant] is able to live on his own in the community. He does not require care, he does however require training and support as detailed in Peter Lewis’ report. He would benefit from the appointment of a case manager.

 

vi) I agree with Peter Lewis’ opinion with regards to [the Applicant’s] capacity to manage his own financial affairs…………. I would, however, like to re-enforce that he will require training and support in order to do so effectively.”

 

71. The report dated 15 July 2009 of Lucy Naven, chartered occupational psychologist, (T15 onwards) recommended the appointment of a brain injury case manager in order to co-ordinate the necessary support, which she recommended should consist of occupational therapy, clinical neuropsychology, and support from a support worker to the extent of at least 20 hours a week until the age of 65 and 30 hours a week thereafter (to accommodate the effects of ageing).

 

(2) The First-tier Tribunal’s reasons

72. The First-tier Tribunal’s reasons for refusing to award anything in respect of the care items which I referred to in para. 21 above included the following:

 

“Findings of fact

 

20. ….The Tribunal accepted the expert opinion of Dr. Walton in her report dated 11 June 2009 and in particular as set out at page T48 at paragraph 6.1, that the Appellant was independent in all personal activities of daily living i.e. washing, dressing, bathing, shaving etc. …………………

 

22. The Tribunal also found as dealt with at T66 that the Appellant appears to be coping reasonably well with regard to his everyday memory which he does by marked reliance on his mobile phone (which he uses as a memory aid) and on his grandmother.

 

23. The Tribunal also accepted as set out in paragraph 6.3 of Dr. Walton’s report that the Appellant has never had to cook meals but is competent at using a microwave. The Tribunal accepted that the Appellant is able to drive and reports no difficulties with this and his usual routine involves driving to the gym every week. The Tribunal accepted as set out in the said report at T53 at paragraph 8.5 that the Appellant is independent in all his personal care activities and is socially independent and is able to drive but as set out inter alia at paragraph 8.8, he would require some assistance with managing the more complex aspects of everyday life such as organising domestic chores, washing, shopping etc. The Tribunal accepted the opinion of Dr. Walton as set out at paragraph 9.3 that the Appellant has the capacity to manage simple everyday finances. The Tribunal further accepted as set out in (v) at T666 of Dr Walton’s further report, that the Appellant is unemployable on the open labour market and as set out in (iv) is able to live on his own in the community and does not require care but does require training and support as detailed in Peter Lewis’ report. ………………………………………

 

24. The Tribunal has considered all the evidence and in particular the evidence of the Appellant and that of his father in respect of monies spent on petrol each week by the Appellant. The Tribunal noted that the Appellant in giving his evidence had no problems in understanding questions and answered all questions lucidly and to the point. The Tribunal preferred the evidence of the Appellant that he spent £40 a week on petrol [to] the evidence of the Appellant’s father that the Appellant does not spend £40 a week on petrol. …………………………….

 

25. The Tribunal finds that the Appellant is able to drive lawfully and upon his own evidence has not had any accidents. The Tribunal considered with care the report of Dr Lewis including paragraph 6 at T64. The Tribunal notes Dr. Lewis’ opinion that as far as attention processes are concerned, therefore, he considers the Appellant’s ability to drive to be an exception rather than a contradiction. The Tribunal finds that driving a motor car as the Appellant has done without accident is an activity which demands concentration and in particular dealing with the unexpected. The Tribunal finds that this Appellant was able to drive in an urban environment with all the unexplained actions of motorists, pedestrians and in particular young children without having an accident and therefore finds that the Appellant is able to make difficult decisions in terms of driving a motor car lawfully on the road regularly costing some £40 a week in petrol and the Appellant’s ability to drive properly and without accident is not consistent with someone needing care and supervision.

 

26. The Tribunal also found that as set out and accepted in the hearing that the Appellant’s application for DLA was refused in 2004 and there was no appeal by or on behalf of the Appellant. Also the Appellant’s grandmother had not applied for a care component.

 

27. The Tribunal finds that, accepting as it does the evidence of the Appellant, that he does go drinking with friends once a week.

 

28. The Tribunal accepts the Appellant’s evidence that he travels by plane and can negotiate his way from check-in to the plane on his own.

 

The decision

 

…………………………………………………………………

 

35. The reason for the decision in respect of the Appellant not being entitled to past and future care was his ability to function independently of others. That ability to function was exemplified by his ability to drive without accident regularly each week for some distance costing some £40 per week in petrol. The Appellant was also in accordance with his own evidence able to negotiate from the check-in to the plane at the airport when he flew to Spain once a year. There was no appeal by or on behalf of the Appellant in 2004 in respect of his claim for DLA having been refused. The Appellant in accordance with the opinion at T666 ………. is able to live alone in the community and does not require care which in the context of the entirety of the evidence and the findings of fact set out above, results in the conclusion that the Appellant is not entitled to compensation in respect of past or future care.”

 

(3) Analysis and conclusions

73. Mrs Watkins stated that the Authority did not wish to make any submissions on the question whether the First-tier Tribunal’s decision in relation to the care issue was wrong in law, but was content to leave it to me to decide.

 

74. In my judgment the First-tier Tribunal’s decision in respect of future care costs was wrong in law in that it appears to have adopted a meaning of “care” which is too narrow. In para. 23 of the Statement of Reasons the First-tier Tribunal accepted the opinion of Dr Walton that the Applicant “would require some assistance with managing the more complex aspects of everyday life such as organising domestic chores, washing, shopping etc”, and accepted that he “does not require care but does require training and support as detailed in Peter Lewis’ report.”  It seems to me that the only way that that acceptance can be reconciled with the First-tier Tribunal’s actual decision in respect of care is that the Tribunal took the view that such assistance and support does not amount to “care”, within the meaning of para. 35(d)(iii) of the Scheme.

 

75. However, it is now clear, in the light of the decision of Judge Mesher in R(CICA) v First-tier Tribunal and IM (CIC) [2011] UKUT 70 (AAC) (given on 14 February 2011, after the First-tier Tribunal’s decision) that such a construction of the meaning of “care” is too narrow. It seems to me clear that, on the basis of Judge Mesher’s approach, the support considered in the experts’ reports to be reasonably necessary in the present case was capable of falling within the meaning of “care” in para. 35(d)(iii).

 

76. The First-tier Tribunal’s reasons place considerable emphasis on the conclusions to be drawn from the Applicant’s ability to undertake activities such as driving and travelling by plane on his own. I have wondered, when reading those parts of the reasons, whether the First-tier Tribunal was in fact intending to say that it did not accept that the Applicant reasonably required the support which the experts recommended, and which was itemised and costed in Lucy Naven’s report. However, if that was what the Tribunal had in mind, it seems to me that its reasons display an error of law in that on the face of it there is an inconsistency between such an approach and its express acceptance of the parts of Dr Walton’s and Dr. Lewis’ reports referred to in para. 23 of the Statement of Reasons.  If the Tribunal did not consider that there was any such inconsistency, then in my view it needed to explain why there was not.

 

77. Mrs Yip submitted that, if I were to quash the First-tier Tribunal’s decision as wrong in law, it is so obvious that the First-tier Tribunal should have awarded compensation of the statutory maximum of £500,000 that I should substitute a decision to that effect. Under s.17 of the Tribunals, Courts and Enforcement Act 2007 I could only have done so if “without the error [of law], there would have been only one decision that the ….. tribunal could have reached.” However, I accept Mrs Watkins’ submission that it would not have been appropriate for me to substitute my own decision, for two main reasons. First, as I have said, it is arguable that what the First-tier Tribunal was really intending to say was that it did not accept that the support recommended by the experts was in fact reasonably required. Those are matters of fact which I would have considered ought to be redetermined at a rehearing before the First-tier Tribunal. Secondly, it is possible that, in the time since the First-tier Tribunal’s decision, there have been been changes of circumstances which ought to be taken into account.

 

78. Had I quashed the First-tier Tribunal’s decision, I would therefore have remitted the matter for rehearing.

 

Disposal

79. In view of my conclusion on the first issue, I must dismiss this application for judicial review.

 

 

 

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

13 June 2011