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 decision of the First-tier Tribunal dated 30 September 2010 and to remit the applicant’s appeal against the review decision of the claims officer notified in the letter dated 17 November 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 10 below (Tribunals, Courts and Enforcement Act 2007, sections 15(1)(a) and 17(1)(a)).

REASONS

1. I gave permission to apply for judicial review of the tribunal’s decision on 1 June 2011 after an oral hearing attended by the applicant, but not by any representative of the Criminal Injuries Compensation Authority (CICA) as the interested party. CICA supported the application in its written submission dated 5 July 2011. In his reply received on 4 August 2011 the applicant requested an oral hearing before the Upper Tribunal, especially it appears on the issue of whether he is entitled to an award for loss of earnings. I am satisfied that the application can properly be determined without a hearing. Since I am accepting that the decision of the tribunal of 30 September 2010 is to be quashed, leading to a fresh hearing by another First-tier Tribunal on all assessment issues, there would only be a point in having an oral hearing if there were a prospect of the Upper Tribunal substituting a decision on the assessment of compensation in the applicant’s appeal against the review decision of 17 November 2008. Under section 17(1)(b) and (2)(c) of the Tribunals, Courts and Enforcement Act 2007 such a substituted decision can only be given if there was only one decision that the tribunal of 30 September 2010 could have given if it had not made the error of law that was the ground of its decision being quashed. In my judgment that condition is not met. Without the benefit of any statement of that tribunal’s findings of fact about the applicant’s scars, I cannot say that the only decision it could have reached was that he qualified for scarring to neck – minor disfigurement and for scarring to upper limb – minor disfigurement as well as for scarring to torso – minor disfigurement. There was, and remains, a possibility that one of those conditions was not found or even came into the significant disfigurement category, as well as a possibility that some award for loss of earnings should have been made.

2. It is convenient to set out here the substance of the reasons given in the determination of 1 June 2011, to indicate the factual background and the particular point of law that caused me to give permission:

“2.  The applicant had claimed compensation on 5 June 2006 for injuries sustained when he was attacked in a robbery on 5 November 2005. He sustained what were described in the hospital notes from the accident and emergency department as three penetrating knife injuries. One laceration was on the neck, one on the abdomen and the third was on the palm of his left hand. The claim was eventually disallowed by CICA, as confirmed in a review decision of 17 November 2008, on the ground that he had not co-operated with the police in attempting to bring his assailants to justice (paragraph 13(b) of the Criminal Injuries Compensation Scheme 2001). The applicant appealed and a First-tier Tribunal sitting on 20 August 2009 decided that the applicant was not excluded from entitlement to full compensation under paragraph 13(b). That tribunal had the opportunity to inspect the sites of the wounds, but it adjourned the question of what award, if any, the applicant was entitled to receive to be decided by one of its members after a medical report had been obtained and CICA had been able to make further enquiries. What was, according to the later decision of 5 July 2010, noted by the tribunal on 20 August 2009 was:

“(i) a three inch oblique red mark below the chin on the left side, this had healed well and was difficult to see, (ii) a one inch scar to the left side of the torso, this could clearly be seen, and in the tribunal’s view amounted to a minor disfigurement, (iii) well healed scars to the left hand which in the Tribunal’s view were not disfiguring.”

3.  A report was obtained from Mr Peter Wade, a consultant in general trauma and orthopaedic surgery specialising in hands and upper limbs, who examined the applicant on 18 January 2010. He described the cuts from the attack as follows:

“Four inch transverse/oblique cut in the creases just in front of the carotid artery below the chin on the left side. This has healed beautifully and in fact is difficult to see.

There is a one inch stab to the left side of the trunk just below the rib in the anterior axillary line.

… There are two smaller cuts in the left hand, one distal to the thenar eminence in line with the fingers in the mid palm pointing to the second/third finger interspace. There is also a two inch curved incision over the hypothenar eminence, both of these are well healed.”

Mr Wade also gave the opinion that it was very unlikely that the loss of sensation in the left hand and the problems in the left shoulder, which the applicant said had led to the loss of his job and continuing incapacity to work, were a consequence of the incident.

4.  In a decision dated 5 July 2010, the single member of the tribunal, Tribunal Judge Cook, made a decision without a hearing. He decided that the applicant was entitled to an award under the tariff in the Scheme of £1,250 for scarring to the torso – minor disfigurement. He said this in the statement of reasons under the heading “Standard compensation”:

“9. There is no doubt that the Appellant suffered a nasty and significant injury, namely the stab wounds to his neck, torso and hand, as confirmed in the medical evidence and in particular at page 6 of Mr Wade’s report (see T159).

10. At page 47 of the Scheme, the tariff for `Scarring – Torso’ is (a) £1,250 for `minor disfigurement’ and (b) £2,500 for `significant scarring’ and (c) £5,500 for `serious disfigurement’.

 11. Having examined the scarring and having read Mr Wade’s report, which I accept, I conclude that the only injury which can be compensated is the scarring to the Appellant’s torso which amounts to a `minor disfigurement’ and thus an award of £1,250.

12. Other than the injury to the torso, the medical evidence does not establish any other directly attributable injury in respect of which an award may be made under the Scheme.”

Judge Cook made no award for loss of earnings on the ground that the evidence was against a link between the incident and the applicant’s inability to work.

5.  The applicant exercised his right to a reconsideration at an oral hearing, which took place on 30 September 2010. That tribunal, according to the decision notice signed on 30 September 2010 (although by a slip “2009” was entered in one place) came to the same result as Judge Cook.

6.  The applicant’s application for permission to apply for judicial review on form JR1 was received in the AAC office on 22 October 2010. I think that a copy of the decision notice was enclosed. The decision notice included notes about the time limit for applying for a written statement of reasons, saying that such a statement would be required by anyone applying for permission to apply for judicial review.  There is a dispute about when the applicant first made contact with the First-tier Tribunal administration. So far as they are concerned the first request for a statement was in an email of 4 January 2011, following which Judge Cook refused to the request as out of time. The applicant says that he first telephoned the Glasgow office to ask about appealing in October 2010, when he was referred either to the AAC office in Chancery Lane in London or to the First-tier Tribunal office in London. He was then told to apply to Glasgow. He says he then telephoned Glasgow and was told to send an email to make an official request. He also referred to writing a letter to Glasgow, although I am not at all sure where that was said to come in the sequence. At any rate, the claimant said that he could print out copies of emails to show earlier contact to request a statement than 4 January 2011. However, I do not need to determine whether an in-time request for a statement was made or not, because of the point mentioned below.

7.  On 13 May 2011, Judge Levenson signed his decision in JR/1191/2010 [now in its corrected form given the reference of R(PS) v First-tier Tribunal and CICA [2011] UKUT 201 (AAC)], quashing the decision of a First-tier Tribunal which had made no award under the tariff for a “0.5 to 1 cm scar, barely visible, faint and non-raised” because it considered it non-disfiguring. In his decision (a full copy of which is attached to this determination) he said this:

“17. On 18^th August 2010 the Solicitor to [CICA] made written submissions which included the following paragraph:

`4. With regard to scarring, the Authority consider that if there is a permanent and noticeably visible disfigurement as a direct result of the incident, than an award should [be] made. The term `disfigurement’ is considered by the Authority to mean a permanent change in an applicant’s body, particularly where a visible scar is left which affects an applicant’s appearance. It is not believed that the scar the applicant has been left with is a noticeably visible disfigurement’.”

18. I am not sure how far this assists. If a visible scar is left, then surely by definition it affects an applicant’s appearance, even if only to a very minor extent. The qualification `noticeably’ begs questions as to noticeable by whom, at what distance and in what conditions. In the present case the First-tier Tribunal found that the scar was `barely visible’, which must mean that it was in fact visible, but found that it was not disfiguring. I admit to some difficulty with the concept of a non-disfiguring visible scar.

…

[21. The judge stated that the ordinary meaning of `scarring’, `minor’, `significant’ and `serious’ had to be applied, after setting out some of the tariff for head and neck injuries in a slightly inaccurate way [now corrected] that does not in my view alter the substance].

22. However, if there is visible scarring of the face, there is a choice of three levels; it seems to me that if there is neither significant disfigurement nor serious disfigurement (which are questions of fact for the First-tier Tribunal), then as a matter of law there must be minor disfigurement because there is no category of scarring without disfigurement, and paragraphs 25 and 26 do not provide for such a category. If there is visible scarring, paragraph 25 of the 2001 Scheme is thereby satisfied.”

8.  Accordingly, in the light of that ruling of law, it must be arguable in the present case that the tribunal of 30 September 2010 applied a wrong principle of law in concluding that the scars on the applicant’s neck and hand did not qualify under the headings “scarring – minor disfigurement” (not “visible disfigurement”). The evidence was that those scars (or at least in the case of the neck, a mark) were visible. It seems to me that that is therefore an arguable error that it is possible to identify in the absence of a written statement of reasons, in the light of the documents available and the clear reasoning of Judge Cook in his decision of 5 July 2010. The tribunal’s decision in itself is inconsistent with the principle set out in JR/1191/2010.

9.  The applicant made this additional interesting point at the hearing on 9 May 2011. He emphasised that the tribunals sitting on 20 August 2009 and on 30 September 2010, as well as Mr Wade, were looking at him at the earliest nearly four years after the incident. He had made his claim for compensation about seven months after the incident, when all the scars were much more prominent than they later became. In my judgment there is a question that deserves consideration on judicial review whether an applicant qualifies for a tariff award if its conditions are met at some point on or after the date of the claim, even if the conditions are no longer met by the time that CICA or a tribunal gets round to determining that issue.”

3. CICA has accepted in its submission of 5 July 2011 that the approach in PS was correct in law. It summed up the effect in the present case as follows:

“5. If the scar is visible and it is not `significant’ or `serious’ (which would be a question of fact), then as a matter of law it must be minor disfigurement because there is no category for scarring without disfigurement. The only way for a scar not to merit an award would be if the FTT concluded that the scar could not be seen.

 6. [CICA] therefore accepts that the Applicant is entitled to an award for the scars on his neck and hand if they are still visible to the naked eye. This would correspond with the definition of disfiguring, which is `to cause permanent change in a person’s body, particularly by leaving visible scars which affect their appearance’.”

4. I accept and adopt the approach in law set out by Judge Levenson in PS. I should follow that approach unless satisfied that that would involve the perpetuation of error, which I am not. In any event, I would have reached the same conclusion independently, despite the rather unhelpful and ambiguous drafting of the tariff categories on scarring. The consequences identified by CICA in the previous paragraph would follow, subject to what I say below about the meaning of “disfigurement”.

5. CICA does not say where it got the quoted definition of disfiguring from. It sounds rather more to reflect CICA’s previous view, rejected in PS, than any ordinary dictionary definitions. However, in my judgment the final sentence of paragraph 6 of CICA’s submission should be ignored in so far as it my read as suggesting any limitations on the proper approach to these cases (eg as to permanence or effect on appearance). That is because if it were read in that way it would be inconsistent with the logic accepted in paragraph 5 of the submission and the first sentence of paragraph 6. The logic is that examination of the precise definition of disfigurement is not relevant, because the question is whether a scar is visible. If it is, then it is to be taken as disfiguring and all that remains to be decided is whether the disfigurement falls into the significant or serious categories. If it does not, it must then fall into the minor disfigurement category.

6. Judge Levenson stressed that the question whether there is visible scarring is one of fact for the First-tier Tribunal applying the ordinary meaning of the word, as must be right. He did not explore that ordinary meaning any further and it would be wrong to seek to set out any specific definition. I merely draw attention, in the context of the terms in which Judge Cook on 5 July 2010 recorded the observations of the tribunal of 20 August 2009, to the primary definitions given in the Oxford English Dictionary (“the trace of a healed wound, sore or burn”) and in Chambers English Dictionary (“the mark left by a wound or sore”). The question of whether disfigurement is significant or serious is also of course a question of fact for the First-tier Tribunal.

7. I need, however, to say something about CICA’s response to paragraph 9 of my reasons for giving permission to apply for judicial review on 1 June 2011:

“7. … When [CICA’s] Claims Officers make a decision as to whether or not to make an award of compensation, this is based on the evidence which the applicant has supplied to [CICA] and which [CICA] has been able to obtain from medical professionals at the time when the applicant’s claim is being considered. It would be open to the FTT to award a lower tariff banding for the injury if the FTT considered that the Tariff award made by [CICA] was too high in the light of the evidence before the FTT.

 8. An example of this would be where [CICA] has made an award for scarring to the face causing significant disfigurement. If the scar had healed to a much greater extent than expected by the time the applicant’s case reached an appeal before the FTT, the FTT would be entitled to consider whether an award for minor disfigurement would be more appropriate instead.”

8. I consider that the example given is right in substance, but only when read with some care and perhaps with some further unpacking. What it does not mean is that in the example the First-tier Tribunal should take into account only the nature of the disfigurement as at the date of the hearing, without consideration of its nature in earlier periods. That makes sense if “significant” and “serious” are taken to refer not just to the state of the scarring at a particular point in time and in the past, but also to how the scarring can be expected as at that point to develop for the future. Thus, it might be proper, where at the date of claim the nature of the scarring would qualify as significant or serious if it were to continue unchanged in the future, to allocate it to a lower category to take account of an expected improvement in the future. It could not be right in such circumstances if a claimant had to be put into the higher category just because for a limited period the disfigurement reached the level that would justify such an award if it were to last for a much longer period. Thus, if that level of disfigurement was initially expected to last indefinitely or for a substantial period, but by the time of a tribunal hearing had healed much better than expected, it would be open to the tribunal to make a lower award, after taking into account the effects in the period already passed as well as what was now expected in the future. By the same token, if a claimant’s condition had not improved as initially expected, a tribunal could make a higher award, again making a general assessment over the whole period from the date of claim and taking into account what is now expected in the future. I stress that these are general observations, not to be taken as laying down any particular conclusions in particular circumstances or as impinging on the power of the new tribunal in the present case to make its own findings of fact and judgments.

9. Finally, a word about loss of earnings. I said in paragraph 10 of my reasons for giving permission to apply for judicial review that the tribunal of 30 September 2010 had on the evidence before it been entitled to conclude that any impairment of the applicant’s capacity for work was not the direct result of the injuries sustained in the incident of 5 November 2005. However, the whole of the decision of that tribunal has been quashed. Accordingly, that issue must be considered afresh by a new tribunal on the existing documentary evidence, plus any additional evidence that the applicant might be able to produce, plus of course the oral evidence that he will be able to give at the rehearing.

Conclusion and directions

10. For the reasons given above, the tribunal’s decision of 30 September 2010 must be quashed. In the circumstances, the applicant’s appeal against the claims officer’s review decision notified on 17 November 2008 must be remitted to the First-tier Tribunal for

complete reconsideration afresh. No-one who was a member of the tribunals of 20 August 2009, 5 July 2010 or 30 September 2010 is to be a member of the new tribunal. There will be an oral hearing as required by rule 27(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. The new tribunal is to follow the legal approach set out in paragraphs 3 to 5 above, but the evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal.

(Signed) J Mesher

Judge of the Upper Tribunal

(Dated) 19 August 2011