Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Case No.  JR/1038/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before: UPPER TRIBUNAL JUDGE WARD

 

Decision: (1) The application for judicial review is allowed. The Upper Tribunal’s decision is to make a quashing order in respect of the decision of the First‑tier Tribunal dated 7 March 2011 in matter X/10/219803 and to remit to a differently constituted First-tier Tribunal to be determined according to law and in accordance with the directions at (2) and (3) below the applicant’s appeal against a review decision of one of the interested party’s claims officers to refuse to waive the two year time limit to make an application for compensation.

 

(2) If the applicant wishes to apply for an oral hearing when the time limit point is being redetermined, he must notify the First-tier Tribunal within one month of the date of the letter sending him this decision, giving reasons, and his application will be considered by the First-tier Tribunal.  Whether to hold such a hearing is a matter for the First-tier tribunal.

 

(3) The applicant must send any further documents on which he wishes to rely to the First-tier Tribunal within one month of the date of the letter sending him this decision.  In particular, he should not assume that the First-tier Tribunal will have the further documents which he sent to the Upper Tribunal.

 

 

REASONS FOR DECISION

 

1. I gave permission to apply for judicial review of the tribunal’s decision on 25 July 2011 after an oral hearing which the applicant attended, but at which the Criminal Injuries Compensation Authority (CICA) as interested party was not required to be, and was not, represented.  The permission was not limited but in giving it I identified a number of matters which I regarded as arguable.  CICA has made submissions on two of them only and has indicated does not wish to make any submission on the other points.

 

2. Paragraph 18 of the Criminal Injuries Compensation Scheme 2008 (“the Scheme”) provides:-

 

“An application for compensation under this Scheme in respect of a criminal injury (“injury” hereafter in this Scheme) must be made in writing on a form obtainable from the Authority.  It should be made as soon as possible after the incident giving rise to the injury and must be received by the Authority within two years of the date of the incident.  A claims officer may waive this time limit only where he or she considers that:

 

(a) It is practicable for the application to be considered; and

 

(b) In the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two year period.”

 

3. I interpret this not as saying that where (a) and (b) are satisfied, a general discretion arises, to be exercised by the claims officer on unspecified grounds. If a discretion were intended to arise, I consider that the basis for its exercise would have been specified, as in the various predecessor schemes from 1990 to 2001.  Rather, paragraph 18’s natural reading is that where (a) and (b) are satisfied, the conditions for waiving the time limit are met, but that there are no other circumstances in which waiver is permitted.  In this respect, it differs from the predecessor schemes which contained a widely phrased discretionary power and I derive little assistance from case law on those predecessor schemes.

 

4. The applicant was born on 2 April 1977.  In or around 1983, he was sent to an independent boarding school.  It is his case that between 1983 and 1990 he was sexually abused by Mr W, the school’s head teacher and Mr T, a housemaster.  The allegations were investigated by the police and social services in around 1990 and the applicant was placed on the child protection register “in respect of the sexual abuse he had experienced” (letter from local authority, 22 August 1990, T36). Mr W and Mr T were charged with a number of offences of indecent assault and gross indecency.  Mr W is understood to have committed suicide before trial, while Mr T was convicted and sentenced to a substantial period of imprisonment.  The school closed down. 

 

5. The applicant’s parents were separated and his father lived abroad at all material times.  The applicant’s relationship with his mother appears to have been far from easy.  It appears that the applicant’s teenage years were marked by continuing difficulties between him and his mother, ongoing social services involvement and several unsuccessful attempts to engage him with counselling/mental health services.

 

6. On 4 October 2010 the CICA received an application form for compensation from the applicant.  His stated reason for not having claimed sooner was that he had been unable to deal with the trauma of the abuse.  On 21 May 2010 the CICA issued its first decision rejecting the claim as being out of time.  This was confirmed by a review decision, against which the applicant appealed to the First‑tier Tribunal.

 

7. The applicant lodged with the tribunal copies of papers obtained following a request to the social services authority which had been involved in investigating the abuse.  This contained a number of contemporaneous records of that investigation, records of a case conference and documents which appear to be summaries based on statements given to the police and/or social services by the applicant at the time.  He also submitted a statement, prepared in 2010, giving his version of events.  While there are contemporaneous documents recording allegations of abuse of the applicant by Mr T, the direct, particularised evidence of sexual abuse by Mr W that was available to the First-tier Tribunal was provided by the 2010 statement.

 

8. The tribunal decided to dispose of the proceedings without a hearing under rule 27(4)(a) of the Tribunal Procedure (Social Entitlement Chamber) Rules 2008/2685.  The judge directed himself that the questions he had to decide, given that the application was not made within two years of the incident, were (a) is it practicable for the application to be considered and (b) in the particular circumstances of this case would it have been reasonable to expect the applicants to have made the application for compensation within the two year time limit.  The judge observed that for the appeal to succeed (at the preliminary stage) the answer to the first question must be “yes” and the answer to the second question must be “no”. Given my view of paragraph 18, as set out at [3] above, I consider he was correct in the direction he gave himself.

 

9. The judge answered the first question “no” and the second question “yes”.  I am satisfied that in doing so he in both cases erred in law.

 

10. Taking the two year time limit first, paragraph 18 requires a claim to be made “within two years of the date of the incident”.  That takes one to, at latest, 1992, when the applicant was aged 15.  The judge, however, considered the matter not only by reference to whether it would have been reasonable to expect the applicant to have made the application within that two year period but whether it was reasonable for him to have done so within two years of becoming an adult i.e. of 2 April 1995.  While it may have been the practice of CICA to view sympathetically  claims from those who claim soon after reaching adulthood, the use of two years since reaching adulthood as a test by which to exclude claimants is not authorised by the statutory Scheme.  On the wording of paragraph 18, once it is established that it would not have been reasonable to expect the applicant to have made an application within two years of the date of the incident, all that remains is to determine whether it is practicable for the application to be considered.

 

11. The CICA has indicated in these proceedings that it does not suggest that the applicant ought to have claimed within two years of sustaining the injury; given that he was young, living away from home, with separated parents and other family difficulties and that the abuse or alleged abuse was perpetrated by people who stood in loco parentis to him, this seems an entirely proper and realistic approach. 

 

12. The CICA, in its short written submission, has argued that the First‑tier Tribunal did not apply the wrong test in asking whether it was reasonable to have expected the applicant to have made the application for compensation within two years of him becoming 18 years old under paragraph 18(b) of the Scheme.  Its reasoning is that “where an adult has not applied for compensation on behalf of a minor applicant within two years of the incident, the authority would expect the applicant to make an application himself within two years of reaching the age of 18.  This is because it is reasonable to assume that the applicant would now have sufficient maturity to make the claim on his or her own.  The First‑tier Tribunal were therefore entitled to apply this reasoning in the present case.”

 

13. I am unable to accept this submission.  The obligation on the CICA and, on appeal, the First‑tier Tribunal is to apply the Scheme which Parliament has approved.  That it is said to be reasonable to assume, in a case of the sexual abuse of a child, that an applicant would have sufficient maturity to make the claim within two years of reaching the age of 18 seems to me to be a matter of conjecture as to which other views are possible, which  highlights the necessity that, if there were to be such a rule, it should have been included in the Scheme and subjected to the degree of scrutiny for which section 11 of the Criminal Injuries Compensation Act 1995 provides.  It has not been and the effect of its introduction by the CICA as a yardstick to reject claims, without authority, has been to impose an additional hurdle, not authorised by the Scheme, in cases of this type. 

 

14. As I have held that the test applied by CICA and the First‑tier Tribunal was incorrect, I need not dwell on those grounds raised in the grant of permission, which related to the tribunal’s approach to applying  the incorrect test. 

 

15. In deciding whether it was practicable for the application to be considered and concluding that it was not, the tribunal’s reasons were as follows:

 

“(a) The Appellant made the application 20 years after the alleged injury; after such a long time, investigations will inevitably take much longer to be carried out, all relevant and cogent evidence and documents will either not be available or will take a disproportionately excessive amount of time to investigate and, to the extent that they might still [be] available, will inevitably be less reliable and cogent than if the application had been made earlier; on the evidence, grounds for appeal and documents before me, I am not satisfied that there will be necessary supporting evidence and am not satisfied that it will be practicable for the application to be considered.  I consider that, whilst some delay in making the application might have been understandable due to the fact that the Appellant was a minor when the alleged offences occurred it would have been reasonable to expect the appellant to have made the application when he became 18 years of age or within a year or two later.  Any delay after 1995 adds to the Appellant’s difficulties in establishing that it is practicable for the application to be considered.

 

(b) [.. ] The appellant’s notice of appeal and subsequent submission including correspondence [from the relevant] Social Services Department, show[ ] that the appellant was placed on the child protection register and that there were allegations of sexual abuse by two named individuals, but information relating to the outcome of those allegations is not available.

 

(c) In my judgement, due to the passage of time and the absence of a criminal conviction of the alleged abusers or other records of the alleged abuse, it would not be practicable to investigate the claim.

 

(d) Having considered the various points by the parties, and for the reasons given above, the Appellant has not persuaded me that it is practicable for the application to be considered.” 

 

16. I consider that this discloses a number of errors of law.  Firstly, I am not satisfied that the tribunal had any or sufficient regard to the fact that at least some of  these were not allegations made “out of the blue” 20 years after the event, but rather ones that had been made at the time in a regulated environment and investigated at the time by both social services and the police and which were likely to have been investigated also by the Department of Education and Science as it then was under its regulatory jurisdiction over independent schools under section 72 of the Education Act 1944.  It is not clear how, against such a background, it could be said that investigations would inevitably take much longer to be carried out, or why all relevant and cogent evidence and document would either not be available or would take a disproportionately excessive amount of time to investigate, or why they would inevitably be less reliable and cogent than if the application had been made earlier.  Thus there was either a failure to take into account a material consideration, or, if it was taken into account, a failure to give sufficient reasons to explain to the applicant why he lost on this point.

 

17. I further consider that in deciding whether it was practicable for the application to be considered the tribunal had regard to an immaterial consideration in taking into account when it was reasonable to expect the appellant to have made the application.  While I can accept that the passage of time may be relevant, what was to be expected of the applicant will not affect the practicability of considering the application. 

 

18. In holding that “information relating to the outcome of those allegations is not available” and that there was “the absence of a criminal conviction of the alleged abuser” I consider that at least as regards Mr T the tribunal reached a conclusion unsupported by the evidence before it.  Indeed, to that extent I would consider the finding to be one which no reasonable tribunal could make on the evidence before it.  The papers before the tribunal included evidence that the appellant had been placed on the child protection register because of sexual abuse.  There was evidence that Mr T had been convicted and sent to prison.  As regards the appellant’s complaints of assault by Mr T, while the particulars of the charges against Mr T in the evidence do not indicate whether they were was in respect of assaults on the applicant (as opposed to any of the other pupils) there was no reason for the tribunal to suppose on the material before it that evidence as to those convictions would not be available.

 

19. I do not consider that the errors of law in the preceding paragraph were made out in relation to Mr W.  Not only was he not convicted because of his death before trial but the contemporaneous evidence which was before the tribunal was less specific.  However, the applicant need only succeed in establishing that he sustained injury (including mental injury) in, and directly attributable to, a crime of violence at the hands of either man, even though the nature of the assaults might affect the amount of compensation and the allegations against Mr W do appear to be the more serious.

 

20. The CICA has offered no submissions on the tribunal’s treatment of the practicability issue. 

 

21. Although I raised a number of further questions when giving permission to apply for judicial review, it is not necessary to address them in the light of the conclusions I have reached above. 

 

22. Having made a quashing order in respect of the First-tier Tribunal’s decision on the ground of errors of law, I am only able to substitute my own decision if satisfied that without the errors of law, there would have been only one decision that the tribunal could have reached: Tribunals, Courts and Enforcement Act 2007, s 17(1)(b) and (2)(c).  As regards the allegations against Mr W, I am not so satisfied and accordingly remit the decision.

 

23. I should add that while the applicant, who is not a lawyer and who has been representing himself, has submitted further evidence in the course of the Upper Tribunal proceedings, I have confined my consideration to the treatment by the First-tier Tribunal of the evidence which was before it.  There is nothing to stop the applicant now submitting that additional material to the First-tier Tribunal and the directions at the head of this document provide a timescale in which to do so.

 

 

 

 (Signed on the Original)

 

C G Ward

Judge of the Upper Tribunal

 30 September 2011