Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

I grant the application for judicial review of the decision of the First-tier Tribunal (Social Entitlement Chamber) dated 7 December 2009.

 

The Upper Tribunal’s order is:

 

(i)               to quash the decision of the First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) dated 7 December 2009; and

 

(ii)             to remit the applicant’s appeal against the review decision dated 17 June 2009 to a differently constituted First-tier Tribunal within the Social Entitlement Chamber (Criminal Injuries Compensation) for reconsideration in accordance with the guidance below and with the directions in paragraph 37 below (Tribunals, Courts and Enforcement Act 2007, sections 15(1)(a) and 17(1)(a)).

 

There is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the child who is the subject of the application: Rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) applies. Accordingly, save for the front sheet (which identifies the parties by name), this determination may be made public.

 

 

REASONS FOR DECISION

 

Introduction

 

1. This judicial review concerns an application for criminal injuries compensation which has been made on behalf of a child whom I shall simply call G.  I direct that, save for the front sheet (which identifies the parties by name), this determination may be made public. There is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the person who is the subject of this application: see Rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

The background to this application for judicial review

 

2. The applicant is G’s father. The father submitted a claim on her behalf to the Criminal Injuries Compensation Authority (CICA) on 14 January 2008.  His application was therefore under the Criminal Injuries Compensation Scheme 2001.  He explained the basis for the application in these stark terms:

 

“G visited her classmate after church on the 10^th of June 2007.  She was swimming in the swimming pool with her friend S. S’s sister, N, poured boiled hot water on G. She was badly burnt.”

 

3. At the date in question G was aged 9 (as was her friend S).  S’s sister N was aged 10.  There appears to be no dispute now that “paddling pool” would have been a better description than “swimming pool”.  There is also no dispute that G suffered a severe burn to the left side of her hip and leg.  The live issue for present purposes is whether or not G was the victim of a “crime of violence”.

 

4. On 16 April 2009 CICA rejected the claim on the basis that G was not the victim of a criminal injury (citing paragraphs 6 and 8 of the Scheme).  CICA accepted that “reckless behaviour that causes injury” could be a criminal injury.  However, it was said that “evidence which was obtained from the police does not show that her injury was directly attributable to a crime of violence rather than the result of an unfortunate accident”.  G’s father applied for a reconsideration of that refusal.

 

5. On 17 June 2009 CICA maintained their decision to reject the claim, repeating but also slightly expanding the original reasons for the refusal.  The CICA letter explained that:

 

“This is because the police classified this incident as a ‘no crime’ only after having spoken to G.  In the police crime report it states G told them she was under water in the paddling pool when the suspect poured boiling water in to warm the water up.  G told them she felt it was an accident because the suspect did not know she was in the pool when she did this.  To this end, the evidence points towards this incident being an unfortunate accident as opposed to a crime of violence.  In the absence of sufficient evidence to establish any hostile intent on the suspect’s behalf, I am unable to make an award of compensation.”

 

6. G’s father then appealed to the First-tier Tribunal.  CICA suggested that the issue for the tribunal was whether there was sufficient evidence to substantiate the claim that G’s injuries were directly attributable to a crime of violence.

 

The First-tier Tribunal’s decision, findings and reasoning

 

7. The First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) considered the appeal at a hearing in London on 7 December 2009.  G’s father did not attend the hearing and was not represented.  He had, however, made detailed written submissions about the incident. The tribunal recorded that G’s father (i) had argued that the incident was either deliberate or gross negligence, and was not an accident; (ii) had argued that G was too young to know whether the act was deliberate or accidental; and (iii) was dissatisfied with the police investigation.

 

8. The tribunal heard oral evidence from the police officer who had carried out the investigation.  This investigation appeared to involve little more than interviewing G in the presence of her father.  The police officer accepted that he had not spoken to N, or N’s mother, or inspected the paddling pool and had conceded “that generally the police investigation had been less than adequate”.

 

9. The tribunal’s findings of fact were as follows:

 

“1. That G received unpleasant burns to her left hip and thigh when boiling water was poured onto her by a ten year old classmate.

2. The circumstances in which this happened were unclear.

3. N’s mother was nearby and supervising 4 children at the time the injury was sustained.

4. N’s mother did not contact the Appellant.  She subsequently applied cream appropriately to the areas affected but did not seek medical assistance.

5. The police investigation had been inadequate.

6. G had told the police it was an accident.

7. It was an accident.

8. Any lack of supervision by N’s mother, as to which we make no finding, did not constitute a crime of violence.”

 

10. The tribunal’s reasons were as follows:

“1. We accepted [the police officer’s] account of what G had told him about the incident.

2. We were mindful of the inadequate police investigation, but in the absence of any evidence from either G or the Appellant, there was nothing to set against the account given by [the police officer], who impressed us as a fair and truthful witness by his readiness to make concessions about the inadequacy of the investigation.

3. We were mindful of paragraph 64 of the Scheme whereby it is for the Appellant to make out his case on the balance of probabilities.

4. In the circumstances we were not satisfied on the balance of probabilities that this was a crime of violence as opposed to an unfortunate accident.”

 

11. G’s father then applied for permission to apply for judicial review, there being no right of appeal as such against the decision of the First-tier Tribunal (Social Entitlement Chamber) in matters relating to the Criminal Injuries Compensation Scheme.  I granted that application on the papers.

 

The proceedings before the Upper Tribunal

 

12. I directed an oral hearing of the substantive application for judicial review. That hearing was held at Harp House in London on 23 February 2011.  G’s father attended and was represented through the good offices of the Free Representation Unit (FRU) by Mr Daniel Bunting of Counsel, assisted by Ms M Brackovic.  I am grateful to Mr Bunting for his submissions, which helpfully developed and refined the points which G’s father had himself ably made at earlier stages in these proceedings.

 

13. CICA had indicated in writing that it was not minded to be present at the hearing of the application for judicial review.  CICA had also stated that it opposed the application on the basis that the tribunal’s conclusion was correct on the balance of probabilities.  The Tribunal itself entered an Acknowledgement of Service indicating, quite properly, that it did not intend to make any submission.

 

The grounds of the application for judicial review

 

14. Mr Bunting submitted that there were four grounds for seeking judicial review of the tribunal’s decision: (1) insufficient reasons; (2) Wednesbury unreasonableness; (3) the proper construction of paragraph 10 of the Scheme; and (4) the failure to take into account a material circumstance.

 

15. I have concluded that the tribunal made errors of public law that require its decision to be quashed.  The two essential and linked errors were failing to ask itself the right question and failing to give adequate reasons for its decision.  I therefore agree with the first ground of appeal expanded in these terms.  I do not accept that the tribunal erred in respect of the other three grounds.

 

(1) Insufficient reasons

 

16. As a matter of public law the required standard of adequacy of reasons is that they should be intelligible, deal with the substantial points that have been raised and in broad terms tell each party why they have lost or won.

 

17. Turning first to the tribunal’s findings of fact (see paragraph 9 above), Mr Bunting accepted findings 1, 5 and 8 and regarded findings 3 and 4 as irrelevant.  He focussed his fire on findings 2, 6 and 7:

 

“2. The circumstances in which this happened were unclear.

…

6. G had told the police it was an accident.

7. It was an accident.”

 

18. Turning next to the tribunal’s reasons (see paragraph 10 above), Mr Bunting argued that G’s father could not ascertain why the claim had failed.  In Mr Bunting’s submission, the reasons did not tie into the findings of fact.  The tribunal appeared to have conflated its acceptance of the police officer as a candid and credible witness with an acceptance that the account he relayed of his conversation with G was itself an accurate report of what had actually happened.

 

19. In particular, G’s father, in his written submissions to the First-tier Tribunal, had made a number of detailed points to support his argument that G had been the victim of a crime of violence, namely: (i) N was aged 10 and about 1.5 metres tall, whereas the side of the paddling pool was about 50 to 55 cm high, so N must have seen G in the pool before she poured the boiling water in; (ii) G’s earlier statement that N did not know she was in the pool was plainly wrong; (iii) G would not know whether or not the incident was an accident, whatever she may have said to the officer, as she was too young to understand; (iv) N’s sister, who was also in the pool at the time, was not scalded; (v) the pool was wide enough for the hot water to be added safely elsewhere; (vi) the lack of any explanation or apology from N’s parents.

 

20. Mr Bunting acknowledged that the tribunal was perfectly entitled to accept the police officer as a credible witness, but (especially given the inadequacy of the investigation) that was no reason to accept that G’s original account, as relayed by the officer, was itself necessarily accurate.  As Mr Bunting pointed out, there were many reasons why it might not be: G might not wish to get another child in trouble, G would have had no insight into N’s state of mind and G was certainly unaware of the principles of criminal law.

 

21. In addition, Mr Bunting argued that the tribunal’s reasons were inadequate to explain the factual conclusions that the tribunal had reached and in particular why the incident was an accident rather than a “crime of violence”.  In essence Mr Bunting contended that the tribunal asked itself the wrong question, namely was it an accident, when the tribunal should have focussed on the concept of a crime of violence.  In that context the tribunal appeared to have assumed that either the act was a deliberate assault or it was an accident – no consideration appeared to have been given to the possibility that the act was reckless, in the sense of taking an unreasonable risk of which the risk-taker was aware (see e.g. R v Cunningham [1957] 2 QB 396 and R v G [2003] UKHL 50).  As Mr Bunting put it, there are gradations from accidental childish horseplay at one end of the spectrum to deliberate assault at the other.  The tribunal, he argued, had failed to give adequate reasons for the limited findings of fact it had made.

 

22. I agree that there was a public law error by the tribunal in this regard.  I accept that obviously the burden was on G’s father to make out his case.  However, the tribunal had not addressed the main points he had made.  G’s father knew that the tribunal had decided the incident was an accident but he did not know how or why the tribunal had reached that conclusion.  On that basis I grant the application for judicial review.

 

 

 

(2) Wednesbury unreasonableness

 

23. Mr Bunting’s written submission to the Upper Tribunal argued that the conclusion that the incident was an accident and not a crime of violence was one which was not reasonably open to the tribunal.  It was, he argued, simply inconceivable that N had been (a) unaware of G’s presence in the paddling pool and also (b) unaware of the risk of causing injury by pouring boiling water into the pool.  This was a case of the facts speaking for themselves, or res ipsa loquitur to use the Latin tag.

 

24. At the oral hearing I sensed some rowing back by Mr Bunting on the breadth of this submission.  If so, I think he was right to do so.  As I speculated at the hearing, it was possible to conceive of a situation in which perhaps N’s attention had been distracted, in which case it might be very difficult to sustain the argument that there was a crime of violence.

 

25. I do not accept the proposition that this tribunal reached a decision which was so unreasonable that no proper tribunal could have arrived at the same outcome, having found the relevant facts and directing itself properly on the law.  In legal terms this is not a case of Wednesbury unreasonableness.  I do, however, accept that some of Mr Bunting’s submissions on this point reinforce his first ground of judicial review, which I have accepted for the reasons set out above.

 

(3) The proper construction of paragraph 10 of the Scheme

 

26. It will be recalled that N, who poured the boiling water into the paddling pool, was 10 at the time.  There is a conclusive presumption that no child under the age of 10 can be guilty of a criminal offence (Children and Young Persons Act 1933, section 50).  There used to be a rebuttable presumption that children between the age of 10 and 14 were incapable of forming a criminal intention (“doli incapax”), but that presumption was abolished by section 34 of the Crime and Disorder Act 1998.

 

27. Paragraph 10 of the 2001 Scheme (and indeed of the 2008 Scheme) reads as follows:

 

“10. It is not necessary for the assailant to have been convicted of a criminal offence in connection with the injury. Moreover, even where the injury is attributable to conduct within paragraph 8 in respect of which the assailant cannot be convicted of an offence by reason of age, insanity or diplomatic immunity, the conduct may nevertheless be treated as constituting a criminal act.”

 

28. The tribunal did not refer to Paragraph 10.  Mr Bunting accepted that there appeared to be no previous judicial authority on the scope of paragraph 10.  However, whilst accepting that the age of criminal responsibility was 10, he sought to argue that there was no reason why the act of, for example, a 10 or 11 year old assailant should not fall within the scope of paragraph 10.  As a matter of policy, he suggested there was no good reason why an act committed by a 9 year old would give rise to compensation but not if the same act were carried out by a 10 year old.

 

29. I am not persuaded by this ingenious argument.  It seems to me that, so far as the reference to “age” is concerned, Paragraph 10 of the Scheme is referring to the age of 10 as specified by the 1933 Act.  A child under that age “cannot be convicted of an offence by reason of age”.  The second sentence of Paragraph 10 simply has no application to a 10-year-old or indeed to any other older child.  There was no need for the tribunal to refer to Paragraph 10.  Mr Bunting’s rhetorical policy question seems to me misplaced – it is not as though Paragraph 10 permits compensation to be paid where the assailant is aged 9 but excludes compensation where the child is older.  The question ultimately in either case is whether or not the victim suffered a “crime of violence”.

 

30. The first sentence of Paragraph 10 establishes the fundamental principle that there is no need for there to have been any criminal conviction in connection with the injury.  Mr Bunting rightly acknowledged that in practice a criminal prosecution was highly unlikely in the present case.  But there is no suggestion that the tribunal made such an obvious error as assuming that any such prosecution or conviction was required.

 

31. This is not to question Mr Bunting’s submissions on the meaning of “”crime of violence”, based on the Court of Appeal’s observations in R v Criminal Injuries Compensation Board ex parte Webb [1987] QB 74.  However, in my view those arguments are essentially another way of putting his main point in relation to adequacy of reasons.

 

(4) The failure to take into account a material circumstance

 

32. In his written submissions to the First-tier Tribunal, G’s father had drawn attention to CICA’s guidance that “it is not necessary for an assailant, whatever their age, to have been convicted of a criminal act, in order for compensation to be paid”.  He also referred to a recent news report in the Daily Mail headed “Mother can claim payout after son is injured by 3-year-old” (November 13, 2009).  That report referred to an incident in which criminal injuries compensation had been paid to a 3 year old boy who had suffered severe head injuries, after being hit around the head with a car jack by another 3 year old, when both children had been temporarily left unattended in a parked car.  The report did not make it clear whether the award had been made by CICA at first instance or following a successful appeal to the tribunal, although Mr Bunting advised me that he understood the latter to be the case.

 

33. Mr Bunting very properly acknowledged that the tribunal decision in that other case (if so be it) was in no way binding on the present tribunal.  However, he argued that the tribunal should have considered that case and explained why it had been distinguished.

 

34. Insofar as this is a freestanding point, separate from the first point relating to adequacy of reasons, I would not accept this ground for seeking judicial review.  By definition each case turns on its own facts and there is no obligation to distinguish a non-binding decision on its facts.  As a matter of good practice it might have been better if the tribunal had explained briefly why it felt the newspaper report did not take G’s case any further forward, but I put it no higher than that.  The omission to do so was not an error of law.

 

The Upper Tribunal’s decision and what happens next

 

35. For the reasons given above, I grant the application for judicial review. The decision of the First-tier Tribunal (Social Entitlement Chamber) dated 7 December 2009 must be quashed. 

 

36. On an application for judicial review in the Upper Tribunal I may only substitute my own decision if “without the error, there would have been only one decision that the … tribunal could have reached” (Tribunals, Courts and Enforcement Act 2007, section 17(1)(b) and (2)(c)).  I am by no means satisfied that the present case falls into that category.

 

37. Accordingly, the applicant’s appeal against the CICA review decision of 17 June 2009 must be remitted to the First-tier Tribunal for a rehearing. No judge or member of the panel which first heard this appeal on 7 December 2009 should be a member of the new tribunal.  I leave it to a Tribunal Judge of the First-tier Tribunal to make whatever procedural directions, with time-limits, are thought fit. 

 

38. I should stress to G’s father that the success of this application for judicial review does not necessarily mean that the appeal against the CICA review decision will necessarily succeed at the re-hearing. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal.

 

39. I also recognise that G’s father has undoubtedly put the case on behalf of his daughter well.  However, he will have recognised from the experience of hearing Mr Bunting putting the arguments before the Upper Tribunal that there are some tricky legal and evidential issues involved.  It is, of course, entirely a matter for him, but it is to be hoped that FRU (whether in the form of Mr Bunting or one of his colleagues) will be able to represent him and G at the re-hearing before the First-tier Tribunal.

 

Conclusion

 

40. I therefore grant the application for judicial review of the decision of the First-tier Tribunal (Social Entitlement Chamber) and make the order as set out above at the head of these reasons. 

 

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 24 February 2011 Judge of the Upper Tribunal