JR/1363/2010

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

ON AN APPLICATION FOR JUDICIAL REVIEW

 

Decision

 

1. This application succeeds. Pursuant to the judicial review jurisdiction of the Upper Tribunal and in accordance with the provisions of sections 15 to 18 of the Tribunals, Courts and Enforcement Act 2007 I make a quashing order in respect of the decision of the First-tier Tribunal (Social Entitlement Chamber) to refuse an award under the Criminal Injuries Compensation Scheme 2001. The decision of the First-tier Tribunal was made at Manchester on 29^th July 2009 after a hearing on 8^th July 2009 under reference X/06/236810. The full statement of written reasons was given on 23^rd September 2009.

 

2. I refer the matter to a completely differently constituted tribunal in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision by a panel that does not include any member who has considered this matter hitherto. The new panel must consider all evidence afresh and make its own findings irrespective of previous findings.

 

3. The applicant is a claimant for criminal injuries compensation. The respondent to this application is the First-tier Tribunal (Social Entitlement Chamber). The interested party is the Criminal Injuries Compensation Authority.

 

4. The claimant and/or his representatives should regard themselves as being on notice to send to the clerk to the First-tier Tribunal as soon as is practicable any further relevant written medical or other evidence. The fact that the application has succeeded at this stage is not to be taken as any indication as to what the First-tier Tribunal might decide in due course.

 

Factual Background

 

5. The applicant (to whom I refer below as “the claimant) is a man who was born on 8^th September 1975. His case is that on 23^rd December 2005 he had gone with another man (to whom I shall refer as A) to A’s home in order to buy drugs. On the way, and also at those premises, he was given some substance which affected his consciousness. While he was so affected, A raped him by way of anal intercourse. The claimant states that as a result he suffered from post traumatic stress disorder characterised by constant flashbacks, nightmares and loss of self-confidence. A was HIV positive (I do not know when the claimant discovered this), and the claimant attributes his own HIV positive status to the rape.

 

6. The matter was reported to the police, who interviewed A. A agreed that intercourse had taken place, but said that it was consensual and denied that he had affected the claimant’s consciousness as alleged. The Crown Prosecution Service decided that no further action was appropriate.

 

Procedure

 

7. On 24^th July 2006 the claimant made a claim for compensation under the Criminal Injuries Compensation Scheme 2001 (“the 2001 scheme”). On 11^th August 2007 the Criminal Injuries Compensation Authority (“the authority”) refused to make an award of compensation because there was, in its view, inadequate evidence to prove that an assault had taken place. The applicant requested a review of this decision but on 6^th September 2007 the authority decided to maintain the decision for the same reason. On 20^th September 2007 the claimant appealed against that decision to the Criminal Injuries Compensation Appeals Panel (whose jurisdiction was absorbed into the First-tier Tribunal on 3^rd November 2008).

 

8. The Appeals Panel considered the matter on 2^nd April 2008 and heard oral evidence from the claimant and from a police officer. The Panel adjourned the case so that a report could be obtained from the claimant’s local Centre for Sexual Health in relation to blood tests, the presence of positive HIV antibodies, and (if possible) their relationship to the incident of 23^rd December 2005. The Adjournment Decision Notice also stated that the assessment of compensation under paragraph 77 of the 2001 scheme was to be made by a single adjudicator, “Dr K” (who had been a member of the panel on 2^nd April 2008). It appears that the Panel took the view that the claimant had given contradictory evidence.

 

9. The word “adjudicator” was used because paragraph 2 of the 2001 scheme appointed persons as adjudicators under section 5 of the Criminal Injuries Compensation Act 1995 to be members of the Criminal Injuries Compensation Panel (“the Panel”). Paragraphs 61 to 65 of the 2001 scheme conferred rights of appeal. Paragraph 77, so far as is relevant, provided as follows (my emphasis):

 

77. Where the adjudicators adjourn the hearing, they may direct that an interim payment be made. Where the only issue remaining is the determination of the amount of compensation, the adjudicators may remit the application for final determination by one of themselves in the absence of the [claimant] but subject to the right of the [claimant] to have a further oral hearing if not satisfied with that determination, in which the adjudicator who made that determination will not take part. On determining the appeal the adjudicators will, where necessary, make such direction as they think fit as to the decision to be made by a claims officer on the application for compensation, but any such direction must be in accordance with the relevant provisions of this Scheme. Where they are of the opinion that the appeal was frivolous or vexatious, the adjudicators may reduce the amount of compensation to be awarded by such amount as they consider appropriate …”.

 

10. The claimant states that he was told that the only outstanding matter was whether his HIV positive status predated the incident of 23^rd December 2005 and that he would not be required to give further evidence at any adjourned hearing.

 

11. At this stage I note that the power to remit to a single member under paragraph 77 arose only in the circumstances indicated by the words that I have underlined. It is not a power that should be used when other issues, such as causation, are still at issue. Accordingly, it seems to me that the combination of directions in the Adjournment Decision Notice could not lawfully be made.

12. On 24^th January 2009 Dr K made the following decision:

 

“In oral evidence before the Panel the [claimant] stated that that the blood tests in December 2005 were negative and he was told in March 2006 that that he was HIV positive.

 

[The letter from the Consultant in Genito-Urinary Medicine] of 17^th September 2008 reports that the blood test taken immediately after the index incident was reported as being positive. The [claimant] was informed of the result on 30^th December 2005. The test was repeated on this date and confirmation of the positive status was obtained.

 

These findings would indicate that [the claimant] was suffering from a pre-existing condition of being HIV positive and that this infection was not related to, or caused by, the index incident.

 

In view of this, no additional award for the HIV infection can be made, to any possible tariff award.

 

The case is now to be referred back for a full Panel hearing to consider the issues outlined in the hearing summary. Ideally, the hearing is to be before the same Panel, as per decision notice of 2^nd April suggested, if possible.

 

13. By this time the jurisdiction (along with the adjudicators) had been transferred to the Social Entitlement Chamber of the First-tier Tribunal.

 

14. I could not find anything in the notice of 2^nd April dealing with a reference back to the same panel and, of course, any such reference back would be inappropriate under paragraph 77 unless the claimant requested a further hearing. Dr K had no power under paragraph 77 to refer the matter to a full panel on his own initiative, although it is arguable that he had such a power under rule 5(3)(g) and other provisions of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 if the necessary directions have been made by the Senior President or the Chamber President to enable such a power to be exercised by a single Tribunal member of Dr K’s category. It has not been necessary to pursue this point.

 

15. The First-tier Tribunal considered the matter on 8^th July 2009. It consisted of Dr K (who did not chair it) and two other members who had not had any previous involvement. The claimant attended but was not represented. The tribunal assumed jurisdiction to decide whether there was evidence to substantiate that the claimant was the victim of a crime of violence, as well as issues relating to the amount of compensation. According to its full statement:

 

“11. At the hearing on 8^th July 2009 the Panel explained to the [claimant] that it had not been possible to have the same Panel and that the new Panel would take a fresh look at the appeal and would take note of, but not necessarily be bound by or limited by previous decisions of the authority or the matters set out in the hearing Summary.

 

12. At this point the [claimant] stated that he was under the impression that he would not have to undergo questioning again and that he felt unable to undergo such questioning. He was offered the opportunity to withdraw his appeal, to ask for it to proceed in his absence or to answer the Panel’s questions and was given some time alone to consider. He elected to proceed with the hearing.”

 

16. The claimant did give oral evidence, as did a police officer. The tribunal decided that the claimant was not eligible for an award because the sex had been consensual and he was therefore not a victim of a crime of violence, but that even if he had been such a victim, his conduct in relation to his consumption of drugs and alcohol and the proposed purchase of drugs was such that he would not have been eligible for either a full or a reduced award.

 

17. The claimant applied to the Administrative Court of the Queen’s Bench Division of the High Court for permission to apply for judicial review of that decision. However, directions by the Lord Chief Justice had provided for such applications in respect of the criminal injuries jurisdiction of the First-tier Tribunal to be automatically transferred to the Upper Tribunal and on 24^th May 2010 the matter was transferred from the Administrative Court to the Upper Tribunal as recorded in the order of Deputy Master Lynne Knapman. On 7^th July 2010 Upper Tribunal Judge Mesher extended the time for applying to the Upper Tribunal for permission to appeal and gave permission. There was no request for an oral hearing by the Upper Tribunal of the substantive application, and none was held.

 

The Arguments

 

18. The claimant’s grounds are that the decision on 2^nd April 2008 to adjourn under the paragraph 77 power necessarily involved a finding that that the claimant was eligible for compensation and the First-tier Tribunal could not subsequently resile from that; that Dr K had no power to restore the matter for further oral hearing; that there was no power to arrange such an oral hearing, or to arrange it with different members; alternatively, that the presence on the 8^th July 2009 tribunal of Dr K denied the claimant of the chance of having the matter decided afresh; that the tribunal failed to give any reasonable consideration as to whether it should adjourn to enable the original panel to reconvene or to allow the claimant to decide what course of action to take; and that the tribunal heating was in breach of the rules of natural justice and fair procedure in proceeding when it had reason to believe that the claimant was unable to properly represent himself.

 

19. The interested party supports the ultimate decision of the First-tier Tribunal, argues that the claimant had been given an opportunity to have that final hearing adjourned, and suggests that in any event an adjournment would not have “assuaged” the claimant’s concerns about having to give evidence again.

 

Conclusions

 

20. I agree with what Judge Mesher said when giving permission to bring this application:

 

“… the (at the least) highly undesirable situation was that, while the other two members of the tribunal of 8^th July 2009 came to the documentary evidence and oral evidence afresh on that date, [Dr K] must have retained a residual knowledge of the very detailed evidence given on 2^nd April 2008 and of the evaluation of that evidence by him and the other members of the panel, which was not shared by the other members of the tribunal of 8^th July 2009 … [the claimant] was not given the choice of an adjournment for a hearing before a tribunal none of whose members had sat on the panel of 2^nd April 2008. It therefore seems that there could be no question of the potential breach of the principles of natural justice … having been “cured” or waived by the claimant’s agreeing to proceed with a hearing and the giving of evidence on 8^th July 2009”.

 

21. In these circumstances, aggravated by the fact that the claimant was not legally represented at the hearing, I have no doubt that the decision to proceed on 8^th July 2009 with the tribunal constituted as it was amounted to a breach of the rules of natural justice and fair procedure. This meant that the ultimate decision was taken in error of law and must be quashed. It is not necessary to comment further on the other grounds for this application.

 

23. However, there is the question of what should happen next. The claimant’s position is that the panel of 2^nd April 2008 decided that he was eligible for compensation and the only outstanding issue is the amount. I do not think that is correct. The panel clearly had doubts about causation (especially in relation to the claimant’s HIV positive status) and reached no specific or explicit conclusions in relation to eligibility. It did go wrong, but that was in purporting to exercise the paragraph 77 power. What it should have done was simply to adjourn for further evidence. In these circumstances, it would not be right to read into its decision the result that the claimant seeks to read into it.

 

24. I appreciate that the claimant would prefer to avoid the ordeal of giving oral evidence, and no doubt much of the evidence has been and can be given by way of written statements. However, if the claimant wishes to persuade the tribunal of his version of events it is difficult to see how can avoid making himself available for oral questioning. That is the logical consequence of succeeding in this case before the Upper Tribunal.

 

 

 

H. Levenson

Judge of the Upper Tribunal

 

2^nd March 2011