Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/2614/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  It is ordered that the decision of the Criminal Injuries Compensation Appeals Panel dated 9 October 2008 (ref X/07/205896) be quashed.

 

The claimant’s case is remitted to the First-tier Tribunal (Social Entitlement Chamber) for reconsideration and determination in accordance with the reasons for the Upper Tribunal’s decision.

 

 

REASONS FOR DECISION

 

1. This application for judicial review arises out of a claim for criminal injuries compensation received by the Criminal Injuries Compensation Authority (“the Authority”) as long ago as 25 January 2007, in respect of an incident that occurred at 4.40 pm on 20 November 2006 at Verwood, in Dorset.  The claimant was then aged 74.  In his claim form, he explained that, while driving his car–

 

“… I heard a loud bang on the side of my driver’s door.  I stopped my car and got out and noticed a small dent on the car door.  There was a number of youths opposite on the green and they were throwing tins, bottles and general bric-a-brac at each other.  I shouted at them and I was met with a hail of tins, bottles etc.  Something hit me in my left eye and they were shouting and jeering at me.  They all ran off, one jumping on his motorcycle.”

 

2. The claimant did not report the incident to the police until 22 December 2006.  In his claim form, the explanation he gave for the delay was –

 

“I am an ex-policeman and I knew it would be impossible to trace the youths and I did not want to waste their time.”

 

3. On 14 July 2007, the Authority rejected the claim on the ground that there had been an unreasonable delay in reporting the incident to the police.  It relied on paragraph 13(a) of the Criminal Injuries Compensation Scheme 2001.  I will set out the whole of paragraph 13 –

 

“13. A claims officer may withhold or reduce an award where he considers that:

(a)  the applicant failed to take, without delay, all reasonable steps to inform the police, or other body or person considered by the Authority to be appropriate for the purpose, of the circumstances giving rise to the injury; or

(b)  the applicant failed to co-operate with the police or other authority in attempting to bring the assailant to justice; or

(c)  the applicant has failed to give all reasonable assistance to the Authority or other body or person in connection with the application; or

(d)  the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made; or

(e)  the applicant’s character as shown by his criminal convictions (excluding convictions spent under the rehabilitation of offenders Act 1974 at the date of application or death) or by evidence available to the claims officer makes it inappropriate that a full award or any award at all be made.”

 

4. The claimant sought a review.  In his application, dated 24 July 2007, he gave the following reasons–

 

“This incident would have been reported to the police on the 20-11-2006 if the police station had been open.  When the incident occurred, my eyes were streaming and as I only lived about ½ mile away I drove straight home in order to bathe my eye and apply an ice pack to help reduce the swelling.  My wife wanted to call our local police, but being a retired police inspector I knew it would be impossible for the police to do anything about it and I did not want to waste their time.  At about 9 pm that evening my wife drove me down to Verwood police station to report it but on arrival there the door had a ‘closed’ sign on it and was locked (a surprise to me because I had never come across a police station with an ‘open’ and ‘closed’ sign, being a police officer from the Met).  I believe it was on the 24-11-06 at about 1 pm I returned to the station and found it was ‘closed’ again.  I did call there a couple of times later but each time they were closed.  Of course by this time I felt it was a total waste of my time and the police time because the incident was far gone.  It was not until I had seen my doctor and the hospital that I realised how serious my injury was.  Also the nurse said I should have reported the matter to the police.  I told her that the police station was always closed in Verwood.  She stated that she also lived in Verwood and did I not realise that the station closed every night at about 5 pm and also at lunch from about 12 – 2 pm[?]  I therefore attended the station outside those hours.  The civilian behind the counter then informed me that their closing hours were about 6 pm and also lunch time.  They had also been closed a number of days when they were short of staff which apparently [was] quite often.

 

Therefore I feel you have made the wrong decision, but then you like me did not realise that police stations in rural areas seem to open and close whenever they are short of staff which apparently is fairly regular.  Of course I could have travelled some miles away to the next station but I thought eventually I would find my local police station open and as I have already said I did not feel my incident was urgent enough to dial 999.

 

I am sorry to say that my vision is still blurred and there does not seem to be any improvement.

 

As I have reported, I am 75 years of age and disabled and not the fit person I used to be.  So to travel too much I find a chore.  I therefore apply for a review.”

 

5. On 13 April 2008, the Authority replied, saying that it had carried out a review but still could not make an award.  It argued –

 

“The evidence that we have shows that there was unreasonable delay in your reporting the incident to the police.  Furthermore the divisional headquarters have assured the Authority the police station would have been open during November and December 2006.  In any event even if it were closed there would have been a notice displayed informing you of the Enquiry Centre telephone number to ring and report the crime.  Against this background, a full or reduced award of compensation would be inappropriate.”

 

6. The claimant appealed, his appeal being received by the Criminal Injuries Compensation Appeals Panel (“the Panel”) on 20 May 2008.  In his letter of appeal, the claimant suggested that his disablement had to be taken into account.  He said that he had been discharged from the police service in London in 1979, after 27 years’ service, on the grounds of permanent disablement assessed at 100% and that he was able only to walk a few steps on crutches and to drive two or three miles.  He found it extremely difficult to get in and out of a car and his wife received carer’s allowance to take care of him.  He also gave details of three incidents which had led him to believe that informing the police of the incident in Verwood would have been a waste of time.  In the first, his wife had dialled 999 when she had disturbed intruders in their garage in Christchurch three years earlier.  She had been advised to ring the Dorset police headquarters, as the intruders had dun off, and, when she did so, she was advised that “it would be a waste of police time in coming to the scene and to report to her nearest police station at her convenience because they just did not have the staff to attend to all calls”.  In the second, a neighbour’s burglar alarm had gone off and the police had arrived three hours later and “apologised but stated they were the only officers on duty that day in the Verwood area and had more urgent calls to deal with”.  In the third, his daughter had been mugged in London and was advised to report the incident to her local police station because her assailants had run off and there was not much the police could do.  He also made the points that the incident had appeared a minor one at the time and that the youths had run off and, it being dusk, he would not have been able to recognise them again.

 

7. In response to the particular point made by the Authority, he said he had not seen other notices that he could read from the roadside and he had not gone up to the police station once he saw it was closed because of the difficulty he had getting out of the car.  (It appears from a later letter, dated 26 September 2008, that his wife had tried the door while he remained in the car.)  He also said that, when he had attended the police station, his attention had been drawn to a telephone box outside but he was told that “if I had used it I would have been told to report it to the station when it was opened as it was not an emergency”.

 

8. On 9 October 2008, the Criminal Injuries Compensation Appeals Panel dismissed the claimant’s appeal in his absence.  He had written to the Panel on 12 September 2008, from France where he was then living, to say that he would not be attending due to his disabilities.  The decision notice stated that the decision had been as follows –

 

“Not even a part award merited.  The Applicant’s explanation for late reporting of the incident to the police is not acceptable.

 

The late reporting seriously hampered any opportunity to investigate the incident.

 

Nil award paragraph 13(A).”

 

9. On 3 November 2008, the functions of the Criminal Injuries Compensation Appeals Panel were transferred to the First-tier Tribunal under the Transfer of Tribunal Functions Order 2008 (SI 2008/2833).

 

10. On 16 November 2008, the claimant wrote to what was now the First-tier Tribunal, expressing a strong desire to appeal.  This was treated as an application under rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) for the decision of 9 October 2008 to be set aside, which was refused on 28 November 2008 by the Principal Judge.  In the course of his ruling, the Principal Judge said that “the Panel considered all available documents and reached a decision which in my view was the only appropriate decision that it could properly have made in accordance with the terms of the Scheme and the way it is consistently applied in cases of this type”.  He added –

 

“Had I thought, on reading the papers, the Tribunal had made an error of law in coming to its decision, resulting in a manifest injustice, I would have considered exercising an inherent discretionary power to set aside the decision and direct that the appeal be re-heard before a differently constituted panel.  I see no error of law or manifest injustice and I am therefore not prepared to exercise this inherent discretionary power.”

 

11. The claimant then endeavoured to appeal against the decision of 9 October 2008 but was informed by the Tribunals Service that the decision of 28 November 2008 was final, that there was no right of appeal and that his remedy lay in an application to the Upper Tribunal for judicial review.  A notice of appeal against the decision of 9 October 2009 was received by the Upper Tribunal on 10 March 2009 and, after he had been sent the correct form, the claimant lodged an application for judicial review on 15 April 2009, which was registered as JR/953/2009.

 

12. In case management directions on 12 May 2009 and 23 June 2009, I suggested that the case would have to be transferred to the High Court and, in order to help the High Court decide whether or not to transfer the case back to the Upper Tribunal, I sought the views of the parties as to whether they wished the case to be heard in the High Court or the Upper Tribunal.  The reason for all this is that the Upper Tribunal has jurisdiction to determine judicial review proceedings only if either the case satisfies four conditions set out in section 18 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) or the case has been transferred to it under section 31A of what was then still the Supreme Court Act 1981 and is now known as the Senior Courts Act 1981.  One of the conditions set out in section 18 of the 2007 Act is that the case falls within a class identified in a practice direction made by the Lord Chief Justice (see section 18(6)) and the relevant practice direction (Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 W.L.R. 327) refers to challenges to decisions of the First-tier Tribunal but not to challenges to decisions made by its predecessors.  Section 18(3) requires the Upper Tribunal to transfer to the High Court any judicial review proceedings that it does not have the power to determine.  Thus, the advice of the Tribunals Service was right if it was sought to challenge the decision of 28 November 2008 but wrong in its reference to the Upper Tribunal if it was sought to challenge the decision of 9 October 2008.

 

13. The First-tier Tribunal argued that the decision being challenged was that of the First-tier Tribunal dated 28 November 2008 and that the Upper Tribunal therefore had jurisdiction.  I did not accept that submission because, not only had the claimant identified the decision of the Criminal Injuries Compensation Appeals Panel dated 9 October 2008 as the decision he wished to challenge, but he needed to challenge that decision in order to achieve success. 

 

14. Accordingly, on 28 July 2009, I transferred the case to the High Court, indicating that the Upper Tribunal would be quite content for the case to be transferred straight back to it.

 

15. The Chairman of the Hearing Panel that had sat on 9 October 2008 then supplied reasons for the decision on 17 August 2009.  He set out the history and recorded the Panel’s findings that the claimant had been the victim of a criminal attack on 20 November 2006 but that he had not reported it to the police until 22 December 2006.  The material part of the statement of reasons is paragraph 12, which states –

 

“12. Before reaching its decision the panel gave careful consideration to the applicant’s written explanation for the delay contained in the bundle, including submissions about his age and ill health, his view as an ex-police inspector that it would have been impossible to trace the youths and that he did not want to waste police time; also his difficulty in accessing Verwood police Station both at 8 pm on the day of the incident and subsequently; also the dissatisfaction with the police felt by himself and his family when reporting other incidents.  The Panel found all his submissions unacceptable.  The Panel noted from the Applicant’s letter (A9 in the Bundle) that the Applicant drove half a mile home after the incident and that on his arrival his wife wanted him to report it.  The Panel concluded that if he had had a mobile telephone with him he should have used it as soon as possible after the incident and that if he did not he should have stopped at the nearest telephone box and dialled 999 or driven direct to Verwood Police Station (which he had no reason to believe to be closed), or heeded his wife’s advice and telephoned the police when he reached home.

 

By not doing any of these things, he seriously hampered any police investigation and the bringing of his assailant(s) to justice.  Consequently not even a part award is merited.”

 

16. On 1 August 2011, Deputy Master Knapman transferred the proceedings back to the Upper Tribunal but the documents were not received by the Upper Tribunal until 22 September 2011.  The case was reregistered as JR/2614/2011 and case management directions were issued by a Registrar on 14 October 2011.

 

17. On 18 November 2011, I admitted the application for consideration, even though the initial application to the Upper Tribunal had been late, taking the view that it had been clear that the claimant had been trying to challenge the decision of 9 October 2008 ever since it had been made and that any delay on his part paled into insignificance beside the other delays in the case.  I also granted permission to apply for judicial review on the following grounds –

 

(a) the Panel has arguably failed to give adequate (or any) reasons for its finding that the delay in reporting the incident to the police “seriously hampered any police investigation”, when reasons were required in the light of the claimant’s explanation of his belief that an investigation would not have been practical or proportionate anyway;

 

(b)  the Panel appears not to have asked the police officer who attended the hearing for his view of the correctness of the claimant’s assertions as to the likely reaction of the police to a report of the incident before making its findings and it is arguable that such a failure to elicit relevant evidence from an available witness was a breach of its duty to act fairly in the absence of the claimant, particularly having regard to the reasons for the claimant’s absence;

 

(c)  it is arguable that the Panel erred in not making a finding as to whether the claimant’s belief that there was no point in reporting the incident (which may have seemed at the time only to have caused a minor injury) to the police was reasonably and honestly held, which was arguably relevant to the question of the amount of the award that was to be withheld;

 

(d)  it is arguable that the Panel erred in not having regard to the likely amount of a full award when deciding whether it should be withheld in full or in part.

 

18. I commented that the last of those grounds raised the question whether the practice of the Authority in always, or nearly always, considering questions arising under paragraph 13 of the Scheme as preliminary issues enabled adequate regard to be had to the principle of proportionality.  I suggested that it was arguable that there are at least some cases where such questions should be dealt with at the same time as other questions, including assessment.

 

19. The First-tier Tribunal has, quite properly, not submitted a response.  The Authority has submitted a response dated 1 March 2012, dealing only with the fourth of my grounds for granting permission.  The claimant made a further submission dated 9 April 2012.  I am sorry that there has been further delay since then.  Both the Authority and the claimant have said that they would not attend a hearing even if there were one.  In those circumstances, I can properly determine the case without a hearing.

 

20. First, it is plain that the decision that must be challenged is that of 9 October 2008 and not that of 28 November 2008.  There was no procedural irregularity in the decision of 9 October 2008 – in particular, the claimant had given his consent to the hearing proceeding in his absence – and in those circumstances there were no grounds for setting the decision aside under rule 37 of the 2008 Rules on 28 November 2008.  Consequently, the conclusion reached by the Principal Judge on 28 November was clearly correct.  I would add that there would equally have been no grounds for granting a rehearing under paragraph 79 of the 2001 Scheme, which was the provision in force before 3 November 2008 and could have been relevant under transitional provisions in Schedule 4 to the 2008 Order.  I am afraid that I do not recognise the “inherent discretionary power” to set aside a decision on the ground of error of law that the Principal Judge claimed.  In my judgment, the principal judge could not properly have set aside the decision of 9 October 2008 and therefore his view that the panel had reached “the only appropriate decision” open to it on that date falls to be considered on the application for judicial review of the decision of 9 October 2008 and not by way of a challenge to his decision.

 

21. A decision of a tribunal, including the Panel, may be quashed on judicial review only if it was wrong in law.  It was for the Panel to consider whether the claimant “failed to take, without delay, all reasonable steps to inform the police, or other body or person considered by the Authority to be appropriate for the purpose, of the circumstances giving rise to the injury” and, in the absence of an error of law, the Upper Tribunal cannot interfere with the Panel’s decision merely because the Upper Tribunal judge might have reached a different conclusion.  However, it is an error of law not to have regard to all relevant considerations or not to give adequate reasons for a decision.

 

22. In this case, it was not in doubt that the claimant could have reported the incident to the police earlier than he did and that there had therefore been “delay”.  I do not doubt that the Panel was entitled to find that the claimant ought to have reported the incident to the police by at least telephoning them, or asking his wife to telephone them, when he got home and that therefore it was entitled to find that therefore he had not taken “all reasonable steps” to inform the police.  However, it is not clear from the statement of reasons on what basis it reached that conclusion.  It is also not clear on what basis it found that “he seriously hampered any police investigation and the bringing of his assailant(s) to justice” and, in particular, whether it found that there would have been an investigation had the incident been reported.  This is important, because it means that it is also not clear on what basis it was found that no award was merited.  Even if there ahs been delay and it is found that a claimant has not taken all reasonable steps to inform the police of an offence, it does not necessarily follow that an award must be withheld or reduced.  Paragraph 13 confers a mere discretionary power.

 

23. There were various views the First-tier Tribunal might have taken of the case.   It presumably took the view that the nature of the incident was sufficiently important to have been brought to the attention of the police.  But there were a number of reasons why it might have reached that view.  It might have decided not to accept what the claimant had said about his reasons for not reporting the incident immediately.  It might have decided to reject has opinion as to the likelihood of police inaction.  It might have decided that, even though effective action was unlikely, the claimant should not have assumed that there might not by chance have been an officer in the area (perhaps with a dog) who could, on this occasion, have investigated the matter with some prospects of success.  It might just have taken the view that the police needed to know about the incident as part of their routine collection of intelligence, with the possibility of the assailants being brought to justice later if they were apprehended in relation to another matter.  Which of these views it took was potentially relevant to the question as to whether an award was merited. 

 

24. It is to be inferred that the power under paragraph 13(a) to withhold or reduce an award where a crime has not been reported to the police or another relevant authority without delay exists so that the police or other authority has the opportunity to carry out an investigation.  That, in turn, serves two purposes from the point of view of the Authority.  One is to enable criminals to be brought to justice.  In this regard, paragraph 13(a), coupled with paragraph 13(b), implies that a person who seeks compensation from the State in respect of a criminal injury ought, as a quid pro quo, to assist the State to prosecute the offender insofar as that may be appropriate.  The second purpose of paragraph 13(a) is to enable an award to be withheld where a claimant’s failure to report it immediately has meant that there has not been a proper opportunity to investigate whether the incident in fact occurred or, indeed, whether the claimant ever suffered any injury.  The Authority’s ability to investigate those issues some months later may obviously be compromised if there has not been any contemporaneous investigation.

 

25. The claimant has argued that, even though he did not report the incident to the police immediately, he did report the injury to his doctor within two or three days and tried then also to report the matter to the police station.  Since his doctor is likely to have recorded the claimant’s initial explanation for the injury, reporting the matter to his doctor would certainly go some way to meeting the second purpose identified above.  However, it is irrelevant to the first purpose and, in this case, the First-tier Tribunal accepted that the incident had occurred and directed that there should be no award solely because the first purpose had been frustrated.

 

26. Paragraph 13 confers a broad discretion and the Authority and the First-tier Tribunal are required to consider all material circumstances, having regard to the purpose of the paragraph.  When considering a failure to report an incident promptly to the police or other authority, it seems to me that the reason for the claimant not having done so may be highly relevant, as may the identified consequence.  If the claimant intended to reduce the likelihood of the offender being prosecuted, or was reckless as to whether that would be the consequence, withholding the award altogether or making a substantial reduction may be justified, whereas if the claimant merely made a misjudgement, a lesser reduction, or no reduction at all, may be appropriate.  Similarly, delay that did not actually prevent the offender being prosecuted may result in a lesser reduction, or no reduction, whereas similar delay that did prevent an effective investigation might be viewed differently.

 

27. Moreover, in considering whether the claimant took “all reasonable steps” to inform the police, regard must be had to the position as it would have appeared to him at the time.  It is important in this case that the claimant says that he did not at first think his injury was particularly serious.  Not only are the police likely to invest resources in an investigation in proportion to the seriousness of the alleged offence, which is often determined by its consequences, but a minor injury that passed quickly would not be one in respect of which any claim for compensation could be, or would be, contemplated.  In the present case, this is particularly significant because, even if there might have been some prospect of the assailant being apprehended if the incident had been reported immediately, the prospect of that being so by the time that the claimant realised the injury was serious enough for him to need medical advice would have been very much lower and possibly non-existent.  During the period when delay was more likely to be material, the claimant in this case may actually have had a better reason for not acting.

 

28. The fact that the Panel did not record whether it accepted the claimant’s account as to his thinking at the time and whether it found that the late reporting of the incident did materially hamper the police may indicate that it did not consider those issues relevant.  A further indication of that is the apparent failure to ask the police officer who attended the hearing any relevant questions.  That officer was the Verwood community beat officer to whom the claimant had eventually reported the incident on 22 December 2006 and he might well have been in a position to give evidence both as to the claimant’s assertion that the police station had frequently been closed during late 2006 due to staffing problems – which the claimant has said he understands were in fact staff sickness – and as to the likely response to the claimant having reported the incident immediately – which might have been difficult as the claimant has said that he did not have a mobile telephone – or, alternatively, within half an hour or within two or three days.  Understandably, by the time the Chairman prepared the statement of reasons, he and the other members of the Hearing Panel had a somewhat hazy recollection of the hearing, but he stated in paragraph 6 of the statement of reasons that they did not recall having asked the police officer any questions and, in the absence of any notes and knowing that the hearing lasted only ten minutes, he concluded that they had not done so.  In my judgment they should have asked him questions if they were minded to reject the claimant’s evidence and the officer was in a position to give evidence on the same issues, particularly as the claimant had an obviously good reason for not attending himself.  It is just possible that the letter of 12 September 2008 sent by the claimant to the Panel, informing it that his disabilities precluded his attendance, was not forwarded to the Hearing Panel so that the Chairman and members did not know why the claimant had failed to appear, but the Hearing Panel should still have asked the officer relevant questions, even if the claimant’s absence was unexplained.

 

29. In any event, if the Panel did regard the claimant’s motivation and the accuracy of his understanding to be irrelevant, it erred in law and it erred in law anyway in not recording sufficient findings in the light of the way in which the claimant had put his case.  It simply is not clear to the claimant or to me to what extent the Panel accepted his evidence or the accuracy of his assessment as to the effect of reporting the incident.

 

30. It also erred in not giving any indication as to why its findings led to the conclusion that no award should be made.  In particular, it seems to me that it was necessary for the Panel to have regard to the size of the award that was to be withheld and I do not accept the Authority’s submission to the contrary. 

 

31. The Authority, in response to my observations when granting permission, submits –

 

“3. It is the usual practice of claims officers within the Authority to consider paragraph 13 at the earliest possible stage.  Where a claims officer makes the decision that an award is to be withheld based on paragraph 13 the claims officer would not proceed to consider what quantum would have been had the award not been withheld.

 

4. It is considered an inappropriate use of resource within the Authority to calculate quantum in a case where the Applicant is not eligible for an award.

 

5. Claims officers do, however, give consideration to each case on its own merits and may consider quantum at the same time as paragraph 13 of the Scheme should this be appropriate in the individual circumstances of the case.

 

6. Where a claims officer makes a decision that an award should be reduced based on paragraph 13 of the Scheme this decision is taken without having regard to quantum which may be assessed before or after a decision to reduce an award. 

 

7. The decision to reduce or withhold an award under Paragraph 13 of the Scheme is solely based on the action/inaction of the Applicant and it is not appropriate to consider the amount of the award the Applicant would otherwise have received.  This is to suggest, for example, that an applicant who has sufficient unspent convictions to justify withholding an award of compensation may not have his entire award withheld as he otherwise would have been entitled to £500,000, whereas the applicant who would have been entitled to £1,000 would have his entire award withheld.”

 

32. I do not consider that the Authority’s approach is appropriate in all cases.  Different considerations apply to different cases within paragraph 13 or even to different cases within each subparagraph of that paragraph.  Withholding £500,000 is wholly different from withholding £1,000 and what may justify withholding a small award may justify only a reduction in a larger one.  The penalty, in terms of the loss of an award, must be proportionate to what the Scheme regards as misconduct, having regard to the purpose of paragraph 13.

 

33. I accept that there are some cases which are really all-or-nothing cases.  This may be true of cases with paragraph 13(e) and also cases under paragraph 13(a), (b) or (c) where there has been obstruction of, or non-co-operation with, the police or the Authority, deliberately designed to frustrate any adequate investigation of an incident, or cases under paragraph 13(d) where the claimant has a history of involvement with serious crime.

 

34. There are other cases, particularly those arising under paragraph 13(d) where misconduct of the claimant has placed the claimant at a greater risk of being a victim of crime or even directly contributed to the particular injury in question where, although the conduct is not sufficiently serious to justify withholding an award, it is justifiable to reduce at least larger awards by a fixed proportion, irrespective of the precise size of the award, by analogy with the approach take by the courts to contributory negligence.

 

35. But there is nothing in the Scheme to suggest that a reduction of an award must always be expressed as a percentage of an award and must, in given circumstances, be the same percentage whatever the size of the award.  There is no reason why, in some cases, the reduction should not be expressed as a sum of money or even, if the First-tier Tribunal is not sure of the amount of the award that would otherwise be made, as “£x or y per cent, whichever is the greater”.  Nor is there any reason in principle why misconduct should not be regarded as sufficiently serious to justify the withholding of a small award but to justify a mere reduction in a large award.  If a £13,500 award would be reduced to £6,750, why should a £4,400 award not be withheld altogether?  Equally, and more pertinently, why should a view that a £4,400 award should be withheld altogether necessarily lead to the conclusion that a £13,500 award should also be withheld rather than merely being reduced?

 

36. This seems to me to be particularly relevant in cases under paragraph 13(d) where a claimant has committed minor offences that are not related to the incident that has caused his or her injury.  Indeed, it might also be appropriate where behaviour has been a contributory factor in relation to minor injuries, since minor contributions to events might be thought to justify the complete withholding of small awards.  In any event, regard should have been had to the size of a potential award in present case, which arises under paragraph 13(a) but in which, if the claimant’s evidence is accepted but it is considered that the failure to report the incident immediately was nonetheless a significant failing, the failing might be attributed to misjudgement rather than a lack of civic responsibility.

 

37. I accept that the Authority should not be required unnecessarily to consider quantum, but it should consider the size of a potential award where that may be relevant to the question whether it should be withheld.  I do not consider that this should be an undue burden on the Authority.  In the first instance, the size of the likely award need be ascertained only with sufficient precision to enable it properly to be decided whether or not it should be withheld in its entirely.  A decision to withhold an award can be made in the light of a “ballpark” figure.  There are, as I have said, cases where the Authority may properly consider that an award should be withheld whatever the amount.  There are many other cases, particularly where there is no claim in respect of lost earning capacity, where it is obvious that the claimed injury will result in an award that will be below a level at which the Authority can properly decide that withholding the whole award will be appropriate, even if a higher award would merely be reduced.  There are other cases, perhaps like the present case, where it may be unclear initially what tariff award would be appropriate but where the answer is likely to become much clearer as soon as any medical evidence is obtained, even if some further enquiries would be necessary to enable the precise figure to be determined.  It may well be that the Authority quite reasonably made its initial decision in this case without obtaining any further evidence but, following the application for review, it could have obtained medical evidence at the same time as it sought further information from the police.  There was, after all, a year’s delay at that stage and doing these things sequentially as seems now generally to be done, may be less efficient than doing them at the same time, which would involve a claims officer having to look at, and digest the contents of, the claimant’s file less often.

 

38. As regards paragraph 6 of the Authority’s response, if the Authority considers that a reduced award is appropriate, I would suggest that it should generally determine quantum before issuing the paragraph 13 decision.  This is not because a precise figure is necessary for determining the paragraph 13 issue but because quantum will need to be determined at some stage if an award is not completely withheld, the claimant will be able to see the practical effect of the paragraph 13 decision and, if there is any challenge, the First-tier Tribunal will be able to deal with all issues at once.  However, that is not a matter that arises upon this application and I express no concluded view on the point.

 

39. For the reasons I have given, I am satisfied that the decision of the Panel given on 9 October 2008 was erroneous in point of law and should be quashed.  I do not take the view that there is only one decision that could properly be given.  I neither agree with the Principal Judge that the Panel sitting on 9 October 2008 reached the only conclusion open to it nor do I consider that the Panel was precluded from reaching that conclusion.  There were also other conclusions it could properly have reached, including not making any reduction at all.  According I am not entitled to substitute my own decision (see section 17(2)(c) of the 2007 Act) and must remit the case to the First-tier Tribunal (Social Entitlement Chamber) to be decided in accordance with my reasoning.

 

40. The Authority should also reconsider its position on the claimant’s claim in the light of my decision and make a submission to the First-tier Tribunal as to the amount of the award that would be appropriate in this case if there were no reduction, obtaining such medical evidence as it considers necessary to do so.  However, I leave precise case management directions to the First-tier Tribunal.

 

 

Mark Rowland

17 July 2012