Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/418/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  I dismiss this application for judicial review.

 

 

REASONS FOR DECISION

 

1. This is an application for judicial review of a decision of the First-tier Tribunal dated 25 October 2010, whereby it dismissed the Applicant’s appeal against a decision of the Criminal Injuries Compensation Authority not to waive the time limit for applying for compensation.  It is brought with my permission.  The Respondent tribunal has not taken any part in the proceedings.  Neither the Applicant nor the Authority, as the interested party, has requested a hearing.

 

2. Paragraphs 18 and 19(1)(a) of the Criminal Injuries Compensation Scheme 2008 provide –

 

“18. 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 the application within the two-year period.

 

“19(1) It will be for the applicant to make out his or her case including, where appropriate:

(a)  making out the case for a waiver of the time limit in paragraph 18; …”

 

3. On 22 February 2010, the Authority received a claim for compensation in respect of injuries suffered by the Applicant as a result of an assault on 29 August 2006.  In the space provided for an explanation for delay, the claimant said that a victim liaison officer had visited him at home on a few occasions and explained that she would “carry out all the necessary papers regarding compensation”.  On 5 March 2010, the Authority refused to waive the time limit for making claims.

 

4. On 10 June, 2010, the Authority received an application for review, submitted on the Applicant’s behalf by solicitors.  It was a few days late, but the Authority considered the application.  It presumably accepted the point made on the Applicant’s behalf that the delay had been caused by solicitors who had previously been asked to take on the Applicant’s case in March but had declined at the last minute on 2 June 2010.  The Applicant’s new solicitors provided a statement from the Applicant in which he stated that he had sustained multiple injuries in the assault, which had left him permanently disabled, and that his assailant had been sentenced to three years’ imprisonment.  (Information subsequently obtained shows that the sentence was actually three and a half years’ imprisonment.)  He also referred to the delay in making the claim, saying –

 

“3. Being an elderly disabled man with very poor English, I have been unable to deal with my affairs as promptly as an ordinary person.  This is the reason why I was unable to submit my application on time.  My victim liaison officer who was assisting me at the time had advised me that she was dealing with my claim and I had nothing to worry about.  I thought I had done everything in my power to ensure that the application would be submitted on time.  My victim liaison officer has left the country and it was after her departure that I found out that she hadn’t fulfilled her promise.”

 

5. On 24 June 2010, the Authority reviewed its earlier decision but did not alter it, on the ground that –

 

“… the onus is on an applicant to ensure that their claim is lodged.  Whether a Victims’ Liaison Officer offered to assist is irrelevant – the fact remains that it was the applicant’s responsibility to ensure it had been registered and was progressing.”

 

6. The Applicant appealed.  His solicitors submitted a further statement from the him, making three points on the question of delay.  First, it was submitted that it was practicable to make an award since the Applicant’s assailant had been arrested and convicted.  Secondly, it was said that CICA had regarded the Applicant as a healthy person and had failed to make reasonable adjustments as required by the Disability Discrimination Act 2005.  Thirdly, it was submitted that –

 

“CICA should have taken into account the fact that I was forced to rely on another person as a direct result of the incident.  The question they should have considered is whether it was reasonable for someone in my position to rely on a promise of a professional person who promised to lodge my application; and also whether having relied on that promise it was unreasonable for me not to lodge another application until I discovered the failure on part of that professional to fulfil his promise.”

 

7. The First-tier Tribunal decided that it was appropriate to make a decision without a hearing.  It accepted that it was practicable for the application to be considered for the purposes of paragraph 18(a) of the Scheme.  However, it considered that “it would have been reasonable to expect the Applicant to have made the application within the two year period” because –

 

“(a) the Appellant was initially relying on a Victim’s Liaison Officer to deal with his claim but he did not check with her that his application had been submitted in time;

(b) the Appellant did not consult a solicitor until March 2010 who informed him on 02.06.10 that it was unable to deal with his claim;

(c) I do not accept the Appellant’s submission that because he was an elderly disabled man with very poor English he was unable to deal with his affairs as promptly as an ordinary healthy person because the Appellant had representatives helping him but did not check with them as to what was happening about his application.  If the appellant’s representatives were negligent the appellant’s remedy is to take action against the representative concerned.

(d) it remained the Appellant’s responsibility to ensure his application was submitted within 2 years of the incident but in this case the application was not submitted until well over 3 years after the incident.”

 

8. The Applicant now applies for judicial review of the First-tier Tribunal’s decision (having first tried to make a new claim which was naturally rejected by the Authority).  With his application he has provided various letters he received following the assault on him, from the Metropolitan Police’s witness care unit, Victim Support Westminster and the National Probation Service’s Victim Liaison Service.  Judicial review proceedings can, of course, only be successful if an error of law is shown in the decision being challenged.  However these letters perhaps give some indication as to what the Applicant might have said had there been a hearing before the First-tier Tribunal.  They also suggest that it would have been more appropriate for the Applicant to expect assistance with making a claim for criminal injuries compensation to be given by Victim Support Westminster rather than the Victim Liaison Officer of the National Probation Service but nothing turns on that in these proceedings.

 

9. In essence, the questions that arise in this case are whether the First-tier Tribunal took too narrow a view of what it might have been “reasonable” to expect the Applicant to do and whether, in consequence, it was necessary for the First-tier Tribunal to hold a hearing for the purpose of investigating the facts in more detail.  When I granted permission to appeal, I drew attention to Marks and Spencer plc v Williams-Ryan [2005] EWCA Civ 470; [2005] ICR 1293).

 

10. The Authority opposes the application.  Its representative rightly submits that Williams-Ryan can be distinguished on its facts.  The legislation in issue in that case was also in different terms.  However, the decision, which has itself been further considered in Royal Bank of Scotland plc v Bevan UKEAT/440/07; [2008] ICR 682, contains a useful analysis of the authorities relating to late applications made to employment tribunals and I see no reason why the approach taken in that context should be very different from the approach to be taken in the present context.

 

11. What emerges from those cases is a recognition that the language used in time limits may not always be apt to cover all circumstances (see, in particular, Palmer v Southend-on-Sea Borough Council [1984] ICR 372, at 377E and 384H) and that the cases are very fact-sensitive (Palmer at 385B, cited in Williams-Ryan at [43]) so that it is dangerous to assume that the approach taken in one case necessarily provides the answer in another.

 

12. As to the language in the present context, the words “as soon as possible” in the opening part of paragraph 18 seem to be a mere exhortation where the application is submitted within the two-year time limit.  However, they become important if the two-year time limit is waived.  Sub-paragraph (b), which is concerned with waiver of the two-year time limit, on the face of it provides for a simple test of reasonableness which is a bit more liberal that the employment tribunal test which is whether “it was not reasonably practicable” for the complaint to be submitted before the time limit expired (see Palmer at 384H).  However, even here a non-literal approach may be required in some instances.  Suppose a person intended to put a claim in a few days before the time limit expired but, a week earlier, either was hospitalised by a serious car accident or gave the form to a friend to post who then forgot about it, so that it then became reasonable for the would-be applicant to do nothing further until shortly after the time limit expired.  In one sense, it would “have been reasonable to expect the applicant to have made the application within the two-year period” because it would have ceased to be so only during the last week or two.  Nonetheless, I do not think that the 2008 Scheme is to be construed so as to prevent waiver in those sorts of circumstances.  It seems to me that paragraph 18(b) is not very different in its effect from paragraph 17 of the 2001 Scheme which provided that a claims officer could waive the two-year time limit “where he considers that, by reason of the particular circumstances of the case, it is reasonable and in the interests of justice to do so”.  What is new is paragraph 18(a), which emphasises one element of the “interests of justice”.

 

13. In any event, if there is waiver of the two-year period, presumably it is not to be considered “possible” to make the claim for such further period during which it would not have been reasonable to expect the Applicant to make the application.  However, an application must be made “as soon as possible” thereafter.  It cannot be right that a person who could not be expected to submit an application within two years has an unlimited time thereafter in which to do so.

 

14. Thus three questions arise where a claim is made after the two-year period, rather than just the one that arose under the 2001 Scheme.  The first is whether it is practicable to consider the application.  The second is whether the two-year time limit should be waived.  The third, which arises only if the answer to each of the others is “yes”, is whether the application has been submitted as soon as possible after the end of the two-year period.  However, even though the third question arises only if the answer to the other two is “yes”, if the answer to the third question would plainly be “no”, it is not necessary to reach a firm conclusion on either of the other questions.

 

15. In order to decide whether or not the First-tier Tribunal erred in the present case, it is necessary to look carefully at its reasons.

 

16. The first is that “the Appellant was initially relying on a Victim’s Liaison Officer to deal with his claim but he did not check with her that his application had been submitted in time”.  The important point to note is that the First-tier Tribunal, rightly in my view, took the view that relying on a victim liaison officer might have been reasonable initially.  The approach taken by the Authority in its review decision seems to me to have been too strict.  Although, as the First-tier Tribunal put it, it was the Applicant who was responsible for making sure his application was submitted within time, it may be reasonable to discharge such a responsibility by relying on another, at least for a while. 

 

17. In Williams-Ryan, Lord Phillips MR said at [32]–

 

“There is no binding authority which extends the principle of Dedman to a situation where advice is given by a CAB.  I would hesitate to say that an employee can never pray in aid the fact that he was misled by advice from someone at a CAB.  It seems to me that this may well depend on who it was who gave the advice and in what circumstances.  Certainly, the mere fact of seeking advice from a CAB cannot, as a matter of law, rule out the possibility of demonstrating that it was not reasonably practicable to make a timely application to an employment tribunal.”

 

18. Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, to which Lord Phillips MR was referring, was a case where a man was being advised by solicitors who made a mistake as to the time limit and it was held that it had been practicable for him to get his complaint in on time and his remedy lay against his solicitors.  It seems to me to be important to bear in mind that this was a case which not only involved solicitors but, perhaps more importantly, where on the claimed facts, the applicant had an unanswerable case against them.  What Williams-Ryan makes clear is that the fact that advice has been sought from someone is not necessarily irrelevant.  For instance, an advisor can contribute to a reasonable misunderstanding on the applicant’s part without necessarily being negligent.  That a reasonable misunderstanding may be sufficient to justify a late claim is clear from Wall’s Meat Co Ltd v Khan [1979] ICR 52, where an applicant’s belief that a reference or appeal to a National Insurance local tribunal against a disqualification from unemployment benefit was the same as an application to an industrial tribunal was held to have made it not practicable for him to make an application to an industrial tribunal.  Even where there might be a claim against a skilled advisor, I would suggest that, in a public law context, public policy may favour a slightly more liberal approach to late claims from a public authority rather than an encouragement of satellite litigation in the courts against other public, or publicly-funded, bodies.

 

19. However, it is clear that First-tier Tribunal considered that, even if the Applicant had initially reasonably relied on what the Victim’s Liaison Officer had done or promised to do, he had not acted reasonably when he failed to check that she had submitted the application.  That was not to say that it considered that it was always necessary for a person to look over the shoulder of a representative.  It is clear from its second and fourth reasons that it was the length of time that had elapsed that was important in this case.  What is implicit is that the First-tier Tribunal took the view that the lack of any communication from the victim liaison officer or the Authority over a long period made it reasonable to expect the applicant to check the position.

 

20. In the second of its reasons, the First-tier Tribunal refers to the Applicant not having consulted a solicitor until March 2010.  That seems to me to be irrelevant, because the Applicant only consulted the solicitor after he had submitted his application himself.  The relevant date was February 2010, when the application was submitted, but I do not think that anything turns on that error.  The point, repeated in the First-tier Tribunal’s fourth reason, is that almost a year and a half passed between the two-year time limit expiring and the submission of the application.

 

21. In the third of its reasons, the First-tier Tribunal rejected the Appellant’s submission that because he was an elderly disabled man with very poor English he was unable to deal with his affairs as promptly as an ordinary healthy person.  It did so “because the Appellant had representatives helping him but did not check with them as to what was happening about his application”.  Clearly having a representative would make being elderly, disabled and having poor English of little relevance as far as submitting an application was concerned.  What it is arguable that the First-tier Tribunal did not do, at least expressly, was consider whether being elderly, disabled and having poor English made it more difficult to check on what his apparent representative had done.  However, although that might have been important in another case, the length of time that elapsed in this case is such as to make this an insignificant issue.  The claimant clearly knew he needed assistance and he had time plenty of time to get someone, if only a friend, to help him check what had been done on his behalf.

 

22. The First-tier Tribunal also stated in its third reason that, if the Applicant’s representative was negligent, his remedy was to take action against the representative concerned.  What might in another case have been relevant is whether the Appellant misunderstood what the victim liaison officer was going to do – in which case he might have acted reasonably without having a remedy against the victim liaison officer or her employers – but, of course, had the Applicant checked with her what she had done, such a misunderstanding would have been discovered and the application would have been submitted sooner.

 

23. In my judgment, the First-tier Tribunal was entitled to reach the conclusion it did on the evidence before it and it has recorded adequate reasons for its decision, even if it might have expressed itself better.  It was clear that this was a case where, before the two-year time limit expired, the Applicant knew that there was a criminal injuries compensation scheme and he either knew, or had the means of finding out, that there was a time limit.  If it is accepted in his favour that he reasonably believed that the victim liaison officer would ensure that an application for compensation was submitted on time it may not have been reasonable to expect the Applicant to have made the application within the two-year period or for some time thereafter.  However, the First-tier Tribunal was entitled to take the view that he could reasonably have been expected to discover considerably sooner than he did that no application had in fact been made and that therefore he could reasonably have been expected to make his application before February 2010.  On that basis, the application fell to be rejected either because the claimant could reasonably have been expected to submit it within the two-year period or, alternatively, because it had not been made as soon as possible after the two-year period had ended.  Although the First-tier Tribunal simply said that it would have been reasonable to expect the Applicant to have made his application within the two-year period, it did not make sufficiently detailed findings to justify such a conclusion because, for instance, it made no clear finding as to exactly what the victim liaison officer did or did not do and precisely when.  But its reasoning clearly leads to the conclusion that, if the Applicant was acting reasonably at the end of the two year period, he did not continue to do so for the whole of the period that elapsed thereafter.

 

24. Moreover, I am satisfied that the First-tier Tribunal did not err in not holding a hearing in this case because the circumstances were such that it was not required to make more detailed findings of fact than those mentioned above.  In another case, it might have been important to make detailed findings about what exactly the victim liaison officer had done and promised to do, but here the First-tier Tribunal was entitled to take the view that sufficient facts were known or could be assumed in the Applicant’s favour for the case properly to be determined.

 

25. The Authority relies on paragraph 19(1)(a) of the Scheme but in my judgment a scheme of this sort is no different from a social security scheme in respect of which Baroness Hale of Richmond observed in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372 (also reported as R1/04(SF)) at [62] that –

 

“The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met.  The claimant is the one who generally speaking can and must supply that information.”

 

26. In the first instance, the Authority, through its claims officer, is an adjudicator rather than an opposing party.  Paragraph 19 makes explicit that it is the applicant who must provide the information to support his case but it does not relieve the Authority of the responsibility of asking the right questions and thereby properly investigating the case.  If the Authority fails to do that, the First-tier Tribunal must do so.  But, in the present case, the First-tier Tribunal was entitled to take the view that the Applicant had been given an adequate opportunity to provide the relevant information in sufficient detail for the purposes of the case and, indeed, had done so.

 

27. I have some sympathy for the Applicant.  He was clearly a victim of a crime in which he was severely injured and he could have expected compensation under the Scheme.  However, the Scheme contains a time limit which cannot be ignored.  There was simply too long a period during which, even if his account is accepted, the Applicant ought to have realised that an application might not have been submitted and during which he did nothing, or nothing effective, to check what the position was.  If an employee of the National Probation Service did negligently mislead him, he may be able to obtain redress from them, but on any view his own inaction contributed to the delay in making his application and that is the reason that the First-tier Tribunal dismissed his appeal.  It was entitled to do so and I therefore dismiss this application for judicial review.

 

 

 

 

 

Mark Rowland

16 February 2012