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 (FTT) (Social Entitlement Chamber) dated 12 July 2011 (which in turn followed the FTT hearing in Leeds on 26 May 2011).

 

The Upper Tribunal’s order is:

 

(i)               to quash the decision of the First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) dated 12 July 2011; and

 

(ii)             to remit the applicant’s appeal against the Criminal Injuries Compensation Authority’s review decision (dated 18 November 2009) to a differently constituted First-tier Tribunal for reconsideration in accordance with  the directions in paragraph 26 below (Tribunals, Courts and Enforcement Act 2007, sections 15(1)(a) and 17(1)(a)).

 

 

REASONS FOR DECISION

 

The background to this application for judicial review

 

1. The applicant made a claim to the Criminal Injuries Compensation Authority (CICA) on 16 November 2007 for mental trauma.  Her application was therefore under the Criminal Injuries Compensation Scheme 2001.  She stated that she had been the victim of abuse by her then partner (and some time husband) during the course of their relationship between 1988 and the date of claim.  She also referred to a specific incident in the kitchen of their home on or around 20 February 2006.

 

2. On 18 September 2009 CICA refused to make an award.  CICA decided that there was no evidence that the applicant had reported any previous acts of violence.  CICA also decided, as regards the incident on 20 February 2006, that the applicant had slapped her partner first, provoking him, and that no award was appropriate by virtue of paragraph 13(d) of the Scheme.  On 20 October 2009 the applicant applied for a reconsideration of that decision.

 

3. On 18 November 2009 CICA issued their reconsideration decision, again refusing an award on the basis of paragraph 13(d) of the Scheme.  CICA note that there were conflicting accounts of the February 2006 incident and they could not be satisfied that the applicant’s own conduct was not a contributory factor. On 8 February 2010 the applicant appealed to the First-tier Tribunal (FTT). 

 

4. There is, of course, much more that could be said about the background to this application.  However, given that both the applicant and CICA agree that the FTT’s decision cannot stand, I need not say more at this stage.

 

The First-tier Tribunal’s decision

 

5. The First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) considered the appeal at a hearing in Leeds on 26 May 2011.  The applicant attended.  The First-tier Tribunal’s decision, announced on the day, was to dismiss the appeal on the basis that the applicant was not entitled to an award under the Scheme by virtue of paragraphs 6 and 8.  The FTT subsequently issued a full reasoned decision on 12 July 2011.

6. The reasons for the FTT’s decision, in short, were that it was not satisfied that there had been a crime of violence nor that the applicant had been the victim of such a crime.  In reaching that decision, the FTT concluded that the applicant was not a credible witness.  Rather, the tribunal stated at the outset of its reasons that it was satisfied that her evidence was “contradictory and embellished in an effort to enhance her compensation claim” ([43]).

 

7. The applicant then applied to the Upper Tribunal for permission to apply for judicial review of the FTT’s decision, 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 gave her permission to apply on consideration of the papers.

 

The proceedings before the Upper Tribunal

 

8. The applicant has set out extensive reasons as to why she disagrees with the FTT’s decision.  I hope that she will understand that for the purpose of the present proceedings I do not need to deal with each and every one of her points, not least as there will need to be a re-hearing before a new FTT.  Disputes over the facts are most appropriately resolved there.

 

9. When giving permission to apply for judicial review, I pointed out that the applicant faced an immediate difficulty in that she was seeking to challenge the FTT’s credibility findings. As I stated in that grant of permission, “Insofar as the grounds set out in the application amount to no more than a disagreement with the facts as found by the FTT, it may be difficult to see how the FTT’s decision can be challenged by way of judicial review.  I also bear in mind that issues of credibility are fundamentally matters of fact for the FTT to determine.  I cannot interfere with that judgement by way of judicial review unless the FTT misdirected itself in law in some way.  It is not the task of the Upper Tribunal to tell the FTT how to weigh and evaluate the evidence or whom to believe. Credibility is, of course, a classic ‘jury question’ for the FTT.  In the present case the FTT accepted that the applicant had had a difficult marriage but made a fundamental adverse credibility finding as regards the applicant (see paragraph [43] of the FTT decision).”

 

10. However, I then went on to note that “credibility findings have to be based on sound factual conclusions drawn from the evidence before the tribunal. There also have to be adequate reasons given by the FTT.”  I suggested that there were three respects in particular in which it might be argued that the FTT may have erred.

 

11. Since permission to apply was given, there have been several submissions on the issue raised.  CICA’s original position (submission dated 7 October 2011) was that, on the evidence before it, the FTT was entitled in its decision (at [42]) to make the findings of fact that it did, principally that there had been no crime of violence and the applicant was not a victim of any such crime. At the same time, however, CICA accepted that some of the points made in the grant of permission about aspects of the FTT’s reasoning were well-founded.

 

12. In a subsequent submission (dated 24 January 2012), CICA’s position has shifted somewhat.  CICA now accepts that there were indeed three respects in which the FTT erred, and that the most appropriate way forward is for the applicant to have the benefit of a fresh hearing before a new FTT.

 

13. It follows that this application for judicial review is, in effect, being allowed by consent.  However, for the benefit of both the previous FTT and the new FTT I should explain in a little more detail why I am quashing the FTT’s decision. It must also be borne in mind that the FTT had correctly identified that there was a clear conflict of evidence as between that provided by the applicant and that available from her ex-partner (and alleged assailant or “Y”) (see [45]).  In those circumstances the FTT understandably said they needed to consider any independent and corroborative evidence.  The three issues identified in the grant of permission, which all go the question of credibility, need to be seen in that context.

 

Issue 1: Y’s complaint to the police and the reprimand

14. The first point was that the FTT had made an express finding that the applicant had been spoken to (and in effect warned) by the police, following a complaint by her estranged husband, for making false allegations about him (see para [31]).  The FTT also found as a specific fact that the applicant had passed false information to the police, designed to damage’s Y’s reputation and employment prospects (as a taxi driver) (see [52]), despite her denial to the panel that she had done so (see [32]).  In doing so the FTT relied heavily on the police letter to Y, dated 5 July 2006, regarding his complaint to the force, and took it as supporting such a finding (T106).  The FTT recorded that (i) the police had apologised to Y and that (ii) “the appellant had been spoken to ‘regarding the implications of making such disclosures and of the distress caused’” ([31]). 

 

15. Point (i) in the previous paragraph was undoubtedly the case.  Y had certainly received a letter of apology from the police.  But point (ii) was based on a fundamental misunderstanding.  As I observed when giving permission to apply for judicial review, “if the officer concerned was female, it must be the case that the alleged statements were made by the officer, not the applicant, and indeed the gist of the letter [dated 5 July 2006] is that the officer, not the applicant, was reprimanded.  If that is right, then arguably the adverse credibility finding is undermined.”  There is now no dispute that the person referred to in the letter, and advised about her conduct, was indeed not the applicant at all but rather a female police officer.

 

16. The FTT’s misunderstanding of this crucial point is unfortunate, not least as the applicant’s evidence to the panel about the letter (T106) was as follows (at doc 55 of the Upper Tribunal file, in the tribunal judge’s (admirably clear) notes of the hearing; and see also to the same effect doc 62):

 

“A police officer disclosed too much + she was told. I did say that bec[ause] I was told by that constable. It was not false.  I only s[ai]d what I was told by a police officer.  It was a lady police officer. They had to tell the police officer off.”

 

Issue 2: the proceedings in York County Court

17. There have been various proceedings in the civil courts between the applicant and Y relating to contact and to financial matters.  Some of these proceedings were referred to in the papers before the FTT.  In particular, the tribunal bundle included a Schedule from proceedings under the Children Act 1989 in July 2006 in York County Court (A36).  This document alleged that, amongst other matters, on 20 February 2006 Y had “slapped [the applicant], pinned her to the floor, pushed her face against the floor, twisted her arm behind her back and pulled her hair”. The rear of the Schedule is signed “Facts found in accordance with this Schedule”, although the signature that follows is unclear.  Presumably it was a note by counsel, recording what the judge had said at the hearing.

 

18. As I observed when giving permission to apply for judicial review, the full pleadings from the York County Court matter were not before the FTT. It is not clear whether those findings were made following a contested application or effectively on an ex parte basis. I also accept, of course, that those findings of fact, if they were so made, do not in any way bind the FTT in the present appeal.  However, I think it was incumbent on the FTT in this case at least to have explained why it appeared to have reached a different conclusion to that of the county court, both on the facts of this critical incident and as to the nature of the relationship generally.

 

 

Issue 3: the children’s applications to CICA

19. In her original application to CICA for compensation, the applicant had stated that before the February 2006 incident “the boys and myself had been consistently verbally, physically, emotionally and financially abused” (see [18]). The FTT also noted the applicant’s evidence that Y would threaten and hit the children including threatening to cut their tongue with a knife (at [20], a finding also made in more graphic terms in the county court proceedings).  The FTT then recorded a police officer’s written report to the effect that Y was a loving but strict father “often threatening to chastise them but ‘never excessive’ and never carrying out the threat” (at [27], referring to T59-T60). 

 

20. In her application to the Upper Tribunal for permission to apply for judicial review, the applicant stated that “CICA have already accepted that my ex-husband is a violent man as my 3 boys have previously been awarded compensation”.  The FTT made no mention of this fact in their decision.

 

21. In response to an earlier direction on this matter, CICA has helpfully provided details of the compensation awards made to the three sons. It transpires that the applicant made claims for compensation on behalf of the three boys in December 2007, referring to physical abuse that they had suffered between 2003 and 2006.  Each boy was awarded £1,000 for level 1 physical abuse of a child, namely isolated or intermittent assaults resulting in weals, hair pulled from scalp etc.  The applicant accepted the award on behalf of her oldest son on 9 July 2009 and the two awards for the younger boys on 28 April 2010.

 

22. It follows that these claims had been settled at least a year before the FTT hearing.  The applicant says that she told the panel about the awards, although I can see no clear indication to that effect in the notes of evidence.  There is, however, a reference to her saying to the panel “sorry it [an allegation of rape that she had made against Y] is not here [in the bundle for her appeal] but in statement in boys’ case” (doc 53).  Be that as it may, there was certainly an express reference to the award to the oldest son in the applicant’s notice of appeal in the bundle  for her case at A21.  In addition, the applicant has provided a copy of the “Notes for hearing” that she prepared for the FTT and which she gave to the CICA presenting officer on the day of the hearing.  She itemises in that document 11 matters relating to the evidence in the case, the first of which was “You [CICA] have accepted that my ex-husband is violent because you have awarded the boys compensation after looking at the police reports” (doc 79). It seems to me at the very least arguable that the presenting officer should have drawn that fact to the panel’s attention.

 

23. I accept, of course, that the evidence on which those awards were based is not before me. They may have been made on the basis of different and separately recorded incidents unrelated to the February 2006 episode.  However, if there was, as here, a clear contradiction between the applicant’s evidence and that of Y, then the fact that other awards had been made by CICA in respect of his conduct in a family situation were at least highly relevant as regards his credibility.  Yet the FTT, as indicated, made no reference to the awards to the boys.

 

24. There is a further reason why the failure to take into account CICA’s awards to the boys is significant.  In her application to the Upper Tribunal, the applicant included copies of a detailed record, in the form of an official diary, kept by her social worker from the child protection team.  The social worker reported in the diary that the boys told him on 1 March 2006 that “dad had threatened to cut out their tongues and how he had hit them on the back with a slipper”.  This important and broadly contemporaneous account was apparently on the boys’ CICA files but did not appear in the bundle before the FTT, depriving it of important evidence.

 

 

 

The Upper Tribunal’s decision and what happens next

 

25. It is not my function on a judicial review application to rehear the claim for compensation on its merits.  Questions of fact and credibility are for the FTT to decide.  However, I am satisfied that the FTT’s decision in this case is flawed for the three reasons given above. I can sum them up as follows.  As to the first reason, the FTT completely misunderstood the outcome of Y’s complaint to the police.  It was not the applicant who had been reprimanded, but a police officer.  As a result of that misunderstanding, the FTT arrived at a finding of fact for which there was simply no evidence and took into account an immaterial consideration.  As regards the second and third matters, the FTT failed to address important aspects of the evidence (the county court findings and the CICA awards to the three boys) which were highly relevant to the question of whether it was the applicant or Y who was the more credible witness as to the truth, and as to whether or not the applicant had “embellished” her account of mistreatment at the hands of Y.  In doing so the FTT failed to take into account material considerations.

 

26. I therefore grant the application for judicial review.  The decision of the First-tier Tribunal (Social Entitlement Chamber) dated 12 July 2011 following the hearing in Leeds on 26 May 20111 must be quashed.  In the circumstances, the applicant’s appeal against the CICA review decision of 18 November 2009 must be remitted to the First-tier Tribunal for rehearing.

 

27. No judge or member of the panel which first heard this appeal on 26 May 2011 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.  The FTT Tribunal Judge may wish to make directions so as to ensure that any evidence which is material to the applicant’s case, but which is only held on the case files for her sons, is made available to the new FTT (see e.g. paragraph 23 above). I emphasise, however, that the evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal.

 

28. The applicant must therefore understand that the fact that she has been successful in this application for judicial review before the Upper Tribunal does not carry any implication that she will necessarily also be successful before the new FTT.  The decision on the facts in this case is still open.

 

29. Given the undoubted difficulties that the applicant has faced, I am sure it would be of assistance to the applicant if she were able to get some advice and assistance in presenting her case to the new FTT.  I can see from the file that she has received invaluable support from Independent Domestic Abuse Services (formerly York Women’s Aid).  A number of university law schools now offer pro bono representation services, and in the absence of any legal aid the applicant may wish to explore that possibility too.

 

Conclusion

 

30. 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 05 March 2012 Judge of the Upper Tribunal