IN THE UPPER TRIBUNAL             Upper Tribunal Reference No.  JR/3501/2012   

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

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 dismiss an appeal against the decision of the Criminal Injuries Compensation Authority (“the Authority”) not to make an award.

2. I refer the matter to the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision by a panel that does not include any judge or member who has considered this matter hitherto. I direct that the panel hold an oral hearing of this appeal.

REASONS FOR DECISION

1     The issue was whether the First-tier Tribunal (‘F-tT’) was made an error of law by  refusing to extend time to admit the applicant’s late claim for compensation in respect of injuries inflicted during a criminal assault which took place on 16 June 2009.  The application for criminal injuries compensation was made under the Criminal Injuries Compensation Scheme 2008 on 4 January 2012.  Unless an extension is granted, the time limit for lodging a claim is two years from the date of the incident, so this application was made some 7 months after time expired.   

2     It is not in dispute that the applicant knew of the existence of the Criminal Injuries Compensation Scheme and knew that there were time limits for claiming from his past experience. Indeed, a previous claim of his had been admitted late, although perhaps under an earlier Scheme. 

3     It is also plain that at all times until he made his application for judicial review to the Upper Tribunal, the applicant’s reasons for the late claim were that (i) ‘I was waiting for my previous CICA case to progress and didn’t want things to get confused/complicated’ (original application form, A1 p2, 4/1/12); (ii) ‘I was advised to let this case [i.e. his previous case] be completed before looking into this one.  In actual fact I was only recently aware that I was even allowed to make another claim while another is pending’ and ‘… Again I was advised to clear these matters before advancing to CICA’ (review request, A4, paras 3 and 4); (iii) CICA had not taken into account his health problems sufficiently (Notice of Appeal to the F-tT, A8, 3/7/12).  He did not assert that the advice came from CICA.

4     The time limits for making a claim for criminal injuries compensation are in paragraph 18 of the Scheme.  It gives a CICA officer or the Tribunal standing in its shoes the discretion to admit a late application for compensation if the conditions in sub-paragraphs (a) and (b) are met: 

18  The officer may waive this time limit only where

(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 an application within the two year period.

Only paragraph 18(b) is in issue in this application. 

5     The burden is on the applicant to make out his case, including a case for the extension of a time limit:  paragraph 19(1)(a).

6     The F-tT found that (b) was not satisfied, so it was unnecessary for it to make a decision on (a).  It decided that the applicant’s health problems would not have prevented him for making a claim in time and supported this by his evidence of pursuing a complaint to the IPCC at the material time.  It rejected the applicant’s vague explanation that he ‘had a number of priorities that needed to be addressed before he could even begin to think about compensation’ as unsatisfactory.  The First-tier Tribunal’s reasoning in relation to these matters is sufficient. 

7     The F-tT then turned to the advice the applicant was said to have received.  There is no doubt that, if the advice was given, it was wrong. 

8     The F-tT dealt with this aspect of the appeal on the basis of (i) the applicant’s ignorance of the details of the Scheme and (ii) his reliance on bad advice.    The F-tT said in paragraph 15(c):

‘…However, he does not state from where he received that advice and he certainly does not maintain that it came from CICA or from the Tribunal.  He does not explain any basis for the advice that he allegedly received.  In my opinion, the appellant’s apparent ignorance of the terms of the Scheme in relation to the submission of his appeal and the fact that he may have been given erroneous advice from an unnamed source is not something that he can pray in aid.’

7.    The question was not, however, whether he could pray in aid the bad advice or lack of knowledge of the terms of the Scheme, but whether in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two year period.  

8.     In Hutton & Others v First-tier Tribunal & CICA [2012] EWCA Civ 806 the Court of Appeal made clear that the use of the phrase “particular circumstances” (in that case in the 2001 scheme) did not refer to any notion of exceptionality but was a reference to the specific facts of the specific case.  In JR/1749/2012 at [7], Judge Levenson commented that paragraph 18(b) must be applied to the asserted facts on which the judgment on reasonableness is to be based.  

9.    The applicant’s knowledge and state of mind are factual matters which must be determined and taken into account in deciding whether the circumstances make it reasonable not to expect a timely claim.

10. Insofar as the F-tT refused to accept the appellant’s ignorance of the terms of the Scheme as being in any way relevant, it appears to have relied on the criminal law principle that ‘ignorance of the law is no defence’.  This is not the case in civil litigation, where the effect of ignorance (either or law or fact) varies with the context. 

11. In JR/1749/2012 [26], Judge Levenson held

26. ‘The Authority (and effectively the First-tier Tribunal in its decision) argued that ignorance of the scheme was no reason for extending the limitation period but there is no specific authority in relation to the relevance of ignorance of the existence of a criminal injuries scheme to the delay in making a claim. As I also said in TG v First-tier Tribunal and CICA at paragraph 26:

“26. I acknowledge the desirability of finality but that must give way to the interests of justice, and the scheme specifically provides for an extension of the time for making a claim if in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made a claim within the two-year period. The concept of “the particular circumstances of the case” must include circumstances relating to the state of the claimant’s knowledge. It is a question of what is reasonable, not as matter of some abstract legal principle but in the very particular circumstances of the particular case”.

            27. I refer also to the comments by Upper Tribunal Judge S.M.Lane in SC v First-tier Tribunal and CICA JR 1145 2011 at paragraphs 41 to 46.

12. Extension of the time limit in paragraph 18(b) must be decided in the context of reasonableness.  In this, the Criminal Injuries Compensation Scheme has affinities with the field of social security where Social Security and Child Support Commissioners (now the Upper Tribunal) have consistently held that, where a legislative provision required the claimant to show good cause for a late claim, ignorance of law may provide good cause for delay if the ignorance was itself reasonable:  R(P)1/79, R(SB)6/83, and R(S)2/63. 

13. The F-tT in this appeal simply excluded from consideration circumstances which the applicant put forward to show why it was reasonable to extend time in his favour.  This was wrong. 

14. The F-tT needed to find facts on what the applicant knew or believed, and whether this made it reasonable for him not to claim in time.  He might have formed the belief that he should wait until he had sorted out his previous criminal injuries compensation claim before embarking on another independently of any advice, or because of bad advice from a friend, solicitor, advice organisation or CICA.  A Tribunal might have considered that a spontaneously formed belief or the bad advice of a friend did not, taken with other circumstances, make his delay reasonable.  It might have considered, on the other hand, that if the advice had come from a more reliable source, such as a solicitor, advice organisation or from CICA itself, that the delay was not unreasonable.  The Tribunal which rehears this matter will see from CICA’s submission to the Upper Tribunal that it considers it unlikely that the applicant would have been given this advice by one of its employees.  That will be a matter the next Tribunal has to consider. 

15. The following series of questions may assist the Tribunal, but are by no means meant to be binding:  

(i)     did the applicant get his advice from (a) CICA, (b) from a third party or (c) did he come to the wrong conclusion spontaneously.

(ii)    If he got the advice from CICA that it was best to wait until his previous claim was finalised, was it reasonable for him to delay to this extent?

(iii)  If he got the advice from a third party, was it reasonable for him to rely on that advice without checking it with CICA, having regard to the fact that he was an experienced claimant (albeit possibly under the previous scheme)? 

(iv)  Even if he decided off his own bat, without advice from anyone, that it would be better not to complicate matters by lodging another claim, could that reasonably justify the delay? 

The other factors the applicant raised would, of course, also go into the melting pot.

16.  I can only substitute my own decision for that of the quashed decision where without the relevant error(s) of law “there would have been only one decision that the … tribunal could have reached” (Tribunals, Courts and Enforcement Act 2007 section 17(1)(b) and 17(2)(c)). In the present case it is possible that even after holding an oral hearing and taking account of all of the evidence and understanding it all correctly, the First-tier Tribunal could properly conclude that, in the particular circumstances of the case, it would have been reasonable to expect the applicant to have made an application within the two-year period.  The matter is accordingly remitted to a fresh First-tier Tribunal. 

[Signed on original]                                                         S M Lane

                                                                                               Judge of the Upper Tribunal

[Date]                                                                                   11 December 2013