Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                        Case No.  JR/1350/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Attendances:

 

The Appellant was represented by Ms Linda Barber.

 

The Respondent neither appeared nor was represented.

 

The Interested Party was represented by Mr Owain Thomas of counsel, instructed by the Treasury Solicitor.

 

 

Decision:  This application for judicial review is successful.  The decision of the First-tier Tribunal dated 25 February 2013 is quashed and the case is remitted to a differently-constituted panel of the First-tier Tribunal so that it may reconsider the matter and reach a decision in accordance with the Upper Tribunal’s rulings on points of law.

 

 

REASONS FOR DECISION

 

1.         This is an application, brought with my permission, for judicial review of a decision of the First-tier Tribunal awarding the claimant £176,425 (before the deduction of £48,000 already paid by way of interim payments) under the Criminal Injuries Compensation Scheme 2001, in respect of injuries, including a head injury, she suffered as the victim of a serious assault on 7 July 2004.  The First-tier Tribunal has, quite properly, not taken any part in these judicial review proceedings.  The application is supported to a limited extent by the Criminal Injuries Compensation Authority, which is the Interested Party in the proceedings.

 

2.         The First-tier Tribunal’s award was slightly lower than that made on review by the Authority.  On review, the Authority had considered the claimant to be entitled to a tariff award of £44,000, an award of £50,843 in respect of past loss of earnings and past care and an award of £86,403 in respect of continuing loss of earning capacity and future care, totalling £181,246.  The First-tier Tribunal made a tariff award of only £23,925, an award of £52,500 in respect of past loss of earnings and care, an award of £95,000 in respect of continuing loss of earning capacity and pension and an award of £5,000 in respect of aids and applainces, but it made no award in respect of future care.  All elements of the total award of £176,425 are now challenged.

 

Representation

 

3.         Ms Barber, who represented the claimant before me, has also made a more general complaint that the First-tier Tribunal did not let her speak even though she was appearing as the claimant’s representative before the First-tier Tribunal.   Looking at the First-tier Tribunal’s file and the panel’s records of proceedings, it seems likely that the First-tier Tribunal did not treat her as a representative because it was unaware that she was present in that capacity.  The notes of evidence of the judge and two other members of the First-tier Tribunal record that the claimant attended with both Ms Fiona McHugh and Ms Barber.  Ms McHugh is described by each of the members of the panel respectively as a support worker, as a representative and as both a support worker and a representative.  Ms Barber is described as being present merely for moral support or support.  The notes also suggest that the First-tier Tribunal went straight into questioning the claimant as though she were unrepresented.

 

4.         Of course, the First-tier Tribunal is entitled to regulate its own procedure (see rule 5(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) and may often wish to question a claimant directly even if both parties are legally represented.  However, a party is entitled to appoint a representative, who need not be legally qualified and, even if that is not done before the hearing, a person accompanying a party to a hearing may act as the party’s representative with the permission of the First-tier Tribunal (see rule 11).  Where a person has a representative, the First-tier Tribunal ought to allow the representative to act as such. 

 

5.         In this case, it appears that in fact Ms McHugh had been formally appointed as a representative before the hearing and had been making written representations on the claimant’s behalf and the First-tier Tribunal was simply not made aware of the fact that it was intended that Ms Barber should represent the claimant at the hearing.  Whether this was partly due to a lack of communication between the claimant and those accompanying her and the clerk, or between the clerk and the panel, I cannot be sure.  However, it seems to me that it must also have been at least partly due to Ms Barber not making her position clear enough to the panel during the hearing, which may be understandable but means that it is difficult to say that there was any breach of the rules of natural justice.

 

6.         Nonetheless, it seems clear from the panel’s notes that the consequence was that Ms Barber was not able to put the claimant’s case in the way she would have wished.  She is not legally qualified and was acting merely as a friend of the claimant, but she is clearly intelligent and articulate and capable of producing coherent and helpful submissions.  She certainly did so before me. 

 

7.         Even where a representative is not legally qualified, it is important that a tribunal should give him or her an opportunity to make submissions as to the award that should be made after it has received evidence and possibly also by way of an opening of the appellant’s case.  It can be helpful to have a short discussion at the beginning of the hearing as to what role those accompanying a claimant will play – a Social Security Commissioner pointed out in CDLA/2462/2003 that a person may be both a representative and a witness – and as to how the hearing should be conducted, so that there is no misunderstanding as to how it is intended that the representative will be enabled to put the claimant’s arguments.  This is particularly important in a case like the present where the claimant’s own intellectual capacity may have been compromised by the injury she received.

 

8.         This question of representation is also related to one of the grounds upon which I granted permission to apply for judicial review.  I said –

 

“In relation to both the tariff award and the award in respect of care, the First-tier Tribunal made decisions less favourable than those of the Interested Party and there may be a question as to whether it acted fairly in doing so.  In particular, did the claimant have an adequate opportunity to deal with new points raised by the First-tier Tribunal but not by her grounds of appeal?”

 

9.         The legal officer to the Authority submitted in her response to the application that the claimant had had proper notice of the hearing and had had all the relevant documents, which is true.  However, where the First-tier Tribunal takes an entirely different approach to a case from that advanced by either party either before or at a hearing, it may be necessary for the First-tier Tribunal to give the parties, and particularly the party treated less favourably by that approach, an opportunity to comment on it. 

 

The statement of reasons

 

10.       The standard decision notice used by the First-tier Tribunal includes a statement on the front to the effect that: “A summary of the reasons for this decision was given orally at the hearing today and in writing on the back of this form.”  On the back is a box, headed: “Summary of Reasons for Tribunal’s Decision (N.B. these are NOT the full written reasons)”.  Below the box, are notes, including one to the effect that: “A full written statement of reasons for this decision will be issued on application …  A full written statement will be required by any party making application for permission to bring judicial review proceedings.”

 

11.       In the present case, the box on the back of the form was left blank but, with the form, there was issued an unheaded typed statement of reasons signed by the presiding judge on the day of the hearing.

 

12.       The claimant says that in fact the decision was not given orally because she was showing signs of stress and had to go straight home.  I accept that that was so, but nothing turns on the point.  It is merely unfortunate that the standard statement on the form was not crossed out.

 

13.       It is more unfortunate that it was not made clear whether the typed statement of reasons was intended to be a summary statement or a full statement.  The reasoning in the typed statement is fuller than one might generally expect from a mere summary but, as I shall explain below, was inadequate had the statement been intended to be a full statement of reasons.  No application was made for a fuller statement. 

 

14.       The 2008 Rules make no provision for summary reasons but they do not preclude the First-tier Tribunal from giving in a decision notice reasons that are not intended to be sufficient to comply with the duty imposed by rule 34 of the 2008 Rules to produce an adequate statement of reasons.  Equally, rule 34 does not preclude the First-tier Tribunal from providing a full statement of reasons at the same time as it provides a decision notice.  (However, if that is done in a criminal injuries compensation case, it is necessary to make manuscript amendments to the standard form of decision notice.)

 

15.       Reasoning cannot be criticised as being inadequate if a statement of reasons is not intended to be a full statement.  On the other hand, if the First-tier Tribunal has produced what purports to be a full statement of reasons, or has failed to do so upon a request made within the time allowed by rule 34(3) and (4) of the 2008 Rules, its decision will be held to be wrong in law if any reasons it has given are not adequate.  Moreover, a decision may be found to be wrong in law if summary reasons reveal that the First-tier Tribunal has taken an unlawful approach to the case, including one that is irrational, even though there has been no request for a full statement.

 

16.       In the present case, I am satisfied that the statement of reasons was not intended to be a full statement.  That is suggested by the context in which it was provided and even the claimant appears to have considered the statement as being a mere summary and not to have asked for a fuller statement only because she and her representatives overlooked the small print at the end of the decision notice informing them that the claimant could ask for a full statement.

 

The tariff award

 

17.       The part of the tariff in the 2001 Scheme dealing with brain damage is expressed as follows –

 

Description of injury	Level	Standard Amount £
Brain damage – impairment of social/intellectual functions   –   minor –     moderate –     serious –     very serious –     extremely serious (no effective control of functions)	12 15 20 23 25	8,200 16,500 44,000 110,000 250,000

 

18.       The Authority’s tariff award of £44,000 was based on the claimant’s injury being best described as “Brain damage – serious”.  However, at the beginning of the hearing before the First-tier Tribunal, the Authority’s representative stated that the Authority’s award had erroneously been made on the basis that Note 15 to the tariff in the 2008 Scheme applied so that, where brain damage caused any other injury, “there will not be additional awards for separate injuries but the seriousness of the combined effects will be measured together”.  Under the 2001 Scheme, separate awards could be made but, if the effect of the other injuries were left out of account, the assessment of the brain damage might be correspondingly lower.  The Authority left the First-tier Tribunal to consider whether an award at level 15 or at level 20 was appropriate in those circumstances. 

 

19.       The First-tier Tribunal considered that the brain damage suffered by the claimant was, by itself, “moderate”, attracting an award at level 15, but it accepted that the claimant suffered from total deafness in one ear and very severe tinnitus, each of which injuries would by themselves have attracted awards at level 15.  However, only 30% of the second award and only 15% of the third award were included in the overall tariff award.  Hence the sum of £23,925.  The First-tier Tribunal clearly had in mind paragraph 27 of the 2001 Scheme, which provides –

 

“27.     Minor multiple injuries will be compensated in accordance with note 12 to the Tariff.  The standard amount of compensation for more serious but separate multiple injuries will, unless expressly provided for otherwise in the tariff, be calculated as:

    (a)   the Tariff amount for the highest-rated description of injury; plus

    (b)   30 per cent of the Tariff amount for the second-highest-rated description of injuries; plus, where there are three or more injuries,

    (c)    15 per cent of the Tariff amount for the third highest-rated description of injury.”

 

20.       In its reasons, the First-tier Tribunal said –

 

“The Appellant was the victim of a serious assault on 7 July 2004 in which she received a blow to the head which has left her with some brain injury. The Review decision contained an award for serious brain injury at Level 20 on the Tariff. At the hearing today the Senior Decision Maker for the Authority in opening the case expressed the view that the Appellant's brain injury could be classified as either moderate or serious and left it to the Panel to decide.

 

After hearing extensive evidence from the Appellant we have taken the view^, that the brain injury (defined in the Scheme as "impairment of social/intellectual functions") is of moderate severity. Our reasons are: the Appellant's GP described her condition as "mild cognitive impairment" at C89; CT scans were normal in 2004 and 2007 (C13 and T70); she herself described her main problem as that of lack of balance while walking and short term memory loss; she is, however, able to drive a car which involves turning the head from side to side and is able to manage her daily routine with minor prompts from alarm calls and the use of a message board for reminders; although she has some minor intellectual problems she is able to deal with her administration with the help of a Headway outreach worker for a half day per week; she uses a computer; there are coherent and articulate manuscript letters on the file that the Appellant described as her unaided work; her dependence upon her son is for psychological and emotional support rather than for the effects of a brain injury; she is able to do some shopping for herself; although she has no paid employment she has begun mentoring young people and has gone on psychology and sculpture courses; she was able to give us coherent evidence of her life uninterrupted for 50 minutes without stress; the Appellant herself described her main problems as tinnitus and lack of balance.

 

Whilst we do not make light of the Appellant's experience we consider that the proper Tariff Category is moderate brain damage. In addition the Appellant is entitled to complete deafness and severe permanent tinnitus in one ear. All the gross Tariff awards are at Level 15. No award is available for psychological injury under Note 5 to the Scheme.”

 

21.       Ms Barber advanced several challenges to the First-tier Tribunal’s tariff award.  It is convenient to take first her challenge to its application of paragraph 27 of the Scheme.

 

22.       She submitted that paragraph 27 of the Scheme did not apply in this case because, she argued, it was concerned with minor injuries and that the deafness and tinnitus were “expressly provided for otherwise in the Tariff”.  However, Mr Thomas argued that the paragraph is not concerned only with minor injuries and that, if Ms Barber were correct, paragraph 27 would never apply.  I accept Mr Thomas’ submission on this issue.  The first sentence of paragraph 27 is concerned with minor injuries.  The second sentence plainly is not concerned with such minor injuries and equally plainly is concerned with injuries mentioned in the tariff because subparagraphs (a), (b) and (c) all refer to such amounts.  In my judgment, the First-tier Tribunal did not err in its application of paragraph 27.

 

23.       This has implications for some of Ms Barber’s other submissions.  It is clear from the words “where there are three or more injuries” at the end of paragraph 27(b), that the effects of any injuries that would otherwise give rise to tariff awards lower than that appropriate to the “third highest-rated description of injury” are to be entirely ignored in fixing the total tariff award.  Since the First-tier Tribunal accepted that the claimant had three injuries that would, taken by themselves, give rise to tariff awards at level 15, no lesser injury could have affected the total tariff award.  Thus, since the tariff award for permanent vestibular damage causing giddiness is only at level 12 (£8,200), there was no error in the First-tier Tribunal not including a separate element of the total tariff award in respect of such an injury in this case.  That is also why minor injuries within the scope of note 12 to the Scheme were not relevant.

 

24.       However, Ms Barber also submitted that the First-tier Tribunal erred in finding that the claimant was not suffering from “serious” brain damage and further submitted that the First-tier Tribunal had misapplied note 5 to the Scheme, which provides –

 

“When compensation is paid for physical injury or for any sexual offence described in the tariff, a separate award for mental injury will not be made (as the tariff award includes an element of compensation for this); save that in the case of an award for physical injury, if the compensation for mental injury is the same as, or higher than, the level of compensation for the physical injury, the applicant will be entitled to awards for the separate injuries calculated in accordance with paragraph 27 of the Scheme (the serious multiple injury formula). When compensation is paid for any sexual offence, a separate award for mental injury will not be made.”

 

Ms Barber submits that an award in respect of “permanent mental illness, confirmed by psychiatric diagnosis – seriously disabling” would have resulted in an award at level 18 (£27,000) and should have been made if note 5 had been applied properly.

 

25.       These submissions are linked in that note 5 had the effect that the claimant could not have a tariff award in respect of a permanent and seriously disabling mental illness (level 18) if she had a tariff award in respect of serious brain damage (level 20), but she could have a tariff award in respect of permanent and seriously disabling mental illness (level 18) if she had an award in respect of moderate brain damage (level 15).

 

26.       Ms Barber’s argument was that the First-tier Tribunal award had “trivialised the severity of the attack” and that its description of the injury did not adequately reflect the impairments of social/intellectual functions and the sensory and psychological damage that the claimant had suffered and, in particular, had failed to reflect a diagnosis of post-traumatic stress disorder.  Mr Thomas, however, submitted that, these being judicial review proceedings, the question for the Upper Tribunal was whether the First-tier Tribunal had erred in law and not whether the Upper Tribunal might have made a different decision.  He submitted that it was for the First-tier Tribunal to evaluate the evidence and that, in this case, its reasoning and its notes of the evidence showed that regard had been had to the relevant considerations.  He further pointed out that a chartered counselling psychologist had refrained from making a diagnosis of post-traumatic stress disorder in 2005 (see doc T83-84 of the bundle before the First-tier Tribunal) and that, while another had made such a diagnosis in 2011 (doc A36-37), neither was a clinical psychologist.  He also made the point that solicitors then acting for the claimant had not sought an award in respect of mental illness.

 

27.       I agree with Mr Thomas as to the respective roles of the First-tier Tribunal and the Upper Tribunal and I accept that the decision reached by the First-tier Tribunal was one that it was entitled to reach.  What concerns me is that the First-tier Tribunal’s statement of reasons does not explain why it considered that note 5 prevented there being any award for psychological injury which, if it had correctly understood note 5, would have required it to explain why an award in respect of “permanent mental illness, confirmed by psychiatric diagnosis – seriously disabling” was not appropriate. If the statement of reasons had been intended to be a full statement, the decision would have been erroneous in law on the ground that the reasoning was inadequate.  Even as summary grounds, the lack of any mention of the possibility of making a separate award in respect of mental illness in what are otherwise quite extensive reasons does raise a suspicion that the issue was not adequately considered.  However, that is not enough to show an error of law.

 

28.       In the grounds for applying for judicial review, the claimant, through Ms Barber, made detailed criticisms of the First-tier Tribunal’s findings of fact and reasoning.  Since this application is being allowed on other grounds, it is unnecessary for me to deal with all these grounds – and, indeed, I am not in a position to be able to deal with some of the challenges to the findings in the absence of a verbatim transcript of the proceedings before the First-tier Tribunal – but the papers in these proceedings should be included among the documents available for the panel that must rehear the claimant’s case.

 

29.       I do not consider that Mr Thomas’ point about the claimant’s solicitors’ submission was a good one, because the solicitors’ had sought an award of £44,000 in respect of the brain injury so that, for the reasons I have given, the question of a separate award in respect of mental illness did not arise.

 

 

 

The award for past loss of earnings

 

30.       The Authority awarded £30,000 for past loss of earnings and so did the First-tier Tribunal, although its reasoning was slightly different.  It said –

 

“The loss of earnings position is difficult. The Appellant was an artist and technical theatre designer with hopes of making a living in these areas but no track record. Her NI record shows no significant earnings after 1982/3 (D81-82). We accept her evidence that she decided to try to become an art teacher as a safety net and had enrolled on a part-time teacher training course at City & Guilds and had obtained the prospect of sessional employment teaching art at a College of Further Education for the academic year 2004/5 before she was assaulted. The Appellant accepted that as she did not have a Degree she needed 2 years part- time teaching experience whilst on her part-time course for the same period.

 

In trying to make a fair award we have been driven to make assumptions: in the 2 years to 31 August 2006 earnings would have been £5,000 net (it must be borne in mind no loss of earnings can be claimed for the first 28 weeks); for the next 2 years we assume a net loss of £15,000 per year on the basis that it is a matter of general knowledge that full-time art teacher posts are hard to acquire. From then to the hearing we assume annual earnings at £23,000 gross, £18,000 net for 4.5 years, a total of £110,000 to date less deductible Benefits of £81,000. We note that the Review decision took only Income Support into account (omitting to deduct Council Tax and Housing Benefit) and we round the past loss of earnings award to £30,000.”

 

31.       It is common ground that the First-tier Tribunal erred in two respects on this issue.  First, the total of the earnings estimated by the First-tier Tribunal was actually £116,000, rather than £110,000.  Secondly, it erred in deducting the whole of the social security benefits payable in the years when the claimant’s earnings would have been low, since it is likely that she would have remained entitled to at least some of the benefits during those years.  As Ms Barber has submitted, the amount deducted in respect of benefits was greater than the loss of earnings in the first year.

 

The award for past care

 

32.       The Authority awarded £20,843 in respect of past care, but there was an up-dated calculation on doc 199 which the First-tier Tribunal decided to “round up” to £22,500.  It appears from the panel’s records of the proceedings that the main issue at the hearing before the First-tier Tribunal was whether the award should be increased to reflect the full extent of care provided by the claimant’s son, it being the Authority’s case that the claimant did not really require care for all the hours her son was available to provide assistance.  Again, the decision reached was open to the First-tier Tribunal but the statement of reasons does not fully explain it.  In particular, it does not address the point made by Ms Barber that the claimant’s ability to cope was far more limited before adaptations were made to her home in 2011 than it was by the time of the hearing before the Fist-tier Tribunal and that the First-tier Tribunal asked the claimant about her current capacity to do things rather than her past capacity, although it did clearly have regard to her greater past physical incapacity.

 

33.       Many of Ms Barber’s challenges to the First-tier Tribunal’s findings and reasoning are relevant to this issue but, as this is a matter that will need to be considered afresh by the panel to whom this case is now remitted, I do not consider that I need make any further comment on this issue save for one.  The panel’s notes of its private discussion were disclosed for the purposes of this application for judicial review with their notes of evidence.  The notes of the discussion should not have been disclosed (see R.(McIntyre) v Parole Board [2013] EWHC 1969 (Admin) paragraphs 22 to 24 of which I set out in R.(AW) v First-tier Tribunal (CIC) [2013] UKUT 350 (AAC) at paragraph 28) and it would be good practice to keep the notes of discussion entirely separate from the notes of evidence.  However, one of the panel has recorded: “Depends on son for psych & emotional support not for effects of brain injury”.  I do not know whether that thinking was adopted by the whole panel but, if it did, it reveals an erroneous approach.  Insofar as “the tariff award includes an element of compensation for [mental injury]” (see Note 5 to the Scheme), plainly psychological and emotional support that is required in consequence of the mental illness may in principle be taken into account as care, even though there is no separate award in respect of mental injury.  I accept that not all support amounts to “care”, which is a word carrying connotations of personal attention or supervision, but engaging orally with a person suffering from mental illness can amount to attention and therefore care.  On the other hand, one difficulty the claimant faces in this case is that support relating to mental illness was not identified as a necessary element of care in the expert’s report.

 

The award for future loss of earnings or earning capacity

 

34.       On review, the Authority awarded £54,000 for continuing loss of earnings or earning capacity.  The First-tier Tribunal increased that sum to £95,000, including £25,000 in respect of loss of pension.  It said –

 

“In respect of future earnings we consider there not sufficient information to attempt a multiplier/multiplicand approach but that there is enough to give us guidance in making an award under Paragraph 33 of the Scheme. We find that it is possible that the Appellant would have been employed as an art teacher at an approximate annual salary of £27,000 gross, £21,000 net. The multiplier to age 65 would be 10 but we consider such an award would be too high given that the Appellant had no track record of salaried employment, might not have chosen or been able to work to 65, had no qualification to teach at the date of the assault, had declared no significant earnings after 1982/3 (D81-82), may not have enjoyed teaching, even if an appropriate job had been available (it is well-known that permanent art teacher jobs are difficult to obtain) and the Appellant made it clear in evidence that her preferred occupations were as an artist and in the theatre. In any event there are deductible Benefits of about £11,000 per year. CICA had raised with the Appellant the possibility of protecting her Benefits through the use of a Personal Injury Trust. Her evidence was that she had not done this as she aspired not to be on Benefits her whole life but wanted to get a well- paid job.

 

Balancing all these knowns and unknowns as best we can we consider the lump sum awarded under Paragraph 33 should be £70,000. In addition, we award £25,000 for loss of pension.”

 

35.       Ms Barber submits that the First-tier Tribunal erred in reducing the multiplier that was appropriate under paragraph 32 and, in any event, took the wrong starting point.  The Authority argues that the First-tier Tribunal did not reduce any multiplier, as it might have done under paragraph 32 of the Scheme, but made its award under paragraph 33.  I accept that it did refer to regulation 33 but Ms Barber is in my judgement correct to argue that loss of earning capacity, and not just loss of earnings, falls to be assessed under paragraph 32.  Paragraph 32 explicitly refers to earning capacity and, in particular, paragraph 32(c) provides for “the claims officer’s assessment of the applicant’s future earning capacity” to be taken into account and it also makes adequate provision for the sort of flexibility as regards the standard figures that the First-tier Tribunal considered necessary in the present case.  In particular, it provides –

 

“The claims officer will assess an appropriate multiplier, discount factor, or life expectancy by reference to the tables in Note 3, and may make such adjustments as he considers appropriate to take account of any factors and contingencies which appear to him to be relevant.”

 

36.       Paragraph 33, to which both the Authority and the First-tier Tribunal referred, seems more designed to deal with “Smith v Manchester” awards (see Smith v Manchester Corporation (1974) 17 KIR 1) than awards based on reasonable assumptions as to the earnings a person not employed at the time of the accident might have had had he or she not been a victim of crime.  Such assumptions are within the scope of the “assessment” and “adjustments” permissible under paragraph 32.  Even though the award was made under paragraph 33, in substance it seems to me to have been calculated by making adjustments under paragraph 32.

 

37.       The relevant multiplier was that appropriate at the date of the First-tier Tribunal’s hearing, rather than that appropriate at the date the injury was sustained (because it is relevant to future loss of earnings and not those lost between the injury being sustained and the date of the hearing), and therefore I reject Ms Barber’s submission that the First-tier Tribunal took the wrong starting point.

 

38.       In any event, Ms Barber’s main argument is that the assumptions made in this case were not reasonable.  When I granted permission to apply for judicial review, I said –

 

“3.        It is arguable that the First-tier Tribunal erred in reducing the multiplier for future loss of earnings.  There is force in the claimant’s point that her lack of earned income when she had young children at home was of limited relevance.  This was a point that had been made in her application for review.  Apart from the fact that caring for them would have been a reason for choosing not to work or not to work full-time, she may have had financial support available to her then that would not be available now that the children have grown up.  The First-tier Tribunal appears not to have considered whether, had she not pursued a career in teaching, she would have been obliged to seek some other employment which might have been to an equivalent standard and, if not, would nonetheless have produced an income that she could not now attain.”

 

39.       The Authority may be right to argue that the decision reached by the First-tier Tribunal was one it was entitled to reach, but, if the statement of reasons had been intended to be a full statement, the reasoning would not have been sufficient to support the decision.  It begs the questions I raised when granting permission and the panel’s records of the proceedings suggest that those questions were not investigated at the hearing.  Nonetheless, the notes of evidence are not intended to be verbatim and the statement of reasons was not intended to be a full statement and I am driven to conclude that it cannot be demonstrated that the First-tier Tribunal erred in law in assessing future loss of earnings, although I suspect that it did.

 

The award for aids and appliances and consideration of future care

 

40.       On review, the Authority had awarded £35 in respect of special equipment and £32,368 in respect of the continuing cost of daily care.  The First-tier Tribunal awarded £5,000 for aids and appliances but made no award in respect of future care.   It said –

 

“In relation to future care the Appellant told us that her son is her main carer and receives Carer's Allowance. We consider the estimate of 2 hours care per day by Tessa Gough is reasonable, if not excessive. The Appellant told us she could do some cooking and that she had stopped the cleaner provided by the Local Authority coming as she was dissatisfied with the standard of cleaning. The support she obtains is mostly psychological and emotional rather than personal care as the Appellant herself acknowledged.

 

The Care element of Disability Living Allowance and Carer's Allowance together amount to £110 per week. This eclipses the recommendation by Tessa Gough for 2 hours care per day at a cost (T203) of £98.35 per week so that no award for future care is made. The Panel did not consider that a case manager was reasonably required.

 

We award a lump sum of £5,000 for aids and appliances.”

 

41.       As she did in relation to the award for past care, Ms Barber made a number of challenges to the findings and reasoning of the First-tier Tribunal in relation to future care.  Once again, I accept that the decision of the First-tier Tribunal was one it was entitled to reach but consider that, had it been intended to be a full statement of reasons, the statement provided was not adequate.  In particular, as I have said above, psychological support may amount to care.  The evidence of need in this case was limited, but Ms Barber made the point that it had been accepted that the claimant needed help from Headway and her eligibility for that free help would be affected by the award.  As the statement of reasons was not intended to be a full statement, I cannot be satisfied that the First-tier Tribunal erred in law in its decision as to future care, save in relation to the deduction of benefits.

 

42.       Ms Barber submitted that the First-tier Tribunal erred in deducting her son’s carer’s allowance from the cost of future care.  Whereas the care component of disability living allowance under section 72 of the Social Security Contributions and Benefits Act 1992 is payable to the disabled person, a carer’s allowance (formerly known as invalid care allowance) under section 70 is payable to the carer.  The Authority has argued that it is paid in respect of the same contingency but, even to the extent that that is true, the Scheme does not envisage it being taken into account.  Although paragraph 45 provides that awards “will be subject to a reduction to take account of social security benefits (or other state benefits) or insurance payments made by way of compensation for the same contingency”, it also provides that the “amount of the reduction will be the full value of any relevant payment which the applicant has received” (my emphasis).

 

43.       Moreover, as I suggested when I granted permission to appeal, if it was satisfied that the claimant would require only two hours of personal care per day in the future, the First-tier Tribunal erred in basing its calculations on the assumption that the carer’s allowance and the middle rate of the care component of disability living allowance would remain in payment to, respectively, the claimant’s son and the claimant herself.  If that were all the care that would be required, the conditions of entitlement to those benefits would no longer be satisfied.  Entitlement to carer’s allowance depends on the person to whom care is provided being entitled to at least the middle rate of the care component of disability living allowance (or certain other benefits) (see section 70(2) of the 1992 Act) and, in relation to daytime care, entitlement to the middle rate of the care component depends on the disabled person requiring “frequent attention throughout the day” or “continual supervision throughout the day” (see section 72(1)(b) and (4)(b)).

 

44.       On these grounds, I am satisfied that the First-tier Tribunal erred in law in making no award in respect of future care.

 

45.       As regards aids and appliances, Mr Thomas accepted that the reasoning of the First-tier Tribunal is not clear but submitted that the award did appear to cover the cost of an alarm which had been identified as a need in the documents before the First-tier tribunal.  I accept that that is so.  Given that the application for judicial review is being allowed on other grounds, I need say no more on this issue.

 

Human Rights issues

 

46.       The application for judicial review raised a number of human rights issues.  Since this application is being allowed on other grounds, I need mention only two.  First, complaint is made about the Authority obtaining the claimant’s medical records, “without permission”.  However, the claimant had authorised that disclosure when signing her application for compensation on 31 October 2005 (see page 13 of doc A1 –  “the Panel” was the predecessor of the First-tier Tribunal, to whom the Panel’s functions were transferred in 2008.)  Secondly, it is said that the claimant was “forced” to attend the hearing.  It is true that she was directed to do so on 31 October 2012 and told that “part or all of her claim” might be struck out if she did not. and I accept that, to that extent, she was forced to attend the hearing, even though if the claimant had provided medical evidence to the effect that it would be undesirable for her to attend the hearing, the First-tier Tribunal would doubtless have considered setting aside its direction (see rule 6(5) of the 2008 Rules). 

 

47.       I regard the threat of striking out as having been undesirable, particularly as it was not clear whether the First-tier Tribunal contemplated merely striking out the appeal, which would have left the award of the Authority intact, or whether it contemplated withholding part of all of the award under paragraph 13(c) of the Scheme.  A claimant is under a duty to assist in the adjudication of a claim, but the First-tier Tribunal had plenty of evidence before it and could have determined the case without hearing oral evidence from the claimant and so it would have been hard to justify striking out the appeal.  On the other hand, the First-tier Tribunal would have been perfectly entitled to point out that it was entitled to make a lower award than the Authority had and that it might draw unfavourable inferences from the claimant’s failure to give evidence, thereby putting pressure on the claimant to attend without the formal element of compulsion.  That would have been a preferable approach, at least in this case. 

 

48.       Nonetheless, I do not consider that there was any breach of the European Convention on Human Rights as a result of the First-tier Tribunal’s approach, even if the claimant did find the hearing stressful.  A large amount of money was in issue, the claimant’s oral evidence was obviously material and would be more valuable than the written evidence, she could have applied for the direction to be set aside and there is no medical evidence that she actually suffered any harm.

 

Conclusion

 

49.       The Authority concedes that the First-tier Tribunal’s decision must be quashed because it erred in its calculation of past loss of earnings and, because the Upper Tribunal’s power to substitute a decision in juridical review proceedings is much more limited than it is on an appeal, it also concedes that the case must be remitted.  I have also found the First-tier Tribunal to have erred in law as regards future care.

 

50.       I agree that the case must be remitted.  I have considered whether to restrict the new panel to a reconsideration of the elements of the award in respect of which I have found the last panel to have erred in law.  However, I have considered not to do so, partly because it would be unsatisfactory if it took a view of the case in respect of past loss or earnings or the cost of future care that was inconsistent with the preserved findings of the last panel in respect of future loss of earnings and past care, and partly because I remain concerned that Ms Barber was not able to put the claimant’s case to the First-tier Tribunal as she wished and I also find the decision of the last panel in respect of future loss of earnings to be, at best, surprising.  Accordingly, all issues will be at large before the panel to whom this case is remitted.

 

51.       I recognise that this is likely to mean that the claimant will have to participate in another oral hearing, but if she is clearly represented by Ms Barber, that may be less stressful than the last hearing, since Ms Barber will be able to argue some of her points by reference to the documentation.

 

52.       Finally, I apologise for the length of time it has taken me to produce this decision, which I recognise was longer than I said at the hearing that it would be.  I have considered it important to rule on some of the issues of law that would otherwise have had to be considered by the First-tier Tribunal, with the increased risk of there being a further application for judicial review.  (If there is a further request for judicial review, this decision will also stand as a warning as to the importance of first obtaining a full statement of the First-tier Tribunal’s reasons.)

 

 

Mark Rowland

27 May 2014