Upper Tribunal (Administrative Appeals Chamber)

 

 

 

 

 

 

 

IN THE UPPER TRIBUNAL                                           

JR/1707/2011, JR/2196/2012, JR/539/2012, JR/595/2012 and JR/577/2013    

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before:     Mr Justice Charles

Upper Tribunal Judge Bano

Upper Tribunal Judge Wright 

 

 

DECISION

 

 

We grant the applications for judicial review made by each of the five applicants.  The Upper Tribunals’ ORDERS are:

 

(i)            in JR/1707/2011 (Barrett), to QUASH the decisions of the First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) (“FtT”) dated 30 November 2009, 26 October 2010,  26 November 2010 and 24 February 2011, and to REMIT Ms Barrett’s appeal to a differently constituted FtT for it to assess loss of earnings compensation;

 

(ii)          in JR/2196/2012 (Groom), to QUASH the decisions of the FtT dated 1 November 2011, 22 March 2012 and that part of its decision of 2 June 2010 adjourning to itself the determination of compensation, and REMIT the eligibility decision made by the FtT on 2 June 2010 to CICA for implementation and further decision;

 

(iii)         in JR/539/2012 (Parke), to QUASH the decisions of the FtT dated 27 July 2011, 6 September 2011 and that part of its decision of 6 January 2010 adjourning to itself the determination of compensation, and REMIT the eligibility decision made by the FtT on 6 January 2010 to CICA for implementation and further decision;

 

(iv)         in JR/595/2012 (Ibrar), to QUASH the decision of the FtT dated 27 October 2011 and that part of its decision of 24 March 2011 adjourning to itself the determination of compensation, and REMIT the eligibility decision made by the FtT on 24 March 2011 to CICA for implementation and further decision; and

 

(v)          in JR/577/2012 (Holt), to QUASH the decisions of the FtT dated 10 June 2010, 28 March 2012 and 14 January 2103, and that part of its decision of 13 August 2009 adjourning to itself the determination of compensation, and REMIT the eligibility decision made by the FtT on 13 August 2009 to CICA for implementation and further decision.            

 

 

 

 

 

 

REASONS FOR DECISION

Introduction

1.            These cases are concerned with the powers of the First-tier Tribunal (“FtT”) when allowing an appeal against a review decision made by a claims officer of the Criminal Injuries Compensation Authority (“CICA”).  The principal and important question which we have to decide is whether the FtT’s powers are limited to determining the issue which was the actual subject of the appeal, or whether the tribunal can go on to decide other issues which may arise for determination before the final disposal of the compensation claim.  Permission to bring judicial review proceedings was given in the case of Parke by Judge Levenson and in all the other cases by Judge Bano.

2.            The history of the cases before us reveals the importance of the question as they show that the FtT has acted on the basis that on an appeal to it its jurisdiction extends to any and all issues arising on the application for compensation. The FtT, who   appeared before us given the importance of the point and its effect on its jurisdiction, maintained that view and said that it was borne out by the terms of the criminal injuries compensation scheme. CICA on the other hand argued that this approach was wrong and that the correct analysis was that the FtT’s jurisdiction was limited to the scope of the decision under appeal to it; once the FtT had decided that matter other issues (such as the level of compensation, if this arose) had to be referred to CICA to decide; and fresh review and appeal rights would attach to any further decision CICA made. The applicants variously aligned themselves with the FtT’s argument and CICA’s argument.

3.            CICA’s argument was not a position it had adopted before. It had been content to adopt awards of compensation made by the FtT.                

4.            Given the importance of the issues arising, a three judge panel of the Upper Tribunal (AAC) was convened to decide these judicial reviews.   

 

Decision in summary

 

5.            On the central issue that was argued before us we have concluded that the FtT is limited to deciding whether CICA’s review decision is correct on the issue (or issues) it has addressed and decided. Once it has decided that issue (or those issues), the FtT’s jurisdiction on the appeal ends (i.e. it is functus) and, accordingly, any remaining issues that may then arise in order to determine whether any award of compensation should be made under the criminal injuries compensation scheme (including the amount of any such compensation) falls to CICA to decide. Any such further decisions made by CICA will attract a further right of appeal to the FtT.

6.            We recognise that our decision stands contrary to the FtT’s (and its predecessor’s) practice over many years, where it was the common approach for the FtT to adjourn to itself issues of compensation if it decided eligibility in favour of an applicant, but we consider that our decision is what the legislation requires.                                                                   

The Claims

 

7.            Our summary of the facts of the individual claims is based to a considerable degree on CICA’s written submission of 27 August 2013.

Barrett

 

8.            Ms Barrett was the victim of an assault which occurred on 21 September 1994 at her place of work.  Her claim was summarised by the FtT as that she had been the victim of a serious assault with a sexual component and had suffered some physical injury and a serious psychological injury from which she was unlikely to recover and which would prevent her from working or seriously reduce her earning capacity.

9.            On 17 December 1997 Ms Barrett accepted an interim payment of £4,000.  On 12 March 1999 the CICA gave what it described as its “Notification of Final Award” decision.  The material part of the decision read “Having considered your application for compensation, I have determined that you are entitled to a sum of £6446.00.  The  calculation is shown overleaf”. The calculation showed that that total sum was made up of a tariff award of £7,500.00 and loss of earnings award of £3,246. 

10.          Ms Barrett sought a review of this decision pursuant to paragraph 58 of the Criminal Injuries Compensation Scheme 1996. (Hers is the only case in which the 1996 Scheme applies.)  By its review decision of 18 May 2003 the tariff award was upheld but the loss of earnings claim was refused completely on the basis that the injury had not led to a loss of earnings capacity of longer than 28 weeks.   The material terms of CICA’s review decision were as follows:

“NOTIFICATION OF FINAL AWARD

I  have considered carefully the reasons given in the request for a review of this application under the Criminal Injuries Compensation Scheme 1996.  In the light of all the evidence available to me I have determined that you are entitled to a sum of £3200.00.

The calculation is shown overleaf.”   

            Overleaf the calculation was broken down under three headings: AWARD FOR INJURY UNDER THE TARIFF SCHEME; DEDUCTION OF AWARDS ALREADY PAID; and, HEADS OF CLAIM UNDER WHICH THE APPELLANT HAS BEEN UNSUCCESSFUL.  

11.     It was this review decision that Ms Barrett appealed to the Criminal Injuries Compensation Appeal Panel (“CICAP”) – the predecessor of the FtT. She did so both in the standard Notice of Appeal form and in an accompanying letter. In the former, under a box asking her to state her reasons for appealing against the review decision, Ms Barrett said:

“I continue to suffer permanently from disabling mental illness, confirmed by psychiatric diagnosis which has directly and primarily been caused by the assault on 21/9/94….Consequently, I was retired early on grounds of ill-health.  I dispute the conclusions on which the review decision was made and I consider that there are grounds for contesting the result of the review”.

            In the accompanying letter, also dated 29 July 2003, Ms Barrett set out, inter alia, the following:

“I disagree with CICA’s review decision dated 18.05.2003….I am appealing against the review decision because I dispute the conclusions on which the review was made and I consider that there are grounds for contesting the result of the review…….I intend to submit relevant additional documentation to the CICAP including: (a) My detailed reasons and explanation for contesting and appealing against the review decision. (b) Detailed information which specifically addresses the CICA’s written comments and conclusions in the sections entitled “Heads of claim under which the applicant has been unsuccessful” and “Award for injury under the tariff scheme” of CICA’s review decision letter dated 18.05.2003.”

The letter then went on to address a number of factors which Ms Barrett said indicated the severity of her permanently disabling mental disorder.                                        

12.       At a hearing before the CICAP on 23 February 2005 the Panel increased the tariff award to £20,800.  This was described on the standard form decision template as the DECISION MADE BY THE PANEL TODAY and a box was ticked under this sub-heading that said “The applicant is entitled to a full award of compensation under the Scheme”. (in contrast to a reduced award). There then followed a standard form passage that said:

 “The above decision on eligibility will be binding on a future Panel(s), subject to paragraphs 13(c) and 13(e) of the Scheme (i.e. continued co-operation by the applicant and any new evidence on criminal convictions or character) and any new evidence or a change in circumstances may cause the decision to be reconsidered under paragraph 53 of the Scheme”.

13.          However, the CICAP indicated that it was unhappy with the evidence in the hearing bundle concerning loss of earnings and gave directions for further evidence to be provided and the loss of earnings compensation to then be referred to a single member of CICAP for decision pursuant to paragraph 77 of the Criminal Injuries Compensation Scheme 2001 (which applied by virtue of paragraph 84(d) of the 2001 Scheme).

14.          The CICAP also appear to have made, or more accurately directed CICA to make, an interim award of £8,986.53 to Ms Barrett, which sum equates to the tariff award of £20,800 minus awards already made to Ms Barrett.  We say “appear” because item H (which is concerned with interim awards), on the first page of the CICAP’s decision notice of 23 February 2005 was left blank and box A3 on the second page (under the sub-heading Interim Award) was not ticked. but the box next to it for the amount of the interim award to be filled in had the figure of £8,986.53 written in by CICAP.  However, any doubts in this regard would seem to be resolved in favour of CICAP having directed that an interim award be made by the fact that on 11 July 2005 Ms Barrett signed a standard form provided to her and her solicitors by CICA accepting:

“the sum of £8,986.53p ….which the Criminal Injuries Compensation Appeals Panel has directed shall be made by way of interim payment in respect of the injuries suffered by me on 21 September 1994.”                             

15.          The matter was next listed for hearing on 30 November 2009. By then the FtT had replaced the CICAP. It is unclear what, if anything, happened to the single member determining compensation because it seems the 30 November 2009 hearing was before the full tribunal.  The hearing that day was adjourned for disclosure of details of, and documents from, the civil action for damages which Ms. Barrett had brought against her employer arising out of the index accident.  The claimant had accepted the sum of £7,500 in full and final settlement of that claim.

16.          There was then a further hearing on 26 October 2010. The FtT found that the documents disclosed from the civil action made it clear why the civil action had been compromised for £7,500 and raised issues as to the credibility of Ms Barrett’s case.   It adjourned the hearing to another date as it required to see additional evidence and to consider an issue under paragraph 13(c) of the 1996 Scheme.  The FtT directed a time frame within which Ms Barrett could submit any argument relating to paragraph 13(c) of the Scheme and rule 8(3)(b) and (c) of the FtT’s procedure rules. The appeal was then referred to a single tribunal judge or member pursuant, it was said, to rule 27(4) of the FtT procedure rules; though the directions said that this was for the purpose of a single tribunal judge or member assessing compensation. On 26 November 2010 a Tribunal Judge directed that the issues under paragraph 13(c) of the Scheme and rule 8(3)(b) of the FtT’s procedure rules were not suitable for determination on the papers and a further oral hearing was listed.                         

17.          At the hearing on 24 February 2011 the FtT concluded that Ms Barrett was not a credible or truthful witness; and that she had deliberately attempted to mislead the FtT and CICAP.  Its conclusion was that there had been a failure to give all reasonable assistance by Ms Barrett such that para 13(c) of the Scheme applied.  The FtT’s view was that references to ‘applicant and ‘claims officer’ in rule 13(c) were necessarily replaced by ‘appellant’ and ‘First-tier Tribunal’ respectively.    The FtT decided that the award should be withheld in its entirety under rule 13(c). It did not, however, strike out the appeal under rule 8(3)(b) of its procedure rules because, despite Ms Barrett’s failure to cooperate with the FtT, a fair and just decision could still be made.        

18.          The claim for judicial review challenges the FtT’s decision of 24 February 2011.

Groom

19.          This was an application, dated 9 April 2008, arising out of an incident at the Newcastle Arena on 14 December 2007.  Ms Groom’s claims were in respect of a fractured skull, fractured cheekbone, loss of smell and taste and depression after being attacked by her partner. The claim, as with all the other applicants save for Ms Barrett, was made under the Criminal Injuries Compensation Scheme 2001. 

20.          On 7 August 2009 the CICA refused the claim under paragraph 17(b) (which appears to have been misrecorded as 16(b)) on the basis that Ms Groom had been living in the same household as her assailant at the date of the application.  Ms Groom sought a review of this decision. CICA’s review decision of 4 November 2009 was to the same effect.

21.          Ms Groom then appealed to the FtT.  The appeal was heard on 2 June 2010.  The FtT’s decision was that she was entitled to a full award. As in Barrett, this decision took the form of a box on the FtT’s pro forma decision notice being ticked under the heading DECISION MADE BY THE TRIBUNAL TODAY, a sub-heading of Eligibility and the box ticked next to “The Appellant is entitled to a full award of compensation under the Scheme”.  As also with Barrett, the decision was followed  by a (modified) passage:

 “The above decision on eligibility will be binding on a future Panel(s). subject to paragraphs  13(c), 13(e) and 53 of the Scheme and Rule 8(3) (continued co-operation by the appellant, future criminal convictions and any other change in circumstances or new evidence, compliance with directions and co-operation with the Tribunal).”

22.          The FtT made an interim payment of £5,000 and adjourned after giving directions for medical evidence to be obtained. The assessment of compensation was referred to a single tribunal judge or member under rule 27(4) of the FtT’s procedure rules.   

23.          At a hearing on 1 November 2011 the CICA invoked rule 53 of the Scheme so as to ask the FtT to reopen its decision of 2 June 2010 and consider an issue under paragraph 16(a) of the scheme (risk that the assailant will benefit from an award), on the basis that new evidence had come to light about Ms Groom living with the assailant.  The FtT gave directions for that issue to be considered at a hearing. The FtT considered that, for the purposes of paragraph 53 of the Scheme, it stood in the place of the claims officer and could exercise the powers of a claims officer under paragraph 53.    

24.          At a hearing on 22 March 2012 the FtT, in effect, reversed its previous decision and decided that a nil award was applicable under paragraph 16(a) of the 2001 Scheme. It said in its summary of reasons that it had “decided to reconsider the claim under para 53”.  

25.          Ms Groom’s claim for judicial review challenges that decision dated 22 March 2012.

Parke

26.          This claim arose from an assault on 10 August 2003 in which Mr Parke suffered head injuries resulting in epilepsy, memory loss, impaired vision and slurred speech.  On 19 October 2005 the CICA made its decision refusing the claim under paragraph 13(d) (applicant’s conduct in the incident). Mr Parke sought a review of this decision but CICA’s review decision of 13 March 2009 was to the same effect.

27.          Mr Parke appealed to the FtT and on 6 January 2010 the FtT allowed the appeal and decided to make an award, subject to a 75% reduction under paragraph 13(d).  Directions were given for further evidence to be sought. Although the complete pro forma decision notice was not before us, it seems very likely that it followed the exact same format as in Ms Groom’s case.   

28.          On 27 July 2011 the FtT gave notice that it was considering striking out the appeal under rule 8(3)(c) of the FtT’s procedure rules on the ground that it had no reasonable prospects of success under paragraph 13(e) (criminal convictions) of the 2001 Scheme. That decision was taken because the medical records disclosed in accordance with the directions given on 6 January 2010 revealed that on 7 December 2009 Mr Parke had been convicted and imprisoned for a firearms offence.

29.          On 6 September 2011 the FtT struck out the claim as having no reasonable prospects of success by reason of the conviction and paragraph 13(e).

30.          On 6 March 2012 the Upper Tribunal (Judge Levenson) gave permission to apply for judicial review on grounds that there was an arguable issue whether the FtT had jurisdiction to strike out an appeal when a decision had already been made on it.

Ibrar

 

31.          This application was based on an alleged assault and robbery in Birmingham on 4 December 2006.  The application was refused by the CICA on 27 February 2008 under paragraph 13(b) of the 2001 Scheme on the basis that Mr Ibrar had not co-operated with the police.  On 8 June the decision was upheld on review.

32.          Mr Ibrar appealed to the FtT.  On 21 January 2010 the FtT decided that no award was payable, again relying on paragraph 13(b).  However, on 21 April 2010 West Midlands Police wrote to the Tribunal to the effect that the police evidence had been incorrect.  As a consequence on 14 September 2011 the FtT set aside its previous decision under rule 37 of the FtT’s procedure rules.  The matter was relisted for an oral hearing.

33.          On 24 March 2011 the FtT decided that Mr Ibrar was eligible for an award subject to a 25% reduction under paragraph 13(b).  It was in the same format as the other cases set out above (e.g. The FtT’s decision was that “The Appellant is entitled to a reduced award of compensation under the Scheme. The reduction will be 25% from the full award, under paragraph(s) 13(b) of the Scheme”, and this was described as a final decision subject to paragraphs 13(c), 13(e), and 53 of the Scheme and rule 8(3) of the FtT’s procedure rules.) Directions were given for consideration of the claim for financial loss and a decision on compensation was taken on 27 October 2011 by the FtT. This was described as being a FINAL DECISION NOTICE (Award made).  

34.          On 15 February 2012 Mr Ibrar filed a claim for judicial review, challenging the decision of 24 March 2011 to make a 25% reduction under paragraph 13(b).

Holt

 

35.          This application was based on an assault in Wakefield on 29 January 2007.  The CICA refused the claim by its decision of 7 November 2007 under paragraph 13(d) (conduct during the incident) of the 2001 Scheme.  CICA’s review decision of 18 January 2008 also found Mr Holt was not eligible for an award.

36.          Mr Holt appealed to the FtT.  On 13 August 2009 the FtT decided he was entitled to a full award.  The FtT’s decision was in the same format as that in Ms Groom’s appeal.  The case was adjourned and directions set for assessment of the amount of the award.  Further directions were set on 10 June 2010 as the FtT was not satisfied with the information provided.

37.          At a hearing on 28 March 2012 the FtT made a tariff award of £5,390 but adjourned consideration of the loss of earnings claim for further consideration of the documents after CICA had investigated their authenticity.

38.          On 7 June 2012 Mr Holt wrote to the FtT disputing the tariff award.

39.          A further hearing was listed for 15 January 2013.  On 2 January 2013 Mr Holt wrote to the FtT stating that he did not intend to attend. He relied on the letter of 7 June 2012.  By what was termed its FINAL DECISION NOTICE, the FtT declined to make an award for loss of earnings in its decision of 14 January 2013.

40.          On 8 February 2013 Mr Holt sought judicial review of the FtT’s decision of 14 January 2013.

The Issues

 

41.          On 23 June 2013 Judge Bano directed consolidation of and submissions on those parts of each case which raised any of the following issues:

 

a.  Paragraph 61 of the 2001 Scheme confers a right of appeal to the FtT in respect of a decision taken on a review of  any of the types of decision set out in paragraph 58.  Has the FtT fully discharged its functions (i.e. is it functus officio) once it has decided an appeal against a review decision under paragraph 61 of the 2008 Scheme?  If the FtT decides the appeal in favour of the appellant, does it have power to decide any remaining entitlement or assessment questions or are its powers governed exclusively by paragraph 77 of the 2001 Scheme? 

 

b.  Does the FtT have power to decide entitlement and assessment questions at separate hearings?  If so, does the FtT first have to direct that the question to be decided at the first hearing be dealt with as a preliminary issue under rule 5(3)(e) of the Tribunal procedure (First-tier Tribunal) (SEC) Rules 2008?

 

c.  If the FtT deals with questions of entitlement and assessment at separate hearings, do the time limits for applying for written reasons and for applying for judicial review in respect of any hearing run from the date of that hearing, or from the date of the final hearing (Ibrar and Holt)?

 

d.  If the FtT decides on an appeal that a claimant is entitled to an award, does it have power under paragraph 53 of the 2001 Scheme to subsequently reconsider the decision and/or to withhold or reduce the award under paragraph 13(c) (Barrett) or remove an award under paragraph 16(a) (Groom)?  Does the FtT have power to strike out an appeal which it has already allowed (Parke)?  Are the FtT’s powers to reconsider a decision limited to those conferred by paragraph 55 of the 2001 Scheme?

 

42.          On 28 January 2014 the Chamber President directed further submissions on the impact on the First-tier Tribunal’s functions, jurisdiction and powers of section 30 and Part 2 of Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 and paragraphs 68 and 69 of the Criminal Injuries Compensation Scheme 2008 having regard in particular to paragraph 63 of the 2008 Scheme and the relevant functions of claims officers and adjudicators under the 1996, 2001 and 2008 Schemes.

 

The Legislation

 

43.          Section 1 of the Criminal Injuries Compensation Act 1995 (the “1995 Act” requires the Secretary of State to make a Criminal Injuries Compensation Scheme.  Sections 2(1) and (2) provide:

“(1)  The amount of compensation payable under an award shall be determined in accordance with the provisions of the Scheme.

 

(2)  Provision shall be made for-

 

(a) a standard amount of compensation, determined by reference to the nature of the injury [a “tariff award”};

 

(b)  in such cases as may be specified, an additional amount of compensation calculated with respect to loss of earnings;

 

(c)  in such cases as may be specified, an additional amount of compensation calculated with respect to special expenses;

 

(d)  in cases of fatal injury, such additional amounts as may be specified or otherwise determined in accordance with the Scheme.”

 

Section 2(4) provides:

 

“The Scheme shall include provision for claims for compensation to be determined and awards and payments of compensation to be made-

 

(a) if a Scheme manager has been appointed, by persons appointed for the purpose by the Scheme manager; or

 

(b)   otherwise by persons (“claims officers appointed for the purpose by the Secretary of State.”

 

Section 4 requires sets out that:

 

“(1) The Scheme shall include provision for the review, in such circumstances as may be specified, of any decision taken in respect of a claim for compensation.

 

(2) Any such review must be conducted by a person other than the person who made the decision under review.”. 

 

Section 5 then provides for rights of appeal to adjudicators against review decisions:

E+W+S

“(1)  The Scheme shall include provision—

(a) for rights of appeal against decisions taken on reviews under provisions of the Scheme made by virtue of section 4; and

(b) for such appeals to be determined by persons (“adjudicators”) appointed for the purpose by the Secretary of State.

 

[subsections (2), (3)(a) to (c), and (4) to (8) omitted]

 

(3) The Scheme may include provision_

(d)_for specified functions in relation to appeals to be conferred on-

       (i) claims officers; or

       (ii) persons appointed by the Scheme manager as mentioned in section   

            3(4)(a).      

 (9)The power conferred by section 3(1)(a) to provide for the reduction of an amount of compensation includes power to provide for a reduction where, in the opinion of the adjudicator or adjudicators determining an appeal, the appeal is frivolous or vexatious.”

44.          We pause to point out that the 1995 Act provides that the scheme is to include rights of appeal against “decisions taken on reviews” and that the power to determine claims for compensation and make awards of the same vests solely in the claims officer (as a scheme manager has never been appointed) (s.2(4)).          

45.          On 1 April 2001 the Secretary of State made the Criminal Injuries Compensation Scheme 2001 (“the 2001 scheme”), which, as we have already said, governs all the claims which are the subject of these appeals except for that of Ms Barrett, which is governed by the 1996 Scheme.  However, the differences between the 1996 and the 2001 Schemes are immaterial for our purposes.

46.          Under the unified tribunal structure created by the Tribunals, Courts and Enforcement Act 2007, the functions of the adjudicators were transferred to the FtT by the Transfer of Tribunal Functions Order 2008.  Article 3 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 assigned all functions relating to appeals in criminal injuries compensation cases to the Social Entitlement Chamber, so that appeals to the FtT against decisions of claims officers are governed by the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.  Following the transfer of functions from CICA adjudicators to the FtT, the 2008 Scheme made the following transitional provisions:

 “67. Applications for compensation received by the Authority or by the Criminal Injuries Compensation Board (“the Board”) before 3 November 2008 will continue to be dealt with:

 

(a) if they were received on or after 1 April 2001, in accordance with the provisions of the scheme which came into operation on 1 April 2001 (“the 2001 Scheme”) as modified by paragraph 68 of this Scheme; or

 

(b) if they were received on or after 1 April 1996 but before 1 April 2001, in accordance with the provisions of the scheme which came into operation on 1 April 1996 (“the 1996 Scheme”) as modified by the 2001 Scheme and by paragraph 68 of this Scheme; or

 

(c) if they were received before 1 April 1996, in accordance with the provisions of the non-statutory scheme which came into operation on 1 February 1990 (“the old Scheme”). This includes provisions of the earlier non-statutory schemes referred to therein, insofar as they continue to have effect immediately before 3 November 2008 by virtue of the 1996 or 2001 Schemes or the provisions of any non-statutory scheme.

 

68. Where an application is required by paragraph 67 to be dealt with under the 1996 Scheme or the 2001 Scheme, with effect from 3 November 2008 any appeal against a decision taken on review will be to the First-tier Tribunal and will be dealt with in accordance with Tribunal Procedure Rules (subject to any transitional arrangements).

 

69. From 3 November 2008 applications required by paragraph 67 to be dealt with according to the provisions of the old Scheme will continue to be so dealt with by the Authority, and any decision authorised under the old Scheme to be made by one or more members of the Board may be made by the First-tier Tribunal. ”

 

The 2001 Scheme

 

47.          Paragraphs 2 to 5 of the 2001 Scheme deal with administration.  Paragraphs 2 and 3 provide:

 “2. Claims officers in the Criminal Injuries Compensation Authority (“the Authority”) will determine claims for compensation in accordance with this Scheme. Appeals against decisions taken on reviews under this Scheme will be determined by adjudicators. Persons appointed as adjudicators are appointed as members of the Criminal Injuries Compensation Appeals Panel (“the Panel”). The Secretary of State will appoint one of the adjudicators as Chairman of the Panel. The Secretary of State will also appoint persons as staff of the Panel to administer the provisions of this Scheme relating to the appeal system.

3. Claims officers will be responsible for deciding, in accordance with this Scheme, what awards (if any) should be made in individual cases, and how they should be paid. Their decisions will be open to review and thereafter to appeal to the Panel, in accordance with this Scheme. No decision, whether by a claims officer or the Panel, will be open to appeal to the Secretary of State.”

48.          Paragraphs 6 to 12 of the 2001 Scheme, headed “Eligibility to apply for compensation”, set out the basic eligibility requirements for an award of criminal injuries compensation and define ‘criminal injury’ and ‘personal injury’ for the purposes of the 2001 Scheme.  Paragraph 6(a), for example, sets out that compensation may be paid under the Scheme to an applicant who has sustained a criminal injury on or after 1 August 1964.  Accordingly, if CICA finds that no criminal injury was sustained then the person is not eligible (to apply) for an award of criminal injuries compensation.    

49.          Paragraphs 13 to 17 contain exclusionary provisions. Again, these go to eligibility but this time it is said to be eligibility to receive compensation:

 “Eligibility to receive compensation

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

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

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

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

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

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

 

14. In considering the issue of conduct under paragraph 13(d) above, a claims officer may withhold or reduce an award where he considers that excessive consumption of alcohol or use of illicit drugs by the applicant contributed to the circumstances which gave rise to the injury in such a way as to make it inappropriate that a full award, or any award at all, be made.

15. Where the victim has died since sustaining the injury (whether or not in consequence of it), paragraphs 13 and 14 will apply in relation both to the deceased and to any applicant for compensation under paragraphs 37-44 (fatal awards).

 

16. A claims officer will make an award only where he is satisfied:

 

(a) that there is no likelihood that an assailant would benefit if an award were made; or

(b) where the applicant is under 18 years of age when the application is determined, that it would not be against his interest for an award to be made.

 

17. Where a case is not ruled out under paragraph 7(b) (injury sustained before 1 October 1979) but at the time when the injury was sustained, the victim and any assailant (whether or not that assailant actually inflicted the injury) were living in the same household as members of the same family, an award will be withheld unless:

 

(a) the assailant has been prosecuted in connection with the offence, except where a claims officer considers that there are practical, technical or other good reasons why a prosecution has not been brought; and

(b) in the case of violence between adults in the family, a claims officer is satisfied that the applicant and the assailant stopped living in the same household before the application was made and are unlikely to share the same household again.

 

For the purposes of this paragraph, a man and woman living together as husband and wife will be treated as members of the same family. “

50.          Paragraphs 18 to 22 set out the procedure for the consideration of applications and give the claims officer (and no-one else) power (paragraph 21) to arrange and pay for a medical examination where he considers that such an examination is required before a decision can be reached. Paragraph 21 provides that the reasonable expenses of the examining medical practitioner will be met by CICA.   

51.          A feature of the 2001 Scheme is that all decisions in favour of a claimant are provisional until payment of a final award has been made.  Paragraph 50 sets out, inter alia, that:

 “An application for compensation under this Scheme will be determined by a claims officer……..title to an award offered will be vested in the applicant when [CICA] has received notification in writing that he accepts the award.”      

 

52.          Paragraphs 53 to 55 then provide:

 “Reconsideration of decisions

 53. A decision made by a claims officer (other than a decision made in accordance with a direction by adjudicators on determining an appeal under paragraph 77) may be reconsidered at any time before actual payment of a final award where there is new evidence or a change in circumstances. In particular, the fact that an interim payment has been made does not preclude a claims officer from reconsidering issues of eligibility for an award.

54. Where an applicant has already been sent written notification of the decision on his application, he will be sent written notice that the decision is to be reconsidered, and any representations which he sends to the Authority within 30 days of the date of such notice will be taken into account in reconsidering the decision. Whether or not any such representations are made, the applicant will be sent written notification of the outcome of the reconsideration, and where the original decision is not confirmed, such notification will include the revised decision.

55. Where a decision to make an award has been made by a claims officer in accordance with a direction by adjudicators on determining an appeal under paragraph 77, but before the award has been paid the claims officer considers that there is new evidence or a change in circumstances which justifies reconsidering whether the award should be withheld or the amount of compensation reduced, the Authority will refer the case to the Panel for rehearing under paragraph 82.”

 

53.          Paragraphs 56 and 57 of the 2001 Scheme have the sub-heading “Re-opening of cases”, and provide as follows:

 “56.  A decision made by a claims officer and accepted by the applicant, or a direction by adjudicators, will normally be regarded as final., except where an appeal is reheard under paragraphs 79-82.  A claims officer may, however,  subsequently re-open a case where there has been such a material change in the victim’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand, or where he has since died in consequence of the injury.

 

57.  A case will not be re-opened more than two years after the date of the final decision unless the claims officer is satisfied, on the basis of evidence presented in support of the application to re-open the case, that the renewed application can be considered without a need for further extensive enquiries.”              

 

54.          Review of decisions is dealt with in paragraphs 58 to 60:

 

“58. An applicant may seek a review of any decision under this Scheme by a claims officer:

 

(a) not to waive the time limit in paragraph 18 (application for compensation) or paragraph 59 (application for review); or

(b) not to re-open a case under paragraphs 56-57; or

(c) to withhold an award, including such decision made on reconsideration of an award under paragraphs 53-54; or

(d) to make an award, including a decision to make a reduced award whether or not on reconsideration of an award under paragraphs 53-54; or

(e) to seek repayment of an award under paragraph 49.

 

An applicant may not, however, seek the review of any such decision where the decision was itself made on a review under paragraph 60 and either the applicant did not appeal against it or the appeal was not referred for determination on an oral hearing, or where the decision was made in accordance with a direction by adjudicators on determining an appeal under paragraph 77.

59. An application for the review of a decision by a claims officer must be made in writing to the Authority and must be supported by reasons together with any relevant additional information. It must be received by the Authority within 90 days of the date of the decision to be reviewed, but this time limit may, in exceptional circumstances, be waived where a claims officer more senior than the one who made the original decision considers that:

(a) any extension requested by the applicant and received within the 90 days is based on good reasons; and

(b) it would be in the interests of justice to do so.

 

60. All applications for review will be considered by a claims officer more senior than any claims officer who has previously dealt with the case. The officer conducting the review will reach his decision in accordance with the provisions of this Scheme applying to the original application, and he will not be bound by any earlier decision either as to the eligibility of the applicant for an award or as to the amount of an award. The applicant will be sent written notification of the outcome of the review, giving reasons for the review decision, and the Authority will, unless it receives notice of an appeal, ensure that a determination of the original application is made in accordance with the review decision.”

55.          In accordance with section 5(1) of the 2005 Act, appeals lie against review decisions, and are governed by paragraphs 61 to 71:

 “61. An applicant who is dissatisfied with a decision taken on a review under paragraph 60 may appeal against the decision by giving written notice of appeal to the Panel on a form obtainable from the Authority. Such notice of appeal must be supported by reasons for the appeal together with any relevant additional material which the appellant wishes to submit, and must be received by the Panel within 90 days of the date of the review decision. The Panel will send to the Authority a copy of the notice of appeal and supporting reasons which it receives and of any other material submitted by the appellant. Where the applicant is represented for the purposes of the appeal, the costs of representation will not be met by the Authority or the Panel.

 

62. A member of the staff of the Panel may, in exceptional circumstances, waive the time limit in the preceding paragraph where he considers that:

 

(a) any extension requested by the appellant and received within the 90 days is based on good reasons; and

(b) it would be in the interests of justice to do so.

 

Where, on considering a request to waive the time limit, a member of the staff of the Panel does not waive it, he will refer the request to the Chairman of the Panel or to another adjudicator nominated by the Chairman to decide requests for waiver, and a decision by the adjudicator concerned not to waive the time limit will be final. Written notification of the outcome of the waiver request will be sent to the appellant and to the Authority, giving reasons for the decision where the time limit is not waived.

63. Where the Panel receives notice of an appeal against a review decision relating to a decision mentioned in paragraph 58 (a) or (b), the appeal will be dealt with in accordance with paragraphs 66-68 (appeals concerning time limits and reopening of cases). Where the Panel receives notice of an appeal against a review decision relating to a decision mentioned in paragraph 58(c), (d) or (e), the appeal will be dealt with in accordance with paragraphs 69-71 (appeals concerning awards) and may under those provisions be referred for an oral hearing in accordance with paragraphs 72-78. The Panel may publish information in connection with individual appeals, but such information must not identify any appellant or other person appearing at an oral hearing or referred to during an appeal, or enable identification to be made of any such person without that person’s consent.

 

64. The standard of proof to be applied by the Panel in all matters before it will be the balance of probabilities. It will be for the appellant to make out his case including, where appropriate:

 

(a) making out his case for a waiver of the time limit in paragraph 61 (time limit for appeals); and

(b) satisfying the adjudicator or adjudicators responsible for determining his appeal that an award should not be reconsidered, withheld or reduced under any provision of this Scheme. Subject to paragraph 78 (determination of appeal in appellant’s absence), the adjudicator or adjudicators concerned must ensure, before determining an appeal, that the appellant has had an opportunity to submit representations on any evidence or other material submitted by or on behalf of the Authority.

 

65. The Panel may make such arrangements for the inspection of the injury as it considers appropriate. Reasonable expenses incurred by the appellant in that connection will be met by the Panel.

Appeals concerning time limits and re-opening of cases

66. The Chairman of the Panel or another adjudicator nominated by him will determine any appeal against a decision taken on a review:

 

(a) not to waive the time limit in paragraph 18 (application for compensation) or paragraph 59 (application for review); or

(b) not to re-open a case under paragraphs 56-57.

 

Where the appeal concerns a decision not to re-open a case and the application for re-opening was made more than two years after the date of the final decision, the adjudicator must be satisfied that the renewed application can be considered without a need for further extensive enquiries by the Authority.

67. In determining an appeal under the preceding paragraph, the adjudicator will allow the appeal where he considers it appropriate to do so. Where he dismisses the appeal, his decision will be final. Written notification of the outcome of the appeal, giving reasons for the decision, will be sent to the appellant and to the Authority.

 

68. Where the adjudicator allows an appeal in accordance with the preceding paragraph, he will direct the Authority:

 

(a) in a case where the appeal was against a decision not to waive the time limit in paragraph 18, to arrange for the application for compensation to be dealt with under this Scheme as if the time limit had been waived by a claims officer;

 

(b) in a case where the appeal was against a decision not to waive the time limit in paragraph 59, to conduct a review under paragraph 60;

(c) in a case where the appeal was against a decision not to re-open a case, to re-open the case under paragraphs 56-57.

 

Appeals concerning awards

69. A member of the staff of the Panel may refer for an oral hearing in accordance with paragraphs 72-78 any appeal against a decision taken on a review:

(a) to withhold an award, including such decision made on reconsideration of an award under paragraphs 53-54; or

(b) to make an award, including a decision to make a reduced award whether or not on reconsideration of an award under paragraphs 53-54; or

    (c) to seek repayment of an award under paragraph 49.

 

    A request for an oral hearing in such cases may also be made by the Authority.

70. Where a member of the staff of the Panel does not refer an appeal for an oral hearing under the preceding paragraph, he will refer it to an adjudicator. The adjudicator will refer the appeal for determination on an oral hearing in accordance with paragraphs 72-78 where, on the evidence available to him, he considers:

(a) in a case where the review decision was to withhold an award on the ground that the injury was not sufficiently serious to qualify for an award equal to at least the minimum award payable under this Scheme, that an award in accordance with this Scheme could have been made; or

(b) in any other case, that there is a dispute as to the material facts or conclusions upon which the review decision was based and that a different decision in accordance with this Scheme could have been made.

 

He may also refer the appeal for determination on an oral hearing in accordance with paragraphs 72-78 where he considers that the appeal cannot be determined on the basis of the material before him or that for any other reason an oral hearing would be desirable.

71. Where an appeal is not referred under paragraphs 69 or 70 for an oral hearing, the adjudicator’s dismissal of the appeal will be final and the decision taken on the review will stand. Written notification of the dismissal of the appeal, giving reasons for the decision, will be sent to the appellant and to the Authority.”

38.  Paragraphs 72 to 78 provide for the oral hearing of appeals:

 

Oral hearing of appeals

 

“72. Where an appeal is referred for determination on an oral hearing, the hearing will take place before at least two adjudicators. Where the referral was made by an adjudicator under paragraph 70, that adjudicator will not take part in the hearing. On application by the appellant, pending determination, the Chairman or an adjudicator nominated by him may direct that an interim payment be made. Subject to the provisions of this Scheme, the procedure to be followed for any particular appeal will be a matter for the adjudicators hearing the appeal.

73. Written notice of the date proposed for the oral hearing will normally be sent to the appellant and the Authority at least 21 days beforehand. Any documents to be submitted to the adjudicators for the purposes of the hearing by the appellant, or by or on behalf of the Authority, will be made available at the hearing, if not before, to the Authority or the appellant respectively.

74. It will be open to the appellant to bring a friend or legal adviser to assist in presenting his case at the hearing, but the costs of representation will not be met by the Authority or the Panel. The adjudicators may, however, direct the Panel to meet reasonable expenses incurred by the appellant and any person who attends to give evidence at the hearing.

75. The procedure at hearings will be as informal as is consistent with the proper determination of appeals. The adjudicators will not be bound by any rules of evidence which may prevent a court from admitting any document or other matter or statement in evidence. The appellant, the claims officer presenting the appeal and the adjudicators may call witnesses to give evidence and may cross-examine them.

 

76. Hearings will take place in private. The Panel may, however, subject to the consent of the appellant, give permission for the hearing to be attended by observers such as representatives of the press, radio and television. Any such permission will be subject to written undertakings being given:

 

(a) that the identity of the appellant and of any other persons appearing at the hearing or referred to during the appeal will be kept confidential and will not be disclosed in any account of the proceedings which is broadcast or in any way published without that person’s consent; and

(b) that no material will be disclosed or in any other way published from which those identities could be discovered without the consent of the subject.

 

77. Where the adjudicators adjourn the hearing, they may direct that an interim payment be made. Where the only issue remaining is the determination of the amount of compensation, the adjudicators may remit the application for final determination by one of themselves in the absence of the appellant, but subject to the right of the appellant to have a further oral hearing if not satisfied with that determination, in which the adjudicator who made that determination will not take part. On determining the appeal, the adjudicators will, where necessary, make such direction as they think fit as to the decision to be made by a claims officer on the application for compensation, but any such direction must be in accordance with the relevant provisions of this Scheme. Where they are of the opinion that the appeal was frivolous or vexatious, the adjudicators may reduce the amount of compensation to be awarded by such amount as they consider appropriate. The appellant and the Authority will be informed of the adjudicators’ determination of the appeal and the reasons for it, normally at the end of the hearing, but otherwise by written notification as soon as is practicable thereafter.

 

78. Adjudicators may determine an appeal on the available evidence in the absence of an appellant when they are satisfied that

 

(a) he has so requested, or agreed; or

(b) he has failed to attend a hearing and has given no reasonable excuse for his non-attendance; or

(c) he is at the time of the hearing detained in custody or in hospital and is likely to remain so for a period of at least 6 months; or

(d) he is not living in Great Britain

and it would not be against the interests of justice to do so.”

56.          Finally, paragraphs 79 to 82 provide for the rehearing of appeals:

Rehearing of appeals

“79.  Where an appeal is determined in the appellant’s absence, he may apply to the Panel in writing for his appeal to be reheard, giving the reasons for his non-attendance or otherwise why it should be reheard. Any such application must be received by the Panel within 30 days of the date of notification to the appellant of the outcome of the hearing which he did not attend. The Panel will send a copy of the application to the Authority.

80.  A member of the staff of the Panel may waive the time limit in the preceding paragraph where he considers that it would be in the interests of justice to do so. Where he does not waive the time limit, he will refer the application to the Chairman of the Panel or to another adjudicator nominated by the Chairman to decide such applications, and a decision by the adjudicator concerned not to waive the time limit will be final. Written notification of the waiver decision will be sent to the appellant and to the Authority, giving reasons for the decision where the time limit is not waived.

81.  Where a member of the staff of the Panel considers that there are good reasons for an appeal determined in the appellant’s absence to be reheard, he will refer it for a rehearing. Where he does not refer it for a rehearing, he will refer the application to the Chairman of the Panel or to another adjudicator nominated by the Chairman to decide such applications, and a decision by the adjudicator concerned not to rehear the appeal will be final. Written notification of the decision on the application for a rehearing will be sent to the appellant and to the Authority, giving reasons for the decision where the application is refused.

82. Where an appeal is to be reheard, any adjudicator or adjudicators who determined the appeal originally will not take part in the rehearing, and paragraphs 64 (onus on appellant), 65 (inspection of injury), and 72-78 (oral hearings) will apply.”

 

The Procedure Rules

 

57.          Rule 5 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 sets out the tribunal’s case management powers:

 “(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

 

(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

 

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may—

 

(a) extend or shorten the time for complying with any rule, practice direction or direction;

 

(b) consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case (whether in accordance with rule 18 (lead cases) or otherwise);

 

(c) permit or require a party to amend a document;

 

(d) permit or require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party;

 

(e) deal with an issue in the proceedings as a preliminary issue;

 

(f) hold a hearing to consider any matter, including a case management issue;

 

(g) decide the form of any hearing;

 

(h) adjourn or postpone a hearing;

 

(i) require a party to produce a bundle for a hearing;

 

(j) stay (or, in Scotland, sist) proceedings;

 

(k) transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and—

 

(i) because of a change of circumstances since the proceedings were started, the Tribunal no longer has jurisdiction in relation to the proceedings; or

(ii) the Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case; or

 

(l) suspend the effect of its own decision pending the determination by the Tribunal or the Upper Tribunal of an application for permission to appeal against, and any appeal or review of, that decision.

 

58.          By rule 2(3)(a), the FtT must seek to  give effect to the overriding objective in rule 2:

 “(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

 

(2) Dealing with a case fairly and justly includes—

 

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

 

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

 

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

 

(d) using any special expertise of the Tribunal effectively; and

 

(e) avoiding delay, so far as compatible with proper consideration of the issues.

 

(3) The Tribunal must seek to give effect to the overriding objective when it—

 

(a) exercises any power under these Rules; or

 

(b) interprets any rule or practice direction.

 

(4) Parties must—

 

(a) help the Tribunal to further the overriding objective; and

 

(b) co-operate with the Tribunal generally.”

 

59.          The tribunal’s powers to strike out a case are in rule 8:

 “(1) The proceedings, or the appropriate part of them, will automatically be struck out if the appellant has failed to comply with a direction that stated that failure by a party to comply with the direction would lead to the striking out of the proceedings or that part of them.

 

(2) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—

 

(a) does not have jurisdiction in relation to the proceedings or that part of them; and

 

(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

 

(3) The Tribunal may strike out the whole or a part of the proceedings if—

 

(a) the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them;

 

b) the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or

 

(c) the Tribunal considers there is no reasonable prospect of the appellant’s case, or part of it, succeeding.

 

(4) The Tribunal may not strike out the whole or a part of the proceedings under paragraph (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out.

 

(5) If the proceedings, or part of them, have been struck out under paragraph (1) or (3)(a), the appellant may apply for the proceedings, or part of them, to be reinstated.

 

(6) An application under paragraph (5) must be made in writing and received by the Tribunal within 1 month after the date on which the Tribunal sent notification of the striking out to the appellant.

 

(7) This rule applies to a respondent as it applies to an appellant except that—

 

(a) a reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent from taking further part in the proceedings; and

 

(b) a reference to an application for the reinstatement of proceedings which have been struck out is to be read as a reference to an application for the lifting of the bar on the respondent from taking further part in the proceedings.

 

(8) If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submission made by that respondent.”

 

60.          Lastly on the FtTs’ procedure rules, rule 27 provides as follows:

“Decision with or without a hearing

27.—(1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless—

(a) each party has consented to, or has not objected to, the matter being decided without a hearing; and

(b) the Tribunal considers that it is able to decide the matter without a hearing.

(2) This rule does not apply to decisions under Part 4.

(3) The Tribunal may in any event dispose of proceedings without a hearing under rule 8 (striking out a party’s case).

(4) In a criminal injuries compensation case—

(a) the Tribunal may make a decision which disposes of proceedings without a hearing; and

(b) subject to paragraph (5), if the Tribunal makes a decision which disposes of proceedings without a hearing, any party may make a written application to the Tribunal for the decision to be reconsidered at a hearing.

(5) An application under paragraph (4)(b) may not be made in relation to a decision—

(a) not to extend a time limit;

(b) not to set aside a previous decision;

(c) not to allow an appeal against a decision not to extend a time limit; or

(d) not to allow an appeal against a decision not to reopen a case.

(6) An application under paragraph (4)(b) must be received within 1 month after the date on which the Tribunal sent notice of the decision to the party making the application.”

 

 

 

 The Parties’ Contentions

 

61.          Mr Nourse, on behalf of Mr Ibrar and Mr Holt, submitted that the 1995 Act and the 2001 Scheme provide for a two-tier process under which claims officers alone decide whether a claimant is entitled to compensation and, if so, how much; and the FtT, as successor to the adjudicators, is confined solely to determining appeals against decisions taken on review.  The purely appellate nature of the Ft’s jurisdiction is emphasised by the fact that section 9 of the Tribunals, Courts and Enforcement Act 2007 does not confer on tribunals power to review their decisions in criminal injuries cases since such decisions are ‘excluded decisions’.  Under paragraph 61 of the 2001 Scheme, an appeal lies against the ‘decision’ of the claims officer on a review and, although the tribunal has power to regulate its own procedure, it does not have power to define the limits of its jurisdiction.  The practice of the tribunal of dealing with other issues after deciding an appeal on eligibility deprives claimants of the protections under the 2001 Scheme of reconsideration, re-opening, review, and a right of appeal on issues of both fact and law.  If a tribunal allows an appeal on eligibility, it ought to make a direction under paragraph 77 of the 2001 Scheme with a direction to the claims officer to make an award to the claimant.  Questions of quantum will then be a matter for the claims officer to determine, with the claimant having all the protections conferred by the 2001 Scheme in relation to any further issues which may need to be decided before the claim is finally determined.  Cases in which claims were remitted back to the FtT for the assessment of compensation ought therefore not to be followed.

62.          In his opening submissions on behalf of CICA, Mr Collins broadly aligned himself with Mr Nourse, although he modified his position somewhat in his reply.    He submitted that although adjudicators were part of CICA in 2001, the effect of paragraph 68 of the Criminal Injuries Compensation Scheme 2008 was that the FtT’s procedure rules applied in any case where they differed from the 2001 Scheme.  The effect of paragraph 58 of the 2001 Scheme is to provide a right of appeal against three types of decision: eligibility to receive an award, the reduction or withholding of an award, and the amount of compensation to which a claimant was entitled.  It was the role of CICA, and not the FtT, to undertake the assessment of compensation.  In his written submissions Mr Collins submitted that the FT’s powers are limited by the scope of the decision under appeal.

63.          However, in his oral argument  Mr Collins suggested that the jurisdiction of the FtT in dealing with eligibility appeals and appeals against the withholding or reduction of an award extended to considering issues other than the assessment of compensation which had not yet been considered by a claims officer.  So he argued (particularly in reply) that on an appeal against an eligibility decision it was open to the FtT to consider any other eligibility ground in determining the appeal.  For example, if the applicant had been refused an award on the basis that he had not sustained a criminal injury (per paragraph 6 of the 2001 Scheme) and on appeal the FtT found that he had sustained such an injury, it was open to the FtT to nonetheless refuse the appeal and maintain the nil award if it considered that the applicant’s conduct during the index incident made it inappropriate for an award to be made (per para. 13(d)).  We shall refer to this as CICA’s additional argument

64.          Mr McSweeney, on behalf of Ms Groom, submitted that the 2001 Scheme drew a distinction between procedural appeals under paragraphs 66 to 68 and substantive appeals under paragraphs 69-71.  It was only in the case of procedural appeals that the FtT was bound to remit the case to CICA if it allowed the appeal.  In the case of substantive appeals, in accordance with long-established practice and in the exercise of its case management powers, the FtT had a discretion whether to remit the case to CICA or whether to decide any remaining entitlement or assessment questions.

65.          On behalf of Ms Barrett, Ms Boyd submitted that the power of reconsideration and the power to refer a case back to a tribunal where there was new evidence or a change of circumstances since a tribunal decision (in, respectively, paragraphs 53 and 55 of the 2001 Scheme), were confined to the claims officer and could not be exercised by the tribunal on its own initiative. The power to reduce or withhold an award under paragraph 13(c) which the FtT purported to exercise was also one which could be exercised by the claims officer alone.

66.          Mr O’Brien, on behalf of Mr Parke, differed from the submissions made on behalf of both CICA and the FtT.  As we understood him, he argued that the words “where necessary” in paragraph 77 gave the tribunal a power to remit to CICA or retain issues which the tribunal was not seised of, and in the exercise of that power the FtT could on an appeal concerned with eligibility deal with the assessment of compensation.

67.          Mr Pritchard in his observations on behalf of the FtT bore the brunt of the argument supporting the FtT’s practice. He argued that the appeals process was designed to be informal subject to the overriding objective to deal with cases fairly and justly.  In this regard he emphasised that the FTT has broad case management powers. All of this was necessary, he argued, in an inquisitorial jurisdiction where many appellants were unrepresented and vulnerable.  He also prayed in aid the practical consequences of a more restricted reading of the FtT’s powers on appeal as this would lead to extra delay caused by the “fragmentation of appeals”, which cannot have been the intention of or behind the 2001 Scheme.             

68.          However, unsurprisingly and correctly his primary argument was that the answer to the question about the extent of the powers of the FtT when hearing an appeal was to be found in the terms of the 2001 Scheme and in particular in the first three sentences of paragraph 77 of the 2001 Scheme read in their context.  Paragraph 58 sets out examples of questions which are determinative of an application.  The third sentence of paragraph 77 empowers the tribunal to give directions to the claims officer “…as to the decision to be made on the claim for compensation”, which Mr Pritchard contended extended to all the matters which needed to be decided in order for a claim to be finally determined.  Paragraph 68 specifies the powers of the FtT when dealing with appeals concerning time limits and re-opening of appeals, and any other construction of paragraph 77 in relation to other types of appeal would render paragraph 68 otiose.  He also sought to rely on the heading to paragraphs 69-71 – Appeals concerning awards – and argued that this showed such appeals allowed the FtT to determine what (if any) award is payable and therefore would require consideration of matters that go to eligibility  and compensation.  The appeal regime under section 133 of the Financial Services and Markets Act 2000 provided an example of another statutory scheme in which an appeal tribunal had similar powers and, in accordance with the decision of the Supreme Court in Bloomsbury International Limited v Sea Fish Industry Authority and Department for the Environment [2011] UKSC 25, the 2001 Scheme ought to be applied in accordance with long-established practice.

69.          Mr Pritchard also argued that the approach the FtT took and was advocating was also consistent with the case law.  In R(Tait) v CICAP [2009] EWHC 767 (Admin), the High Court upon overturning a decision on eligibility had remitted the application to a FtT for an assessment of compensation.  Further, in MC-v- FTT and CICA [2011] UKUT 87 (AAC), Upper Tribunal Judge Levenson had accepted that the FTT performed a role both with regards to determining eligibility and assessing compensation.  Lastly, and most importantly, in refusing permission to apply for judicial review on a renewed application, Lord Justice Buxton in Cleary –v- CICAP [2003] EWCA Civ 1437, had said that there was no power under the Criminal Injuries Compensation Scheme (1996) for the CICAP to remit to CICA to make a further decision. This was in the context where Mr Cleary’s application for compensation had been rejected by CICA on the basis that he had not suffered a crime of violence and on appeal CICAP had warned Mr Cleary that even if it found he had suffered a crime of violence it would wish to consider paragraphs 13(a) and 13(e) of the Scheme (failure to cooperate and applicant’s character).  The CICAP’s decision was that Mr Clearly had been the victim of a criminal attack and was entitled to compensation but that that award should be very considerably reduced under paragraph 13(a) and (e).  Mr Cleary contended that CICAP should not have decided the paragraph 13 matters and remitted them instead to CICA to make a fresh decision.  He argued that no award had been made by CICA and therefore it was inappropriate for the CICAP to say it was amending or replacing an award.  Rejecting these arguments, Buxton LJ said:

 “It is quite clear under the Scheme that where a matter is held to fall outside the Scheme, a nil award is granted. ….what was under review was a nil award.  That review, as the Scheme made clear, involved all the questions that arose or might arise under the Compensation Scheme, including the question as to whether an award of compensation ought to be reduced in the way in which it was.  In effect….Mr Cleary’s complaint is….about the structure of the Scheme.

I see no ground in public law for saying that the Scheme is in any way defective in that respect.  ….I cannot accept there is any ground for saying in this case that the [CICAP] was wrong or that the matter should be remitted to [CICA] for it to take a further decision.  There is no power to do that under the Scheme…..”.

70.          Although it was not decided in the context of the CICAP having decided the level of compensation payable to Mr Cleary, Mr Pritchard argued that the ratio of Cleary was either binding on us, or was highly persuasive, as to the FtT having the broad powers for which it contended.                                                                         

Analysis- Issue (a) - Scope of appeal to the FtT

71.          We do not consider that general reference to delays and practical consequence advances either side of the argument.  As is evident from the histories of some of these cases, keeping the appeals with the FtT can lead to extensive delays just as, we imagine, remitting matters back to CICA may mean that all issues are not determined at once. Moreover, such practical consideration could at most be relevant to the determination of the underlying purposes of the primary and secondary legislation and for the reasons given would be neutral.

72.          However, there is one practical matter which is of some relevance.  This is that neither the 2001 Scheme nor the FtT’s procedure rules provides the means for the FtT to refer an applicant for a medical report or examination. Rule 25(3) and Schedule 2 to the FtT’s procedure rules make it clear that this power vests only in the FtT in respect of appeals concerning certain social security benefits.  That no doubt may be why the FtT’s pro forma directions which we have referred to in the histories above speak in terms of a jointly instructed (i.e. by the appellant and CICA) medical expert, to be paid for by CICA but it  is not clear to us on what legal basis the FtT has the authority to compel CICA to pay for such reports.  The omission of such a power from the FtT’s procedure rules probably reflects its omission from the 20001 Scheme and it is the omission of such investigative powers from the 2001 Scheme that provides a pointer towards how and by whom decisions are to be made pursuant to the 2001 Scheme.                                                    

73.          However, as was correctly recognised and argued by the parties the search for the answer as to the FtTs’ powers has to focus on the terms of the 2001 Scheme and the Act it is made under, and to that we now turn.   

74.          Although paragraphs (c) and (d) of paragraph 58 confer a right of review only in respect of decisions to withhold an award and decisions to make an award, including a decision to make a reduced award, it is not in dispute, in our view correctly, that appeal rights extend to decisions that a claimant is not eligible to apply for an award under paragraphs 6 to 12, as well as to decisions not to make an award, or to withhold an award, under paragraphs 13 to 17.  This is because a decision to refuse an award based on eligibility would either be one to withhold it or paragraph (d) should be applied to a decision to make or not to make an award.   

75.          Since paragraph 60 confers a right of appeal in respect of “a decision taken on a review”, it follows that such a right of appeal exists in respect of any type of decision which is adverse to a claimant made under paragraphs 6 to 17 of the 2001 Scheme.

76.          So the FtT, as successor to the adjudicators, has jurisdiction to hear and determine all such appeals.  But this does not answer the question whether it has jurisdiction to determine issues that have not already been decided by CICA in its review decision under paragraphs 6 to 17 of the 2001 Scheme and so have been appealed to the FtT.  The answer to that question turns on the correct interpretation and application of the decision making process set by the 2001 Scheme and thus the functions it gives to claims officers and adjudicators (and thus in their place the FtT).

77.          Firstly, as we have already indicated, section 2(4) of the 2005 Act places responsibility for determining claims for compensation and for making awards and payments of compensation with the claims officer, while section 5(1)(b) permits adjudicators to be appointed only for the purpose of determining appeals against decisions taken on reviews.  In our view, this draws a clear statutory line between the functions to be included in the criminal injuries compensation schemes of (i) claims officers and (ii) adjudicators (and thus now the FtT).

78.          The distinction between the respective roles of claims officers and adjudicators is also apparent from the first two sentences of paragraph 2 of the 2001 Scheme, and paragraph 3 stipulates that it is claims officers who have the responsibility for deciding what awards should be made and how they should be paid.  Under paragraphs 18 to 22, claims officers are responsible for the consideration of applications, and under paragraph 21 a claims officer can arrange for a medical examination if one is needed before a decision on a claim can be made.  As we have already commented, this investigative power of a claims officer as opposed to an adjudicator (or now the FtT) is a powerful indicator that the decision is to be investigated and made by the claims officer and not the adjudicators (and now the FtT), and therefore that the FtT’s function is to deal with appeals from such decisions (after they have been reviewed).

79.          Further, we consider that the claims officer’s sole responsibility for determining claims is reflected in the machinery for giving effect to the decisions of tribunals.  Unlike other appellate systems, e.g. social security appeals, a tribunal’s decision allowing a criminal injuries compensation appeal does not become the operative decision.  Paragraph 77 provides for the tribunal to “make such directions as they think fit by a claims officer on the claim for compensation”, and paragraph 55 provides for the reconsideration of “an award [which] has been made by a claims officer in accordance with adjudicators on determining an award under paragraph 77”.  The 2001 Scheme does not provide for any other machinery for giving effect to a tribunal’s decision, from which we conclude that a decision allowing an appeal can be implemented only by means of a direction to a claims officer to that effect.  Even if a tribunal has allowed an appeal, the role of the claims officer as the sole person empowered to make decisions on claims therefore remains unaffected by the tribunal’s decision.

80.          Finally, we can find nothing in the 1995 Act or in the 2001 Scheme to suggest that adjudicators and the FtT as their successors were intended to have powers of investigation and determination extending beyond the issue or issues covered by the actual review decision which is the subject of the appeal. 

81.          Also, we accept the submissions of Mr Nourse and Mr Collins that any other construction of the provisions of the 2001 Scheme would seriously disadvantage claimants by denying them rights of reconsideration and review in respect of any decisions made after a successful appeal which would be available to them in respect of such decisions if they were made by a claims officer.  And, as these cases demonstrate, the provisional nature of a decision favourable to a claimant in this jurisdiction may mean that inquiries have to continue long after the initial decision has been made, and in our view a judicial body such as the FtT, notwithstanding its inquisitorial nature, is not well-suited to overseeing the investigations which may need to be carried out.

82.          Against that analysis of the functions of claims officers and adjudicators (now the FtT) and the decision making process under the 2001 Scheme we accept the argument of Mr Nourse and Mr Collins, that the scope of the FtT’s jurisdiction in any particular case is controlled by paragraphs 60 and 61 of the 2001 Scheme, and reject that of Mr Pritchard, that it is controlled by the third sentence of paragraph 77. 

83.          Paragraph 61 provides for a right of appeal against a decision taken on a review.  Paragraph 77 confers on the FtT a number of powers which can be exercised at the oral hearing of the appeal, but we do not consider that it extends the jurisdiction of the FtT beyond the issue or issues determined in the review decision which is the subject of the appeal.  Paragraph 68 specifies the action to be taken by the FtT when allowing appeals against decisions concerning time-limits and the re-opening of cases, but the fact that in appeals concerning awards it is not possible to specify what action the FtT should take when allowing an appeal because of the number of different types of decision which can be appealed does not mean that paragraph 68 is otiose.  In our judgment, the words “where necessary” appear in paragraph 77 to make it clear that the FtT need only give a direction to the claims officer if such a direction is necessary for the FtT’s decision on the issue or issues raised in the appeal before it to be implemented.  We naturally accept that the direction to be given by the tribunal is a direction “as to the decision to be made by a claims officer on the application for compensation”, but we do not accept that this creates a jurisdiction to deal with the amount of an award (or any other issue) when that issue was not the subject of the decision taken on review and appealed to the FtT.  Rather the reference to the “application for compensation” is simply a reference in neutral terms to the application that has to be determined in accordance with the decision making process set by the 2001 Scheme.  So the directions that would be necessary relate to matters decided on the issues in the appeal before the FtT that the claims officer is to apply in making his decision on the application for compensation.

84.          We should add that we did not find reference to the headings used within the 2001 Scheme of any assistance as an aid to its construction.  But we add that the heading that covers paragraph 77 – Oral hearing of Appeals – is not suggestive of paragraph 77 ever having been intended as the place where the FtT’s jurisdiction is set out, and we do not read the heading to paragraphs 69-71  -  “Appeals concerning awards” - as meaning that any appeal falling within paragraphs 69-71 must involve any and all issues relevant to whether an award might be made.

85.          We also do not find anything in the case law on which Mr Pritchard sought to rely that stops us reaching this conclusion. In Tait the Court was simply informed by Counsel that remitting to the FtT was the appropriate course and in MC Judge Levenson’s remarks did no more than presuppose that the FTT could address compensation questions as well as questions relating to eligibility. 

86.          Cleary may seem a more compelling authority but in our judgment it is not. Firstly, it was made in the context of a litigant in person and where neither CICA nor the FTT was represented.  Second, the facts that lay behind the application are unclear. For example, the terms of CICA’s initial and then review decisions are not set out.  Given what Mr Collins told us at the hearing, it is possible (we put it no higher than that) that those letters had considered all the eligibility criteria including those in paragraph 13(a) and 13(e). Third, the reasoning for the court’s decision is difficult to discern. For example, it is unclear why Lord Justice Buxton considered that it was “quite clear” under the Criminal Injuries Compensation Scheme 1996 that even where a person has been found not to have suffered a criminal injury a nil award is granted.  Fourth, if it had been the High Court considering these five judicial review applications then Practice Direction (Citation of Authorities) (Sup Ct) [2001] 1 WLR 1001 would have meant that the judgment in Cleary was not citable and, so in our view in a common law and case-law based jurisdiction, that it was  not binding.  This is because it was an application attended by one party only (see paragraph 6.2 of the Practice Direction). Given this Cleary would only be citable if (per para.6.1 of the PD) “it clearly indicates that it purports to establish a new principle or extend the present law [and] ---- that indication must take the form of an express statement to that effect”. No-one before us sought to persuade us that Cleary met any of these exceptions, and it plainly does not. We see no reason why we ought to adopt a different approach to Cleary from that we consider the High Court would adopt.     

87.          The example of the appeal regimes under the terms of the Financial Services and Markets Act 2000 and the Communications Act 2003 are just that: examples of one form of appeals regime. They do not tell us that an appeals regime must be so constructed.  We also gain no assistance on the issue we are having to address from what Lord Phillips said in the Bloomsbury International Limited case because we are not dealing with the customarily adopted meaning of a phrase in the Scheme but rather just a practice that has continued from the days when the CICAP was part of what is now CICA.                                       

88.          On the first issue, we therefore conclude that the First-tier Tribunal has fully discharged its functions once it has decided the issue (or issues) which is the subject of the actual review decision under appeal, and has no power to decide any further matters.  

89.          The broad effect of our decision (we will come to the exact effect later), is that the FtT acted outside its powers in all five applications when retaining to itself, and then deciding, issues that had not been the subject of the review decisions under appeal.

CICA’s additional argument

90.          This argument effectively categorises a decision on eligibility as one that covers all aspects of eligibility and as the hearing before the FtT is a re-hearing the claimant is at risk of losing before the FtT on a ground either not considered by the claims officer and on review or which was determined in his favour at those earlier stages.

91.          It is therefore a half way house argument based on a categorisation of a decision taken on review by reference to “eligibility” as opposed to “amount” or some other discrete description that gives rise to a number of possible grounds for a decision that a claimant may want to challenge.

92.          If right, as a matter of jurisdiction the argument clearly gives rise to issues of fairness in that a claimant would need to have proper notice of the possibility that he might lose before the FtT on an eligibility ground that was not relied on by the claims officer or in the review.

93.          No problem arises if the claims officer or the review decision has expressly (or implicitly) decided the point against the claimant.  The issue arises when either the point has not been considered or has been decided in favour of the claimant.  Part of the argument was that all issues on eligibility will or should have been decided by the claims officer if and when an award is refused on eligibility grounds and so the subject matter of the review and the appeal to the FtT is eligibility.

94.          By analogy to the point that appeals are against orders and not reasons for them we see some force in this argument and acknowledge that it is a factor in the argument of the FtT based on a wider categorisation, namely that the claim is one for compensation and so all aspects of it are before and within the jurisdiction of the FtT.

95.          However, our rejection of that argument also leads us to reject the CICA’s additional argument because in our view it too runs counter to the decision making process set by the 2001 Scheme and the functions of the case officers under it.  In our judgment this limits the jurisdiction of the FtT to a consideration of the application of the ground or grounds  relied on by the claims officer on the review to found the decision that the claimant is challenging.

96.          In our judgment CICA’s additional argument would lead to a surprising result in respect of a scheme that makes the claims officer the decision maker. It is also founded on false premise.  The false premise is the drawing of a sharp edged jurisdictional distinction under the 2001 Scheme between ‘eligibility’ and ‘compensation’ when such a distinction is not drawn by the 2001 Scheme.  It is true that the terms of the 2001 Scheme refer to eligibility to apply for compensation, eligibility to receive compensation and types and limits of compensation, and the claims officer assessment and adjudication on the claim for compensation may need to address each of these areas. However, the right of appeal conferred by paragraph 61 is simply against the decision taken on review. That right does not differ depending on whether what is under appeal is an issue going to eligibility or the assessment of compensation. Accordingly, we can find no basis in the terms of the 2001 Scheme or the legislation it is made under to support CICA’s additional argument that a review decision on eligibility of necessity, or by its jurisdictional nature, is one concerned with all aspects of eligibility.  That may be so as matter of fact, and the answer to that factual enquiry would depend upon the terms of the review decision letter, but it does not arise as a matter of law.

97.          It is a matter for CICA whether on an application for compensation the claims officer ought in fact consider each and every criterion under the scheme along the way to an award being made or not being made, or whether the claims officer should take the decision making in stages (whether in terms of the stages suggested by the paragraph numbering in the scheme or the evidence) and stop at the first criterion where it is considered a (full) award cannot be made. We refer to these respectively as the “first approach” and the “second approach”. It seems likely that it is the second approach that operates at present, and we have seen and heard nothing to suggest that CICA’s review decisions in the judicial reviews before us were not in fact made under the second approach.

98.          If, however, the first approach is taken by CICA then it seems to us that, consistently with our reasoning on the scope of the appeal, the initial and review decisions must spell out clearly, intelligibly and comprehensively the basis on which all the criteria have been determined. For example, if a claimant has been found not eligible for an award only because (per paragraph 13(b) of the Scheme) he failed to co-operate with the police, the decision would also need to address all the other eligibility criteria (e.g. that he had suffered a criminal injury, that he taken all reasonable steps to inform the police, and there was no likelihood the assailant would benefit if an award was made).

99.          In this regard we find of some relevance the decision of a Tribunal of Social Security Commissioners in R(IS)2/08, even though it  is set in a different statutory context. The context was that the decision on a claimant’s entitlement to the social security benefit of income support would depend on his satisfying numerous statutory criteria (e.g. whether he was habitually resident in Great Britain, whether his savings and any other capital assets were below the statutory maximum, and whether he was incapable of work), but the Secretary of State’s decision maker would decide that the claimant was not entitled to the benefit because he failed to satisfy one of the entitlement criteria.    The issue was if on appeal the appeal tribunal allowed the claimant’s appeal on the issue before it, was it to be taken as deciding that the claimant was entitled to benefit (i.e. that the other conditions of entitlement were met)?   (The facts in R(IS)2/08 actually concerned two different parts of the capital rules under which the claimant may have been disentitled to income support, but this does not affect the scope of what the Commissioners decided.)

100.       In short, the Tribunal of Commissioners concluded that the appeal tribunal (now the First-tier Tribunal) in allowing an appeal on one entitlement ground was not obliged to consider all other entitlement conditions so as to give a substantive entitlement decision. The appeal tribunal could decide the one entitlement condition before it in the claimant’s favour and remit any remaining issues to the Secretary of State for him to decide (against which the claimant would have fresh rights of appeal).

101.       We draw attention to this decision because it evidences that in the same Chamber within which the FtT dealing with criminal injuries compensation appeals sit, another First-tier Tribunal (and one with a far higher level of appeals) operates in many instances on the basis of the appeal deciding one issue and other issues being remitted to the administrative decision maker for further decision and possible further appeals. The decision also highlights the importance of the decision under appeal setting out clearly what has (and has not) been decided.

102.       We add, finally, that in our judgment in the scenario posited in paragraph [98] above, the appeal against the review decision would only be in respect of whether the claimant was disqualified under paragraph 13(b) of the 2001 Scheme.  This is because under paragraph 61 of the 2001 Scheme it is the paragraph 13(b) decision that the claimant is appealing “against” and it is that part of the review decision which he “is dissatisfied with”.  If CICA were to take a different view about any of the other eligibility criteria before the appeal is decided then it could only reconsider its decision if paragraph 53 of the 2001 Scheme applied.                                                                

 

 

 

Issues (b) and (c) – FtT’s power to decide entitlement and assessment questions at separate hearings and judicial review time limits    

103.       On the basis of our conclusion on issue (a), and given the facts of the five cases before us, none of the FtT’s were empowered to make assessments of compensation in later hearings where CICA had not itself made an assessment of compensation review decision that was then appealed.  

104.       We recognise, however, that if the terms of a CICA review decision were to encompass determinations in respect of eligibility and the level of compensation then on an appeal against such a decision a FtT may be required to decide both issues. An example would be where CICA decide that paragraph 13(b) of the 2001 Scheme applies with a 50% reduction and assess the level of compensation to which the 50% reduction then applies so as to make a final award, and the claimant appeals against both aspects of the decision.  In such an example we can see that in some circumstances it may be sensible for the FtT to hold separate hearings on the two issues under appeal.  We are cautious about seeking to give detailed guidance as to how the FtT should approach such a scenario given it is hypothetical and none of the parties made detailed or contested arguments on this issue.  We therefore confine ourselves to drawing attention to the provisions of rule 5(3)(e) of the FtT’s procedure rules – “the Tribunal may deal with an issue in the proceedings as a preliminary issue” – and observe that if this rule is invoked and the preliminary issue decided then the time limit for judicial review of that decision would run from the date of the decision or written reasons being given for it: per r.28(2) and (3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008. 

105.       Care may therefore need to be taken by the FtT when faced with deciding more than one issue on an appeal.  In the case of Ms Barrett it was (and is) possible that determining the tariff and loss of earnings levels of compensation could be addressed separately at different hearings. If the appeal hearing genuinely goes part heard (e.g. the FtT intended to address both issues but simply runs out of time), and it is therefore adjourned to be heard by the same FtT members (and doing so would not unnecessarily delay the final resolution of the appeal), then it would seem to us that, whatever preliminary view the FtT may have come to on the first issue (e.g. the level of the tariff award), no decision would be made until the further hearing has taken place. The time limit for applying for judicial review would therefore not begin to run until the decision made at the second (or final) hearing.

106.       On the other hand, it may be clear at the outset of the first hearing, or even during the course of that hearing, that only one issue can sensibly be determined, and the FtT may then wish to use the r.5(3)(e) power to finally decide that issue (e.g. where it may not be possible to reconvene the same tribunal membership within an appropriate time).        

107.       Whichever course is taken by the FtT, however, it must be made clear to the parties if any eligibility or compensation issue has been finally decided.                                                                  

 

 

 

Issue (d) – reconsideration and strike out after FtT has decided an appeal  

108.       It follows from our conclusion on issue (a) that once the FtT has decided an appeal on eligibility (or ‘entitlement’ as Judge Bano referred to it in his earlier directions), it is functus and has no power to reconsider its own decision under the Scheme.  Further, in our judgment it is plain that the power of reconsideration in paragraph 53 of the 2001 Scheme vests in the claims officer alone and the FtT cannot exercise this power. The FtT in Groom was therefore wrong in law when it decided it stood in the shoes of the claims officer for the purposes of paragraph 53.  Even the reconsideration power in paragraph 55 of the 2001 Scheme is contingent on CICA referring the matter decided back to another FtT for rehearing. The FtT has no facility to exercise this reconsideration power in the absence of such a reference. Again, this highlights the primacy of CICA or the claims officer as the final decision maker.

109.       It also follows from our decision on issue (a) that once the FtT has decided the review decision issue(s) under appeal to it, absent a reference under paragraph 55 of the 2001 Scheme it has no power to strike out the proceedings. The issue(s) under appeal have been finally decided by the FtT and therefore, subject to paragraph 55 of the 2001 Scheme and rule 37 of the FtT’s procedure rules, those proceedings are at an end.  There was therefore no lawful basis for the FtT to strike out Mr Parke’s appeal, having already allowed it on the review decision issue that was under appeal to the FtT.    

110.       We would add that in the light of what we have decided, the FtT will need to give consideration to the wording used on its standard form decision notices, including the “binding of future FtT’s, subject to paragraphs 13(c),  13(e) and 53 of the Scheme and Rule 8(3)” part of them.

Paragraphs 53 and 55 of the 2001 Scheme      

111.       In our judgment the reconsideration powers in paragraphs 53 and 55 have to be read together. The key to understanding which of the two paragraphs applies is to identify the source of the decision which is to be reconsidered. Paragraph 53 enables a decision of the claims officer to make an award to be reconsidered by the claims officer at any time before payment of the final award, except a decision to make an award that a claims officer has been directed to make by the FtT. For that class of decision, and that class only, recourse has to be had to paragraph 55.  In other words, if the FtT has pursuant to paragraph 77 directed that an awarding decision is be made (e.g. it allows an appeal on the basis the claimant did cooperate with the police), then if further evidence comes to light to cast doubt on that decision the claims officer or CICA cannot reconsider the decision but must refer it under paragraph 55 to the FtT for the FtT to reconsider its decision. Conversely, paragraph 53 will apply where, for example, the claims officer decides all the eligibility criteria are met (so there is no appeal to the FtT on these issues), and then evidence comes to light to case doubt on paragraph 13(b) not applying so as to cause the claims  officer to reconsider his decision.

112.       One other point is important. We do not consider that the powers conferred by paragraphs 53 and 55 are affected by the making of an interim payment. Paragraph 53 expressly provides that the making of an interim payment does not preclude a claims officer from reconsidering issues of eligibility where new evidence has come to light or there has been a change of circumstances. Paragraph 55 provides for the claims officer or CICA to refer a case back to what is now the FtT in such cases if a decision to make an award has been made by a claims officer “in accordance with a direction by [the FtT] on determining an appeal under paragraph 77”, but we do not consider that that wording extends to a direction by the FtT for the claims officer or CICA to make an interim payment of an award that has been made.  Under paragraphs 72 and 77 of the 2001 Scheme, the power to direct an interim payment pending the final determination of an appeal is clearly distinct from the power to make a direction to the claims officer “as to the decision to be made by a claims officer” on determining an appeal.  Thus, in Ms Barrett’s case any reconsideration would have to be by a claims officer under paragraph 53 because the proceedings before the CICAP and FtT have never reached the stage where a decision has been made by a claims officer in accordance with a direction by either appellate body.  In our judgment, the position is unaffected by the making of an interim payment to Ms Barrett in accordance with the direction given by CICAP on 23 February 2005.                       .   

The results in the individual cases

113.       In Ms Barrett’s case the last effective decision of the FtT was its decision of 23 February 2005 that she was entitled to a full award of compensation under the 1996 Scheme with a tariff award of £20,800 and the question of loss of earnings adjourned to be decided on a future date.  It is clear in our judgment that both the tariff award and loss of earnings parts of the review decision were being appealed by Ms Barrett. It follows from our conclusion on issue (a)  that the FtT had no jurisdiction to make the “nil award under paragraph 13(c)” decision it made on 24 February 2011 or the steps it took leading up to it after 25 February 2005 because there was no eligibility decision before or under appeal to the FtT.  The claims officer had made a positive decision on eligibility when he had made the decision to make an award of compensation.        What should now occur is either CICA reconsiders its eligibility decision under paragraph 53 (no final award having yet been made) or the FtT will need to assess the loss of earnings.

114.       In Ms Groom’s case the final effective decision of the FtT was its decision of 2 June 2010 that she was entitled to a full award of compensation under the 2001 Scheme. It then fell, and still falls, for CICA to either decide the level of compensation payable or use the powers given to it in paragraph 55 of the 2001 Scheme to refer the eligibility decision back to the FtT for rehearing. Having considered the FtT’s appeal bundle it is clear that no such reference was made. We note that at the hearing on 1 November 2011 CICA sought to invoke paragraph 53 of the 2001 Scheme and the FtT considered that provision applied equally to it on appeal. It did not. The reconsideration power in paragraph 53 vests in the claims officer only and, in any event, does not apply where the decision to be reconsidered is a decision made following a direction of the FtT under paragraph 77 (which was the case here when on 2 June 2010 the FtT decided Ms Groom was entitled to a full award). The correct power to enable the FtT to reconsider its decision is the claims officer’s power to refer in paragraph 55, but that has not so far been invoked;

115.       In Mr Parke’s case the final effective decision of the FtT was its decision of 6 January 2010 that he was entitled to an award subject to a 75% reduction.   It then fell, and still falls, for CICA to either decide the level of compensation payable or use the powers given to it in paragraph 55 of the 2001 Scheme to refer the decision back to the FtT for rehearing. However, absent such a reference, the FtT had no power to invoke the strike out procedures under rule 8 of the FtT’s procedure rules as it was no longer seised of any appeal proceedings concerning Mr Parke: its jurisdiction had ended when it overturned CICA’s eligibility decision.

116.       In Mr Ibrar’s case the final effective decision of the FtT was its decision of 24 March 2011 that he was entitled to a reduced award (with a 25% reduction) under paragraph 13(b) of the 2001 Scheme. It then fell, and still falls, to CICA to decide the level of compensation to be reduced; a decision against which Mr Ibrar will have a fresh right of appeal (as to the level of compensation);

117.       Lastly, in Mr Holt’s case the final effective decision of the FtT was its decision of 13 August 2009 that he was entitled to a full award. It then fell, and still falls, to CICA to decide the level of compensation to be awarded; a decision against which Mr Holt will have a fresh right of appeal (as to the level of compensation).

 

 

Mr Justice Charles

Chamber President 

 

Judge E.A.L. Bano

Judge of the Upper Tribunal

 

Judge S. M. Wright

Judge of the Upper Tribunal

 

Signed and dated (on the original) 4^th November 2014