Upper Tribunal (Administrative Appeals Chamber)

 

 

IN THE UPPER TRIBUNAL Case No.  JR/1736/2013

ADMINISTRATIVE APPEALS CHAMBER

 

 

 

Before Upper Tribunal Judge Wikeley

 

 

 

Attendances:

 

The Applicant: was represented by Mr Owain Thomas of Counsel, instructed by the Solicitor to the Criminal Injuries Compensation Authority.

The Respondent neither appeared nor was represented.

 

The Interested Party was represented by Mr David Cunnington of Counsel, instructed by Bakers, Solicitors.

 

 

RULING OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The application dated 16 May 2013 for permission to apply for judicial review of the decision of the First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) dated 2 August 2011 is late.

 

I refuse to extend time to admit the late application. In the event that either the application is in time or I should have extended time to admit the application, I refuse permission to apply for judicial review.

 

This ruling is issued under sections 15-19 of the Tribunals, Courts and Enforcement Act 2007 and rules 2, 5, and 28 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

 

REASONS FOR DECISION

 

The parties and their representatives

1. The Applicant for permission to apply for judicial review in the present case is the Criminal Injuries Compensation Authority (CICA), which was the Respondent before the First-tier Tribunal (the FTT). The claimant, who was the Appellant before the FTT, is technically now the “Interested Party” in these proceedings before the Upper Tribunal. The FTT itself is nominally now the Respondent, but has (as is right and proper) taken no active part in the present proceedings.

 

2. For convenience, and to avoid confusion as to party status, I simply call them respectively CICA, the claimant and the FTT in the course of this decision.

 

3. I held a rolled-up oral hearing of this application for permission to apply for judicial review at Field House in London on 8 May 2015. CICA was represented by Mr O Thomas of Counsel (who did not appear at the FTT). The claimant was represented by Mr D Cunnington of Counsel, who by contrast did appear at the relevant FTT hearing. I am grateful to them both for their careful and detailed oral and written submissions, including those further submissions that I directed should be filed after the hearing date.

The issues that arise for decision

4. There are potentially two principal legal issues I have to decide. The first question is whether or not to give CICA permission to apply for judicial review. That involves consideration of whether or not CICA’s application is in time and so properly admitted. If it is not in time, I may have to consider whether to extend time. The second issue is, assuming that permission has been given, whether or not I should grant the substantive application for judicial review on the basis that the FTT decision displays an error of law. Neither of those principal issues is straightforward.

 

An outline of my conclusion

5. In the event my decision is not to admit CICA’s application for permission to apply for judicial review, on the basis that it is late. If I am wrong about that, as a matter of discretion I refuse CICA permission to apply for judicial review.

 

A summary of the background chronology to this application for judicial review

6. The chronology of these proceedings is not in dispute. For present purposes a bare outline will suffice. On 8 January 2009 the claimant, a young woman then aged 20, was out walking her dog when it was attacked by one of two unattended Rottweilers. The claimant intervened to protect her own dog. She was not actually bitten by the Rottweiler, but shortly afterwards developed symptoms which were consistent with having suffered a stroke.

 

7. On 8 June 2010 the claimant made a claim for criminal injuries compensation under the 2008 Scheme.

 

8. On 20 September 2010 CICA wrote to the claimant advising her of its decision that there had not been a “crime of violence” and so she was not entitled to compensation. She asked for a review.

 

9. On 16 December 2010 CICA issued its review decision, confirming its original decision. The review letter explained that a crime of violence “might involve a physical attack on the victim or, in some cases, the threat of an attack. Or it might involve reckless behaviour that causes injury”. The review letter continued by concluding that the owner of the Rottweilers, a Ms Middleton, had not deliberately set them upon the claimant, and nor did the attack result from the owner’s recklessness by failing to control a known vicious animal. The claimant lodged an appeal.

 

10.  On 2 August 2011 the FTT – which for reasons that will become apparent I shall describe from now on as FTT1 – found that the claimant was entitled to a full award of compensation on the basis that she was a victim of a crime of violence. In accordance with its then standard practice, FTT1 also adjourned the matter for evidence as to the extent of the claimant’s injuries. A FTT judge issued further case management directions on 1 March 2012 and 8 November 2012.

 

11.  On 26 February 2013 a second FTT (“FTT2”), with a completely different panel, decided the causation issue in the claimant’s favour, i.e. on the basis of the expert medical evidence it received it was satisfied on the balance of probabilities that the causal link between the dog attack and the claimant’s carotid artery dissection (and hence the stroke) was established. FTT2 adjourned the matter (again) for evidence as to the appropriate amount (or ‘quantum’) of compensation. FTT2 also directed that CICA make the claimant an interim payment of £40,000, which was duly paid.

 

12.  On 21 March 2013 (i.e. within one month of FTT2’s decision, but obviously not within one month of FTT1’s decision) CICA’s regional manager e-mailed the FTT office asking for written reasons for FTT2’s decision. The e-mail added “However, if possible, I would also like to request the written reasons for the earlier decision on eligibility taken by the panel in the same case. That decision was made in October 2011”. The reference to October 2011 was a mistake for August 2011, but nothing turns on that.

 

13.  On 22 March 2013 the FTT office e-mailed two acknowledgement letters back to CICA’s regional manager. The first was a generalised standard acknowledgment, with no identifying case details, indicating that the request was being dealt with and further information would follow as to when to expect the written statement. This was accompanied by a copy of the FTT’s Practice Statement CI-6 on applying for judicial review. The second letter referred directly to the request in relation to FTT2’s decision, indicating that the statement was expected to be issued within one month. There was no mention of FTT1.

 

14.  On 2 April 2013 FTT2 prepared a statement of reasons for its decision taken on 26 February 2013. This was issued by the FTT office on 9 April 2015.

 

15.  On 16 April 2013 FTT1 prepared a statement of reasons for its decision taken on 2 August 2011. This statement was sent to CICA on 17 April 2013.

 

16.  On 16 May 2013 (i.e. just within the month from the issue of the statement of reasons for FTT1’s decision) the Upper Tribunal received an application from CICA for permission to apply for judicial review. This application specified the decision being challenged as the decision of FTT1 on 2 August 2011. The grounds for judicial review were stated to be that FTT1 had erred in law by (i) finding the claimant was a victim of a crime of violence; and (ii) failing to consider whether a crime had been committed under section 3 of the Dangerous Dogs Act (DDA) 1991 or at all.

 

17.  For completeness I should add that on 3 February 2014 the Court of Appeal handed down its judgment in Criminal Injuries Compensation Authority v First-Tier Tribunal (Social Entitlement Chamber) & Anor [2014] EWCA Civ 65. This is now recognised as the leading case under the 2008 Scheme on the concept of a “crime of violence” where the victim has been attacked by a dog.

 

An apparent failure of due process by the FTT

18.  I must start by observing that there appears – from the information available on the file before me – to have been a complete failure of process by the FTT in handling CICA’s request for the two statements of reasons and more particularly the request in relation to FTT1’s decision. This failure accounts for some of the problems which have since beset this matter.

 

19.  There is not even the slightest hint on the file before me that any consideration was given by the FTT judiciary or administration to the fact that CICA’s request for a written statement of reasons for FTT1’s decision was, on the face of it at least, late, and, if that was indeed the case, whether or not it was appropriate to extend time.

 

20.  The e-mails and the two acknowledgement letters referred to at [11] and [12] above were not on the FTT case file before me. They were disclosed by CICA following directions I made at the oral hearing last month. I do not read the first acknowledgement letter noted at [12] above as referring directly to FTT1’s decision. Rather, it reads as a standard template letter that is followed by the second letter that is confined to FTT2’s decision.

 

21.  FTT2’s written statement of reasons noted in parentheses (at [11]) the request made in relation to FTT1 and added “I understand this request has been forwarded to the Chairman of that Tribunal”. The basis on which that request was forwarded by the FTT office is not apparent from the file.

 

22.  FTT1’s written statement of reasons had nothing to say about the matter other than this very candid admission by the judge:

 

“I now give written reasons as requested by the authority by e-mail dated 21/03/13, some 1¾ years after the hearing. I have very little independent recollection of the hearing, but have been provided with a copy of the Tribunal’s records of proceedings, the appeal bundle and the decision made on 2/08/11. I have not been provided with any skeleton argument that might have been prepared on behalf of the Appellant and cannot now recall whether one was handed up.”

 

23.  On the face of it, therefore, the issue of whether the request as regards FTT1 was late was simply not addressed by the FTT office or the presiding judge. If the request was late – a matter I defer for the moment – then obviously consideration should have been given as to whether time should be extended under rule 5(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685; “the FTT Procedure Rules”). In those circumstances, and especially given the time that had elapsed since FTT1’s decision, the FTT should have given the claimant the opportunity of making representations on whether time should be extended. She was not given that opportunity – but, if she should have been, that omission was plainly unfair on her.

 

24.  It might be thought that the FTT’s failure to raise the issue as to whether the request for a written statement of reasons for FTT1’s decision was in time or not simply reflected the then commonly-held but mistaken view as to the scope of the tribunal’s jurisdiction. A difficulty with this explanation is that the FTT’s failure to address the issue of potential lateness in this case stands in stark contrast to the procedure it adopted on the facts of R (CICA) v First-tier Tribunal and RF [2015] UKUT 299 (AAC), also known under UT file reference JR/4792/2013 (see Judge Rowland’s decision at [12]). In that case FTT1 made an entitlement decision on 30 April 2010 allowing the claimant’s appeal. More than three years later FTT2 made an award of final compensation on 29 August 2013. Within a week, on 4 September 2013, CICA made a request for written statement of reasons for both decisions. The FTT office quite properly then raised the issue of lateness. CICA provided a reasoned explanation as to why it took the view that the request was not late (by reference to rule 34 of the FTT Procedure Rules). The FTT office then arranged for a statement of reasons to be provided in relation to FTT1’s decision in that case. 

 

25. Against that chronology and background, the first issue I have to determine is whether permission to apply for judicial review should be granted. That necessarily involves consideration of whether CICA’s application for judicial review is in time or not and, if it is not in time, the logically prior issue as to whether time should be extended to admit the late application. The starting point for that inquiry is the time limit for making a request to the FTT for a written statement of reasons following a tribunal decision. However, before considering that matter it is necessary to embark on a brief diversion to note the effect of the decision of the three-judge panel of the Upper Tribunal in R(SB and others) v First-tier Tribunal and CICA [2014] UKUT 497 (AAC).

 

The Upper Tribunal’s decision in R(SB and others)

26. The issue for the Upper Tribunal in R(SB and others) v First-tier Tribunal and CICA (from now on simply “SB”) was 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” (at [1]). Historically the FTT’s standard practice had always been, if it decided eligibility in favour of an applicant, then to adjourn to itself issues of compensation to be dealt with at a later hearing. Until the SB proceedings, CICA had always accepted that practice as indeed (so far as I am aware) had claimants’ representatives.

 

27.  The Upper Tribunal summarised its decision in SB in these terms:

 

“[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.”

 

28.  There has been no appeal against the Upper Tribunal’s decision in SB, which was issued in November 2014. Both counsel in the present proceedings recognised that SB was an authoritative statement as to the correct legal position. It follows that – with the benefit of hindsight and putting it at its simplest – we now know that in at least one procedural respect both FTT1 and FTT2 took the wrong legal approach in this case. Both tribunals decided specific issues in favour of the claimant and then adjourned the case for the remaining matters to be dealt with by another tribunal. In the light of SB, in both instances the tribunals should have simply decided the sole issue before them, arising out of CICA’s review decision, and then sent the case back to CICA for it to take the decision on the next issue (or issues), which would carry its own separate right of appeal to the FTT. However, that observation involves getting ahead of myself somewhat, as the prior issue is whether permission to apply for judicial review should be granted.

 

A subsequent development in the present case

29.  Returning briefly to the chronology of the proceedings in this matter, on 3 December 2014 a Tribunal Judge signed off a “Final Decision Notice” in this case under reference C1011/14/00635 with the instruction “Case to be remitted to the Criminal Injuries Compensation Officer”. This decision notice noted that the claimant was eligible for an award of compensation as a result of her appeal being allowed by FTT1 on 2 August 2011. The Judge referred to the binding authority of the Upper Tribunal’s decision in SB, in effect revoking FTT2’s directions and concluding that “the appeal before the FTT is therefore at an end”. The Judge accordingly remitted the claimant’s case to a CICA Claims Officer for further investigation and payment of compensation in the light of FTT1’s decision.

 

30.  As noted above, this Final Decision Notice was signed off on 3 December 2014. Strangely, the FTT office did not send a copy to the Upper Tribunal at the time, even thought it had sent its file to the Upper Tribunal nearly six months previously. Even more astonishingly, this Decision Notice only emerged after the Upper Tribunal oral hearing in May 2015. CICA stated then it could find no record of having received this notice until it had made further enquiries of the FTT office after that hearing. I accept that statement, not least as the claimant’s representatives have also confirmed they had not previously received a copy of the December 2014 Decision Notice.

 

31.  However unsatisfactory the process by which we have got there, all parties now have a copy of the Tribunal Judge’s Final Decision Notice signed on 3 December 2014. The effect of that is as stated above, subject of course to the outcome of the present application.

 

Is the application for permission to apply for judicial review late?

Introduction

32.  In order to ascertain whether the application for permission to apply for judicial review is late one must first establish the time limit for asking for a written statement of reasons, as this is (or at least may be) relevant to the time limit for judicial review itself.

 

The time limit for a request for a written statement of reasons

The requirements under the primary legislation

33.  The Tribunals, Courts and Enforcement Act (TCEA) 2007 enables procedural rules to be made dealing with time limits “as respects initiating, or taking any step in, proceedings before the First-tier Tribunal or the Upper Tribunal” (Schedule 5, paragraph 4).

 

The requirements under the FTT Procedure Rules

34.  The FTT Procedure Rules deal with notice of decisions in rule 33 and reasons for decisions in rule 34. They contemplate that the FTT “may give a decision orally at a hearing” (rule 33(1)). That is also, for good reason, the standard (although, depending on the circumstances, not the invariable) practice in the FTT criminal injuries jurisdiction. Rule 33(2) (at least as it was in force in August 2011) then provides that:

 

“(2) Subject to rule 14(2) (withholding information likely to cause harm), the Tribunal must provide to each party as soon as reasonably practicable after making a decision which finally disposes of all issues in the proceedings (except a decision under Part 4)—

(a) a decision notice stating the Tribunal’s decision;

(b) where appropriate, notification of the right to apply for a written statement of reasons under rule 34(3); and

(c) notification of any right of appeal against the decision and the time within which, and the manner in which, such right of appeal may be exercised.”

 

35.  Rule 34(2) further provides that the FTT may give reasons “for a decision which disposes of proceedings” orally at a hearing (rule 34(2)(a)) or in a written statement of reasons (rule 34(2)(b)). Rule 34(3)-(5) (again, as they were in force in August 2011) then provide as follows:

 

“(3) Unless the Tribunal has already provided a written statement of reasons under paragraph (2)(b), a party may make a written application to the Tribunal for such statement following a decision which finally disposes of all issues in the proceedings.

(4) An application under paragraph (3) must be received within 1 month of the date on which the Tribunal sent or otherwise provided to the party a decision notice relating to the decision which finally disposes of all issues in the proceedings.

(5) If a party makes an application in accordance with paragraphs (3) and (4) the Tribunal must, subject to rule 14(2) (withholding information likely to cause harm), send a written statement of reasons to each party within 1 month of the date on which it received the application or as soon as reasonably practicable after the end of that period.”

 

The FTT practice: the summary decision notice issued by FTT1

36.  On the day of its hearing, the FTT1 judge issued a short handwritten summary of reasons as follows:

 

“The officer’s evidence satisfied us that everyone in the Middleton household was aware that these two Rottweiler dogs were potentially dangerous to members of the public and, for that reason, they had to be kept secured within their enclosure beside the house.

 

Due to the recklessness of the owner, Ms Middleton, the dogs were allowed to escape their enclosure. It may have been one of her adult sons who left the gate open. Or it may have been another member of the Middleton household. In any event Ms Middleton, the owner, knew the system to keep the dogs within the enclosure had to be reliable and to be practiced reliably. We find it was reckless for Ms Middleton to fail to enforce a proper system to keep these potentially dangerous dogs within their enclosure. Para 13 of Thomson v Hutchison applied.”

 

37.  FTT1 also issued a standard form document entitled “Decision/Case Management Directions” on Form AP26C-FTT. This document included the following pre-printed instruction:

 

“There is no appeal against this decision save by way of application to bring judicial review proceedings on the grounds of ‘error of law’. A party wishing to bring an application for judicial review proceedings must, within 1 month from the date of issue of this decision, make an application for a full statement of reasons for this decision to the Tribunals Service [followed by relevant address].”

 

38.  CICA did not make any such request at the material time in or around August 2011.

 

The FTT practice: the summary decision notice issued by FTT2

39.  FTT2 also issued a standard form document entitled “Decision/Case Management Directions” on Form AP25C-FTT on the day of its hearing (26 February 2013). This document recorded that “The Tribunal decided that the appeal could not be finally disposed of and adjourned the hearing because: - causation established today, adjourned for further evidence for final determination of tariff, LOE [loss of earnings] and care”. In the box headed “Summary of Reasons for Tribunal’s Decision” FTT2 first noted that “at a Tribunal hearing on 02/08/11 the Appellant was found to have been the victim of a crime of violence”. FTT2 went on to summarise its reasons for concluding that causation was established in the light of the expert medical evidence and so the claimant was entitled to a full award. FTT2 also directed an interim payment of £40,000 be made to the claimant.

 

40.  Beneath the summary reasons box there was again some standard format “small print”. This stated that “the above decision on eligibility will NOT be reconsidered in the future” (save for in certain situations which do not arise in the present case, emphasis as in the original). The reference to “the above decision on eligibility” must in its context be a reference to the causation decision by FTT2. The “small print” continued thus (emphasis added):

 

“There is no appeal against this decision apart from an application to the Upper Tribunal to bring judicial review proceedings on the grounds of ‘error of law’. A party wishing to make application to the Upper Tribunal for permission to bring judicial review proceedings must, within 1 month from the date of issue of this decision make application for a full statement of written reasons for this decision to [... the FTT office...]; an application for full written reasons may be made now even though this decision does not finally dispose of the proceedings.”

 

41.  I note that the italicised phrase which appeared on the FTT2 standard form did not appear in the text in the version of the standard form used by FTT1. However, I also observe that the additional wording was not a response to the Upper Tribunal’s decision in R(SB), which was issued over a year later.

 

The parties’ submissions on CICA’s request for FTT1’s written statement of reasons

42.  Mr Thomas, for CICA, accepts, as he must do, that some 18 months elapsed between the hearing before FTT1 (in August 2011) and CICA’s request (in March 2013) for written reasons for that decision. However, his principal submission is that CICA could not have made such a request immediately following FTT1’s decision. The reason for that, he says, was the shared understanding – or perhaps I should say the shared misunderstanding by both the FTT and CICA – that CICA could not make such a request until the FTT had issued a decision “which finally disposes of all issues in the proceedings” (rule 34(3)). On the position as it was understood to be at the time (i.e. before the enlightenment provided by the Upper Tribunal’s decision in SB), FTT1 had not issued such a decision, and so CICA could not make such a request. It was, Mr Thomas argued, unfair to criticise CICA retrospectively and with the benefit of hindsight. Mr Thomas pointed out that in other cases claimants to the Scheme might find themselves in precisely the same position as CICA in the present proceedings. His instructions were that in any such case CICA would not seek to take a timing point against a claimant, at least so long as a judicial review application was made within one month of receipt of the tribunal’s written reasons.

 

43.  Mr Cunnington, for the claimant, argued that the summary reasons document handed to CICA on the day of FTT1’s oral hearing was an effective notice under rule 33(2)(b). It told CICA what to do within one month if it wished to bring proceedings for judicial review. No such step was taken in time by CICA. Furthermore, rule 34 had to be read in the light of the decision in SB; FTT1 had plainly disposed of the question as to whether the claimant had been the victim of a crime of violence. It could not be right, Mr Cunnington argued, that CICA could wait until all FTT hearings had been concluded, then ask for written reasons for a decision reached at an earlier hearing (which could be years earlier) and file a judicial review application within one month of those written reasons being provided. A failure by CICA to make the request within one month of the hearing before FTT1 meant both that its right to make such a request fell away and its omission to make such a request amounted to undue delay.

 

The time limit for an application for permission to apply for judicial review

The requirements under the primary legislation

44.  Section 15 of the TCEA 2007 vests the Upper Tribunal with a judicial review jurisdiction. This is the only way to challenge a FTT decision in a criminal injuries compensation case as such a decision is otherwise an “excluded decision”, thus precluding the normal route of a statutory appeal (TCEA 2007, section 11(5(a)). An application for judicial review may only be made if permission is granted first (TCEA 2007, section 16(2)). So far as the impact of delay is concerned, section 16(4) and (5) provide as follows:

 

“(4) Subsection (5) applies where the tribunal considers—

(a) that there has been undue delay in making the application, and

(b) that granting the relief sought on the application would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(5) The tribunal may—

(a) refuse to grant permission (or leave) for the making of the application;

(b) refuse to grant any relief sought on the application.”

 

The requirements under the Upper Tribunal Procedure Rules

45.  The Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698; “the UT Procedure Rules”) provide as follows in rule 28(2) and (3):

 

“(2) Subject to paragraph (3), an application under paragraph (1) must be made promptly and, unless any other enactment specifies a shorter time limit, must be sent or delivered to the Upper Tribunal so that it is received no later than 3 months after the date of the decision to which the application relates.

(3) An application for permission to bring judicial review proceedings challenging a decision of the First-tier Tribunal may be made later than the time required by paragraph (2) if it is made within 1 month after the date on which the First-tier Tribunal sent—

(a) written reasons for the decision; or

(b) notification that an application for the decision to be set aside has been unsuccessful, provided that that application was made in time.”

 

The parties’ submissions on the judicial review time limit

46.  Mr Thomas’s main submission was quite simple. CICA’s judicial review application was not late. Rule 28(3) provides that a judicial review application “may be made later than the time required by paragraph (2) if it is made within 1 month after the date on which the First-tier Tribunal sent (a) written reasons for the decision...”. In the present case the FTT office had sent CICA the written reasons for FTT1’s decision on 17 April 2013 and CICA had lodged its judicial review application on 16 May 2013, ergo it was in time in accordance with rule 28(3). Furthermore, as a matter of statutory construction, the general provision as to time limits in rule 28(2) was expressly made “subject to paragraph (3)”, which in turn is stated in permissive terms, i.e. a judicial review application “may be made later than the time required by paragraph (2)” if rule 28(3) is satisfied (as it was here). Moreover, and as a matter of principle, an application properly made within the relevant statutory time limit could not amount to undue delay.

 

47.  Mr Cunnington argued that CICA’s position amounted to the contention that where a request for written reasons is made late, but the tribunal issues such a statement, then that action effectively re-sets the clock for the purposes of the judicial review time limit. He further submitted that such a construction was inconsistent with a proper reading of the FTT Procedural Rules taken together with the UT Procedural Rules. The exception in rule 28(3) of the latter Rules was predicated on the party concerned having made an in-time application for written reasons under rule 34 of the former Rules or the system would be unworkable. In addition, rule 28(3), although expressed in permissive terms, was not an absolute exemption from the requirements of rule 28(2). In particular, the onus remained on CICA, as applicant in these proceedings, to show that it had acted “promptly” within rule 28(2).

 

The Upper Tribunal’s analysis

Is the application for permission to apply for judicial review late?

48.  The first question I have to determine is whether or not CICA’s application for permission to apply for judicial review is late. I issued some initial and preliminary Observations on this application in January 2015. I indicated that on the face of it there appeared to be compliance with rule 28(3) of the UT Procedure Rules and so “strictly the application seems to be in time” (at [8]). I also intimated that I had not reached a definitive conclusion on that matter (at [15]). I reconsidered my preliminary views in the light of the parties’ skeleton arguments and hence invited detailed oral submissions on the point, as well as further written submissions. My conclusion is that the application by CICA is late as a matter of both law and fact. I reach this conclusion essentially for four reasons.

 

49.  First, I do not accept Mr Thomas’s argument that rule 28(3) acts as, in effect, an overriding exception to rule 28(2) of the UT Procedure Rules. On the contrary, rule 28(2) lays down two requirements for timeliness in relation to an application for permission to apply for judicial review made under rule 28(1). The first is that the application “must be made promptly”. The second requirement (linked by “and”) is that the application “must be sent or delivered to the Upper Tribunal so that it is received no later than 3 months after the date of the decision, action or omission to which the application refers”. There is ample authority from the courts that applicants for judicial review have a duty to act promptly, not a right to wait for 3 months. Furthermore, the exception in rule 28(3)(a) specifically permits an application “to be made later than the time required by paragraph (2) if it is made within 1 month after the date on which the First-tier Tribunal” sent its written reasons for its decision (emphasis added). The “time required by paragraph (2)” can only be a reference to the absolute 3 month time limit in rule 28(2). An extension of 1 month on an exhortation to act promptly is meaningless. This is because a grant of a 1 month extension to a time limit only makes sense if it runs from a fixed and readily ascertainable defined date. However, the separate stipulation that an application be made “promptly” provides no such known benchmark.

 

50.  Accordingly I agree with Judge Rowland’s conclusion that “despite its literal meaning, it seems to me that rule 28(3) must be construed as extending the three-month time limit in rule 28(2) but as not interfering with the need for an application to be made promptly” (R (CICA) v First-tier Tribunal and RF [2015] UKUT 0299 (AAC) at [30]). Given that the fundamental thrust of CICA’s challenge is to the decision of FTT1, which it seeks to have set aside, rather than more narrowly just the reasons given by FTT1, then any argument that CICA has acted promptly is doomed to fail. This reason alone, in my view, is sufficient to justify a finding that the application for permission to apply for judicial review is late.

 

51.  Second, I do not accept Mr Thomas’s further argument that CICA was not late as, in acting as it did (particularly with regard to the time that the application for a written statement of reasons was made), it was operating in accordance with the well-established view (pre-SB) as to the scope of the FTT’s jurisdiction, a view widely accepted both by the FTT judiciary and CICA itself until that Upper Tribunal decision. The fact of the matter is that FTT1’s decision in August 2011 was a decision “which finally disposes of all issues in the proceedings” within the terms of rule 34(4) of the FTT Procedure Rules. That much was made clear in the “small print” on the directions notice (see [37] above). The well-established view to which Mr Thomas refers was not universally held (see R (CICA) v First-tier Tribunal and RF at [26]). Moreover, and crucially, Mr Thomas’s argument is internally contradictory. An important distinction between this case and the facts of Judge Rowland’s case is that in the present proceedings both FTT1 and FTT2 purported to decide one issue (entitlement and causation respectively) and to adjourn the case to another tribunal to decide the next issue in the decision-making sequence. If Mr Thomas’s logic is followed through, then CICA should have awaited the decision of FTT3 on quantum before making its request for written reasons for FTT1. If it could make the request immediately after FTT2, which left the final outcome of the claimant’s case unresolved, then it could equally well have made the request for the written statement immediately after FTT1.

 

52.  Third, I agree with Mr Cunnington that the FTT Procedure Rules and the UT Procedure Rules have to be read together. Rule 2 of both sets of Rules is effectively in identical terms. It requires both the FTT and the Upper Tribunal to give effect to the overriding objective both when exercising any power under the respective Rules and in interpreting any rule (rule 2(3)). The overriding objective includes “avoiding delay, so far as compatible with proper consideration of the issues” (rule 2(2)(e)). The primary requirement in judicial review proceedings, of course, is that an application for permission is made “promptly” (UT Procedure Rules, rule 28(2)). Meanwhile the FTT Procedure Rules provide that a party should make a request for a written statement of reasons within one month (rule 34(4)) and the tribunal itself should provide such a statement “within 1 month of the date on which it received the application or as soon as reasonably practicable after the end of that period” (rule 34(5)). Reading those various requirements together, the obvious conclusion is that the special rule in rule 28(3) of the UT Procedure Rules is designed as a safety net to provide protection for the party who makes a timely request for a written statement within rule 34(4) of the FTT Procedure Rules but where the tribunal is dilatory about providing such a statement. Rule 28(3) of the UT Procedure Rules thus presupposes that an in-time application for a written statement has been made under the FTT Procedure Rules, or failing that, that a properly considered extension of time has been granted to admit a late request for such a statement. A hypothetical illustrates the point.

 

53.  For example, assume that the FTT sat on 2 January 2015 and dismissed the claimant’s appeal. Assume also for present purposes (unlikely though it is) that the FTT’s decision notice and “summary reasons” actually gave no reason for the decision, other than referring to a paragraph number in the Scheme. The losing party, who is unrepresented, took advice (after having some difficulty in identifying a professional with the requisite expertise) and made a request for a written statement of reasons on 1 February 2015. The FTT office promised the statement would be provided by 28 February 2015. In the event the FTT judge then fell ill and went on extended sick leave; as a result the full statement was not provided until 2 April 2015, three months after the hearing. A fortnight later the claimant made an application for permission to apply for judicial review. In those circumstances, the application is most likely to be found to have been made both promptly under rule 28(2) and in accordance with the modified time limit in rule 28(3). As Mr Cunnington argues, a party cannot lose its entitlement to apply for judicial review simply because the FTT fails to provide written reasons in time. It is stretching that purposive construction of rule 28(3) far too far to argue that it enables the application made by CICA in the present case to be regarded as in time. There was no in-time request for a written statement and no conscious exercise of the discretion to admit the late application.

 

54.  Fourth, and in any event, there is of course no formal requirement on a party to obtain a written statement of reasons before bringing judicial review proceedings, although it may be difficult to show an error of law without such a statement (see R (CICA) v First-tier Tribunal and RF at [28]). However, in the present case FTT1’s contemporaneous summary of reasons for its decision was not simply a one-liner. Rather, it was reasonably comprehensive. FTT1 had summarised its key findings of fact in August 2011 and stated its conclusion that the dog owner had been reckless in failing to enforce a proper system to keep the dogs penned in their enclosure. CICA’s proposed grounds for judicial review are that an offence under section 3 of the Dangerous Dogs Act 1991 is not a crime of violence and that the tribunal had failed to consider whether a crime had been committed under section 3 or at all. Those grounds were formulated in April 2013, nearly a year before the Court of Appeal’s judgment in TS. Given FTT1’s contemporaneous summary reasons, they could equally well have been formulated in August 2011 and without sight of the tribunal’s full written reasons.

 

55.  I therefore conclude that CICA’s application made on 16 May 2013 for permission to apply for judicial review of FTT1’s decision on 2 August 2011 was not made promptly and so is late.

 

Should the late application for permission to apply for judicial review be admitted?

56.  Having decided that CICA’s application is late, strictly the next question I have to consider is whether to extend the time limit under rule 28 so as to admit the late application, extending time by virtue of rule 5(3)(a) (see rule 28(7)). I have a broad discretion in this respect that must be exercised judicially. According to the case law, I must take into account all relevant factors, most notably (i) the length of the delay; (ii) the reasons for the delay; (iii) the prospects of the application succeeding if the application is granted; and (iv) the degree of prejudice to the other party if the application is granted. If the lateness hurdle is overcome, and the late application is admitted, then in deciding whether to grant permission on the application (or indeed in granting relief, if one gets that far), then I must consider whether there has been “undue delay in making the application” and the issues of substantial hardship or substantial prejudice to the claimant’s rights or detriment to good administration (TCEA 2007, section 16(4)). In my view these are all equally material matters which should be taken into account in deciding whether to admit the late application in the first instance.

 

57.  As to point (i) in the preceding paragraph, the delay in the present case between the decision by FTT1 and the application for permission to apply for judicial review is more than 21 months. This is by any standard an excessively long delay, given the primary requirement that applications be made “promptly”. Given the length of the delay, very compelling reasons for admitting the late application will be needed. On any basis this time lapse amounts to “undue delay”.

 

58.  As to point (ii) at [56] above, the explanation for the delay is not persuasive, for the same reasons as set out above. The substantive reasons for FTT1’s decision were apparent from the summary reasons and did not depend on the full statement of reasons. CICA was given clear instructions on the adjournment notice issued by FTT1 as to the steps it should take if it disagreed with the decision. The purported explanation for the delay, reliant on the pre-SB understanding of the FTT’s jurisdiction, is deficient for the reason identified at [50] above: the logic of that position was that CICA could only make the request for a statement after the final quantum decision (which, of course, has yet to be taken by either CICA or the FTT). 

 

59.  As to point (iii) at [56] above, I will assume for present purposes that the application by CICA has a good prospect of succeeding if it is admitted and goes forward (I return to the substantive grounds for judicial review below). There is an obvious public interest in ensuring that the FTT’s decision is correct as a matter of law and that public funds are properly administered within the terms of the Scheme as correctly interpreted. However, although a very important consideration this cannot be an overriding factor at this stage of deciding whether to admit the late application. As Judge Rowland observed in R (CICA) v First-tier Tribunal and RF at [25] “time limits are enforced by allowing possibly wrong, or obviously wrong, decisions to stand”. I also recognise the force of Judge Rowland’s point that there is more of a public interest in quashing a decision that clearly confers an unwarranted benefit, than there is quashing a decision which, although wrong in law, is possibly the right decision on the merits.

 

60.  As to point (iv) at [56] above, it seems to me I should consider in this context both prejudice to the claimant and the detriment to good public administration. I recognise at the outset that the obvious and immediate potential prejudice to the claimant in having to repay the interim award if the application succeeds has been addressed by CICA. Mr Thomas told me on instructions that in the event of the application succeeding CICA had very properly undertaken not to seek recovery of the interim payment from the claimant. There are, however, a number of further considerations under this heading which, taken together, point towards refusing to extend time:

 

·         On 2 August 2011 at the FTT1 hearing CICA’s representative, having heard the police officer’s evidence, conceded that the tribunal was likely to find that the dog owner had acted recklessly (written reasons at [17]).

 

·         On the basis of its summary reasons, FTT1 had applied exactly the same conceptual framework and legal test as advocated by CICA in its review decision, but had rather reached a different conclusion on the underlying facts, having heard first-hand evidence, including from the investigating police officer.

 

·         On 1 March 2012 FTT Judge Walker issued further directions with regard to the appeal at CICA’s request. CICA had questioned the nature of the specialism of the medical expert to be appointed. There was no challenge at that stage by CICA to the substance of FTT1’s decision. Furthermore those directions of 1 March 2012 added:

 

“(2) At the oral hearing the Tribunal decided that the Appellant was entitled to a full award. It is important to understand the ambit of that decision. The decision related to the issues raised in the Hearing Summary, namely whether the attack by the dog could be considered to be a crime of violence within the terms of the Scheme. The Tribunal decided that the Appellant was the victim of a crime of violence.”

 

·         There was no challenge by CICA to the FTT’s directions of 1 March 2012.

 

·         On 8 November 2012 FTT Judge Dodgson issued further directions with regard to the conduct of the appeal, including a direction that by 15 December 2012 CICA set out its statement of case with regard to the expert’s evidence. CICA failed to file a statement of case as directed or indeed make any response to the FTT’s directions. This non-compliance and the apology by CICA’s representative was noted by FTT2 (at [8] and [14(2)] of its own written reasons).

 

·         At the hearing of FTT2 on 26 February 2013 the parties had agreed that the only issue for the tribunal was that of causation (written reasons at [14(1)]). There is no suggestion that CICA sought to reserve its position as to the correctness of the decision by FTT1 or any right it may have had to apply for permission to bring a judicial review application. Moreover, Mr Cunnington (who, of course, was present for the FTT2 hearing) states that at that hearing CICA’s representative stated that it did not seek to go behind the decision by FTT1 but rather wished to challenge the issue of causation and the extent of the claimant’s injury.

 

·         Thus for 18 months or so CICA allowed both the FTT and the claimant to proceed on the basis that the decision of FTT1 in August 2011 was properly made, that there was no challenge to that decision and no reason not to hold the causation hearing in February 2013. If that is not undue delay, I do not know what is.

 

61.  Taking all these matters in the round, the only significant factors which weigh in the scales in favour of extending time to admit the late application are (a) CICA’s undertaking that it will not seek recovery of the interim payment; and (b) my working assumption that the application has good substantive prospects of success on its actual merits. I am satisfied that these considerations are more than outweighed by the other factors itemised above, when they are aggregated and taken together, most notably the very lengthy delay, the inadequate justification for CICA not acting sooner to challenge the decision by FTT1 and the prejudice to the claimant and more particularly the detriment to good administration caused by CICA’s conduct of this case.

 

The Upper Tribunal’s conclusion

62.  For the reasons above, I conclude that CICA’s application for permission to apply for judicial review (i) is late; (ii) should not have the benefit of an extension of time under rule 5(3)(a) of the UT Procedure Rules; and therefore (iii) should not be admitted for consideration by the Upper Tribunal. If I am wrong as a matter of interpretation about (i), or wrong as a matter of discretion about (ii) above, and as a result the application should be admitted, as a matter of discretion I refuse permission to apply for judicial review for essentially the same reasons.

 

The substantive application for judicial review

Introduction

63.  As I have concluded that the application for permission to apply for judicial review is late and should not be admitted (or if admitted should be refused), I do not strictly need to consider the position on the substantive application. However, given that I had directed a rolled-up hearing and also had the benefit of detailed submissions from both counsel on the substantive issue, it is appropriate to address this issue as well, not least in the event that I may subsequently be found to be wrong on the time limit point. However, I do so in fairly short compass given my conclusions above.

 

64.  CICA’s grounds for judicial review are that FTT1 erred in law in two respects. Taking them and renumbering them (more logically) in reverse order, the first is that FTT1 erred in law by failing to consider whether a crime had been committed under section 3 of the DDA 1991 (or at all). The second is that FTT1 erred in law as an offence contrary to section 3 of the DDA 1991 is not a crime of violence for the purposes of the 2008 Scheme.

 

The parties’ submissions on the substantive judicial review issue: ground 1

65.  As regards the first ground, Mr Thomas’s submission is that the FTT failed to apply the correct two-stage approach as approved by Lord Hope in R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19 (“Jones”). Lord Hope had identified two questions that any tribunal had to consider in deciding whether or not the expression “a crime of violence” applied to the proven facts of the case:

 

“The first is whether, having regard to the facts which have been proved, a criminal offence has been committed. The second is whether, having regard to the nature of the criminal act, the offence that was committed was a crime of violence” (at paragraph 16).

 

66.  Mr Thomas submitted that, as regards the first stage of that test, FTT1 had failed to address its mind to, or make any finding of fact as to, the issue of whether the Rottweilers in question were “dangerously out of control” for the purposes of the offence under section 3 of the DDA 1991. He argued that FTT1 went no further than making some general observations as to the general disposition and appearance of the two dogs in question.

 

67.  Mr Cunnington, on the other hand, referred to Lord Hope’s further observation in Jones, namely that it is “well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it” (at [25]). Equally in the Court of Appeal’s decision in CICA v FTT and TS (“TS”) [2014] EWCA Civ 65, Moore-Bick LJ had remarked that First-tier Tribunal decisions should be “read benevolently” and “both the Upper Tribunal and the Court of Appeal should be cautious about interfering with its decisions, even when they are less fully expressed than might be desirable” (at [20]).

 

The Upper Tribunal’s analysis: the substantive judicial review issue – ground 1

68.  I can deal with this ground shortly. It is true that FTT1 did not neatly sub-divide the issues it had to determine in the way explained by Lord Hope in Jones. This is perhaps hardly surprising given that FTT1’s written reasons are dated 16 April 2013, coincidentally the day before the Supreme Court issued its decision in Jones. However, it is important in any event that I have regard to the substance of FTT1’s decision rather than its form. It had been clear in the case of TS (in which a small but aggressive dog had escaped from its owner’s garden into the road, causing a serious road traffic accident, injuring a child who had been cycling by) that the potential crime involved was the offence under section 3 of the DDA 1991, even though the point had not been fully articulated in the tribunal’s written reasons. The same was equally true in the present case, given FTT1’s reference in both its summary reasons and its full written reasons to Thomson v Hutchison (also known as Thomson v Procurator Fiscal, Peterhead) [2010] SLT 158, which involved a prosecution in Scotland under the DDA 1991. I also note from the file that the dog owner was cautioned for such an offence following a later unrelated incident involving one or both of the same dogs. Indeed on any fair reading of its decision as a whole, FTT1 had plainly concluded that, as a matter of fact, the two Rottweilers were “dangerously out of control in a public place” for the purposes of an offence under section 3(1) of the DDA 1991. In my view any submission to the contrary, on the facts as found by FTT1, is quite simply unarguable. I therefore would have dismissed ground 1 of the application for judicial review, were the application to have been admitted and were permission to have been granted.

 

The parties’ submissions on the substantive judicial review issue: ground 2

69.  CICA’s second ground was that FTT1 had erred in law as an offence contrary to section 3 of the DDA 1991 is not a “crime of violence” for the purposes of the 2008 Scheme. In this context Mr Thomas inevitably relied heavily on the Court of Appeal’s decision in TS. This authority has confirmed that in deciding whether any given offence is a crime of violence what matters is the nature of the crime in question, not its consequences. The offence under section 3 in particular does not require any intent or conduct – violent or otherwise – on the part of the offender; rather, it is an offence of failing to keep control of a dog. The section 3 offence is therefore qualitatively different from the crime under section 20 of the Offences against the Person Act 1861 (maliciously inflicting grievous bodily harm), which was in issue in Jones. In the present case the FTT’s written reasons focussed on the consequences rather than the inherent nature of the offence.

 

70.  In Mr Thomas’s submission the facts of the present case were really on all fours with cases involving a failure to guard unsafe machinery (an offence under the Factories Act 1961), which the Court of Appeal has repeatedly held does not count as a crime of violence (see R v Criminal Injuries Compensation Board ex p Webb [1987] 1 QB 74 at 79E, which was approved by the Supreme Court in Jones, and latterly TS, at [24]). Furthermore, FTT1 had erred by framing the question it had to answer in terms of recklessness simpliciter. Thus the tribunal had proceeded on the basis of the erroneous assumption that if the dog owner had been reckless there had been a crime of violence, but if she had been negligent there was not. But the question was not whether the dog owner had been reckless; rather it was whether she had committed a crime of violence, bearing in mind that the focus of the inquiry had to be on the nature, and not the consequences, of the offence.

 

71.  In reply, Mr Cunnington first emphasised again that FTT1’s written reasons had to be read benevolently, not least as they were written 18 months after the hearing. The presiding Judge had explicitly (and entirely understandably) recorded that he had “very little independent recollection of the hearing” (in the statement at [7]; see [22] above). He noted he had been provided with the hearing bundle, the records of proceedings and the decision, but had no recollection of whether any skeleton arguments had been handed in. Mr Cunnington further argued that FTT1 had directed itself correctly on the legal meaning of recklessness, as involving actual foresight of harm, and had found as a fact that the dog owner had acted with reckless disregard for the safety of passers-by. The present case was accordingly materially different from the hypothetical scenario under the Factories Act, which involved no more than a negligent failure to fence dangerous machinery but without any finding as to the actual knowledge on the part of the factory owner of the risk of harm so posed.

 

The Upper Tribunal’s analysis: the substantive judicial review issue – ground 2

72.  My assessment is that whereas ground 1 simply stood no prospects of success at all, this second ground of review in principle stands at least good prospects of success, assuming the application is admitted and permission is granted. I recognise the force of all that Mr Cunnington says about both the general principle of reading FTT decisions with a degree of judicial restraint and the particular difficulty in this case that the FTT1 judge had in reconstructing the tribunal’s decision-making process so long after the event. Against that, there is rather more force in Mr Thomas’s submission that FTT1 fell into the trap of assuming that because it had found the dog owner had acted recklessly, rather than simply negligently, she had therefore committed a crime of violence. I would certainly accept that on its facts the present case is closer to those of TS than it is to the facts of R (NJ) v FTT and CICA (CIC) [2015] UKUT 196 (AAC), a recent authority to which I had drawn the parties’ attention. In other words, there is a good argument in the present case that FTT1 conflated the existence of a reckless state of mind with a crime of violence, without identifying and analysing the particular crime of violence and its inherent nature.

 

73.  Yet in the last resort I find this does not actually assist Mr Thomas. In its statement of reasons FTT1 summed up its reasoning as follows:

“[19.8] Given that everyone in the Middleton household had actual foresight of the risk of serious injury to a passer-by in the event the dogs escaped their enclosure unattended we are satisfied that the Appellant was the victim of a crime of violence. They did not deliberately set the Rottweiler on the Appellant, but the attack resulted from Ms Middleton’s recklessness by failing to control an animal which she knew had the propensity to frighten and attack.”

 

74.  Mr Thomas argues that demonstrates a fundamental error of law in the light of the principles expounded in TS. However, this misdirection of law by FTT1 – if that is indeed what it was – did not suddenly come to light when its written reasons were produced in April 2013. FTT1’s core findings and reasoning were clearly and admirably summarised in the Summary of Reasons issued on the day of the hearing in August 2011, which were then repeated in the text of the full reasons (see e.g. at [19.8]). There was no need for CICA to await the insights provided by the Court of Appeal’s decision in TS in February 2014, as CICA had already filed its grounds for judicial review in the present proceedings in May 2013, and could have done on the basis of the summary reasons provided in 2011. Moreover, and as explained above, if CICA had wished to challenge the decision by FTT1 it knew at the time that the tribunal’s summary reasons were issued what steps it had to take and that it had to act promptly. It evidently failed to do so.

 

Conclusion

75.  I therefore refuse to admit the late application dated 16 May 2013 by the Criminal Injuries Compensation Authority for permission to apply for judicial review of the decision of the First-tier Tribunal (Social Entitlement Chamber) dated 2 August 2011 (i.e. the decision by FTT1). If I am wrong about that and the application is admitted, as a matter of discretion I refuse permission to apply for judicial review. The decision by FTT1 accordingly stands. The subsequent decision by FTT2 also stands, although that tribunal’s onward directions have been revoked. It is accordingly now for CICA to make a final decision on quantum.

 

 

 

 

Signed on the original Nicholas Wikeley

on 30 June 2015 Judge of the Upper Tribunal