JR/3295/2013

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Decision and Hearing

 

1. The applicant (Ms A) is a claimant for criminal injuries compensation (referred to below variously as “Ms A” or “the applicant” or “the claimant”). The respondent to this application is the First-tier Tribunal (Social Entitlement Chamber). The interested party is the Criminal Injuries Compensation Authority (the “Authority” or “CICA”).

 

2. This application succeeds. Pursuant to the judicial review jurisdiction of the Upper Tribunal and in accordance with the provisions of sections 15 to 18 of the Tribunals, Courts and Enforcement Act 2007 I make a quashing order in respect of the decision of the First-tier Tribunal (Social Entitlement Chamber) to refuse an appeal against the decision of the Authority not to waive the time limit for claiming an award under the Criminal Injuries Compensation Scheme 2001 (“the 2001 scheme”) in respect of the unlawful killing of a man who was the applicant’s fiancé/partner or former fiancé/partner and who was the father of two of her children (a boy to whom I shall refer as “V”, and a girl to whom I shall refer as “F”). The decision of the First-tier Tribunal was made after a hearing in London on 8^th February 2013. Written reasons were signed on 9^th May 2013.

 

3. I refer the matter to the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision by a panel that does not include any judge or member who has considered this matter hitherto. The applicant should consider requesting an oral hearing and the parties should regard themselves as being on notice to send to the clerk to the First-tier Tribunal as soon as is practicable any further relevant written medical or other evidence. I anticipate that this matter will be considered by the First-tier Tribunal together with the cases brought by the claimant’s son V (JR 2188 2013) and daughter F (JR 3291 2013) in both of which I have made similar orders but in which I have given separate decisions.

 

4. I held an oral hearing at the Rolls Building in London of this application for judicial review (together with those in the other two cases to which I have referred) on 28^th August 2014. The applicant did not appear in person but was represented by V, who appeared on behalf of himself, his mother and his sister. I acknowledge the dignified, restrained and articulate way in which he presented the case. The Authority was represented by Owen Thomas of counsel, instructed by the Treasury Solicitor, and I am also grateful for his assistance. In effect he supported the decisions and reasoning of the First-tier Tribunal, arguing that the appellants in all three cases were trying to relitigate the facts rather than raising any errors of law, and that where the First-tier Tribunal had exercised a discretion it was entitled to do so. The First-tier Tribunal is the respondent but had, quite properly, taken no part in the proceedings.

 

5. The hearing before me took place over ten months ago. Unfortunately, a number of matters have intervened to cause the subsequent lengthy delay in making this decision. Before I could deal with the matter I had to be away from the office until mid November. The view was taken that it would be more efficient for the matter to await my return than to transfer it to another judge to begin all over again. It appears that the applicant was not informed of this, for which I apologise. Meanwhile, on 4^th November 2014 the case of SB and Others v First-tier Tribunal and CICA [2014] UKUT 0497 (AAC) was decided by a three judge panel of the Upper Tribunal. It held that on an appeal to the First-tier Tribunal from a decision of CICA the jurisdiction of the First-tier Tribunal is limited to deciding whether the decision made by CICA was correct on the issue or issues that had been addressed in its review decision. Once it has decided those issues, any remaining issues must be referred back to CICA for a further decision, in respect of which there would (if appropriate) be fresh rights of appeal. I considered it necessary to seek submissions on how that decision might affect the present case and gave relevant directions on 29^th December 2014. Written submissions having been provided by CICA and on behalf of Ms A, the matters were referred back to me on 19^th March 2015.

 

The 2001 Scheme

 

6. So far as is relevant the 2001 scheme provides as follows:

 

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 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 …) or by evidence available to the claims officer makes it inappropriate that a full award or any award at all be made.

14. Where the victim has died since sustaining the injury (whether or not in consequence of it) the preceding paragraph will apply in relation both to the deceased and to any applicant.

 

 

18. An application for compensation under this scheme in respect of a criminal injury …must be made in writing on a form obtainable from the Authority. It should be made as soon as possible after the incident giving rise to the injury and must be received by the Authority within two years of the date of the incident. A claims officer may waive this time limit where he considers that, by reason of the particular circumstances of the case, it is reasonable and in the interests of justice to do so.

 

19.  It will be for the applicant to make out his case including, where appropriate,

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

 

(b) …

 

38. Where the victim has died since sustaining the injury, compensation may be payable, subject to paragraphs 13 – 15 (actions, conduct and character) to any claimant (“a qualifying claimant”) who at the time of the deceased’s death was:

(a)    the partner of the deceased, being only, for these purposes:

 

(i) a person who was living together with the deceased as husband or wife or as a same sex partner in the same household immediately before the date of death and who, unless formally married to him, had been so living throughout the two years before that date, or

 

(ii) a spouse or former spouse of the deceased who was financially supported by him immediately before the date of death; or

 

(b)   a natural parent of the deceased, or a person who was not the natural parent, provided that he was accepted by the deceased as a parent of his family; or

 

(c)    a natural child of the deceased, or a person who was not the natural child, provided that he was accepted by the deceased as a child of his family or was dependent on him.

….

 

Background and Procedure

 

7. I set out the background facts as I understand them, in order to place my decision in context. I am not to be taken as making any findings of fact on matters that are disputed.

 

8. The applicant Ms A is a woman who was born on 2^nd March 1945. She was in or had been in a relationship with a man whose name was Abraham but who was apparently known to everyone as Roy, who was born on 20^th November 1940. They had two children (a boy V and a girl F), who are the applicants in the other cases to which I have referred above and which were considered together with this one. On 4^th December 1966 Abraham was fatally stabbed in broad daylight on an urban street by another man (“the killer”) who, on 16^th February 1967 was found guilty of manslaughter and sentenced to 18 months imprisonment. The killer was originally charged with murder and there have been references in the papers to Abraham having been murdered, although as a matter of law that is not accurate.

 

9. According to the Court of Appeal (see below) Ms A “was married to Abraham … had a nervous breakdown and was later cared for by her mother”. In fact they were not technically married, although it is not disputed that they were or had been living together as though they were married. After the death of Abraham the children were taken into care by a local authority and V later went to boarding school. As an adult he obtained various qualifications and managerial positions. His slightly older sister F “has suffered from mental problems”. Both children “knew of their father’s death from about the age of 8 but were not told any of the details”. Since reaching adulthood V has tried to find out details of the circumstances of his father’s death. He had little or no success until 2007, when he discovered relevant documents in the National Archive.

 

10. On 2^nd June 2008 V claimed criminal injuries compensation under the 2001 scheme on behalf of himself and (with their authority) his mother and sister. On 11^th August 2008 the Authority rejected all three claims, refusing to waive the normal time limit for bringing a claim. These decisions were confirmed by the Authority on review on 10^th February 2009. It gave the reason that it would have been reasonable for the claims to have been made when V became 21 (in 1987). I do not understand why the age of 21 was referred to, rather than 18. However, I note in particular that no reference at all was made in the review decision to Ms A’s individual personal circumstances. Although V made the claim on his mother’s behalf, this was equivalent to making a claim in much the same way as any other non-legal representative would have done.

 

11. On 20^th February 2009 V appealed on behalf of his mother to the First-tier Tribunal against the decision of the Authority. His grounds were essentially that it had taken him all that time to collect relevant records and material. On 25^th September 2009 the First-tier Tribunal rejected the appeal, mainly on the basis that the detailed records were not necessary for the making of the claim(s), which could have been done within the prescribed time. The delay in making the claims meant that enquiries could not be made and effected speedily and the outcome of such enquiries would be less reliable than if they had been made earlier.

 

12. V then applied to the Upper Tribunal on behalf of his mother for permission to bring judicial review proceedings against that decision of the First-tier Tribunal (there being no right of appeal against First-tier Tribunal decisions in criminal injuries cases). Permission was refused on 2^nd July 2010 by Upper Tribunal Judge Bano. V then exercised the right to renew the application at an oral hearing (this procedure seems to have been slightly misunderstood by the Court of Appeal in subsequent proceedings). On 3^rd March 2011, following an oral hearing of the application, Upper Tribunal Judge Jacobs also refused permission to apply for judicial review. He said (paragraph 6):

 

“I am satisfied that [V] did all he could reasonably do in attempting to track down the information. His difficulty is that the information was not necessary in order to make a claim. The fact of his father’s unlawful killing was sufficient in itself to allow an application to be made”

 

On 3^rd May 2011 Judge Jacobs refused permission to appeal to the Court of Appeal but permission was granted by Lord Justice Rix on 23^rd November 2011.

 

13. On 14^th June 2012 (after a hearing on 26^th April 2012) the Court Appeal allowed the appeal, gave permission to apply for judicial review of the decision of the First-tier Tribunal, and remitted the matter to the Upper Tribunal to determine the substantive judicial review application ([2012] EWCA Civ 806). The Court of Appeal’s view was that the First-tier Tribunal had misconstrued paragraph 18 of the 2001 scheme. It had been wrong to ask first whether there were any relevant “particular circumstances” in the case and then whether it was in the interests of justice to waive the time limit. Lord Justice Aikens (with whom the rest of the court agreed) said (paragraphs 41 and 42):

 

“41. To my mind the words “particular circumstances” mean the actual or distinct circumstances of this individual case. The do not mean “special” circumstances in the sense of being unusual or extraordinary circumstances … the task … is to establish the actual circumstances of this particular case. Having done so … ask: given the circumstances of this particular case is it reasonable and in the interests of justice to waive the time limit.

 

42. In performing that exercise, I think that the wording requires … [consideration of] all the relevant factors. These may include the length of the delay in making the claim, the reasons for the delay and the nature of the claim itself. The relevant importance of particular factors will depend on the particular circumstances of the case being considered …”.

 

14. On 19^th October 2012, with the agreement of the Treasury Solicitor acting on behalf of the Authority, I quashed the decision of the First-tier Tribunal and referred the matter back to it for a fresh hearing and decision by a new panel (JR 0668 2010). I made similar decisions in the cases of V (JR 0667 2010) and his sister (JR 0669 2010).

 

15. The First-tier Tribunal heard the matter(s) afresh on 8^th February 2013 and by its written decisions on 9^th May 2013 again refused the appeals in all three matters. Ms A now seeks judicial review by my permission given on 17^th October 2013. On 25^th March 2014 I directed that there be an oral hearing. This took place on 28^th August 2014.

 

The Witness Statements

 

16. The file contains a number of witness statements that appear to be what were known to criminal lawyers of my vintage as “old-style committal statements” taken in the magistrates’ court which was considering whether to commit an accused for trial. I refer to those that are particularly relevant to this decision. Police Sergeant H stated that at midday on 4^th December 1966 he was on motor patrol duty when he went to an address where he was met by the killer who told him that he had called the police and that there was trouble in the house. They went to the door of a room on the ground floor, which was opened by Abraham and they all went into the room. Ms A was sitting on the bed weeping. She had been bleeding from the nose and there were bloodstains on the front of her clothing. Two small children were also there (who appear to have been six month old V and two year old F) as was a man who said he was Abraham’s cousin and had been called to the house. An argument started developing between Abraham and the killer who were both eventually ushered from the room. Police Sergeant H heard the sound of raised voices from the corridor and went out to find Abraham and the killer “in heated argument” with two other men standing between them and the killer removing his jacket. Police Sergeant H stood between them and Abraham said that the killer had accused him of having a knife and started emptying his pockets to show that he did not have a knife. Police Sergeant H did not see a knife. The killer went upstairs (where apparently he was living). Police Sergeant H tod Abraham to leave the house and saw him go towards the door at the back of the house. Police Sergeant H then left the premises.

 

17. Ms A (the appellant) made a statement saying that she had known Abraham (to whom she referred as Roy) for two years and that he was her boyfriend and the father of her children. She had left him (taking the children with her) in the summer of 1966. He visited her on occasions and had stayed the night of 3^rd/4^th December 1966. They had an argument on the morning of the 4^th and “he hit me with his fist and that made my mouth bleed … he also kicked me on the leg, he kicked me once there”. The killer (with whom “I was not particularly friendly”) came to her room to see what the trouble was about. Neither she nor Abraham spoke to him and he left the room. The police arrived shortly afterwards. The next relevant event was a while later when she saw Abraham lying on the ground.

 

18. A woman, JP, made a statement to the effect that she was in the passage when Abraham came out of Ms A’s room and grasped the killer’s throat and she and a man (JB) separated them. The police then came out of the room and as the killer was going upstairs she witnessed the following conversation:

 

Abraham: “I will mark you already. Anywhere you see me watch out.

The killer: “When a man mark a man it is good”.

 

A little later Abraham asked her to give a message to the killer: “Look man, tell him, anywhere he see me, watch out”. JB stated that he heard Abraham say that he was going to kill the killer, as he was trying to punch him.

 

19. Another man, RJ, saw an altercation later that day which he described as follows:

 

“I saw [the killer] push Roy and then Roy let go a punch at him but did not hit him. Then [the killer] took out a knife and sheath and he took the knife out of the sheath and he made a stab at Roy but he did not catch him with the first one. Roy did not have anything in his hands, he walked off and after he had gone a little way he turned back towards [the killer] who was walking along behind him, following him. When Roy turned round he let go a kick at [the killer], he caught him on his foot and [the killer] made another stab at Roy and caught him this time and then [the killer] went away. Roy pitched forward on his face. I was about two yards away from Roy when he fell … I remained with Roy until the ambulance came. The only knife that I saw during the incident was the knife that [the killer] had. When [the killer] pushed Roy you could say that he was trying to push him away. This was before the knife was taken out”.

 

20. There are other statements in relation to the police investigation, including those of the killer but they do not add anything significant to, nor do they contradict, the above accounts of the behaviour of Abraham or the position of Ms A. It must be borne in mind that, although given under oath in a court, these statements do not represent the evidence given at the trial, nor the cross-examination that must have taken place, and that the papers do not include the transcript of the trial or any record of the judge’s summing up or sentencing remarks.

 

The First-tier Tribunal 2013 – Evidence and Findings

 

21. In relation to Ms A the First-tier Tribunal summarised her grounds of appeal as follows (paragraph 4 of its written reasons):

 

“… following the death of  [Abraham] she had a nervous breakdown, that to date she still suffers from mental health problems as a result of his death and that further she had insufficient relevant information relating to his death to enable her to make an application timeously as all information relating thereto was “concealed in closed court files” “.

 

22. V and F both gave oral evidence to the First-tier Tribunal. The tribunal recorded F as saying that she was 17 months old when her father was killed. She never enquired into the circumstances of her father’s death until V discussed this with her in about 2008. She had never spoken to Ms A about her father. She told the First-tier Tribunal that her mother had later lived with another man by whom she had another girl when F was about nine. That younger sister had been in care for a while but from when she was five or six [I calculate this to be in about 1980] she was brought up by Ms A, who had not since had hospital treatment for her mental illness. At the time of the First-tier Tribunal hearing Ms A lived in a flat by herself and was able to self-care and cook.

 

23. The tribunal recorded that V gave evidence that he had been taken into care when he was 18 months old and until his grandmother died in 2006 he had never spoken to anyone about the death of his father. It also recorded him as saying that he learnt about his father’s “murder” when he was about eight and had spoken to his mother about it. When he was 18 he made enquiries but could get no information, and could not do so until he contacted the coroner in 2007. I add here that he told me at the Upper Tribunal hearing that until that point he had always believed that his father’s name was Roy. He had never heard of him being Abraham, and that had hampered his enquiries into all sorts of records. He also told the First-tier Tribunal that “he had been told by family members that the appellant [Ms A] and the deceased were engaged to be married and were to be married a week after the deceased was unlawfully killed.

 

24. The main relevant findings of fact by the First-tier Tribunal (in paragraph 17 of its written reasons) were as follows. Abraham was unlawfully killed on 4^th December 1966 when he was stabbed with a knife by the killer, who was tried for murder but convicted of manslaughter. Ms A and Abraham were not married but they had two children together, V and F. “She left the deceased in the summer of 1966 after a relationship lasting about 18 months.”  At the time of Abraham’s death V (aged about 5 months) and F (aged about 17 months) and Ms A had been living at their address for about a week. The witness JB and the killer (who was the house caretaker) stated that Abraham was not living at that address with Ms A. Immediately before the date of Abraham’s death he and Ms A were not living together as husband and wife in the same household and had not been so living throughout the two years before that date. It followed that Ms A was not a qualifying claimant in the terms of the scheme.

 

25. The First-tier Tribunal further found that some three hours before the killing, Abraham “attacked” Ms A. He punched her in the mouth and kicked her in the leg. The killer had called the police who ejected Abraham from Ms A’s room. Thereafter Abraham threatened the killer and, after the police had gone, attacked the killer and threatened him with violence. Ms A has always known who the killer was and was a prosecution witness at his trial. There were only two documents on the file in relation to her health (I return to this below). Less than a year after the killing of Abraham Ms A suffered from mental health problems and in January 1968 was admitted to a mental hospital for about a month.

 

26. During this period V and A were taken into care and remained in care until they were 18, with the exception of a period from 1974 to 1976. At some point the appellant formed a new relationship with another man and had a daughter by him in 1974. The relationship broke down and that child was taken into care at the age of two. By the time the child was five “the appellant’s health had improved to such an extent that her younger daughter was returned to live with and be looked after by Ms A until she finished university”. The First-tier Tribunal found that “the appellant lives alone and despite health issues is able to self care, cook and look after herself. Whilst the appellant has some continuing mental health problems, primarily depression, her condition is controlled with medication. She has not required to be treated in hospital for any mental health problems since [F and V] were children”. The tribunal also found that in 1996 F had been reunited with her father’s family overseas (one of whom had been a prosecution witness at the killer’s trial) and had discussed this development with Ms A in 1996.

 

27. It seems to me that the First-tier Tribunal misunderstood the first of the medical documents. This was a report of 26^th September 1967 from a mental hospital to the effect that Ms A had presented with a complaint of long-standing severe headache, depression, phobia and feeling faint in the street. However, this condition had started following the birth of her second child (V) and she had been admitted to a psychiatric hospital for one week and had six ECTs. “Subsequently her boy friend with whom she was living was killed one week before she was to be married.” The hospital’s medical director concluded: “I would regard this to be a protracted puerperal psychosis aggravated by environmental stress”.

 

The First-tier Tribunal 2013 – Decision and Reasons

 

28. The First-tier Tribunal refused the appeal “as by reason of the particular circumstances of this case it is not reasonable and in the interests of justice to waive the time limit referred to in paragraph 18 of the Scheme” (paragraph 18 of its written reasons).

 

29. The tribunal did not confine itself to that issue. It also concluded that the Ms A was not a qualifying claimant in terms of paragraph 38(a)(i) of the scheme because she was neither married to Abraham, nor had she been living with him as man and wife in the same household for the two year period immediately before the killing. It found that the evidence that Ms A and Abraham were engaged to be married, and were to be married a week after the killing, was “in sharp contrast” to that in her committal statement (see above). They were living apart at the time of the killing and she had referred to Abraham visiting her “on occasions”. The tribunal also referred to evidence by other people but it seems to me that such evidence (unlike Ms A’s own committal statement) could not reasonably be regarded as carrying much weight, The tribunal took the view that Ms A’s claim was bound to fail and this was a relevant factor in considering whether to waive the paragraph 18 time limit.

 

30. In relation to the delay itself Ms A always knew Abraham’s personal details and the details of the killing and “did not need to wait” for the release of court files in 2008 in order to make her claim. It did not accept that Ms A did not have sufficient information to make a claim within the time limit. She had sufficient information to enable CICA to make its own enquiries once a claim had been made. Her mental health problems were not so severe as to prevent her from submitting a claim within two years of the 1968 discharge from hospital, or within two years of 1979 “at the very latest” (when the appellant was able to look after her youngest child) and one of Ms A’s brothers and her mother would have assisted Ms A with any matters arising under a claim. (paragraphs 28 to 30).

 

31. This last point was pure speculation and generally the tribunal took the wrong approach in the matters referred to in the previous paragraph. The first questions raised by paragraph 18 of the scheme are whether the claim has been made as soon as possible after the incident and whether it has been received within two years of the incident. Clearly, in the present case the claim was not received within two years. That being so, any other two year period is irrelevant. The next question is whether by reason of the particular circumstances of the case, it is reasonable and in the interests of justice to waive the time limit.

 

32. The First-tier Tribunal considered that it was more likely that the real reason for the delay in making the claim was not that she did not have sufficient information or that her health prevented her, but that she was unaware of the existence of the scheme. V’s application to recover the court papers was first made to the coroner in 2007/8 shortly after he discovered the existence of the scheme. A scheme had been in existence since 1964 and was widely known about “to all”, particularly by those dealing with victims of crimes of violence. I simply do not see the relevance of the last sentence if Ms A and her children did not know about the scheme and had never previously been told about it (on this latter point there is no evidence).

 

33. The First-tier Tribunal also considered the conduct of the deceased. This related to assaulting Ms A, threatening the police, threatening the killer and seeking out the killer to fight with him. The First-tier Tribunal concluded that it was likely that Abraham “was not the innocent victim of a crime of violence” (paragraph 38).  It then reached the odd conclusion (paragraph 39 of the written reasons) that:

 

“the lengthy delay in this case has prejudiced a fair and just enquiry into the conduct of the appellant which conduct the Tribunal can properly take into account when considering whether the conduct of the deceased 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”.

 

34. I describe this as odd because the tribunal did make findings of fact based on its view of the evidence.  Clearly the tribunal regarded Ms A (the appellant) as a victim of Abraham in that he assaulted her, but this claim does not relate to that assault. There is no evidence or suggestion that Ms A was present at or played any part in the final confrontation that led to Abraham’s death. There is no evidence or suggestion that she was to blame for anything that happened.

 

35. The tribunal was also in error in failing to give reasons why a reduced award, rather than no award at all, could not be made.

 

36. Further, it cannot possibly be the case that the scheme intended that someone in Ms A’s position could have compensation to which she would otherwise be entitled removed or reduced because she was a victim of the deceased’s conduct!

 

37. The tribunal also found that the delay in making the claim “impacts adversely on its ability to properly quantify the dependency claim made” (paragraph 33 of the statement of reasons). It had no evidence of Abraham’s employment history from 1960 except that at the time of his death he was employed by British Rail and it had no details of that employment or any payments he might have made to Ms A for maintenance for herself or the children: “Valuable witness and written evidence has been lost” (paragraph 33).

 

38. This is unpersuasive. Paragraph 39 of the scheme provides in effect that where the victim has died and there is more than one qualifying claimant, each is entitled to a standard amount of compensation at level 10 of the tariff, which was fixed at £5,500. Paragraphs 40 and 41 of the scheme provide for addition compensation in respect of dependency. Even if a tribunal is unable to order any payment under paragraphs 40 and 41 for lack of evidence, that is no reason why a payment under paragraph 39 could or should not be ordered.

 

39. The First-tier Tribunal’s final conclusions (paragraphs 40 and 41 of the written reasons) were as follows:

 

40. In the particular circumstances of this case and taking account of all the relevant factors as outlined above, the Tribunal does not consider it is reasonable and in the interests of justice to waive the time limit referred to in paragraph 18 of the scheme. The tribunal does not accept that the appellant’s mental health issues were such as to prevent her from submitting a claim timeously. The tribunal finds that as she was closely involved in the events leading up to the index fatality, the appellant had all the necessary information to make a claim timeously. The appellant’s delay in submitting a claim for compensation in this case has led to the unavailability of potential witnesses, many of who are either dead or cannot be traced, together with the loss of some written records. That has impacted adversely on the Tribunal’s ability to properly quantify the dependency claim and assess whether the conduct of the deceased before and during the index incident giving rise to the application makes it inappropriate that full award or any award at all be made.

 

41. In any event the appellant is not a qualifying claimant in terms of the Scheme and could never satisfy the conditions of the Scheme in the event that the time limit under the paragraph was waived.

 

 

The Decision of the Three Judge Panel

 

40. As I indicated above (paragraph 5), SB and Others held that on an appeal to the First-tier Tribunal from a decision of CICA the jurisdiction of the First-tier Tribunal is limited to deciding whether the decision made by CICA was correct on the issue or issues that had been addressed in its review decision. Once it has decided those issues, any remaining issues must be referred back to CICA for a further decision. In the present case the only matter that was dealt with in the review decision of Ms As claim was whether it could be accepted out of time under the provisions of paragraph 18 of the 2001 scheme. After the oral hearing before me I raised with the parties the relevance o that decision for the present case.

 

41. In a submission of 9^th February from Mr Thomas CICA accepts that the jurisdiction of the First-tier Tribunal was limited to deciding whether the review decision was correct or not but argues that the Tribunal addressed and decided only that issue and therefore did not exceed its jurisdiction. The tribunal has to consider all of the circumstances and there is no restriction on the factors that it can take into account in deciding whether, if the time limit were to be waived, the claim would be hopeless for some other reason. Even if the First-tier Tribunal did make some other decision that, in the light of SB and Others was not open to it (which is not accepted) the only consequence would be that that other decision would be liable to be quashed, but the decision not to waive the time limit would remain. The findings were relevant to the waiver decision because the delay had prejudiced enquiries and if the time limit were to be waived, the conduct of the deceased would mean that it was unlikely that the claimant would receive an award. The decision was not that the claimant would be ineligible but that she was likely to be ineligible. CICA did concede that there might be cases where the First-tier Tribunal takes the view that the fact a claim is unlikely to succeed on the evidence before it “does not militate strongly against waiving the time limit”, for example there might be a prospect of new evidence being obtained, but “such a scenario is far away from the circumstances of the present case”.

 

42. V submitted a written reply behalf of all three claimants but that did not really add to his previous arguments or address the SB and Others issue.

 

Conclusions

 

43. The First-tier Tribunal did not explain its reasoning as crisply and clearly or as free from error as the final submission from Mr Thomas would have me believe.

 

44. Clearly the starting point in the present case is the wording of paragraph 18 of the 2001 scheme. Equally clearly the claim was not received within two years (paragraph 31 above). Therefore the issue in this case is whether by reason of the particular circumstances of the case, it is reasonable and in the interests of justice to waive the time limit (my emphasis). It is for the applicant to make out her case (paragraph 19(a) of the scheme) but this means that in relation to the exercise of a discretion there is no presumption in the applicant’s favour and that it is for the applicant to prove any disputed fact.

 

45. I accept CICA’s argument that, notwithstanding the decision in SB and Others there is no restriction on the factors that it or the First-tier Tribunal can take into account in deciding whether, if the time limit were to be waived, the claim would be hopeless for some other reason. However, the tribunal must be very careful in doing so if it takes account of matters not canvassed before or in the CICA review decision, especially if further evidence on those matters might be available. The rules of natural justice and fair procedure require that all parties be given proper warning of the issues to be considered by the First-tier Tribunal and a proper opportunity to present evidence and argument (for example, on whether, if the claim were to be admitted out of time, there should be a full deduction under paragraph 13 of the scheme or a partial reduction). There must be as clear a focus on such issues as there would be if one or more of them were the substance of the decision under appeal to the First-tier Tribunal.

 

46. In the present case the First-tier Tribunal’s decision was flawed for a number of reasons. It speculated as to facts that it could not know and on which it had no evidence (paragraphs 31 and 32 above). It took the view that the claim was bound to fail because Ms A was not Abraham’s partner within the meaning of paragraph 38(a) of the scheme.  It did this without considering the wider context of their relationship, without taking account of authority on the meaning of “household” (for example in the context of social security law, where there is a great deal of discussion and authority), without taking cognisance of the fact that they had spent the night before Abraham’s death together, and without considering or investigating whether it was possible to obtain a transcript of the trial at which the witnesses who made the committal statements would have given further evidence and been subject to cross-examination.

 

47. The First-tier Tribunal misunderstood some of the medical evidence (paragraph 27 above) and made assumptions about the continuing state of Ms A’s mental health without enquiring whether there were more detailed medical or social work reports available.

 

48. The main reason for the tribunal’s decision seems to have been that Ms A was unaware of the scheme, with the implication that this is not acceptable as a reason for the delay (paragraph 32 above and my comments there). As I said in TG v First-tier Tribunal and CICA [2013] UKUT 366(AAC), JR/0880/2012 at paragraph 26:

 

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

 

The First-tier Tribunal was in error of law in ruling out waiving the time limit simply because Ms A was unaware of the scheme.

 

49. In relation to the conduct of Abraham, I have pointed out above (paragraphs 33 to 36) the inconsistent approach by the tribunal to the availability of evidence, its error in assuming that it would not be possible to make a reduced award (or in failing to consider that point), and its assumption that no award should be made to Ms A because she was the victim of an assault by Abraham.

 

50. I have also referred above (paragraphs 37 to 38) to the tribunal’s irrational assumption that if it could not calculate entitlement under paragraphs 40 and 41 of the scheme, there would be no entitlement under paragraph 39.

 

51. In summary, the First-tier Tribunal’s reasoning was inadequate and for the above reasons this application by the claimant for judicial review succeeds.

 

 

 

H. Levenson

Judge of the Upper Tribunal

 

16^th July 2015