Upper Tribunal Quashes First-tier Decision on Criminal Injuries Compensation

1

UKUT 218 (AAC)

Appeal No. UA-2024-000843-CIC IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

On judicial review from the First-tier Tribunal (Social Entitlement Chamber)

Between:

The King on the application of [NAME] Applicant - and -

The First-tier Tribunal (Social Entitlement Chamber) Respondent

- and –

The Criminal Injuries Compensation Authority Interested party Before: Upper Tribunal Judge Butler

Decision date 27 June 2025 Decided on consideration of the papers

Representation: Appellant:

[redacted] Respondent: [redacted]

On judicial review of: Tribunal:

The First-tier Tribunal (Social Entitlement Chamber) Tribunal Case No: 1703-8625-5480-4261 Hearing:

By CVP video Decision Date: 22 March 2024

SUMMARY OF DECISION

Criminal injuries Compensation (70.1 Claims)

The First-tier Tribunal made an error of law in not approaching the issue of exceptional circumstances under paragraph 89 of the [NAME] consistently with the Upper Tribunal’s decision in R(JA) v First-tier Tribunal (Criminal

R([NAME]) v First-tier Tribunal (respondent) and [NAME] (interested party) (CIC) UA-2024-000843-CIC NCN [2025] UKUT 218 (AAC)

2 Injuries Compensation Authority Interested Party) [2024] UKUT 121 (AAC). Decision quashed and remitted to new Tribunal.

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.

DECISION

I grant [NAME]’s application for judicial review of the decision of the First-tier Tribunal (Social Entitlement Chamber) dated 22 March 2024 under Tribunal case reference 1703-8625-5480-4261.

The Upper Tribunal’s order is:

(i) To QUASH the decision of the First-tier Tribunal dated 22 March 2024 under section 15(1)(c) of the Tribunals, Courts and Enforcement Act 2007; and

(ii) To REMIT the appeal to the First-tier Tribunal under section 17(1)(a) of the Tribunals, Courts and Enforcement Act 2007, to be heard by a fresh First- tier Tribunal, in accordance with the directions set out at paragraph 31 below.

REASONS FOR DECISION Introduction

1. [NAME] applied to the Upper Tribunal for permission to bring judicial review proceedings in respect of the First-tier Tribunal’s decision dated 22 March 2024. The Tribunal refused [NAME]’s appeal against a decision by the Criminal Injuries Compensation Authority (“[NAME]”) not to extend time under paragraph 89 of the [NAME] (“the 2012 Scheme”) for [NAME] to make an application for criminal injuries compensation.

2. On 11 July 2024, Upper Tribunal Judge Jacobs refused [NAME] permission to bring judicial review proceedings, on the basis of the papers. [NAME] requested that his application be reconsidered at an oral hearing. On 09 October 2024, I gave [NAME] permission to bring judicial review proceedings in respect of the First-tier Tribunal’s decision.

Factual background

3. [NAME] was a landlord. While leaving his pub on 25 August 2019, [NAME] was stabbed in his neck, left shoulder and lower abdomen. He was transported to hospital by an ambulance and underwent surgery for his injuries. He subsequently developed depression and was treated for excessive alcohol use.

3 Application to the Criminal Injuries Compensation Scheme and decisions

4. On 30 November 2022, [NAME] applied to [NAME] for criminal injuries under the 2012 Scheme. This was more than two years after the date of the incident on 25 August 2019.

5. On 01 June 2023, [NAME] decided that [NAME] had provided insufficient evidence to show there were any exceptional circumstances preventing him applying for compensation within the two-year period provided by paragraph 87 of the 2012 Scheme. [NAME] decided not to extend the time limit under paragraph 89 of the 2012 Scheme. It therefore decided [NAME] was not eligible for criminal injuries compensation.

6. On 05 July 2023, [NAME] asked [NAME] to review its decision. On 02 October 2023, [NAME] confirmed its decision that [NAME] was not eligible for compensation because he had not applied within the time limit required by paragraph 87 of the 2012 Scheme. [NAME] decided that [NAME]’s stated lack of knowledge of the 2012 Scheme was not evidence of exceptional circumstances to allow it to extend time under paragraph 89 for his application to be made.

Appeal to the First-tier Tribunal

7. On 23 December 2023, [NAME] appealed to the First-tier Tribunal (“[NAME]”). His appeal was heard as a CVP video hearing by an [NAME] on 22 March 2024. The [NAME] refused [NAME]’s appeal. It decided that applying the strict criteria of the 2012 Scheme, [NAME] could reasonably practicably have submitted an application for compensation during the two-year period after the incident. The [NAME] decided there were no exceptional circumstances applicable to [NAME] to prevent him from applying within that time period. The [NAME] therefore decided the time for [NAME] to make his application should not be extended under paragraph 89(a) of the 2012 Scheme.

8. The [NAME] provided written reasons for its decision on 04 June 2024. The [NAME] wrote that [NAME] explained at the hearing that he spoke to a police officer at the time of the incident but was not given any information about making a criminal injuries compensation claim. [NAME] was aware the person who assaulted him had not been caught. He was waiting to hear from police about whether the person had been caught and if he would be required to identify them. [NAME] told the [NAME] he had never been advised the criminal investigation had closed.

9. The [NAME] wrote that [NAME] told it he did not know about the 2012 Scheme and believed that any compensation was part of the court process. [NAME] believed he had to wait for the outcome of that process before he could apply for compensation. The [NAME] wrote that [NAME] told it that he spoke to another police officer in November 2022, who advised [NAME] he should have applied for criminal injuries compensation, and [NAME] applied for it straight away. The [NAME] recorded [NAME] as giving evidence that if he had known about the 2012 Scheme earlier, he would have applied for compensation earlier.

10. The [NAME]’s written reasons refer to [NAME]’s ability to run a pub before the incident, concluding that it indicated he could manage his own affairs and business affairs to

4 an acceptable standard. The [NAME] concluded this indicated that [NAME] had adequate planning, organisational and communication skills.

11. The [NAME] decided [NAME] did not sustain any significant head injury in the incident and remained able to carry out normal day to day activities after the incident. The [NAME] acknowledged [NAME] developed some alcohol and mental health problems but assessed that he was able to engage with services, including medical and housing services. At paragraph 38 of its written reasons, the [NAME] recorded [NAME] was able to apply for state benefits and to comply with requirements to maintain entitlement to them. The [NAME] referred to the fact [NAME] had successfully completed drug and alcohol addiction treatment and was discharged from the service in June 2021. The [NAME] recorded that [NAME] was able to socialise with friends (referring to page 216 of the [NAME] appeal bundle).

12. The [NAME] wrote that [NAME]’s own evidence was that he could have submitted an application to [NAME] earlier than he did and would have done so, had he known about the 2012 Scheme. At paragraph 42 of its written reasons, the [NAME] stated that ignorance of the [NAME] Scheme is a relevant factor, but it is not necessarily considered to be an exceptional reason.

13. The [NAME] concluded the overall evidential picture was that [NAME] had the ability to research the availability of criminal injuries compensation and to submit an application to [NAME] earlier than he did. It decided that the body of evidence did not support [NAME]’s evidence that there were exceptional circumstances preventing him applying for criminal injuries compensation earlier than he did.

Grounds on which I granted permission to bring judicial review proceedings

14. I held an oral hearing of [NAME]’s application on 26 September 2024. Having heard the arguments [NAME] put forward, I granted permission to bring judicial review proceedings. I granted permission on the following grounds:

(a) It was arguable the [NAME] might not have adequately addressed evidence in the bundle regarding [NAME]’s ability to function during the two-year period after the index assault on 25 August 2019. [NAME]’s medical records contained several entries covering the period from October 2019 to April 2021 suggesting [NAME] was displaying symptoms of agoraphobia, poor sleep, reduced appetite, low concentration, panic attacks, low mood and restricted social contact. The [NAME] did not appear to have made findings of fact about those entries or explained how it had evaluated them;

(b) It was arguable the [NAME] had taken account of irrelevant matters when making its decision. The [NAME] referred to [NAME] being able to socialise with friends and referred to page 216 of the [NAME] bundle. Page 216 was a discharge summary from a hospital dated 10 December 2022. It post-dated the end of the two-year period and was after [NAME] had applied for compensation. It was unclear that it was relevant to the assessment of whether exceptional circumstances applied; and

5 (c) The [NAME]’s wording at paragraph 42 of the written reasons reflected the approach indicated by Upper Tribunal Judge Wright in R(JA) v [NAME] ([NAME] interested party) [2024] UKUT 121 (AAC) (“R(JA)”). However, it was unclear whether, as R(JA) indicated was required, the [NAME] had evaluated the underlying circumstances and the reasons for [NAME]’s ignorance of the 2012 Scheme, including as part and parcel of the circumstances preventing him applying for compensation earlier.

The parties’ submissions

15. [NAME], as the interested party to these proceedings, filed a response dated 26 November 2024. It supports the application for judicial review on the third ground (see paragraph 14(c) above) but does not support the other grounds. [NAME] agrees to the Upper Tribunal quashing the [NAME]’s decision and remitting [NAME]’s appeal to a fresh Tribunal for a re-hearing.

16. In relation to the ground at paragraph 14(c) above, [NAME] submits that the [NAME] assessed [NAME]’s health did not prevent him applying for compensation during the two- year period and it was entitled to do so. [NAME] submits, however, that the [NAME]’s written reasons do not clearly address why [NAME] remained unaware of the 2012 Scheme.

17. [NAME] argues that it was reasonable for the [NAME] to rely on any entries in [NAME]’s medical records that indicated he could deal directly with his GP. [NAME] argues, however, that the approach indicated in R(JA) and in MM v CICA [2018] CSOH 63 (“MM”) means the [NAME] should have explored how [NAME] was managing his wider circumstances. This would have let the [NAME] understand whether [NAME] was dealing with benefits and the council personally, or someone was doing it on his behalf.

18. [NAME] argues that the [NAME]’s written reasons do not demonstrate that it considered [NAME]’s wider circumstances, for example, whether (as [NAME] submitted to me at the hearing on 26 September 2024), his daughter helped him with actions like liaising with the council for benefits.

19. [NAME] make the wider point that [NAME] told the [NAME] that if he had been aware of the 2012 Scheme, he would have been able to make his application for compensation earlier. [NAME] argue that this implies [NAME] had access to, and could engage with, online services during the period from 2019 to 2021 to submit an application for compensation. [NAME] argue that this means that when the next Tribunal explores [NAME]’s broader circumstances, it may still decide they did not prevent him applying to [NAME] in time. [NAME] acknowledges, however, that this case needs to be remitted to the Tribunal so that it can consider this issue and make findings of fact about it.

20. Although the First-tier Tribunal is the Respondent to this matter, the convention is that it does not take part in judicial review proceedings before the Upper Tribunal. The First-tier Tribunal has therefore not provided any response to my decision granting permission to bring judicial review proceedings.

6 21. [NAME] has written to the Upper Tribunal and provided observations by email. [NAME] states that he was in a bad place during the two-year period and after it, leaning on his daughter to deal with daily things, including filling in benefit and council forms. [NAME] submits that both he and his daughter were unaware of the rules for claiming criminal injuries compensation and he had no victim support.

Why there was no oral hearing of this matter

22. No party asked for an oral hearing of the substantive judicial review. I decided the interests of justice did not require an oral hearing because the parties agreed that the [NAME] decision should be quashed (which means, set aside) and [NAME]’s appeal determined by a fresh Tribunal. I therefore determined the appeal on the papers. It was proportionate to do so.

Legal framework

23. Paragraphs 87 and 89 of the [NAME] provide the following:

87. Subject to paragraphs 88 and 88A, an application must be sent by the applicant so that it is received by the Authority as soon as reasonably practicable after the incident giving rise to the criminal injury to which it relates, and in any event within two years after the date of that incident.

89. A claims officer may extend the period referred to in paragraph 87, 88 or 88A, where the claims officer is satisfied that: (a) due to exceptional circumstances the applicant could not have applied earlier; and (b) the evidence presented in support of the application means that it can be determined without further extensive enquiries by a claims officer.

24. Paragraph 88 and paragraph 88A are not relevant to [NAME]’s application for criminal injuries compensation.

Analysis

25. The [NAME] made an error of law (which means, a legal mistake) by failing to explore, and evaluate, [NAME]’s wider circumstances and the reasons he did not know about the [NAME], including as part of the circumstances preventing [NAME] applying for compensation before November 2022.

26. I agree with [NAME]’s submissions that R(JA) indicates an [NAME] needs to explore a person’s wider circumstances, including why the person did not know the Scheme existed. As Upper Tribunal Judge Wright explained at paragraph 31 of R(JA), this frames the reasonableness of what the person did, or did not do, to find out about the Scheme. It is also part and parcel of the package of circumstances resulting in the person not applying for compensation sooner (paragraph of R(JA), which cites, with approval, paragraph 45 of MM).

7 27. As set out in R(JA), the [NAME] acknowledged that ignorance of the 2012 Scheme is a relevant factor in considering exceptional circumstances under paragraph 89 of the 2012 Scheme. The [NAME] failed, however, to carry out an evaluation of [NAME]’s wider circumstances in the way indicated in R(JA). The [NAME] therefore made a material error of law in reaching its decision dated 22 March 2024.

28. Having decided the [NAME] made a material error of law as set out above, this is sufficient for the Upper Tribunal to determine these proceedings. It is therefore unnecessary to decide whether the [NAME] made an error of law in terms of either or both of the grounds summarised at paragraph 14(a) and (b) above.

Disposal and conclusion.

29. It is appropriate to remit this matter to the First-tier Tribunal, so that it can carry out the necessary investigations about the circumstances in which [NAME] did not apply for compensation during the relevant two-year period.

30. I therefore quash the First-tier Tribunal’s decision and remit [NAME]’s criminal injuries compensation appeal to a new First-tier Tribunal to decide.

CASE MANAGEMENT DIRECTIONS

31. I make the following directions:

A. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

B. The new tribunal should not involve any of the Tribunal members previously involved in considering [NAME]’s appeal on 22 March 2024.

C. When dealing with [NAME]’s appeal, the Tribunal is to apply the principles established by the Upper Tribunal in R(JA) v First-tier Tribunal ([NAME] interested party) [2024] 121 (AAC).

D. The Tribunal hearing the remitted case is not bound in any way by the decision of the previous First-tier Tribunal. Depending on the findings of fact it makes, the new Tribunal may reach the same or a different outcome from the previous tribunal. E. Copies of this decision, the decision granting permission to bring judicial review proceedings, and the subsequent responses from [NAME] and [NAME], are be added to the bundle to be placed before the First-tier Tribunal hearing the remitted case.

Judith Butler Judge of the Upper Tribunal

Authorised by the Judge for issue: 27 June 2025