TG v FTT AND CICA [2013] UKUT 366
Child abuse website – CICA – Oral hearing
FACTS:-
The Applicant was raped by a man, who was a friend and with whom she had previously had consensual sexual intercourse. She attended hospital and was treated for vaginal bleeding, inability to pass urine, suspected fractured ribs, a black eye and anxiety. The police categorised the allegations as “No Crimed” because there was substantial evidence that the victim had made this report for some inappropriate purpose. The Applicant had always regarded the police investigation as “bungled”. She made a complaint and in August 2008 instructed solicitors with a view to bringing an action against the police and pursuing her claim for compensation. In December 2008 she herself made a claim for compensation under the 2008 scheme. That was five months after the end of the prescribed two year period for making a claim. In June 2009 the Authority refused to make an award on the basis of the paragraph 18 time limit and because it was not satisfied that a crime of violence had actually been committed. In December 2009 the Applicant appealed to the First-tier Tribunal against the decision of the Authority.
The First-tier Tribunal exercised its power under its procedural rules to consider the appeal without an oral hearing and in March 2010 the First-tier Tribunal upheld the decision of the Authority. In March 2012 the applicant applied to the Upper Tribunal for permission to apply for judicial review of the decision of the First-tier Tribunal. In April 2012 Levenson J directed that there be an oral hearing of her application for permission, waiving any failure to comply with procedural requirements that would otherwise prevent him from dealing with the application. He accepted that the delay in making this application was due to the breakdown in communications between the Applicant and her solicitors and she did not realise that they had not pursued judicial review proceedings until shortly before she made the application herself.
In November 2012 Levenson J directed that there be an oral hearing of the substantive application, and this took place in May 2013.
JUDGEMENT:-
Judge Levenson considered paragraph 18 of the 2008 Scheme and the case of Hutton & Others v First-tier Tribunal & CICA [2012] EWCA Civ 806 where the Court of Appeal made clear that the use of the phrase “particular circumstances” (in that case in the 2001 scheme) did not refer to any notion of exceptionality but was a reference to the specific facts of the specific case.
The First-tier Tribunal took the view that it was practicable for the application to be considered. However, it went on to decide that it would have been reasonable to expect the applicant to have made an application within the two-year period and that there was no good reason why it should not have been so made.
The applicant argued that just because she was able to pursue particular courses of action did not necessarily show that she could have made a criminal injuries claim in time. Levenson J said that as a general principle this must be correct.
The Authority argued that ignorance of the scheme was no reason for extending the limitation period, that a conviction is not necessary to an award and that an application could be made while criminal proceedings were pending. Levenson J said that the latter point was, of course, correct, but the question of what was reasonable in all of the circumstances and in a case where the police had not accepted a claimant’s account of what happened, it might be thought that from the point of view of the Claimant it would be reasonable to wait until her position had been better established in relation to police and prosecution authorities.
The Authority cited authority on the desirability of finality in decision making but conceded that there was no specific authority in relation to the relevance of ignorance to the existence of a criminal injuries scheme to the delay in making a claim.
Levenson J said that the concept of “the particular circumstances of the case” must include circumstances relating to the state of the Claimant’s knowledge. It was a question of what was reasonable, not as matter of some abstract legal principle but in the very particular circumstances of the particular case.
Levenson J referred to the following cases, which referred to the issue of failure to hold an oral hearing:-
In the present case the First-tier Tribunal gave no reasons at all for not having an oral hearing. That by itself constituted an error of law, but moreover the particular factors in this case which should have prompted the First-tier Tribunal to offer the Applicant the opportunity to have an oral hearing included the complexity of the factual background (including the Applicant’s complaints about the nature of the investigation, her very lengthy (if not always accurate) analysis of the case, her belief that the investigation was bungled, the police complaint investigation, and the continuing trouble between the two families) and the Applicant’s obvious difficulties in keeping to the most relevant matters when expressing herself in writing.
Levenson J could only substitute his own decision for that of the quashed decision where without the relevant error(s) of law “there would have been only one decision that the … tribunal could have reached” (Tribunals, Courts and Enforcement Act 2007 section 17(1)(b) and 17(2)(c)). In the present case it was possible that even after holding an oral hearing and taking account of all of the evidence and understanding it all correctly, the First-tier Tribunal could properly conclude that, in the particular circumstances of the case, it would have been reasonable to expect the applicant to have made an application within the two-year period.
Levenson J would make a quashing order in respect of the decision of the First-tier Tribunal (Social Entitlement Chamber) and refer the matter to the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision by a panel that did not include any judge or member who had considered this matter hitherto.
Child abuse website – CICA – Oral hearing
FACTS:-
The Applicant was raped by a man, who was a friend and with whom she had previously had consensual sexual intercourse. She attended hospital and was treated for vaginal bleeding, inability to pass urine, suspected fractured ribs, a black eye and anxiety. The police categorised the allegations as “No Crimed” because there was substantial evidence that the victim had made this report for some inappropriate purpose. The Applicant had always regarded the police investigation as “bungled”. She made a complaint and in August 2008 instructed solicitors with a view to bringing an action against the police and pursuing her claim for compensation. In December 2008 she herself made a claim for compensation under the 2008 scheme. That was five months after the end of the prescribed two year period for making a claim. In June 2009 the Authority refused to make an award on the basis of the paragraph 18 time limit and because it was not satisfied that a crime of violence had actually been committed. In December 2009 the Applicant appealed to the First-tier Tribunal against the decision of the Authority.
The First-tier Tribunal exercised its power under its procedural rules to consider the appeal without an oral hearing and in March 2010 the First-tier Tribunal upheld the decision of the Authority. In March 2012 the applicant applied to the Upper Tribunal for permission to apply for judicial review of the decision of the First-tier Tribunal. In April 2012 Levenson J directed that there be an oral hearing of her application for permission, waiving any failure to comply with procedural requirements that would otherwise prevent him from dealing with the application. He accepted that the delay in making this application was due to the breakdown in communications between the Applicant and her solicitors and she did not realise that they had not pursued judicial review proceedings until shortly before she made the application herself.
In November 2012 Levenson J directed that there be an oral hearing of the substantive application, and this took place in May 2013.
JUDGEMENT:-
Judge Levenson considered paragraph 18 of the 2008 Scheme and the case of Hutton & Others v First-tier Tribunal & CICA [2012] EWCA Civ 806 where the Court of Appeal made clear that the use of the phrase “particular circumstances” (in that case in the 2001 scheme) did not refer to any notion of exceptionality but was a reference to the specific facts of the specific case.
The First-tier Tribunal took the view that it was practicable for the application to be considered. However, it went on to decide that it would have been reasonable to expect the applicant to have made an application within the two-year period and that there was no good reason why it should not have been so made.
The applicant argued that just because she was able to pursue particular courses of action did not necessarily show that she could have made a criminal injuries claim in time. Levenson J said that as a general principle this must be correct.
The Authority argued that ignorance of the scheme was no reason for extending the limitation period, that a conviction is not necessary to an award and that an application could be made while criminal proceedings were pending. Levenson J said that the latter point was, of course, correct, but the question of what was reasonable in all of the circumstances and in a case where the police had not accepted a claimant’s account of what happened, it might be thought that from the point of view of the Claimant it would be reasonable to wait until her position had been better established in relation to police and prosecution authorities.
The Authority cited authority on the desirability of finality in decision making but conceded that there was no specific authority in relation to the relevance of ignorance to the existence of a criminal injuries scheme to the delay in making a claim.
Levenson J said that the concept of “the particular circumstances of the case” must include circumstances relating to the state of the Claimant’s knowledge. It was a question of what was reasonable, not as matter of some abstract legal principle but in the very particular circumstances of the particular case.
Levenson J referred to the following cases, which referred to the issue of failure to hold an oral hearing:-
- AG v First-tier Tribunal and CICA JR/1453/2012
- VAA v First-tier Tribunal & CICA JR/0685/2009
- R(AM) v First-tier Tribunal & CICA JR/3406/2012
In the present case the First-tier Tribunal gave no reasons at all for not having an oral hearing. That by itself constituted an error of law, but moreover the particular factors in this case which should have prompted the First-tier Tribunal to offer the Applicant the opportunity to have an oral hearing included the complexity of the factual background (including the Applicant’s complaints about the nature of the investigation, her very lengthy (if not always accurate) analysis of the case, her belief that the investigation was bungled, the police complaint investigation, and the continuing trouble between the two families) and the Applicant’s obvious difficulties in keeping to the most relevant matters when expressing herself in writing.
Levenson J could only substitute his own decision for that of the quashed decision where without the relevant error(s) of law “there would have been only one decision that the … tribunal could have reached” (Tribunals, Courts and Enforcement Act 2007 section 17(1)(b) and 17(2)(c)). In the present case it was possible that even after holding an oral hearing and taking account of all of the evidence and understanding it all correctly, the First-tier Tribunal could properly conclude that, in the particular circumstances of the case, it would have been reasonable to expect the applicant to have made an application within the two-year period.
Levenson J would make a quashing order in respect of the decision of the First-tier Tribunal (Social Entitlement Chamber) and refer the matter to the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision by a panel that did not include any judge or member who had considered this matter hitherto.