AG v FTT AND CICA [2013] UKUT 357 (AAC) (23 July 2013)
Child abuse website – CICA – Time limits
FACTS:-
The Applicant said that in 2008, she went to nightclub with two female friends. At the end of the night, driving the Applicant’s car, the doorman took the women back to the Applicant’s home. She believes that her drink had been spiked by him because she awoke in her own bed, unable to move while the doorman got on top of her, had sexual intercourse with her and touched her. The Applicant reported to the police that the man in question had been sending her threatening texts and made phone calls threatening to kill her and the police issued him with a harassment warning. She heard nothing more from him. She then contacted the police again, to tell them about the rape incident. The man was arrested and interviewed and denied that any sexual activity had taken place. After submission of the case file to the Crown Prosecution Service it was decided to take no further action.
In 2009 she met a journalist who was researching date rape. In about January 2010 he mentioned the possibility of making a claim to the CICA to the Applicant but nothing was said about time limits. In March 2010 the Applicant complained through the police complaints procedure about the inadequate way in which her initial complaint of rape had been investigated. This complaint was investigated and the original rape investigation was reviewed. It was not until July 2011 that a copy of the report of the complaint investigation was sent to the Applicant by the police. The report found that a long list of potential lines of enquiry and actions had not been carried out. This included a lack of forensic scientific investigation, a failure to search the suspect’s home or consider his phone records, a failure to interview other potential witnesses, and a failure to interview the suspect again after other potential witnesses had been seen. The complaint was upheld. In December 2010 the Applicant made a claim for compensation under the 2008 scheme. This was over five months after the end of the prescribed two year period for making a claim. In April 2011 the Authority refused to make an award on the basis of the paragraph 18 time limit. In June 2011, in a review decision, the Authority maintained its refusal to make an award of compensation. In August 2011 the Applicant appealed to the First-tier Tribunal against the decision of the Authority, which exercised its power under its procedural rules to consider the appeal without an oral hearing and in February 2012 the First-tier Tribunal upheld the decision of the Authority. The Applicant then applied to the First-tier Tribunal to set aside its own decision but this was refused. In May 2012 the Applicant applied to the Upper Tribunal for permission to apply for judicial review of the decision of the First-tier Tribunal.
JUDGEMENT:-
Judge Levenson referred to paragraph 18 of the CICA 2008 Scheme. This provided that an application for compensation must be made on the appropriate form as soon as possible after the relevant incident and must be received by the Authority within two years of the date of the incident. The Authority may waive this time limit only when it considered that:-
“(a) it is practicable for the application to be considered and
(b) in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period.”
In the case of Hutton & Others v First-tier Tribunal & CICA [2012] EWCA Civ 806 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.
Levenson J said that the First-tier Tribunal was right to take the view 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.
Rule 27(4)(a) of the First Tier Tribunal Rules gave the First-tier Tribunal power to make a decision without holding an oral hearing, but this was a power, not an obligation, and it was one which had to be exercised fairly and judicially and in accordance with the rules of natural justice, especially as rule 27(5)(a) mades it, in effect, a final decision.
Levenson J referred to the following cases:-
VAA v First-tier Tribunal & CICA JR/0685/2009
R(AM) v First-tier Tribunal & CICA JR/3406/2012
The particular factors in this case 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, the substantial medical evidence, the fact that the police had held on to the claim form from a date within the time limit period to a date well beyond the expiry of that period, the fact that the Applicant believed that she needed the police information before submitting the claim, and her difficulties in expressing herself in writing. It was not appropriate to challenge the honesty or integrity of an Appellant where there had been no hearing and no chance to respond to the matters leading to such a challenge.
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.
However, because of the failure to offer the Applicant the opportunity of an oral hearing, and to explain adequately why this was not being done, and because of the other errors identified above, Levenson J would make a quashing order in respect of the decision of the First-tier Tribunal to dismiss an appeal against the decision of the Criminal Injuries Compensation Authority not to make an award. The matter would be referred to the First Tier Tribunal for a fresh hearing.
Child abuse website – CICA – Time limits
FACTS:-
The Applicant said that in 2008, she went to nightclub with two female friends. At the end of the night, driving the Applicant’s car, the doorman took the women back to the Applicant’s home. She believes that her drink had been spiked by him because she awoke in her own bed, unable to move while the doorman got on top of her, had sexual intercourse with her and touched her. The Applicant reported to the police that the man in question had been sending her threatening texts and made phone calls threatening to kill her and the police issued him with a harassment warning. She heard nothing more from him. She then contacted the police again, to tell them about the rape incident. The man was arrested and interviewed and denied that any sexual activity had taken place. After submission of the case file to the Crown Prosecution Service it was decided to take no further action.
In 2009 she met a journalist who was researching date rape. In about January 2010 he mentioned the possibility of making a claim to the CICA to the Applicant but nothing was said about time limits. In March 2010 the Applicant complained through the police complaints procedure about the inadequate way in which her initial complaint of rape had been investigated. This complaint was investigated and the original rape investigation was reviewed. It was not until July 2011 that a copy of the report of the complaint investigation was sent to the Applicant by the police. The report found that a long list of potential lines of enquiry and actions had not been carried out. This included a lack of forensic scientific investigation, a failure to search the suspect’s home or consider his phone records, a failure to interview other potential witnesses, and a failure to interview the suspect again after other potential witnesses had been seen. The complaint was upheld. In December 2010 the Applicant made a claim for compensation under the 2008 scheme. This was over five months after the end of the prescribed two year period for making a claim. In April 2011 the Authority refused to make an award on the basis of the paragraph 18 time limit. In June 2011, in a review decision, the Authority maintained its refusal to make an award of compensation. In August 2011 the Applicant appealed to the First-tier Tribunal against the decision of the Authority, which exercised its power under its procedural rules to consider the appeal without an oral hearing and in February 2012 the First-tier Tribunal upheld the decision of the Authority. The Applicant then applied to the First-tier Tribunal to set aside its own decision but this was refused. In May 2012 the Applicant applied to the Upper Tribunal for permission to apply for judicial review of the decision of the First-tier Tribunal.
JUDGEMENT:-
Judge Levenson referred to paragraph 18 of the CICA 2008 Scheme. This provided that an application for compensation must be made on the appropriate form as soon as possible after the relevant incident and must be received by the Authority within two years of the date of the incident. The Authority may waive this time limit only when it considered that:-
“(a) it is practicable for the application to be considered and
(b) in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period.”
In the case of Hutton & Others v First-tier Tribunal & CICA [2012] EWCA Civ 806 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.
Levenson J said that the First-tier Tribunal was right to take the view 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.
Rule 27(4)(a) of the First Tier Tribunal Rules gave the First-tier Tribunal power to make a decision without holding an oral hearing, but this was a power, not an obligation, and it was one which had to be exercised fairly and judicially and in accordance with the rules of natural justice, especially as rule 27(5)(a) mades it, in effect, a final decision.
Levenson J referred to the following cases:-
VAA v First-tier Tribunal & CICA JR/0685/2009
R(AM) v First-tier Tribunal & CICA JR/3406/2012
The particular factors in this case 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, the substantial medical evidence, the fact that the police had held on to the claim form from a date within the time limit period to a date well beyond the expiry of that period, the fact that the Applicant believed that she needed the police information before submitting the claim, and her difficulties in expressing herself in writing. It was not appropriate to challenge the honesty or integrity of an Appellant where there had been no hearing and no chance to respond to the matters leading to such a challenge.
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.
However, because of the failure to offer the Applicant the opportunity of an oral hearing, and to explain adequately why this was not being done, and because of the other errors identified above, Levenson J would make a quashing order in respect of the decision of the First-tier Tribunal to dismiss an appeal against the decision of the Criminal Injuries Compensation Authority not to make an award. The matter would be referred to the First Tier Tribunal for a fresh hearing.