FL v FIRST-TIER TRIBUNAL AND CICA [2010] UKUT 158 (AAC) (18 May 2010)
Jurisdiction to hear an appeal
FACTS:-
The Applicant was born in 1966. She attended a special school and from 1978 to 1981 she was emotionally abused by a member of staff. No complaint to the police was made at the time, but a relatively large scale police investigation was carried out in 1992. Several members of staff of the school, including the person in respect of whom the Applicant’s comments were made, were prosecuted for conspiracy to falsely imprison the children at the school (including acts of violence) but were acquitted by the jury after a lengthy trial.
She had made a previous CICA claim which was refused on 21st May 1996. The present claim was made under the Criminal Injuries Compensation Scheme 2001 on the 16th June 2008. On 6th July 2008 the Authority refused to make an award of compensation because a claim had been made for the same injury under a previous scheme. On the 2nd December 2008 the applicant appealed to the Social Entitlement Chamber of the First-tier Tribunal against that decision and on 5th March 2009 a judge of that tribunal gave notice that it was intended to strike out the appeal for lack of jurisdiction. The applicant applied to the Administrative Appeals Chamber of the Upper Tribunal for permission to apply for judicial review of that action by the First-tier Tribunal and on 8th November 2009 a judge of the Upper Tribunal considered the matter on the papers and refused permission. The Applicant applied for reconsideration of that refusal at an oral hearing.
JUDGMENT:-
Judge Levenson would refuse permission to apply for judicial review. Paragraph 7 of the 2001 clearly precluded a second claim. However there was the issue of why the First-tier Tribunal and the Upper Tribunal Judge who initially considered the papers relied on rule 8(2) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. This provided as follows:
“8(2) The Tribunal must strike out the whole or part of the proceedings if the Tribunal –
(a) does not have jurisdiction in relation to the proceedings or that part of them …”
Paragraphs 61 to 65 of the 2001 Scheme conferred rights of appeal and paragraph 61 provided as follows:
“61. An applicant who is dissatisfied with a decision taken on a review … may appeal against the decision by giving written notice of appeal to the Panel …”
The actual substantive right of appeal was unlimited in that it was not restricted to errors of fact, errors of law, or particular grounds. Therefore the First-tier Tribunal did have jurisdiction to decide the appeal to it and that it confused the concepts of (a) lack of jurisdiction to hear an appeal and (b) hearing an appeal that it thought was bound to fail.
Judge Levenson referred to two cases:-
However, because of Paragraph 7, Judge Leveson would refuse permission in this particular application.
Jurisdiction to hear an appeal
FACTS:-
The Applicant was born in 1966. She attended a special school and from 1978 to 1981 she was emotionally abused by a member of staff. No complaint to the police was made at the time, but a relatively large scale police investigation was carried out in 1992. Several members of staff of the school, including the person in respect of whom the Applicant’s comments were made, were prosecuted for conspiracy to falsely imprison the children at the school (including acts of violence) but were acquitted by the jury after a lengthy trial.
She had made a previous CICA claim which was refused on 21st May 1996. The present claim was made under the Criminal Injuries Compensation Scheme 2001 on the 16th June 2008. On 6th July 2008 the Authority refused to make an award of compensation because a claim had been made for the same injury under a previous scheme. On the 2nd December 2008 the applicant appealed to the Social Entitlement Chamber of the First-tier Tribunal against that decision and on 5th March 2009 a judge of that tribunal gave notice that it was intended to strike out the appeal for lack of jurisdiction. The applicant applied to the Administrative Appeals Chamber of the Upper Tribunal for permission to apply for judicial review of that action by the First-tier Tribunal and on 8th November 2009 a judge of the Upper Tribunal considered the matter on the papers and refused permission. The Applicant applied for reconsideration of that refusal at an oral hearing.
JUDGMENT:-
Judge Levenson would refuse permission to apply for judicial review. Paragraph 7 of the 2001 clearly precluded a second claim. However there was the issue of why the First-tier Tribunal and the Upper Tribunal Judge who initially considered the papers relied on rule 8(2) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. This provided as follows:
“8(2) The Tribunal must strike out the whole or part of the proceedings if the Tribunal –
(a) does not have jurisdiction in relation to the proceedings or that part of them …”
Paragraphs 61 to 65 of the 2001 Scheme conferred rights of appeal and paragraph 61 provided as follows:
“61. An applicant who is dissatisfied with a decision taken on a review … may appeal against the decision by giving written notice of appeal to the Panel …”
The actual substantive right of appeal was unlimited in that it was not restricted to errors of fact, errors of law, or particular grounds. Therefore the First-tier Tribunal did have jurisdiction to decide the appeal to it and that it confused the concepts of (a) lack of jurisdiction to hear an appeal and (b) hearing an appeal that it thought was bound to fail.
Judge Levenson referred to two cases:-
- R v Nat Bell Liquors Ltd [1922] AC 128 at 151
- R v Governor of Brixton Prison ex parte Armah [1968] AC 192
However, because of Paragraph 7, Judge Leveson would refuse permission in this particular application.