HUTTON V FIRST TIER TRIBUNAL AND CRIMINAL INJURIES COMPENSATION AUTHORITY [2012] EWCA Civ 806
FACTS:-
The Applicant’s father was fatally stabbed on the 4th December 1966, leaving his mother, sister and himself. His mother later had a nervous breakdown and his sister later suffered mental health problems. The Applicant had located details of his father’s assailant’s trial from the National Archives together with witness statements and other documentation, which gave details of what had happened. In June 2008, the Applicant made an application to the CICA, and he also made claims on behalf of his mother and sister (who were not well enough to make their own applications). He also provided the CICA with his documentation and gave as his reason for delay, that he had been trying without success for many years to locate that documentation. The applications were rejected on the grounds that they were made past the Authority’s two year time limit. The CICA had written to the police force which had investigated the crime, but they said that they held no papers. The Applicant applied for a review, but was again turned down and so he appealed again to the First Tier Tribunal. Here again he was turned down by Judge Ward and so he applied to the FTT for permission to appeal. His application was considered by an Upper Tribunal Judge who again refused the application. He then went to the Upper Tribunal (Administrative Appeals Chamber) for permission to apply for Judicial Review of the FTT’s decision, who refused the application. There followed an application for permission to appeal to the Court of Appeal, which was dismissed on paper but permission was granted after an oral hearing.
JUDGMENT:-
Lord Justice Aikens considered the history of the criminal injuries compensation scheme and in particular paragraphs 18 and 19 of the 2001 Scheme. Paragraph 18 stated:-
“18. An application for compensation under this Scheme in respect of a criminal injury (“injury”) hereafter in this Scheme) 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) satisfying the claims officer dealing with his application (including an officer reviewing a decision under paragraph 60) that an award should not be reconsidered, withheld or reduced under any provision of this Scheme.”
The First Tier Tribunal had refused the appeal on the grounds that the Applicant had been aware at the very latest, from adulthood that his father had been killed. However it had taken him 20 years to get his application to the Authority. Moreover the delay meant that enquiries could not be made and the outcome of those enquiries was unlikely to be reliable. The explanation for the delay was not satisfactory. The Upper Tier Tribunal had accepted that there was sufficient evidence on which the Authority could make a decision, but there was still not satisfactory explanation for the delay. At the next stage, the Upper Tribunal Judge said that the Applicant’s explanation for the delay was satisfactory, but those reasons would not have prevented him from making an application.
It was accepted by the Authority that there was no prejudice to the Authority by the delay so far as establishing the circumstances of the death of the Applicant’s father.
Aikens LJ said that the issues were as follows:-
1) Was it reasonably arguable that Judge Ward (the first judge in the First Tier Tribunal) erred in law in his construction of paragraph 18 of the terms of the Scheme, and so,
2) Was there a reasonably arguable case that the First Tier Tribunal, correctly directed on the law, could reasonably reach the conclusion that the time limit in this case could be waived?
In his view, Judge Ward undoubtedly erred in law in his construction of paragraph 18 of the Scheme terms. He considered that the first question he had to ask was whether there were any relevant “particular” circumstances in this case and the second question was whether or not it was in the “interests of justice” to waive the time limit. That misread the last sentence of paragraph 18. The words “particular circumstances” meant the actual or distinct circumstances of this individual case. They did not mean “special” circumstances in the sense of being unusual or extraordinary circumstances. So the task of the CICA was to establish the actual circumstances of this particular case. Having completed that task, the officer dealing with the applicant then had to ask – given the circumstances of this particular case, was it reasonable and in the interests of justice to waive the time limit?
The officer had to consider all relevant factors. That meant the length of the delay in making the claim, the reasons for the delay and the nature of the claim itself. The relative importance of particular factors would depend on the particular circumstances of the case being considered.
Moving onto the second question, it was arguable that the FTT could have reached a different conclusion on the time limit. Aikens LJ made the following points:-
However it seemed reasonably arguable that on the particular facts of this case the FTT could reasonably waive the time limit. The case for the Applicant’s mother and sister was even stronger, because they were both suffering from mental health problems and they could not be blamed for any delays, which might have resulted from the way the Applicant had gone about making their applications.
The matter would be remitted back to the Upper Tribunal to decide the issue of whether judicial review of the decision of Judge Ward should be granted. There were a number of different issues not aired before the Court of Appeal, which could be aired before the Upper Tribunal. Therefore the appeal would be allowed.
Lord Justice McFarlane and Lady Justice Arden agreed.
FACTS:-
The Applicant’s father was fatally stabbed on the 4th December 1966, leaving his mother, sister and himself. His mother later had a nervous breakdown and his sister later suffered mental health problems. The Applicant had located details of his father’s assailant’s trial from the National Archives together with witness statements and other documentation, which gave details of what had happened. In June 2008, the Applicant made an application to the CICA, and he also made claims on behalf of his mother and sister (who were not well enough to make their own applications). He also provided the CICA with his documentation and gave as his reason for delay, that he had been trying without success for many years to locate that documentation. The applications were rejected on the grounds that they were made past the Authority’s two year time limit. The CICA had written to the police force which had investigated the crime, but they said that they held no papers. The Applicant applied for a review, but was again turned down and so he appealed again to the First Tier Tribunal. Here again he was turned down by Judge Ward and so he applied to the FTT for permission to appeal. His application was considered by an Upper Tribunal Judge who again refused the application. He then went to the Upper Tribunal (Administrative Appeals Chamber) for permission to apply for Judicial Review of the FTT’s decision, who refused the application. There followed an application for permission to appeal to the Court of Appeal, which was dismissed on paper but permission was granted after an oral hearing.
JUDGMENT:-
Lord Justice Aikens considered the history of the criminal injuries compensation scheme and in particular paragraphs 18 and 19 of the 2001 Scheme. Paragraph 18 stated:-
“18. An application for compensation under this Scheme in respect of a criminal injury (“injury”) hereafter in this Scheme) 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) satisfying the claims officer dealing with his application (including an officer reviewing a decision under paragraph 60) that an award should not be reconsidered, withheld or reduced under any provision of this Scheme.”
The First Tier Tribunal had refused the appeal on the grounds that the Applicant had been aware at the very latest, from adulthood that his father had been killed. However it had taken him 20 years to get his application to the Authority. Moreover the delay meant that enquiries could not be made and the outcome of those enquiries was unlikely to be reliable. The explanation for the delay was not satisfactory. The Upper Tier Tribunal had accepted that there was sufficient evidence on which the Authority could make a decision, but there was still not satisfactory explanation for the delay. At the next stage, the Upper Tribunal Judge said that the Applicant’s explanation for the delay was satisfactory, but those reasons would not have prevented him from making an application.
It was accepted by the Authority that there was no prejudice to the Authority by the delay so far as establishing the circumstances of the death of the Applicant’s father.
Aikens LJ said that the issues were as follows:-
1) Was it reasonably arguable that Judge Ward (the first judge in the First Tier Tribunal) erred in law in his construction of paragraph 18 of the terms of the Scheme, and so,
2) Was there a reasonably arguable case that the First Tier Tribunal, correctly directed on the law, could reasonably reach the conclusion that the time limit in this case could be waived?
In his view, Judge Ward undoubtedly erred in law in his construction of paragraph 18 of the Scheme terms. He considered that the first question he had to ask was whether there were any relevant “particular” circumstances in this case and the second question was whether or not it was in the “interests of justice” to waive the time limit. That misread the last sentence of paragraph 18. The words “particular circumstances” meant the actual or distinct circumstances of this individual case. They did not mean “special” circumstances in the sense of being unusual or extraordinary circumstances. So the task of the CICA was to establish the actual circumstances of this particular case. Having completed that task, the officer dealing with the applicant then had to ask – given the circumstances of this particular case, was it reasonable and in the interests of justice to waive the time limit?
The officer had to consider all relevant factors. That meant the length of the delay in making the claim, the reasons for the delay and the nature of the claim itself. The relative importance of particular factors would depend on the particular circumstances of the case being considered.
Moving onto the second question, it was arguable that the FTT could have reached a different conclusion on the time limit. Aikens LJ made the following points:-
- The period of delay was very long indeed
- Aikens LJ accepted that the Applicant’s approach was to gather all the evidence and then make his application, although this may have been mistaken
- Delay would make the investigation of the assessment of the value of the claim more difficult
However it seemed reasonably arguable that on the particular facts of this case the FTT could reasonably waive the time limit. The case for the Applicant’s mother and sister was even stronger, because they were both suffering from mental health problems and they could not be blamed for any delays, which might have resulted from the way the Applicant had gone about making their applications.
The matter would be remitted back to the Upper Tribunal to decide the issue of whether judicial review of the decision of Judge Ward should be granted. There were a number of different issues not aired before the Court of Appeal, which could be aired before the Upper Tribunal. Therefore the appeal would be allowed.
Lord Justice McFarlane and Lady Justice Arden agreed.