MK v FIRST-TIER TRIBUNAL [2013] UKUT 354
FACTS:-
The Applicant applied for criminal injuries compensation under the 2008 Criminal Injuries Compensation Scheme in May 2010 in respect of a crime of violence (an assault) against him in December 2009 in which he suffered criminal injuries. CICA’s refusal to make an award was based on several grounds, including the Applicant’s failure to cooperate with the police to bring his assailant to justice (paragraph 13(1)(b) of the Scheme), and his questionable character as evidenced by his criminal convictions and the CICA’s view that he was dishonestly claiming/receiving of Disability Living Allowance (DLA). Both issues could result in the reduction, or withholding, of compensation because they showed the Applicant’s character to be such that he did not merit an award from public funds.
JUDGEMENT:-
Judge Lane referred to paragraph 13(1)(e) of the 2008 Scheme and paragraph 22 of the 2008 Guide, which said:-
“22 The Scheme is funded by the taxpayer, so we need to be certain that anyone applying has not deliberately avoided paying their taxes or deliberately claimed state benefits they were not entitled to. If we discover someone been earning money which they have not been declaring for tax purposes or fraudulently claiming state benefits, we are likely to take this into account when considering your application.”
For the purposes of this appeal, it was sufficient to note that, in order to qualify for the highest rate of the mobility component, regulation 12(1)(ii) and (iii) of the Social Security (Disability Living Allowance) Regulations 1991 required that a Claimant’s physical condition as a whole must be such that his ability to walk out of doors was so limited as regards the distance over which or the speed at which or the length of time for which or the manner in which he could make progress on foot without severe discomfort, that he was virtually unable to walk; or the exertion required to walk would constitute a danger to his life or would be likely to lead a serious deterioration in his health.
The Applicant represented that his walking and balance were poor, his rate of progress in walking slow and that he was in pain all over after walking (particularly at the end of the day). In April 1998, he had been awarded the higher rate of the mobility component but the lowest rate of the care component under the ordinary rules for DLA. He began running half marathons in October 2008, only 7 months after submitting the review form and three months after the award of the higher rate of the mobility component was made.
Lane J said that it was clear from the wording of paragraph 13(1)(e) that the discretion given to reduce or withhold an award because of criminal convictions was a separate category from withholding an award for other reasons relating to a claimant’s character. In R (on the application of Olga Andronati) v CICAP [2006] EWHC 1420 Admin at [9], Keith J considered that:-
‘…At first blush the first of those arguments is not a promising one, because paragraph 13(e) does not place any limitations on the type of conduct which might justify the conclusion that an applicant's character renders an award of compensation inappropriate. The type of conduct which usually demonstrates that an applicant's character might render an award of compensation inappropriate is conduct which results in an applicant acquiring criminal convictions. Evidence of conduct which has not resulted in an applicant acquiring criminal convictions can sometimes demonstrate that an applicant's character should render an award of compensation inappropriate. So why should the claimant's unlawful presence in the United Kingdom at the time not be conduct of that kind?’
Not every type or instance of misconduct which affected the view the First Tier Tribunal took of a person’s character will necessarily lead to a reduction or withholding of compensation. In exercising its discretion, the First Tier Tribunal must behave proportionately. It would be disproportionate for a decision maker to refuse to make an award of compensation on the basis, for example, of mere distaste for a Claimant’s behaviour and lifestyle, in the absence of notable misconduct.
Lane J said that the First Tier Tribunal had done enough by finding that the Applicant knew his representation was untrue and that he made it to obtain benefit. This was sufficient reason for finding that his character was such that an award would be inappropriate under paragraph 13(1)(e). This paragraph did not require a technical examination of the criminal law tests in R v Ghosh [1982] EWCA 2.
Dishonesty was a question for the First Tier Tribunal and it was a question of fact. The Upper Tribunal could not interfere with that finding unless it was irrational or perverse, that is to say outside the range of findings a reasonable Tribunal could make having regard to the evidence and the law it had to apply. The Applicant had not come close to showing that the findings were perverse or irrational. Nor had he shown that there was another error of law.
FACTS:-
The Applicant applied for criminal injuries compensation under the 2008 Criminal Injuries Compensation Scheme in May 2010 in respect of a crime of violence (an assault) against him in December 2009 in which he suffered criminal injuries. CICA’s refusal to make an award was based on several grounds, including the Applicant’s failure to cooperate with the police to bring his assailant to justice (paragraph 13(1)(b) of the Scheme), and his questionable character as evidenced by his criminal convictions and the CICA’s view that he was dishonestly claiming/receiving of Disability Living Allowance (DLA). Both issues could result in the reduction, or withholding, of compensation because they showed the Applicant’s character to be such that he did not merit an award from public funds.
JUDGEMENT:-
Judge Lane referred to paragraph 13(1)(e) of the 2008 Scheme and paragraph 22 of the 2008 Guide, which said:-
“22 The Scheme is funded by the taxpayer, so we need to be certain that anyone applying has not deliberately avoided paying their taxes or deliberately claimed state benefits they were not entitled to. If we discover someone been earning money which they have not been declaring for tax purposes or fraudulently claiming state benefits, we are likely to take this into account when considering your application.”
For the purposes of this appeal, it was sufficient to note that, in order to qualify for the highest rate of the mobility component, regulation 12(1)(ii) and (iii) of the Social Security (Disability Living Allowance) Regulations 1991 required that a Claimant’s physical condition as a whole must be such that his ability to walk out of doors was so limited as regards the distance over which or the speed at which or the length of time for which or the manner in which he could make progress on foot without severe discomfort, that he was virtually unable to walk; or the exertion required to walk would constitute a danger to his life or would be likely to lead a serious deterioration in his health.
The Applicant represented that his walking and balance were poor, his rate of progress in walking slow and that he was in pain all over after walking (particularly at the end of the day). In April 1998, he had been awarded the higher rate of the mobility component but the lowest rate of the care component under the ordinary rules for DLA. He began running half marathons in October 2008, only 7 months after submitting the review form and three months after the award of the higher rate of the mobility component was made.
Lane J said that it was clear from the wording of paragraph 13(1)(e) that the discretion given to reduce or withhold an award because of criminal convictions was a separate category from withholding an award for other reasons relating to a claimant’s character. In R (on the application of Olga Andronati) v CICAP [2006] EWHC 1420 Admin at [9], Keith J considered that:-
‘…At first blush the first of those arguments is not a promising one, because paragraph 13(e) does not place any limitations on the type of conduct which might justify the conclusion that an applicant's character renders an award of compensation inappropriate. The type of conduct which usually demonstrates that an applicant's character might render an award of compensation inappropriate is conduct which results in an applicant acquiring criminal convictions. Evidence of conduct which has not resulted in an applicant acquiring criminal convictions can sometimes demonstrate that an applicant's character should render an award of compensation inappropriate. So why should the claimant's unlawful presence in the United Kingdom at the time not be conduct of that kind?’
Not every type or instance of misconduct which affected the view the First Tier Tribunal took of a person’s character will necessarily lead to a reduction or withholding of compensation. In exercising its discretion, the First Tier Tribunal must behave proportionately. It would be disproportionate for a decision maker to refuse to make an award of compensation on the basis, for example, of mere distaste for a Claimant’s behaviour and lifestyle, in the absence of notable misconduct.
Lane J said that the First Tier Tribunal had done enough by finding that the Applicant knew his representation was untrue and that he made it to obtain benefit. This was sufficient reason for finding that his character was such that an award would be inappropriate under paragraph 13(1)(e). This paragraph did not require a technical examination of the criminal law tests in R v Ghosh [1982] EWCA 2.
Dishonesty was a question for the First Tier Tribunal and it was a question of fact. The Upper Tribunal could not interfere with that finding unless it was irrational or perverse, that is to say outside the range of findings a reasonable Tribunal could make having regard to the evidence and the law it had to apply. The Applicant had not come close to showing that the findings were perverse or irrational. Nor had he shown that there was another error of law.