R (LM) v FIRST TIER TRIBUNAL [2011] UKUT 179
FACTS:-
These were two linked cases brought under the Criminal Injuries Compensation Scheme 2001. The numbers of the cases were JR/1406/2009 and JR/1416/2009.
The Applicant had been born in 1969 and had been subjected to physical and sexual abuse by her father as well as being abused by a paedophile ring. She made two applications, one in respect of the abuse at home and the other in respect of the abuse that she had suffered as a child. There had been a police investigation, but due to insufficient evidence, no prosecution was warranted. The applications were rejected due to insufficient evidence and the Applicant appealed to the First Tier Tribunal. The FTT rejected the claim on the same grounds, but also rejected the claim in relation to the parents because it had occurred prior to the 1st October 1979. However it made three separate awards in relation to the assaults by the paedophile ring. The Applicant sought permission to apply for judicial review of both decision. Permission was granted to apply for judicial review of the decision in respect of the abuse by the Applicant’s parents but not in relation to the abuse by the paedophiles.
JUDGMENT:-
Upper Tribunal Judge Rowland dealt first with JR/1406/2009. He went over paragraphs 7, 8 and 9 of the 2001 Scheme, which dealt with eligibility to apply for compensation, the types and limits of compensation, and the standard amount of compensation awarded. Under paragraph 25, if a person did not qualify for the minimum tariff award under paragraph 26, then he would not qualify for compensation for loss of earnings or earnings capacity. An award for loss of earnings might be considerably more than the tariff award.
In relation to the pre 1979 abuse, the decision of the Authority was unchallengeable. The caselaw on this issue was very clear indeed. However the Applicant’s main submission was that the FTT did not adequately consider the injuries that she had sustained from the 1st October 1979 onwards. The FTT had found that the Applicant had suffered intimidation from her parents after the 30th September 1979, but whilst distressing this did not amount to a crime of violence in terms of paragraph 8 of the Scheme. There was one physical assault by her father, but this was not sufficiently serious. Rowland J said that he had granted permission to judicially review this decision, as it seemed to him that these matters could amount to crimes under Section 1(1) of the Children and Young Persons Act 1933. Nonetheless Rowland J said that the phrase “a crime of violence” must take its colour from paragraph 9 of the Scheme.
Although threats and intimidation could have amounted to ill treatment within the scope of Section 1(1) of the 1933 Act, the lack of actual physical harm over a period of many years showed that she had learned to comply with her parents demands and continually did so. Even if she did what she was told only because of the fear that she would otherwise suffer physical harm, Rowland J did not consider that in this particular context, she could be said to have reasonably feared immediate physical harm whenever she was threatened. She knew how to avoid the risk. Paragraph 9(a) of the 2001 Scheme should be construed narrowly. Had all the violence been inflicted after the 1st October 1979, the Claimant would have been entitled to compensation in respect of the psychiatric injury she suffered. The FTT considered that the Applicant’s mental health had already been affected by earlier events and, although it considered only whether the single later assault had significantly further affected it, I suspect that it would also have taken the view that the whole course of conduct since 1 October 1979 had not done so.
There was the single assault. Rowland J said that the FTT was entitled to find that the injuries sustained during the assault were not sufficiently serious to qualify for an award, but it appeared from their judgment that they had not considered this issue sufficiently and therefore he would quash their decision. He would remit the matter back to the FTT.
Rowland J then dealt with JR/1416/2009. The Applicant did not challenge the tariff awards, but argued that the mental effects of the abuse had not been adequately compensated. She said that she should have been awarded a tariff award on the basis of mental illness. Note 5 to the Scheme stated that when compensation was paid for any physical injury or for any sexual offence described in the tariff, a separate award for mental injury would not be made. Note 5 was interpreted by the Tribunal as meaning that if a sexual assault leads to a mental illness then the award should be the higher of the two awards for the assault and for the mental illness respectively. The three incidents in respect of which it had made tariff awards were particularly unpleasant, but the Applicant had already suffered abuse at home. The FTT was quite entitled to find that her mental injury had been largely caused by the abuse that she had suffered at home. Any award paid in respect of the abuse by the paedophile ring would have been made only in respect of the exacerbation of the pre existing condition. The Scheme failed to explain how the exacerbation was to be calculated, and Rowland J suspected that it depended on which items in the Scheme were in issue. Awards in respect of sexual offences were likely to be substantially in respect of the mental injury, since the physical effects were often short lived. The FTT was quite entitled to take the view that, the Claimant’s mental injury being largely attributable to the sustained abuse to which she had been subject to at home, the awards in respect of these three offences were sufficient to cover any exacerbation of the mental illness attributable to the respective offences.
That led to the next point. The Claimant did not regard the compensation as reflecting her true loss, and she should have received an award for loss of earnings capacity. On this issue, Rowland J would grant permission to apply for judicial review. A claim for loss of earning capacity might have succeeded, even though it might have been based on an exacerbation of the inability to earn.
In this case, Rowland J said that although it was not entirely clear whether the Applicant wished to make an application for loss of earnings. Where an Applicant had been asked a question, but there was reason to suppose that he or she had misunderstood the question, it might be necessary to ask the question again. Rowland J said that it would be good practice for a tribunal that made or confirmed a tariff award always to check whether an award for loss of earnings or earning capacity should be made. If the Applicant had wished to make such a claim, then it seemed inevitable that there would have had to be an adjournment to enable her to formulate her case.
There was another issue in relation to the tariff awards. The CICA’s counsel had argued that a single award should have been made as the Applicant was the victim of a pattern of abuse. Rowland J pointed out that the Notes to the Scheme in relation to dealing with a pattern of abuse did not apply to the physical abuse of or sexual assault of children. The tariff made no provision for the situation where a person suffered on one penetrative assault, and then on a different occasions, one penetrative assault by the same person. Rowland J said that the solution was to apply paragraph 27, the multiple injury formula. However the mere fact that a person had suffered two injuries was not sufficient to bring paragraph 27 into play if the assaults were completely unrelated to each other. In the present case, there was the common feature of the Applicant’s father introducing her to the paedophile ring. The FTT had said that there were three separate assaults by different men on different occasions. Rowland J would not express a firm opinion on this point, but although it was partly a question of fact, it was also a question of law, particularly if the assaults were carried out by different people.
FACTS:-
These were two linked cases brought under the Criminal Injuries Compensation Scheme 2001. The numbers of the cases were JR/1406/2009 and JR/1416/2009.
The Applicant had been born in 1969 and had been subjected to physical and sexual abuse by her father as well as being abused by a paedophile ring. She made two applications, one in respect of the abuse at home and the other in respect of the abuse that she had suffered as a child. There had been a police investigation, but due to insufficient evidence, no prosecution was warranted. The applications were rejected due to insufficient evidence and the Applicant appealed to the First Tier Tribunal. The FTT rejected the claim on the same grounds, but also rejected the claim in relation to the parents because it had occurred prior to the 1st October 1979. However it made three separate awards in relation to the assaults by the paedophile ring. The Applicant sought permission to apply for judicial review of both decision. Permission was granted to apply for judicial review of the decision in respect of the abuse by the Applicant’s parents but not in relation to the abuse by the paedophiles.
JUDGMENT:-
Upper Tribunal Judge Rowland dealt first with JR/1406/2009. He went over paragraphs 7, 8 and 9 of the 2001 Scheme, which dealt with eligibility to apply for compensation, the types and limits of compensation, and the standard amount of compensation awarded. Under paragraph 25, if a person did not qualify for the minimum tariff award under paragraph 26, then he would not qualify for compensation for loss of earnings or earnings capacity. An award for loss of earnings might be considerably more than the tariff award.
In relation to the pre 1979 abuse, the decision of the Authority was unchallengeable. The caselaw on this issue was very clear indeed. However the Applicant’s main submission was that the FTT did not adequately consider the injuries that she had sustained from the 1st October 1979 onwards. The FTT had found that the Applicant had suffered intimidation from her parents after the 30th September 1979, but whilst distressing this did not amount to a crime of violence in terms of paragraph 8 of the Scheme. There was one physical assault by her father, but this was not sufficiently serious. Rowland J said that he had granted permission to judicially review this decision, as it seemed to him that these matters could amount to crimes under Section 1(1) of the Children and Young Persons Act 1933. Nonetheless Rowland J said that the phrase “a crime of violence” must take its colour from paragraph 9 of the Scheme.
Although threats and intimidation could have amounted to ill treatment within the scope of Section 1(1) of the 1933 Act, the lack of actual physical harm over a period of many years showed that she had learned to comply with her parents demands and continually did so. Even if she did what she was told only because of the fear that she would otherwise suffer physical harm, Rowland J did not consider that in this particular context, she could be said to have reasonably feared immediate physical harm whenever she was threatened. She knew how to avoid the risk. Paragraph 9(a) of the 2001 Scheme should be construed narrowly. Had all the violence been inflicted after the 1st October 1979, the Claimant would have been entitled to compensation in respect of the psychiatric injury she suffered. The FTT considered that the Applicant’s mental health had already been affected by earlier events and, although it considered only whether the single later assault had significantly further affected it, I suspect that it would also have taken the view that the whole course of conduct since 1 October 1979 had not done so.
There was the single assault. Rowland J said that the FTT was entitled to find that the injuries sustained during the assault were not sufficiently serious to qualify for an award, but it appeared from their judgment that they had not considered this issue sufficiently and therefore he would quash their decision. He would remit the matter back to the FTT.
Rowland J then dealt with JR/1416/2009. The Applicant did not challenge the tariff awards, but argued that the mental effects of the abuse had not been adequately compensated. She said that she should have been awarded a tariff award on the basis of mental illness. Note 5 to the Scheme stated that when compensation was paid for any physical injury or for any sexual offence described in the tariff, a separate award for mental injury would not be made. Note 5 was interpreted by the Tribunal as meaning that if a sexual assault leads to a mental illness then the award should be the higher of the two awards for the assault and for the mental illness respectively. The three incidents in respect of which it had made tariff awards were particularly unpleasant, but the Applicant had already suffered abuse at home. The FTT was quite entitled to find that her mental injury had been largely caused by the abuse that she had suffered at home. Any award paid in respect of the abuse by the paedophile ring would have been made only in respect of the exacerbation of the pre existing condition. The Scheme failed to explain how the exacerbation was to be calculated, and Rowland J suspected that it depended on which items in the Scheme were in issue. Awards in respect of sexual offences were likely to be substantially in respect of the mental injury, since the physical effects were often short lived. The FTT was quite entitled to take the view that, the Claimant’s mental injury being largely attributable to the sustained abuse to which she had been subject to at home, the awards in respect of these three offences were sufficient to cover any exacerbation of the mental illness attributable to the respective offences.
That led to the next point. The Claimant did not regard the compensation as reflecting her true loss, and she should have received an award for loss of earnings capacity. On this issue, Rowland J would grant permission to apply for judicial review. A claim for loss of earning capacity might have succeeded, even though it might have been based on an exacerbation of the inability to earn.
In this case, Rowland J said that although it was not entirely clear whether the Applicant wished to make an application for loss of earnings. Where an Applicant had been asked a question, but there was reason to suppose that he or she had misunderstood the question, it might be necessary to ask the question again. Rowland J said that it would be good practice for a tribunal that made or confirmed a tariff award always to check whether an award for loss of earnings or earning capacity should be made. If the Applicant had wished to make such a claim, then it seemed inevitable that there would have had to be an adjournment to enable her to formulate her case.
There was another issue in relation to the tariff awards. The CICA’s counsel had argued that a single award should have been made as the Applicant was the victim of a pattern of abuse. Rowland J pointed out that the Notes to the Scheme in relation to dealing with a pattern of abuse did not apply to the physical abuse of or sexual assault of children. The tariff made no provision for the situation where a person suffered on one penetrative assault, and then on a different occasions, one penetrative assault by the same person. Rowland J said that the solution was to apply paragraph 27, the multiple injury formula. However the mere fact that a person had suffered two injuries was not sufficient to bring paragraph 27 into play if the assaults were completely unrelated to each other. In the present case, there was the common feature of the Applicant’s father introducing her to the paedophile ring. The FTT had said that there were three separate assaults by different men on different occasions. Rowland J would not express a firm opinion on this point, but although it was partly a question of fact, it was also a question of law, particularly if the assaults were carried out by different people.