R (PB) V CICAP [2010] UKUT 124
FACTS:-
The Applicant was a victim of a crime of violence on the 5th February 2000 as a result of which he suffered a serious brain injury. He applied under the 1996 Scheme. Eventually he came before the CICAP, who decided that his award should be reduced by 33%. The Applicant applied for judicial review in the Administrative Court on the grounds that the proper starting point should have been 25%. His case was then transferred back to the Upper Tribunal. By that time, the CICAP and the Authority had conceded the application for judicial review.
JUDGMENT:-
Judge Rowland considered the 1996 Scheme and paragraph 13(e). That paragraph conferred a broad discretion. Whilst it was possible to infer that the number and seriousness of offences committed by the claimant would be relevant, no guidance was given as to how those factors were to be measured. In those circumstances, while the Authority was not entitled to fetter its discretion, it was entitled to have a policy that promoted consistent decision-making. The published policy was in the form of a Guide to the 1996 Scheme. In paragraphs 8.15 to 8.17, it containeda points system for calculating the proportion by which an award should be reduced in the light of offences committed by the Applicant, although a claims officers could depart from it where appropriate. In this case, the present case, the Applicant had been of good character at the time he made his claim for compensation but, by the time the Authority got round to making its first decision, he had been convicted of a driving related offence and disqualified for 12 months, and by the time of the review decision he had been convicted of another similar offence and disqualified for three years. Judge Rowland said that it was open to the Panel to reject the Guide altogether, provided it acted consistently with the Scheme and provided also that it gave a good reason for its approach. Paragraph 8.15 to 8.17 did not provide for a rigid code.
The points system in the Guide was not sufficiently detailed to provide much in the way of help in applying paragraph 13 of the Scheme. In those circumstances, it was not surprising to find that the Authority gave supplemental guidance to its staff, which was itself subject to regular review. It was, however, astonishing and highly unsatisfactory that that supplemental guidance, should not itself have been published. The lack of publication meant that the supplemental guidance was hidden from the Panel and the claimant’s representatives. That was particularly unfortunate in this case because the gloss the supplemental guidance put on the published Guide was wholly to the advantage of the Applicant. Fortunately it was revealed in the Authority’s detailed grounds of defence in these proceedings, to which the relevant part is appended. Paragraph 2.8.5.0 of that supplemental guidance stated:-
“If an applicant has received a number of differing sentences in respect of one conviction, only the most serious sentence should be taken into account, for the purposes of the Scheme”
An example was given and then the paragraph continued:-
“This principle also applies where an applicant has been convicted of a series of related offences. Instead of counting each conviction in our assessment, we should take into account only the most serious sentence.”
On that basis, it was conceded by the Authority that, even on its view that there were no special circumstances, it should have reduced the award by 25% rather than 75% and that the Applicant and the Panel were inadvertently misled as to the Authority’s interpretation of its own Guide. Rowland J referred to a number of cases:-
Here there was a mistake as to how in fact the Authority normally approached similar cases, which was highly relevant from the point of view of consistency, the evidence of the mistake was uncontentious and the Applicant’s advisors could hardly be said to bear any responsibility for the mistake when the supplementary guidance was kept hidden from them.
Judge Rowland would quash the decision of the Panel, and direct the new First Tier Tribunal to make a fresh decision.
FACTS:-
The Applicant was a victim of a crime of violence on the 5th February 2000 as a result of which he suffered a serious brain injury. He applied under the 1996 Scheme. Eventually he came before the CICAP, who decided that his award should be reduced by 33%. The Applicant applied for judicial review in the Administrative Court on the grounds that the proper starting point should have been 25%. His case was then transferred back to the Upper Tribunal. By that time, the CICAP and the Authority had conceded the application for judicial review.
JUDGMENT:-
Judge Rowland considered the 1996 Scheme and paragraph 13(e). That paragraph conferred a broad discretion. Whilst it was possible to infer that the number and seriousness of offences committed by the claimant would be relevant, no guidance was given as to how those factors were to be measured. In those circumstances, while the Authority was not entitled to fetter its discretion, it was entitled to have a policy that promoted consistent decision-making. The published policy was in the form of a Guide to the 1996 Scheme. In paragraphs 8.15 to 8.17, it containeda points system for calculating the proportion by which an award should be reduced in the light of offences committed by the Applicant, although a claims officers could depart from it where appropriate. In this case, the present case, the Applicant had been of good character at the time he made his claim for compensation but, by the time the Authority got round to making its first decision, he had been convicted of a driving related offence and disqualified for 12 months, and by the time of the review decision he had been convicted of another similar offence and disqualified for three years. Judge Rowland said that it was open to the Panel to reject the Guide altogether, provided it acted consistently with the Scheme and provided also that it gave a good reason for its approach. Paragraph 8.15 to 8.17 did not provide for a rigid code.
The points system in the Guide was not sufficiently detailed to provide much in the way of help in applying paragraph 13 of the Scheme. In those circumstances, it was not surprising to find that the Authority gave supplemental guidance to its staff, which was itself subject to regular review. It was, however, astonishing and highly unsatisfactory that that supplemental guidance, should not itself have been published. The lack of publication meant that the supplemental guidance was hidden from the Panel and the claimant’s representatives. That was particularly unfortunate in this case because the gloss the supplemental guidance put on the published Guide was wholly to the advantage of the Applicant. Fortunately it was revealed in the Authority’s detailed grounds of defence in these proceedings, to which the relevant part is appended. Paragraph 2.8.5.0 of that supplemental guidance stated:-
“If an applicant has received a number of differing sentences in respect of one conviction, only the most serious sentence should be taken into account, for the purposes of the Scheme”
An example was given and then the paragraph continued:-
“This principle also applies where an applicant has been convicted of a series of related offences. Instead of counting each conviction in our assessment, we should take into account only the most serious sentence.”
On that basis, it was conceded by the Authority that, even on its view that there were no special circumstances, it should have reduced the award by 25% rather than 75% and that the Applicant and the Panel were inadvertently misled as to the Authority’s interpretation of its own Guide. Rowland J referred to a number of cases:-
- R. v Leyland JJ ex parte Hawthorn [1979] Q.B.283
- R. v Bolton JJ, ex parte Scally [1991] 1 Q.B. 537
- R. (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982
- E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] Q.B.1044,
Here there was a mistake as to how in fact the Authority normally approached similar cases, which was highly relevant from the point of view of consistency, the evidence of the mistake was uncontentious and the Applicant’s advisors could hardly be said to bear any responsibility for the mistake when the supplementary guidance was kept hidden from them.
Judge Rowland would quash the decision of the Panel, and direct the new First Tier Tribunal to make a fresh decision.