R(MJ) V FTT & CICA [2011] UKUT 402
FACTS:-
This was an application for judicial review against a decision of the First Tier Tribunal to refuse to make an award. The Applicant had been born in April 1977. In 1983 he was sent to a boarding school, where he was sexually abused by teachers. Both were charged by the police in around 1990. One committed suicide prior to trial and the other was convicted. The school itself was closed down. In October 2010, the Applicant made an application to the CICA.
JUDGMENT:-
Upper Tribunal Judge Ward considered paragraph of the 2008 Scheme:-
“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 [2008 Scheme only where he or she considers that:
(a) It is practicable for the application to be considered; and
(b) In the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two year period.”
He would interpret this as saying that where (a) and (b) are satisfied, the conditions for waiving the time limit are met, but that there were no other circumstances for waiver. In this respect it differed from the predecessor schemes which contained a widely phrased discretion power and Judge Ward would derive little assistance from case law on those predecessor schemes.
Ward J said that the First Tier Tribunal had erred in law in refusing to waive the time limit. The FTT considered the matter not only by reference to whether it would have been reasonable to expect the applicant to have made the application within that two year period but whether it was reasonable for him to have done so within two years of becoming an adult. While it may have been the practice of CICA to view sympathetically claims from those who claim soon after reaching adulthood, the use of two years since reaching adulthood as a test by which to exclude claimants was not authorised by the statutory Scheme. On the wording of paragraph 18, once it was established that it would not have been reasonable to expect the applicant to have made an application within two years of the date of the incident, all that remained was to determine whether it was practicable for the application to be considered.
In relation to the issue of practicability, the FTT had considered two factors, which were the difficulty of making an investigation now after so many years and the fact that information relating to allegations made two other complainants was not available. They had also repeated their reference to the Applicant not making an application within two years of adulthood. Judge Ward said that in the context of a police and social services investigation into the school, it was not clear why an investigation would be more difficult. The “two years from adulthood” reference was immaterial to the issue of practicability.
Ward J would quash the FTT’s decision on the grounds of errors of law. However he would remit the case back down to the FTT.
FACTS:-
This was an application for judicial review against a decision of the First Tier Tribunal to refuse to make an award. The Applicant had been born in April 1977. In 1983 he was sent to a boarding school, where he was sexually abused by teachers. Both were charged by the police in around 1990. One committed suicide prior to trial and the other was convicted. The school itself was closed down. In October 2010, the Applicant made an application to the CICA.
JUDGMENT:-
Upper Tribunal Judge Ward considered paragraph of the 2008 Scheme:-
“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 [2008 Scheme only where he or she considers that:
(a) It is practicable for the application to be considered; and
(b) In the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two year period.”
He would interpret this as saying that where (a) and (b) are satisfied, the conditions for waiving the time limit are met, but that there were no other circumstances for waiver. In this respect it differed from the predecessor schemes which contained a widely phrased discretion power and Judge Ward would derive little assistance from case law on those predecessor schemes.
Ward J said that the First Tier Tribunal had erred in law in refusing to waive the time limit. The FTT considered the matter not only by reference to whether it would have been reasonable to expect the applicant to have made the application within that two year period but whether it was reasonable for him to have done so within two years of becoming an adult. While it may have been the practice of CICA to view sympathetically claims from those who claim soon after reaching adulthood, the use of two years since reaching adulthood as a test by which to exclude claimants was not authorised by the statutory Scheme. On the wording of paragraph 18, once it was established that it would not have been reasonable to expect the applicant to have made an application within two years of the date of the incident, all that remained was to determine whether it was practicable for the application to be considered.
In relation to the issue of practicability, the FTT had considered two factors, which were the difficulty of making an investigation now after so many years and the fact that information relating to allegations made two other complainants was not available. They had also repeated their reference to the Applicant not making an application within two years of adulthood. Judge Ward said that in the context of a police and social services investigation into the school, it was not clear why an investigation would be more difficult. The “two years from adulthood” reference was immaterial to the issue of practicability.
Ward J would quash the FTT’s decision on the grounds of errors of law. However he would remit the case back down to the FTT.