R(MM) v FTT and CICA [2013] UKUT 402 (AAC)
Child abuse website – CICA –Time Limit and Oral Hearing
FACTS:-
The Applicant applied for criminal injuries compensation on 20 December 2011. He said that he had been raped in the summer of 1970 when he was aged 8. He did not know the name of the man, but he was a painter working on the houses where Mr M lived. The man called him into a shed to sort out some paint pots. He then shut the door, held Mr M by the stomach and head, and anally raped him. He described the effects as being ‘depressed, suicidal, panic attacks, nightmares, distressing images of the incident, sleep disorder and sexual problems.’ He mentioned flashbacks and problems when similar incidents came on the television. He did not tell anyone because of his feelings of despair and shame. In 2008 and 2009, he had to undergo hospital treatment as a result of an experience his son had had with a male nurse who had held him tightly from behind. He was diagnosed with post traumatic stress disorder. His psychiatrist told him about claiming for criminal injuries compensation in 2011.
The CICA refused the application, relying on paragraph 18 of the Criminal Injuries Compensation Scheme 2008. The letter notifying Mr M explained that ‘As the assault against you was never reported to the police it would be impracticable to waive the time limit as there is no police evidence to corroborate your claim.’
Mr M challenged this by appealing to the First Tier Tribunal, but the application was dismissed without an oral hearing.
JUDGEMENT:-
Upper Tribunal Judge Jacobs had given permission to apply for judicial review saying that it was arguable that the reasons given by the tribunal failed to take account of the nature of sexual abuse and the possibilities of testing allegations long after the event, which was the key issue under the Scheme. Experience showed that cases could be proved when the victims finally come forward. Mr M gave details of the time, place and employment of the alleged perpetrator. He also said he had a criminal record, which could have helped in tracing him. The First-tier Tribunal took no part in the proceedings. The CICA responded in writing. Mr M’s clinical psychologist wrote in Mr M’s support enclosing a letter from Mr M’s mother. She wrote that she had reported the same man to the police when her daughter complained that he had touched her thighs.
Jacobs J dealt with a more general problem in the tribunal’s reasoning on an oral hearing. Those reasons were inadequate to justify that decision in the circumstances of this case. It was possible that it was also perverse to proceed without holding a hearing. What was lacking in the tribunal’s reasons was any consideration of what points the tribunal considered in favour of holding a hearing. In its reasons explaining why it was not practicable to consider the application, the tribunal referred to the limited evidence. But nowhere was there anything to suggest that the tribunal considered whether hearing from Mr M in person might provide the tribunal with better evidence than it had. The tribunal’s reasons presented the case for deciding the case on the papers, but did not consider at all the case for holding a hearing. For that reason alone, they were inadequate.
Jacobs J considered the issue of practicability in terms of considering the application and waiving the time limit under Paragraph 18 of the Scheme. The issue for the claims officer was whether it was practicable for the application to be considered. This was a condition precedent to the power to waive the time limit. It was a judgment that had to be made at the point when the application had been received, but before any consideration had taken place. The evidence that was, or was likely to be, available might be a factor that was relevant to that judgment. But the issue was whether it was practicable for the application to be considered, not whether it would result in an award.
The applicant had to show that a crime of violence took place but the Applicant only had to make out a case for an award on the balance of probabilities, not to the criminal standard.
The test was not whether it is practicable to investigate the offence. That was a separate matter that was dealt at the stage of the award. At the stage when paragraph 18 (the time limit) applied, the possibility of the crime being investigated was a factor that was relevant only in so far as it affected the evidence that was available and, therefore, the practicability of considering the application.
The claims officer had to apply the CICA Scheme, not the Guide. So, by way of example, paragraph 4 of Appendix 2 referred to investigating a claim, whereas paragraph 18 of the Scheme referred to considering an application. If there was a difference in meaning, it was the Scheme that prevailed. It was wrong for tribunals to assume that considering an application would necessarily impose an investigative burden on CICA. It might indicate what evidence it needed, it might gather information, it might raise questions about the evidence or lack of it, and it would assess the evidence. But even taken together those steps were not the same as undertaking an investigation. Although the CICA was not obliged to initiate an investigation, the claims officer did give an Applicant advice on the evidence to produce. The practicability of considering the application had to take account of this advice and the sort of information that it might lead the Applicant to provide.
The issue for the First-tier Tribunal on an appeal was the same as for the claims officer but it took account of the evidence and arguments available at the time of the appeal. It was not limited to the evidence that was available to the claims officer and could consider extra evidence not previously submitted. This followed from the nature of an initial general appeal against an administrative decision-maker.
One source of evidence available to the tribunal was the oral evidence of the Applicant. There was nothing to prevent a claims officer interviewing an Applicant although it was not their practice to do so. The tribunal would be able to question the Applicant and form a judgment on whether there was sufficient information available for it to be practicable to consider the application. It was a common experience across jurisdictions within the First-tier Tribunal that decisions were changed as more information became available. It was for this reason that an oral hearing was potentially important.
In this case, the tribunal’s reasons showed no recognition of this potential value of an oral hearing. Second, the tribunal’s reasoning was based on a false assumption about the role taken by CICA and, perhaps, a confusion between CICA considering a claim and a police investigation of the alleged crime.
Jacobs J set out his thoughts on the waiver of the time limit under Paragraph 18. The structure of paragraph 18 was as follows. There was an exhortation (the application should be made as soon as possible after the incident giving rise to the injury) followed by a precise time limit (the application must be received by the Authority within two years of the date of the incident). That time limit might be waived. Subparagraphs (a) and (b) contained the conditions precedent that must be satisfied before the officer could waive the time limit. They were necessary conditions, but they were not necessarily sufficient. The officer still had a discretion that must be exercised. This allowed the officer to take account of all relevant circumstances either for or against waiver. Jacobson J referred to the case of R (MJ) v First-tier Tribunal ad CICA [2011] UKUT 402 (AAC), In that case, Judge Ward said that there was no general discretion and that once the conditions precedent were met, the officer had to waive the time limit. The CICA could not impose an arbitrary two year time limit from the Applicant’s 18th birthday. However in R (AM) v First-tier Tribunal [2012] UKUT 55 (AAC) Judge Rowland said that the applicant must still have claimed as soon as possible after the incident. It could not be right that a person who could not be expected to submit an application within two years had an unlimited time thereafter in which to do so.
Thus three questions arose where a claim was made after the two-year period:-
Jacobs J said that this reasoning identified an additional element that Judge Ward in R (MJ) did not consider. It was difficult to understand how an exhortation could become a duty depending on whether or not the time two-year limit was waived.
Jacob J’s reading of paragraph 18 was this. Paragraph 18 applied if and only if an application was not made within two years of the incident. That took account of the contrasting language of “should” and “must”. It also took account of the reference to waiving “this time limit”. That naturally referred to the two year period. It would not be a normal use of language to refer to an obligation to apply “as soon as possible” as a time limit; the language indicated something more precise. If the application was received outside the time limit, the claims officer had a power to waive the time limit provided that the two specified conditions are satisfied. They were conditions precedent to the exercise of the power. They were not conditions precedent to a duty to waive the two year time limit. The paragraph provided that an Applicant must apply within two years. If it then created a duty to waive the time limit on the part of the officer, it would be more natural to use the same word “must” rather than “may”, which usually indicated a power. Giving the power to the officer indicated that the officer had a judgment to make.
For instance, the incident might have occurred before 1 August 1964; or the application might allege no crime of violence; or the applicant’s criminal record or character might obviously preclude an award. There was a role for discretion in these cases.
The issue was whether it was reasonable to expect the Applicant to claim within two years of the date of the incident. If it was not, there was nothing that allowed a further period of two years to be imposed from a later date. This was a further reason for disagreeing with Judge Ward’s analysis. If that analysis was correct, subparagraph (b) would have no application to anyone injured as a child. There would be no time limit so long as it was practicable to consider the application. On Jacobs J’s reading, once subparagraphs (a) and (b) were satisfied, the officer had a discretion. It was permissible to use that discretion to allow a further two years from the age of 18. However that was not the same thing as being obliged to do so and it did not preclude an officer from refusing to waive the time limit even if the claim was made within that period.
Judge Jacobs would remit the case to the tribunal to undertake a fresh consideration of the issues raised by the appeal. As a preliminary matter, it had to decide whether to hold an oral hearing.
Child abuse website – CICA –Time Limit and Oral Hearing
FACTS:-
The Applicant applied for criminal injuries compensation on 20 December 2011. He said that he had been raped in the summer of 1970 when he was aged 8. He did not know the name of the man, but he was a painter working on the houses where Mr M lived. The man called him into a shed to sort out some paint pots. He then shut the door, held Mr M by the stomach and head, and anally raped him. He described the effects as being ‘depressed, suicidal, panic attacks, nightmares, distressing images of the incident, sleep disorder and sexual problems.’ He mentioned flashbacks and problems when similar incidents came on the television. He did not tell anyone because of his feelings of despair and shame. In 2008 and 2009, he had to undergo hospital treatment as a result of an experience his son had had with a male nurse who had held him tightly from behind. He was diagnosed with post traumatic stress disorder. His psychiatrist told him about claiming for criminal injuries compensation in 2011.
The CICA refused the application, relying on paragraph 18 of the Criminal Injuries Compensation Scheme 2008. The letter notifying Mr M explained that ‘As the assault against you was never reported to the police it would be impracticable to waive the time limit as there is no police evidence to corroborate your claim.’
Mr M challenged this by appealing to the First Tier Tribunal, but the application was dismissed without an oral hearing.
JUDGEMENT:-
Upper Tribunal Judge Jacobs had given permission to apply for judicial review saying that it was arguable that the reasons given by the tribunal failed to take account of the nature of sexual abuse and the possibilities of testing allegations long after the event, which was the key issue under the Scheme. Experience showed that cases could be proved when the victims finally come forward. Mr M gave details of the time, place and employment of the alleged perpetrator. He also said he had a criminal record, which could have helped in tracing him. The First-tier Tribunal took no part in the proceedings. The CICA responded in writing. Mr M’s clinical psychologist wrote in Mr M’s support enclosing a letter from Mr M’s mother. She wrote that she had reported the same man to the police when her daughter complained that he had touched her thighs.
Jacobs J dealt with a more general problem in the tribunal’s reasoning on an oral hearing. Those reasons were inadequate to justify that decision in the circumstances of this case. It was possible that it was also perverse to proceed without holding a hearing. What was lacking in the tribunal’s reasons was any consideration of what points the tribunal considered in favour of holding a hearing. In its reasons explaining why it was not practicable to consider the application, the tribunal referred to the limited evidence. But nowhere was there anything to suggest that the tribunal considered whether hearing from Mr M in person might provide the tribunal with better evidence than it had. The tribunal’s reasons presented the case for deciding the case on the papers, but did not consider at all the case for holding a hearing. For that reason alone, they were inadequate.
Jacobs J considered the issue of practicability in terms of considering the application and waiving the time limit under Paragraph 18 of the Scheme. The issue for the claims officer was whether it was practicable for the application to be considered. This was a condition precedent to the power to waive the time limit. It was a judgment that had to be made at the point when the application had been received, but before any consideration had taken place. The evidence that was, or was likely to be, available might be a factor that was relevant to that judgment. But the issue was whether it was practicable for the application to be considered, not whether it would result in an award.
The applicant had to show that a crime of violence took place but the Applicant only had to make out a case for an award on the balance of probabilities, not to the criminal standard.
The test was not whether it is practicable to investigate the offence. That was a separate matter that was dealt at the stage of the award. At the stage when paragraph 18 (the time limit) applied, the possibility of the crime being investigated was a factor that was relevant only in so far as it affected the evidence that was available and, therefore, the practicability of considering the application.
The claims officer had to apply the CICA Scheme, not the Guide. So, by way of example, paragraph 4 of Appendix 2 referred to investigating a claim, whereas paragraph 18 of the Scheme referred to considering an application. If there was a difference in meaning, it was the Scheme that prevailed. It was wrong for tribunals to assume that considering an application would necessarily impose an investigative burden on CICA. It might indicate what evidence it needed, it might gather information, it might raise questions about the evidence or lack of it, and it would assess the evidence. But even taken together those steps were not the same as undertaking an investigation. Although the CICA was not obliged to initiate an investigation, the claims officer did give an Applicant advice on the evidence to produce. The practicability of considering the application had to take account of this advice and the sort of information that it might lead the Applicant to provide.
The issue for the First-tier Tribunal on an appeal was the same as for the claims officer but it took account of the evidence and arguments available at the time of the appeal. It was not limited to the evidence that was available to the claims officer and could consider extra evidence not previously submitted. This followed from the nature of an initial general appeal against an administrative decision-maker.
One source of evidence available to the tribunal was the oral evidence of the Applicant. There was nothing to prevent a claims officer interviewing an Applicant although it was not their practice to do so. The tribunal would be able to question the Applicant and form a judgment on whether there was sufficient information available for it to be practicable to consider the application. It was a common experience across jurisdictions within the First-tier Tribunal that decisions were changed as more information became available. It was for this reason that an oral hearing was potentially important.
In this case, the tribunal’s reasons showed no recognition of this potential value of an oral hearing. Second, the tribunal’s reasoning was based on a false assumption about the role taken by CICA and, perhaps, a confusion between CICA considering a claim and a police investigation of the alleged crime.
Jacobs J set out his thoughts on the waiver of the time limit under Paragraph 18. The structure of paragraph 18 was as follows. There was an exhortation (the application should be made as soon as possible after the incident giving rise to the injury) followed by a precise time limit (the application must be received by the Authority within two years of the date of the incident). That time limit might be waived. Subparagraphs (a) and (b) contained the conditions precedent that must be satisfied before the officer could waive the time limit. They were necessary conditions, but they were not necessarily sufficient. The officer still had a discretion that must be exercised. This allowed the officer to take account of all relevant circumstances either for or against waiver. Jacobson J referred to the case of R (MJ) v First-tier Tribunal ad CICA [2011] UKUT 402 (AAC), In that case, Judge Ward said that there was no general discretion and that once the conditions precedent were met, the officer had to waive the time limit. The CICA could not impose an arbitrary two year time limit from the Applicant’s 18th birthday. However in R (AM) v First-tier Tribunal [2012] UKUT 55 (AAC) Judge Rowland said that the applicant must still have claimed as soon as possible after the incident. It could not be right that a person who could not be expected to submit an application within two years had an unlimited time thereafter in which to do so.
Thus three questions arose where a claim was made after the two-year period:-
- Whether it was practicable to consider the application.
- Whether the two-year time limit should be waived.
- Whether the application had been submitted as soon as possible after the end of the two-year period.
Jacobs J said that this reasoning identified an additional element that Judge Ward in R (MJ) did not consider. It was difficult to understand how an exhortation could become a duty depending on whether or not the time two-year limit was waived.
Jacob J’s reading of paragraph 18 was this. Paragraph 18 applied if and only if an application was not made within two years of the incident. That took account of the contrasting language of “should” and “must”. It also took account of the reference to waiving “this time limit”. That naturally referred to the two year period. It would not be a normal use of language to refer to an obligation to apply “as soon as possible” as a time limit; the language indicated something more precise. If the application was received outside the time limit, the claims officer had a power to waive the time limit provided that the two specified conditions are satisfied. They were conditions precedent to the exercise of the power. They were not conditions precedent to a duty to waive the two year time limit. The paragraph provided that an Applicant must apply within two years. If it then created a duty to waive the time limit on the part of the officer, it would be more natural to use the same word “must” rather than “may”, which usually indicated a power. Giving the power to the officer indicated that the officer had a judgment to make.
For instance, the incident might have occurred before 1 August 1964; or the application might allege no crime of violence; or the applicant’s criminal record or character might obviously preclude an award. There was a role for discretion in these cases.
The issue was whether it was reasonable to expect the Applicant to claim within two years of the date of the incident. If it was not, there was nothing that allowed a further period of two years to be imposed from a later date. This was a further reason for disagreeing with Judge Ward’s analysis. If that analysis was correct, subparagraph (b) would have no application to anyone injured as a child. There would be no time limit so long as it was practicable to consider the application. On Jacobs J’s reading, once subparagraphs (a) and (b) were satisfied, the officer had a discretion. It was permissible to use that discretion to allow a further two years from the age of 18. However that was not the same thing as being obliged to do so and it did not preclude an officer from refusing to waive the time limit even if the claim was made within that period.
Judge Jacobs would remit the case to the tribunal to undertake a fresh consideration of the issues raised by the appeal. As a preliminary matter, it had to decide whether to hold an oral hearing.