R(RW) V FIRST TIER TRIBUNAL (CIC) [2012] UKUT 280
FACTS:-
The Applicant, a 75 year old man was assaulted after getting out of his car to confront some youths on the 20th November 2006. He did not report the incident to the police until 22 December 2006, and when he applied to the CICA for compensation, he said that he did not want to waste police time as it would be impossible to trace the youths. The CICA turned down his claim on the ground that there had been an unreasonable delay in reporting the incident to the police. It relied on paragraph 13(a) of the Criminal Injuries Compensation Scheme 2001, and on review upheld that decision. The Applicant appealed, citing his disablement and again his belief that the police would not be able to do anything. On 9 October 2008, the Criminal Injuries Compensation Appeals Panel dismissed the Applicant’s appeal in his absence. He had written to the Panel on 12 September 2008, from France where he was then living, to say that he would not be attending due to his disabilities. The decision notice stated that the decision had been as follows –
The Applicant sought to appeal against that decision. During the course of proceedings, the Panel effectively became the First Tribunal Tribunal. The Tribunal treated the appeal as an application under Rule 37 Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) and refused it. Consequently the Applicant applied for judicial review to the First Tier Tribunal. Judge Rowland suggested that the matter be transferred to the High Court, the reason being the Upper Tribunal had jurisdiction to determine judicial review proceedings only if either the case satisfied four conditions set out in section 18 of the Tribunals, Courts and Enforcement Act 2007 or the case had been transferred to it under section 31A of the Senior Courts Act 1981. One of the conditions set out in section 18 of the 2007 Act was that the case fell within a class identified in a practice direction made by the Lord Chief Justice (see section 18(6)) and the relevant practice direction (Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 W.L.R. 327) referred to challenges to decisions of the First-tier Tribunal but not to challenges to decisions made by its predecessors. Section 18(3) required the Upper Tribunal to transfer to the High Court any judicial review proceedings that it did not have the power to determine. Consequently Judge Rowland transferred the case to the High Court, from where it was transferred back to the Upper Tribunal for his determination.
JUDGMENT:-
Judge Rowland that the decision that was subject to challenge was of 9 October 2008. There was no procedural irregularity in the decision of 9 October 2008 – in particular, the Applicant had given his consent to the hearing proceeding in his absence – and in those circumstances there were no grounds for setting the decision aside under rule 37 of the 2008 Rules on 28 November 2008. Consequently, the conclusion reached by the Principal Judge on 28 November was clearly correct.
There would equally have been no grounds for granting a rehearing under paragraph 79 of the 2001 Scheme, which was the provision in force before 3 November 2008 and could have been relevant under transitional provisions in Schedule 4 to the 2008 Order. A decision of a tribunal, including the Panel, could be quashed on judicial review only if it was wrong in law. It was for the Panel to consider whether the claimant “failed to take, without delay, all reasonable steps to inform the police, or other body or person considered by the Authority to be appropriate for the purpose, of the circumstances giving rise to the injury” and, in the absence of an error of law, the Upper Tribunal could interfere with the Panel’s decision merely because the Upper Tribunal judge might have reached a different conclusion. However, it was also an error of law not to have regard to all relevant considerations or not to give adequate reasons for a decision.
In this case, it was not in doubt that the Applicant could have reported the incident to the police earlier than he did and that there had therefore been “delay”. Judge Rowland did not doubt that the Panel was entitled to find that the Applicant ought to have reported the incident to the police by at least telephoning them, or asking his wife to telephone them, when he got home and that therefore it was entitled to find that therefore he had not taken “all reasonable steps” to inform the police. However, it was not clear from the statement of reasons on what basis it reached that conclusion.
The power under paragraph 13(a) to withhold or reduce an award where a crime had not been reported to the police or another relevant authority without delay existed so that the police or other authority had the opportunity to carry out an investigation. That, in turn, served two purposes from the point of view of the Authority. One was to enable criminals to be brought to justice. The second purpose of paragraph 13(a) was to enable an award to be withheld where an Applicant’s failure to report it immediately has meant that there had not been a proper opportunity to investigate.
Paragraph 13 conferred a broad discretion and the Authority and the First-tier Tribunal were required to consider all material circumstances, having regard to the purpose of the paragraph. Judge Rowland said that when considering a failure to report an incident promptly to the police or other authority, the reason for the claimant not having done so might be highly relevant, as might the identified consequence. If the Applicant intended to reduce the likelihood of the offender being prosecuted, or was reckless as to whether that would be the consequence, withholding the award altogether or making a substantial reduction might be justified, whereas if the claimant merely made a misjudgement, a lesser reduction, or no reduction at all, might be appropriate. Similarly, delay that did not actually prevent the offender being prosecuted might result in a lesser reduction, or no reduction, whereas similar delay that did prevent an effective investigation might be viewed differently.
Moreover, in considering whether the Applicant took “all reasonable steps” to inform the police, regard should be had to the position as it would have appeared to him at the time. It is important in this case that the Applicant said that he did not at first think his injury was particularly serious. Not only were the police likely to invest resources in an investigation in proportion to the seriousness of the alleged offence, which was often determined by its consequences, but a minor injury that passed quickly would not be one in respect of which any claim for compensation could be, or would be, contemplated. In the present case, this was particularly significant because, even if there might have been some prospect of the assailant being apprehended if the incident had been reported immediately, the prospect of that being so by the time that the Applicant realised the injury was serious enough for him to need medical advice would have been very much lower and possibly non-existent. During the period when delay was more likely to be material, the Applicant in this case may actually have had a better reason for not acting.
The fact that the Panel did not record whether it accepted the Applicant’s account as to his thinking at the time and whether it found that the late reporting of the incident did materially hamper the police may indicate that it did not consider those issues relevant. A further indication of that is the apparent failure to ask the police officer who attended the hearing any relevant questions.
There had been no consideration of quantum, and the Authority had said that it was an inappropriate use of resource within the Authority to calculate quantum in a case where the Applicant was not eligible for an award. Judge Rowland did not consider that the Authority’s approach is appropriate in all cases. Different considerations appled to different cases within paragraph 13 or even to different cases within each subparagraph of that paragraph. Withholding £500,000 was wholly different from withholding £1,000 and what may justify withholding a small award may justify only a reduction in a larger one. The penalty, in terms of the loss of an award, must be proportionate to what the Scheme regards as misconduct, having regard to the purpose of paragraph 13. There was nothing in the Scheme to suggest that a reduction of an award must always be expressed as a percentage of an award and must, in given circumstances, be the same percentage whatever the size of the award. There was no reason why, in some cases, the reduction should not be expressed as a sum of money or even, if the First-tier Tribunal is not sure of the amount of the award that would otherwise be made, as “£x or y per cent, whichever is the greater”.
If the Authority considered that a reduced award was appropriate, Judge Rowland would suggest that it should generally determine quantum before issuing the paragraph 13 decision.
Consequently Judge Rowland was satisfied that the decision of the Panel given on 9 October 2008 was erroneous in point of law and should be quashed. The case would be remitted to the First-tier Tribunal (Social Entitlement Chamber) to be decided in accordance with his reasoning.
.
FACTS:-
The Applicant, a 75 year old man was assaulted after getting out of his car to confront some youths on the 20th November 2006. He did not report the incident to the police until 22 December 2006, and when he applied to the CICA for compensation, he said that he did not want to waste police time as it would be impossible to trace the youths. The CICA turned down his claim on the ground that there had been an unreasonable delay in reporting the incident to the police. It relied on paragraph 13(a) of the Criminal Injuries Compensation Scheme 2001, and on review upheld that decision. The Applicant appealed, citing his disablement and again his belief that the police would not be able to do anything. On 9 October 2008, the Criminal Injuries Compensation Appeals Panel dismissed the Applicant’s appeal in his absence. He had written to the Panel on 12 September 2008, from France where he was then living, to say that he would not be attending due to his disabilities. The decision notice stated that the decision had been as follows –
- Not even a part award merited. The Applicant’s explanation for late reporting of the incident to the police is not acceptable.
- The late reporting seriously hampered any opportunity to investigate the incident.
The Applicant sought to appeal against that decision. During the course of proceedings, the Panel effectively became the First Tribunal Tribunal. The Tribunal treated the appeal as an application under Rule 37 Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) and refused it. Consequently the Applicant applied for judicial review to the First Tier Tribunal. Judge Rowland suggested that the matter be transferred to the High Court, the reason being the Upper Tribunal had jurisdiction to determine judicial review proceedings only if either the case satisfied four conditions set out in section 18 of the Tribunals, Courts and Enforcement Act 2007 or the case had been transferred to it under section 31A of the Senior Courts Act 1981. One of the conditions set out in section 18 of the 2007 Act was that the case fell within a class identified in a practice direction made by the Lord Chief Justice (see section 18(6)) and the relevant practice direction (Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 W.L.R. 327) referred to challenges to decisions of the First-tier Tribunal but not to challenges to decisions made by its predecessors. Section 18(3) required the Upper Tribunal to transfer to the High Court any judicial review proceedings that it did not have the power to determine. Consequently Judge Rowland transferred the case to the High Court, from where it was transferred back to the Upper Tribunal for his determination.
JUDGMENT:-
Judge Rowland that the decision that was subject to challenge was of 9 October 2008. There was no procedural irregularity in the decision of 9 October 2008 – in particular, the Applicant had given his consent to the hearing proceeding in his absence – and in those circumstances there were no grounds for setting the decision aside under rule 37 of the 2008 Rules on 28 November 2008. Consequently, the conclusion reached by the Principal Judge on 28 November was clearly correct.
There would equally have been no grounds for granting a rehearing under paragraph 79 of the 2001 Scheme, which was the provision in force before 3 November 2008 and could have been relevant under transitional provisions in Schedule 4 to the 2008 Order. A decision of a tribunal, including the Panel, could be quashed on judicial review only if it was wrong in law. It was for the Panel to consider whether the claimant “failed to take, without delay, all reasonable steps to inform the police, or other body or person considered by the Authority to be appropriate for the purpose, of the circumstances giving rise to the injury” and, in the absence of an error of law, the Upper Tribunal could interfere with the Panel’s decision merely because the Upper Tribunal judge might have reached a different conclusion. However, it was also an error of law not to have regard to all relevant considerations or not to give adequate reasons for a decision.
In this case, it was not in doubt that the Applicant could have reported the incident to the police earlier than he did and that there had therefore been “delay”. Judge Rowland did not doubt that the Panel was entitled to find that the Applicant ought to have reported the incident to the police by at least telephoning them, or asking his wife to telephone them, when he got home and that therefore it was entitled to find that therefore he had not taken “all reasonable steps” to inform the police. However, it was not clear from the statement of reasons on what basis it reached that conclusion.
The power under paragraph 13(a) to withhold or reduce an award where a crime had not been reported to the police or another relevant authority without delay existed so that the police or other authority had the opportunity to carry out an investigation. That, in turn, served two purposes from the point of view of the Authority. One was to enable criminals to be brought to justice. The second purpose of paragraph 13(a) was to enable an award to be withheld where an Applicant’s failure to report it immediately has meant that there had not been a proper opportunity to investigate.
Paragraph 13 conferred a broad discretion and the Authority and the First-tier Tribunal were required to consider all material circumstances, having regard to the purpose of the paragraph. Judge Rowland said that when considering a failure to report an incident promptly to the police or other authority, the reason for the claimant not having done so might be highly relevant, as might the identified consequence. If the Applicant intended to reduce the likelihood of the offender being prosecuted, or was reckless as to whether that would be the consequence, withholding the award altogether or making a substantial reduction might be justified, whereas if the claimant merely made a misjudgement, a lesser reduction, or no reduction at all, might be appropriate. Similarly, delay that did not actually prevent the offender being prosecuted might result in a lesser reduction, or no reduction, whereas similar delay that did prevent an effective investigation might be viewed differently.
Moreover, in considering whether the Applicant took “all reasonable steps” to inform the police, regard should be had to the position as it would have appeared to him at the time. It is important in this case that the Applicant said that he did not at first think his injury was particularly serious. Not only were the police likely to invest resources in an investigation in proportion to the seriousness of the alleged offence, which was often determined by its consequences, but a minor injury that passed quickly would not be one in respect of which any claim for compensation could be, or would be, contemplated. In the present case, this was particularly significant because, even if there might have been some prospect of the assailant being apprehended if the incident had been reported immediately, the prospect of that being so by the time that the Applicant realised the injury was serious enough for him to need medical advice would have been very much lower and possibly non-existent. During the period when delay was more likely to be material, the Applicant in this case may actually have had a better reason for not acting.
The fact that the Panel did not record whether it accepted the Applicant’s account as to his thinking at the time and whether it found that the late reporting of the incident did materially hamper the police may indicate that it did not consider those issues relevant. A further indication of that is the apparent failure to ask the police officer who attended the hearing any relevant questions.
There had been no consideration of quantum, and the Authority had said that it was an inappropriate use of resource within the Authority to calculate quantum in a case where the Applicant was not eligible for an award. Judge Rowland did not consider that the Authority’s approach is appropriate in all cases. Different considerations appled to different cases within paragraph 13 or even to different cases within each subparagraph of that paragraph. Withholding £500,000 was wholly different from withholding £1,000 and what may justify withholding a small award may justify only a reduction in a larger one. The penalty, in terms of the loss of an award, must be proportionate to what the Scheme regards as misconduct, having regard to the purpose of paragraph 13. There was nothing in the Scheme to suggest that a reduction of an award must always be expressed as a percentage of an award and must, in given circumstances, be the same percentage whatever the size of the award. There was no reason why, in some cases, the reduction should not be expressed as a sum of money or even, if the First-tier Tribunal is not sure of the amount of the award that would otherwise be made, as “£x or y per cent, whichever is the greater”.
If the Authority considered that a reduced award was appropriate, Judge Rowland would suggest that it should generally determine quantum before issuing the paragraph 13 decision.
Consequently Judge Rowland was satisfied that the decision of the Panel given on 9 October 2008 was erroneous in point of law and should be quashed. The case would be remitted to the First-tier Tribunal (Social Entitlement Chamber) to be decided in accordance with his reasoning.
.