SS v CICA & FTT (SEC) [2010] UKUT 410 (AAC) (16 November 2010)
Re-opening of application
FACTS:-
The Applicant was injured in an incident that occurred in October 2000. He was a taxi driver. A passenger who said that he was going into his house to get the money to pay the fare returned to the taxi and instead pushed a 12” bread knife through the open driver’s-side window. The applicant was able to grasp the knife with his left hand to protect himself. The assailant then pulled the knife back, causing a laceration to the left hand, which required six or seven stitches. The Applicant applied for compensation in December 2000. The initial decision on 18 February 2002 was not to make an award on the ground that the injuries were not serious enough to merit an award at the lowest level. A medical report was then provided to the Applicant’s then solicitors in December 2002. It described the injuries resulting from the incident as laceration to left hand (not resolved) and anxiety (not resolved) and said this under the heading “chronological progression of psychological symptoms.” The psychological prognosis was that on the balance of probabilities the Applicant would be fully recovered in six months from the date of the report.
Following some considerable delays the applicant was allowed by a CICAP decision to re-open the case. The CICA then assessed the compensation payable to the applicant at £1,250, for minor scarring to upper limbs. The notification letter dated 30 November 2005 gave the explanation that there was no evidence to link any ongoing symptoms, apparently in the left hand, with the incident. An application for review was made but refused in a letter of 7 August 2007. The Applicant’s current solicitors wrote to the CICA on 2 September 2008 saying that they had been advised by the CICAP that they needed to request that the Applicant’s case be re-opened on the grounds of new medical evidence. They had sent in a report from a chartered psychologist. There was some confusion as to how the Applicant’s solicitors had come to submit an appeal when there was no evidence of a fresh application or application or review. In any event, the CICAP made a decision on 23 September 2008 and they concluded in paragraph 8 that there had not been the necessary material change in the applicant’s medical condition. The report from a Chartered Psychologist was not sufficient for the purposes of the Scheme to establish disabling mental illness confirmed by psychiatric diagnosis. A Chartered Psychologist was not a clinical psychologist and there was nothing in the report to indicate that her qualifications fell within those which were acceptable to support a claim for disabling mental illness or any other medical condition which was sufficiently material to justify re-opening this case.
The Applicant’s solicitors successfully applied for permission to judicially review the decision. Judge Mesher had given that permission and commented that the Applicant’s solicitors should have been given permission to adduce evidence of the chartered psychologist’s qualifications, so as to show that she was a clinical psychologist. Furthermore the Tribunal judge had applied the 2001 CICA Scheme, when the application clearly came under the 1996 Scheme.
However the CICA still argued that there had been no material change in the Applicant’s situation. The matter came up for judicial review before Judge Mesher.
JUDGMENT:-
Judge Mesher referred to the case of R v Criminal Injuries Compensation Board, ex parte Williams, 27 June 2000. The Applicant had suffered an injury in 1985 when, while he was a serving police officer, he was savagely kicked in the back. A medical report in 1987 described jarring of the facet joints in the lumbar spine and his being left with an intermittent and episodic facetal problem in his low back meriting an assessment of disablement of 1½- 2%, with the likelihood of developing a little degenerative change in the joints at the levels noted. The Applicant was awarded compensation of £2,500 under the then ex gratia scheme. In 1994 and 1995 he suffered exacerbations of the injury in carrying out routine duties. He applied to re-open his case, which was then a matter of discretion when there had been “such a serious change in the applicant’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand”. Consultants’ opinions were that the exacerbations reflected precipitating factors in a syndrome of chronic back pain arising from the injury in 1985, which was now identified as having involved a disc prolapse or rupture. The Board declined to re-open the case on the ground that the exacerbations were new incidents, not directly attributable to the initial injury. The Court of Appeal upheld the decision quashing the Board’s decision.
In this case, the pure comparison required by Williams had to start with the Applicant’s actual medical condition, including any prognosis that could reasonably be made, on 7 August 2007. That seemed to rule out any notion of there being a continuing state of the Applicant’s medical condition having changed on each succeeding day that the Applicant’s mental health symptoms persisted beyond September 2003 that could then regarded as occurring beyond 7 August 2007. However, despite the great practical difficulties for the Applicant, Judge Mesher was still reluctant to express a conclusion about the outcome when no findings of fact had been made by the Tribunal that had the expertise and experience in these matters. It was not impossible, for instance, that it could have been found that as at 7 August 2007 the prognosis was for the symptoms of anxiety and depression to continue for a year, but that they persisted to September 2008, constituting a change of medical condition subsequent to 7 August 2007.
For the reasons given above, the CICAP decision of 23 September 2008 would be quashed. In the circumstances, the Applicant’s appeal against the claims officer’s review decision relating to the refusal to re-open the case following the review decision of 7 August 2007 would be remitted to the First-tier Tribunal for reconsideration afresh.
Re-opening of application
FACTS:-
The Applicant was injured in an incident that occurred in October 2000. He was a taxi driver. A passenger who said that he was going into his house to get the money to pay the fare returned to the taxi and instead pushed a 12” bread knife through the open driver’s-side window. The applicant was able to grasp the knife with his left hand to protect himself. The assailant then pulled the knife back, causing a laceration to the left hand, which required six or seven stitches. The Applicant applied for compensation in December 2000. The initial decision on 18 February 2002 was not to make an award on the ground that the injuries were not serious enough to merit an award at the lowest level. A medical report was then provided to the Applicant’s then solicitors in December 2002. It described the injuries resulting from the incident as laceration to left hand (not resolved) and anxiety (not resolved) and said this under the heading “chronological progression of psychological symptoms.” The psychological prognosis was that on the balance of probabilities the Applicant would be fully recovered in six months from the date of the report.
Following some considerable delays the applicant was allowed by a CICAP decision to re-open the case. The CICA then assessed the compensation payable to the applicant at £1,250, for minor scarring to upper limbs. The notification letter dated 30 November 2005 gave the explanation that there was no evidence to link any ongoing symptoms, apparently in the left hand, with the incident. An application for review was made but refused in a letter of 7 August 2007. The Applicant’s current solicitors wrote to the CICA on 2 September 2008 saying that they had been advised by the CICAP that they needed to request that the Applicant’s case be re-opened on the grounds of new medical evidence. They had sent in a report from a chartered psychologist. There was some confusion as to how the Applicant’s solicitors had come to submit an appeal when there was no evidence of a fresh application or application or review. In any event, the CICAP made a decision on 23 September 2008 and they concluded in paragraph 8 that there had not been the necessary material change in the applicant’s medical condition. The report from a Chartered Psychologist was not sufficient for the purposes of the Scheme to establish disabling mental illness confirmed by psychiatric diagnosis. A Chartered Psychologist was not a clinical psychologist and there was nothing in the report to indicate that her qualifications fell within those which were acceptable to support a claim for disabling mental illness or any other medical condition which was sufficiently material to justify re-opening this case.
The Applicant’s solicitors successfully applied for permission to judicially review the decision. Judge Mesher had given that permission and commented that the Applicant’s solicitors should have been given permission to adduce evidence of the chartered psychologist’s qualifications, so as to show that she was a clinical psychologist. Furthermore the Tribunal judge had applied the 2001 CICA Scheme, when the application clearly came under the 1996 Scheme.
However the CICA still argued that there had been no material change in the Applicant’s situation. The matter came up for judicial review before Judge Mesher.
JUDGMENT:-
Judge Mesher referred to the case of R v Criminal Injuries Compensation Board, ex parte Williams, 27 June 2000. The Applicant had suffered an injury in 1985 when, while he was a serving police officer, he was savagely kicked in the back. A medical report in 1987 described jarring of the facet joints in the lumbar spine and his being left with an intermittent and episodic facetal problem in his low back meriting an assessment of disablement of 1½- 2%, with the likelihood of developing a little degenerative change in the joints at the levels noted. The Applicant was awarded compensation of £2,500 under the then ex gratia scheme. In 1994 and 1995 he suffered exacerbations of the injury in carrying out routine duties. He applied to re-open his case, which was then a matter of discretion when there had been “such a serious change in the applicant’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand”. Consultants’ opinions were that the exacerbations reflected precipitating factors in a syndrome of chronic back pain arising from the injury in 1985, which was now identified as having involved a disc prolapse or rupture. The Board declined to re-open the case on the ground that the exacerbations were new incidents, not directly attributable to the initial injury. The Court of Appeal upheld the decision quashing the Board’s decision.
In this case, the pure comparison required by Williams had to start with the Applicant’s actual medical condition, including any prognosis that could reasonably be made, on 7 August 2007. That seemed to rule out any notion of there being a continuing state of the Applicant’s medical condition having changed on each succeeding day that the Applicant’s mental health symptoms persisted beyond September 2003 that could then regarded as occurring beyond 7 August 2007. However, despite the great practical difficulties for the Applicant, Judge Mesher was still reluctant to express a conclusion about the outcome when no findings of fact had been made by the Tribunal that had the expertise and experience in these matters. It was not impossible, for instance, that it could have been found that as at 7 August 2007 the prognosis was for the symptoms of anxiety and depression to continue for a year, but that they persisted to September 2008, constituting a change of medical condition subsequent to 7 August 2007.
For the reasons given above, the CICAP decision of 23 September 2008 would be quashed. In the circumstances, the Applicant’s appeal against the claims officer’s review decision relating to the refusal to re-open the case following the review decision of 7 August 2007 would be remitted to the First-tier Tribunal for reconsideration afresh.