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R(VA) [2009] UKUT 147 (AAC) (30 July 2009)
Criminal Injuries Compensation
other

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Case No. JR/679/2009

Before: UPPER TRIBUNAL JUDGE ROWLAND

Decision: The Applicant's application for judicial review is granted. The decision of the First-tier Tribunal dated 11 February 2009 is quashed and the Applicant's case is remitted to the First-tier Tribunal for reconsideration in accordance with this decision.

REASONS FOR DECISION

1. In June 2006, the Applicant completed a claim form for criminal injuries compensation. The form stated –

"Fill in this form if you want to claim compensation for a personal injury (or injuries) received as a result of a single incident or abuse over a period of time. If you want to claim compensation for injuries arising from unrelated incidents or abuse, you must fill in a separate claim form for each incident."

The claim for compensation was made in respect of "abuse over a period … from 07/2001 to 03/2002" (see section 4(a) of the claim form) and, although the details on the claim form (at section 4(e)) referred to a single assault by her partner on 22 February 2002 that had led to the police being involved, there was a reference to a rape (at section 7(a)) and further references were made to the rape in a psychological report, dated 22 September 2003 and originally produced in support of an immigration case, which the claimant submitted in support of her claim.

2. It appears that following the assault on 22 February 2002, the Applicant told the police on 27 February 2002 that she did not wish to pursue the matter. However, there is evidence that she left her home on 23 March 2002 and was accommodated in a Women's Aid refuge. In any event, she returned to the police in May 2002 and made a formal statement about the assault on 28 May 2002 but, perhaps unsurprisingly, the police and the Crown Prosecution Service did not take the case further after the Applicant's ex-partner had been interviewed and denied the assault.
3. On 18 August 2007, the claim for criminal injuries compensation was rejected under paragraph 13(b) of the 2001 Scheme on the ground that the Applicant had not co-operated with the police in attempting to bring her assailant to justice. The Applicant sought a review but that was unsuccessful both on the original ground and on the ground that neither the assault nor the claimed injuries had been proved.
4. The Applicant appealed. The First-tier Tribunal was sympathetic to the claimant and regarded her as a truthful witness. It accepted that the assault had taken place on 22 February 2002 and also took the view that, although the Applicant had initially failed to co-operate with the police, her conduct was excusable and did not merit a reduction or withholding of an award. However, the Tribunal, like the Criminal Injuries Compensation Authority, concentrated only on that assault as the "index event" and, although it referred to the allegation of rape, it stated expressly in its reasons for decision that it "was not dealing with that previous incident which may, or may not, have been the subject of another application". It accepted that the Applicant had suffered some minor physical injuries on 22 February 2002 but found that such injuries were not sufficiently serious to merit an award under the scheme. In relation to psychological harm, it accepted that the claimant had had psychological problems but found it difficult to establish what contribution to those problems had been made by the assault on 22 February 2002. Accepting that "the incident must have been extremely distressing but could not be said to have been a major cause of any past or continuing problems", it awarded £1,000 for "disabling but temporary mental anxiety lasting more than 6 weeks".
5. The Applicant now applies for judicial review of the decision of the First-tier Tribunal. Many of her grounds are expressed as challenges to the Tribunal's findings of fact and, of course, the Upper Tribunal is entitled to disturb the First-tier Tribunal's decision only if it erred in law. However, she does mention the rape as a cause of her problems and refers to having to concentrate on the assault on 22 February 2002 at the hearing due, as she appears to perceive it, to a lack of time. In fact, the Tribunal understood that only that assault was in issue before it and that would appear to be why the claimant had to concentrate on the assault. I granted permission to apply for judicial review on the ground that it was arguable that the Tribunal had erred in taking the view that it was not concerned with the allegation of rape.
6. In a helpful submission, the Criminal Injuries Compensation Authority concedes that "it could be construed that the application for compensation extended to the alleged rape and that that matter should have been fully canvassed at the hearing" and it does not seek a hearing before the Upper Tribunal.
7. I have no doubt that the First-tier Tribunal did err in law, although it is right to say that it appears to have taken its lead from the approach of the Authority. The scope of the claim was made explicit in section 4(a) of the claim form and the references to the rape were clear to anyone reading the form and the supporting documentation as a whole. The Authority has confirmed that there was no separate claim in respect of the rape. I accept that the claimant did not mention the rape in section 4(e) of the claim form but that cannot justify the Authority and the Tribunal ignoring the reference to it in section 7(a) of the form and in the report that was submitted in support of the claim.
8. The Authority may wish to consider that the question at section 4(e) of the claim form should be reworded to emphasise that, where a claim is made in respect of abuse over a period of time, the claimant should identify as clearly as possible each incident of criminal conduct. Meanwhile, it is, of course, always open to the Authority to ask for further details where information that has been provided is too vague to enable a claim to be determined properly. Claimants cannot always be expected to know how much detail is required.
9. The Authority quite rightly points out that, if this case is remitted to the First-tier Tribunal, the Tribunal will be faced with considerable difficulties because, as the claimant has admitted, she did not report the rape to the police and so the allegation has never been independently investigated. However, I cannot say that "there would have been only one decision that the … tribunal could have reached" and accordingly I am precluded by section 17(2)(c) of the Tribunals, Courts and Enforcement Act 2007 from dealing with the case at this level and substituting my own decision for that of the First-tier Tribunal.
10. It is unnecessary for me to deal with the claimant's other grounds for applying for judicial review. Suffice it to say that many of them appear to be based on misunderstandings of the tribunal's decision. The key error is simply that the tribunal concentrated on one incident rather than the course of conduct in respect of which the claim was made.
11. This case must be reconsidered by the First-tier Tribunal. All matters arising on the claim will be at large. Subject to any further direction by a judge of the First-tier Tribunal, I suggest that, before a hearing is fixed, the claimant should set out clearly for the First-tier Tribunal details of the elements of abuse that she relies on, apart from the assault on 22 February 2002, and I suggest that she provides the Tribunal with copies of any relevant medical reports or extracts from her medical records (which she is entitled to obtain from her doctor), including records from the clinic in Kensington that she mentions in her application for judicial review, both relating to the period from July 2001 and March 2002 and relating to the after-effects that she claims to have suffered as a result of the abuse during that period. It is also likely to be helpful for the Tribunal to ask the Authority to set out its views on the elements of the claimant's case it has not so far considered, in the light of such further evidence as the claimant may have provided. A judge of the First-tier Tribunal may wish to give appropriate case-management directions in order to set a time-table.

MARK ROWLAND

30 July 2009