R (JDR) v First-tier tribunal and CICA (Tribunal procedure and practice (including UT) : other) [2014] UKUT 478 (AAC) (22 October 2014)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

The application for a judicial review of the decision of the First-tier Tribunal that was made on 28 March 2014 at Field House in London under reference X/10/206912 TM6B is dismissed.

Reasons for Decision

A. Introduction

1. This application for judicial review was brought with the permission of Upper Tribunal Judge Levenson. The applicant has been known before both the First-tier Tribunal and the Upper Tribunal as JDR, although those are not her initials. She is a lady who has applied for criminal injuries compensation. The respondent is the First-tier Tribunal. The Criminal Injuries Compensation Authority (CICA) is an interested party.

2. The case raises issues concerning: (i) the application of the Equality Act 2010 to judicial decisions; and (ii) the exercise of the tribunal’s power to reject an agreed submission on the decision that should be made.

B. History and background

3. On 27 April 2008, JDR was subjected to a sexual assault in the steam room of a health club. She mentioned what had happened to a fellow member and, on her advice, reported the incident to a member of staff. A couple of weeks later, in mid-May, she returned to the club and made a statement. She had further dealings with the club, which she thought was not taking the matter seriously. She did not report the incident to the police until 28 May 2008. The assailant was interviewed, but no further action was taken. She successfully sued him in the county court.

4. On 12 February 2010, JDR applied for criminal injuries compensation under the Criminal Injuries Scheme 2008 in respect of the mental consequences of that assault, which she stated to be that she was upset and crying all the time, and that she had anxiety, panic attacks, possible agoraphobia, self-harm, nightmares and flashbacks. The claims officer refused the application under paragraphs 13(a) and (b) of the Scheme. That decision was upheld on review.

5. JDR exercised her right of appeal to the First-tier Tribunal. At the hearing, CICA decided that it would no longer rely on paragraph 13(b). The parties told the tribunal that they were agreed that paragraph 13(a) applied and that JDR’s award should be reduced by 10%. The tribunal refused to accept that joint submission and heard evidence from JDR and from a police officer. It decided that paragraph 13(a) applied and that the award should be reduced by 50%.

6. Upper Tribunal Judge Levenson gave JDR permission to bring judicial review proceedings. Gordon Newall has made written submissions on behalf of CICA, opposing the judicial review. Anthony Metzer QC has made written submissions on behalf of JDR; he also wrote her grounds for review. I am grateful to both for their detailed arguments. Neither has asked for an oral hearing and I do not consider that one is necessary. In accordance with usual practice, the First-tier Tribunal has not taken part in the proceedings.

C. The tribunal’s reasons

7. In essence the tribunal’s reasons were these.

· JDR was a solicitor. She described herself as a housing lawyer, but in her witness statement of 3 September 2012, she described her work (paragraph 112) as ‘working with the police over domestic violence cases.’

· The possibility of making a report to the police had been discussed during her visit to the club in mid-May.

· She had refrained from reporting the matter to the police, because (i) she did not want to give evidence and (ii) she had hoped that the club would deal with the matter by barring the assailant. In fact, the club only issued a final warning and she went to the police out of frustration.

· She had pre-existing psychiatric problems and there was evidence that dissociation was likely to affect her recollection, but (i) there was no evidence of dissociation before the incident and (ii) her detailed witness statement showed no evidence that her recollection was affected. The medical evidence was not as supportive as her representative submitted.

· Although JDR had only delayed going to the police for one month, that time could affect the decision whether or not to prosecute and would be used against her by the defence at any trial.

· JDR did not take all reasonable steps to inform the police for the purposes of paragraph 13(a) and made a deliberate choice not to do so.

D. The relevant legislation

The Criminal Injuries Compensation Schemes

8. These are the relevant provisions of the 2008 Scheme:

13 Eligibility to receive compensation

(1) A claims officer may withhold or reduce an award where he or she considers that:

(a) the applicant 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; or

(b) the applicant failed to co-operate with the police or other authority in attempting to bring the assailant to justice; …

9. Mr Metzer, in his response, has also mentioned these provisions of the 2012 Scheme, although they do not apply to this case:

Appeal

125. An applicant who is dissatisfied with a decision on a review, or a determination on re-opening under paragraph 124, may appeal to the Tribunal against that decision or determination in accordance with the rules of the Tribunal.

126. On receipt of a notice of appeal, a claims officer may:

(a) decide that the review decision under appeal was made in error; and

(b) send written notice of a revised review decision to the applicant.

127. An applicant who receives a notice under paragraph 126 of a revised review decision must send written notice to the Authority and the Tribunal of:

(a) acceptance of the revised review decision; or

(b) rejection of that decision.

128. Where the Authority receives notice in accordance with paragraph 127(a), and a claims officer is satisfied that the applicant has withdrawn their appeal in accordance with the rules of the Tribunal, the application will be determined in accordance with the revised review decision.

The tribunal’s rules of procedure

10. These are the relevant provisions of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685):

2 Overriding objective and parties’ obligation to co-operate with the Tribunal

(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

3 Alternative dispute resolution and arbitration

(1) The Tribunal should seek, where appropriate—

(a) to bring to the attention of the parties the availability of any appropriate alternative procedure for the resolution of the dispute; and

(b) if the parties wish and provided that it is compatible with the overriding objective, to facilitate the use of the procedure.

(2) Part 1 of the Arbitration Act 1996 does not apply to proceedings before the Tribunal.

5 Case management powers

(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may—

(e) deal with an issue in the proceedings as a preliminary issue;

(f) hold a hearing to consider any matter, including a case management issue;

(g) decide the form of any hearing;

32 Consent orders

(1) The Tribunal may, at the request of the parties but only if it considers it appropriate, make a consent order disposing of the proceedings and making such other appropriate provision as the parties have agreed.

(2) Notwithstanding any other provision of these Rules, the Tribunal need not hold a hearing before making an order under paragraph (1), or provide reasons for the order.

The Equality Act 2010

11. These are the relevant provisions of the Act:

19 Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if-

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are-

…

disability; …

20 Duty to make adjustments

(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

29 Provision of services, etc.

(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)-

(a) as to the terms on which A provides the service to B;

(b) by terminating the provision of the service to B;

31 Interpretation and exceptions

…

(10) Schedule 3 (exceptions) has effect.

149 Public sector equality duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to-

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

…

(7) The relevant protected characteristics are-

…

disability; …

…

(9) Schedule 18 (exceptions) has effect.

Schedule 3

Judicial functions

3(1) Section 29 does not apply to—

(a) a judicial function;

(b) anything done on behalf of, or on the instructions of, a person exercising a judicial function;

(d) anything done for the purpose of reaching, or in pursuance of, a decision not to commence or continue criminal proceedings.

(2) A reference in sub-paragraph (1) to a judicial function includes a reference to a judicial function conferred on a person other than a court or tribunal.

Schedule 18

Judicial functions, etc.

3(1) Section 149 does not apply to the exercise of—

(a) a judicial function;

(b) a function exercised on behalf of, or on the instructions of, a person exercising a judicial function.

(2) The references to a judicial function include a reference to a judicial function conferred on a person other than a court or tribunal.

E. The arguments on the Equality Act

12. Mr Metzer set out in detail the legislation governing the public sector equality duty under section 149, the prohibition on discrimination in the provision of services and public functions under section 29, the definition of indirect discrimination under section 19, and the duty to make reasonable adjustments under section 20. He sought to apply those provisions to the way that the tribunal exercised its powers in this case. I reject those arguments. The provisions he relied on are irrelevant.

13. Paragraph 3 of Schedule 18 provides that the duty under section 149 does not apply to the exercise of a judicial function. And paragraph 3 of Schedule 3 has the same effect in respect of the duty under section 29. Accordingly, sections 19 and 20, which supplement section 29, are also irrelevant. The First-tier Tribunal was acting in the exercise of its judicial function when it made all the decisions criticised by Mr Metzer; they are set out in paragraph 16 below. I am grateful to Mr Newall for drawing attention to those paragraphs.

14. This is not the first case in which a representative has tried to apply the provisions of the Equality Act 2010 to the judicial functions of a tribunal. Such arguments are misplaced; indeed, they are unarguable. That is not necessarily fatal to JDR’s case, as the same points can be made by relying on the tribunal’s duties under its inquisitorial role and its rules of procedure. I shall now deal with the arguments on that basis.

F. The tribunal’s powers

15. The tribunal was in effect presented with the terms of a proposed consent order by the parties. It had power to make the order under rule 32 only if it considered it appropriate to do so. Another source for the tribunal’s power to proceed with the hearing lies in the inquisitorial nature of an appeal to the First-tier Tribunal. A third lies in its duty under the overriding objective to apply its procedural powers in a way that is fair and just. Rule 32 expressly authorises a tribunal to override the wishes of the parties and this possibility is inherent in the nature of the inquisitorial approach and the overriding objective. I do not understand Mr Metzer to argue otherwise. His concern was with the way the tribunal exercised its powers in this case.

G. The tribunal’s exercise of its powers

16. Mr Metzer’s grounds for review criticised the tribunal for:

· proceeding with the hearing and not accepting the parties’ concessions;

· requiring JDR to give extensive evidence;

· the manner in which it questioned her;

· its assessment of the evidence; and

· deciding that her delay had adversely affected the likelihood of a successful prosecution.

17. I take those in turn.

The decision to proceed with the hearing

18. In support of this argument, Mr Metzer argued that:

· in view of the parties’ agreement, there was no remaining live issue for the tribunal;

· one of the members made a remark suggesting that he was concerned with the lateness of the concession;

· not having been referred to ADR under rule 3, the parties nonetheless came to a sensible and realistic agreement.

19. Against these points, Mr Newall argued that:

· it was for the tribunal to decide in its inquisitorial role whether to accept the concession and in the circumstances it was entitled to proceed; and

· if the alleged remark was made, greater significance might have been given to the saving of time, cost and resources if the concessions had been made before the hearing.

20. There is nothing in the 2008 Scheme that requires a tribunal to accept concessions, even joint concessions. I accept that the 2012 contains provisions that allow CICA and an applicant to reach agreement. But there is no equivalent in the 2008 Scheme.

21. There is nothing in the rules of procedure that requires a tribunal to accept concessions. Mr Metzer’s argument is that, given the parties’ agreement, there was no longer anything for the tribunal to decide. That is wrong. It had a duty under rule 32 and an inquisitorial responsibility to ensure that the 2008 Scheme was properly applied and, if it was not satisfied, it was entitled to check. Its case management powers, exercised in accordance with the overriding objective, provided the framework of powers to continue with the hearing.

22. The agreed award would not be appropriate if it was not supported by the evidence and argument. The tribunal was not satisfied that it was and decided to hear oral evidence and submissions. That might have worked to JDR’s advantage as to well as to her detriment. Certainly, there is nothing to indicate that the tribunal prejudged that issue and Mr Metzer has not argued that it did.

23. I accept Mr Newall’s point on the member’s remark. Assuming it was made, I do not read it as saying that the hearing should proceed because the concession was not made sooner. The member may have been expressing some irritation at being faced with concessions at the last minute when time had been set aside for the hearing and a police witness called. Or he may merely have been referring to the different course that would have been taken if the parties had made their views known before the day. This remark does not support Mr Metzer’s case that the hearing should not have proceeded.

Requiring JDR to give evidence and the manner of questioning

24. These two issues run together in the submissions.

25. In support of these arguments, Mr Metzer argued that:

· the tribunal should not have required JDR to give evidence, as she objected, counsel for CICA had no questions for her, and there was medical evidence to show that this was not appropriate; and

· no concessions were made to her vulnerability: the tribunal did not adjust its manner and style of questions, JDR was questioned at length and her credibility appeared to be challenged.

26. Against these points, Mr Newall argued that:

· the criticisms of the questioning are not particularised;

· tribunals regularly question vulnerable parties;

· doing so gave JDR a chance to deal with the tribunal’s concerns;

· she had the protection of Mr Metzer; and

· the medical evidence concerned giving evidence in criminal proceedings.

27. As to the insistence that JDR give evidence at all, I accept Mr Newall’s point that the medical evidence related to a criminal trial. Even in that context, it is not as supportive as Mr Metzer has argued. It is qualified by the conditions under which questions would be asked. Tribunals are used to questioning parties for themselves. In criminal injuries cases, they may have to question people who have psychological or psychiatric problems, whether or not arising from the crime of violence. I also accept Mr Newall’s points that giving evidence gave JDR the chance that she would otherwise not have to deal with the tribunal’s concerns and that she had senior counsel to protect her if necessary.

28. As to the manner of questioning, tribunals are sensitive to the vulnerabilities of witnesses. But it is important to remember that one issue in this case was the extent to which JDR’s mental state affected her delay in reporting to the police. In other words, Mr Metzer’s argument assumes, in part, something that was in issue. That does not mean that the tribunal was entitled to assume that she had no mental problems and treat her accordingly. It did mean that the tribunal had to strike a difficult balance between testing the evidence and taking account of her possibly fragile mental state. In the absence of any particulars, Mr Metzer has not made out a case that the manner of questioning adopted by the tribunal was unfair, depriving JDR of a fair hearing.

The assessment of the evidence

29. In support of this argument, Mr Metzer argued that:

· the expert evidence showed that the delay was caused by JDR’s mental state;

· the approach taken in JDR’s witness statement should not be used against her, as it was drafted by her solicitor;

· the tribunal was wrong to find that the reasons given for delay by JDR were self-serving; and

· the tribunal was wrong to take account of the fact that JDR was a solicitor who had dealing with the police.

30. Against these points, Mr Newall argued that:

· JDR’s evidence had to be assessed in the context of the evidence as a whole;

· her mental state was a factor that had to be taken into account;

· the Upper Tribunal should not lightly interfere with a First-tier Tribunal’s assessment of the evidence;

· expert opinions are not decisive;

· the tribunal’s assessment was reasonable.

31. First of all, I do not accept that the First-tier Tribunal found that the claimant’s evidence was self-serving. That is not what the tribunal found in the paragraph identified by Mr Metzer. It is also, on my reading, contrary to the tone and content of the reasons as a whole. The tribunal said twice that it was not criticising her conduct. All the tribunal said was that she was acting in what she saw as her best interests at the time.

32. Expert evidence is not, as Mr Newall submitted, decisive. It is evidence that the tribunal has to take into account. It has a duty to explain why it does not agree with an expert opinion, but the tribunal’s reasons are clear on how it made its findings.

33. It was relevant to take account of JDR’s profession and of her experience of police procedures. She expressed concern about the effects of reporting the assault to the police. Her experience was relevant to show that she should not have had such concerns.

34. Ultimately, Mr Metzer’s argument is a sustained attempt to substitute one assessment of the evidence for another. That is not the proper role for the Upper Tribunal on a judicial review. The assessment of the evidence is a matter for the First-tier Tribunal. The law requires that the tribunal explain how it assessed the evidence as a whole and that that approach be rational. The presiding judge has set out the tribunal’s reasons and his account discloses a rational approach. It is not for me to undertake my own assessment of the evidence and see how it accords with that of the First-tier Tribunal. What I would have done, or another First-tier Tribunal might have done, is irrelevant. What matters is whether the tribunal was entitled to find as it did. I consider that it was.

35. Finally, I reject the argument presented on the witness statement. We all know, of course, that witness statements are drafted by solicitors on behalf of their clients. There is nothing wrong with that. But they are supposed to put the client’s evidence into coherent and structured form. That is all. The client accepts that the statement is accurate by signing it. JDR, having relied on that witness statement in civil proceedings, is now (through her counsel) seeking to distance herself from its contents on the grounds that it was inadequate as the solicitor who drafted it lacked sufficient understanding of JDR’s mental condition. That is not acceptable. The tribunal was entitled to accept a witness statement signed by a solicitor as recording what she wanted to say.

The likelihood of a successful prosecution

36. In support of this argument, Mr Metzer argued that:

· CICA had conceded there was no lack of co-operation;

· prosecutions had been brought successfully after longer periods;

· longer delays had been found reasonable;

· the delay made little or no difference to the investigation;

· the reasons for not proceeding with a prosecution did not relate to delay; and

· the tribunal’s reasons were misconceived, as there was documentary evidence of an immediate report to the club.

37. Against those points, Mr Newall argued that:

· the tribunal’s approach was reasonable; and

· defence counsel would have attacked JDR on her delay, as it would have been relevant to her overall credibility as a witness.

38. The issue for the tribunal was what effect the delay might have had on the decision to prosecute, and on the ultimate outcome of any trial, in this case. I am sure that cases have been successfully prosecuted after longer delays and I am sure that other tribunals have accepted longer delays as reasonable. But those are general points that do not mean that the tribunal was in error in the circumstances of this particular case.

39. Mr Metzer may be right about the police reasons for not prosecuting. The tribunal was not bound by those or limited to them. It expressly relied on its own ‘considerable experience of criminal prosecutions and police investigations’ and went on to refer to the ammunition that the delay would give to defence counsel. This would be in the context of a trial with only the victim and assailant able to give evidence of what occurred, with agreement on what took place before the assault, and with a criminal standard of proof. I consider that the tribunal’s approach was rational and realistic in taking effect of the practicalities of how a trial would be conducted and the impact that that assessment would have on the decision to prosecute. Mr Metzer’s has argued, ultimately, for a different assessment rather than for an error in the tribunal’s approach.

H. Conclusion

40. I dismiss this application. To the extent that the arguments for JDR are based on the Equality Act, they are misconceived. The tribunal was entitled to refuse to accept the proposal agreed between the parties. It did not deprive it of jurisdiction and it exercised its powers properly in pursuing its concerns. At best, the criticisms of the tribunal’s analysis show that a different outcome was possible; they do not show that the tribunal went wrong in its approach to the case.

Signed on original
on 22 October 2014

Edward Jacobs
Upper Tribunal Judge

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Upper Tribunal (Administrative Appeals Chamber)