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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> R(MJ) v FtT and CICA (CIC) [2014] UKUT 76 (AAC) (17 February 2014) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2014/76.html Cite as: [2014] UKUT 76 (AAC) |
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Attendances:
For the Applicant: Mr Adam Clemens, counsel, instructed by Switalskis
For the Respondent: No attendance or representation
For the Interested Party: Mr Owain Thomas, counsel, instructed by solicitor to Criminal Injuries Compensation Authority
Decision:
1. The decision of the First-tier Tribunal sitting at Field House on 18 January 2012 under reference X/10/219803 involved the making of an error of law. Pursuant to section 15 of the Tribunals, Courts and Enforcement Act 2007, I make a quashing order in respect of it.
2. The question of whether the Applicant’s claim should be admitted in whole or part pursuant to paragraph 18 of the Criminal Injuries Compensation Scheme 2008 (“the 2008 Scheme”) is remitted to a differently constituted tribunal to determine in accordance with the following Directions:
(a) within one month of the date of the letter sending this decision the applicant shall file with the First-tier Tribunal a submission indicating (i) whether or not his claim for criminal injuries compensation is intended to extend to what are termed the “pyjama incidents” in para 3 of the reasons below as well as the matters expressly enumerated in the statement attached to his application form for compensation and (ii) whether or not any of the claims in respects of incidents in that statement are no longer pursued following further consideration of the practicability of doing so;
(b) once further Directions have been given pursuant to sub-paragraphs (c) to (e) below, the First-tier Tribunal shall consider afresh, in relation to each of the incidents on which the applicant relies in support of his claim for compensation, whether each of limbs (a) and (b) of paragraph 18 of the 2008 Scheme is met;
(c) if and to the extent that each limb is met, the First-tier Tribunal must comply with the further Directions to be given by the Upper Tribunal concerning the interpretation of paragraph 18;
(d) subject to any submissions made pursuant to (e) below, the Chamber President is of the view that that aspect of the matter “involves a question of law of special difficulty or an important point of principle or practice, or that it is otherwise appropriate”* for a panel of three judges (none of whom shall have been involved in the cases cited below) to be convened in this case in order to resolve the conflict of authority between the decisions in R(MJ) v FTT and CICA [2011] UKUT 402 (AAC), R(AM) v FTT and CICA [2012] UKUT 55 (AAC) and R(MM) v FTT and CICA [2013] UKUT 402 (AAC) (*see para 3a. of the Practice Statement on Composition of Tribunals in relation to matters that fall to be determined by the Administrative Appeals Chamber of the Upper Tribunal on or after 3 November 2008); and
(e) any party wishing to resist the convening of a three judge panel for this purpose and to seek consequential variation to sub-paragraphs (c) or (d) must file a submission giving grounds within 10 days of the date of the letter sending them this Decision.
1. In this statement of reasons, the applicant, M, is also referred to as “the Appellant” where the reasons given by the First-tier Tribunal are being quoted. In that context, the Criminal Injuries Compensation Authority, the interested party before the Upper Tribunal, was the Respondent.
2. The applicant, born in 1977, had been a pupil at S School between 1983 and 1990 when it was closed down in consequence of allegations of sexual abuse against W, its headteacher, and T, a housemaster. In 2010, by then aged 33, the applicant claimed criminal injuries compensation under the 2008 Scheme. The particulars of the incidents relied upon were set out in a statement attached to his claim form. They included allegations of serious and repeated sexual abuse by W and by T and also some acts of non-sexual physical abuse. It is not necessary to set out the detail.
3. What the statement did not refer to is what, for convenience, may be termed the “pyjama incidents”. This is a reference to allegations made by the applicant in 1990, when the activities of W and T were under investigation, that T used to put his hand under the applicant’s pyjama trousers to touch his penis when he was in bed and had done so “most nights when he was on duty” when the applicant was aged 9 or 10. These acts, if accepted, and subject to fulfilment of the other conditions of entitlement of the Scheme, would appear to found an award at level 5 or level 7, depending on whether it was accepted that there was a pattern of repetitive acts or not.
4. The claim was rejected by a claims officer of the interested party as having been made too late and thus caught by para 18 of the 2008 Scheme (see [11] below) and the applicant appealed to the First-tier Tribunal. The tribunal was thus concerned with the para 18 (preliminary) point and not with whether a claim succeeded. The case has come before the Upper Tribunal for a second time, an earlier application for judicial review having been allowed in R(MJ) v FtT and CICA [2011] UKUT 402 (AAC).
5. W and T were both prosecuted. In the case of W, there was no evidence before the tribunal of the offences in respect of which he was prosecuted and thus of their victims. W committed suicide before trial. There was evidence before the tribunal in the form of a certificate of conviction from the relevant Crown Court which indicated that T had faced 3 counts of gross indecency with a male person under the age of 16 and 12 of indecent assault on a male person under the age of 16. In the case of five counts, T had pleaded not guilty and the counts were to remain on file. In respect of one of the counts, T was sentenced to 5 ½ years imprisonment. In respect of the other nine counts to which he pleaded guilty, he was sentenced to lesser terms, concurrent with the 5 ½ year term. Counts 13 and 14 were each marked with three asterisks on the certificate, but there is no suggestion that there was before the First-tier Tribunal any key as to what those asterisks signified. Those were two of the counts which were to remain on the file.
6. Very shortly before the present Upper Tribunal hearing, a copy of the indictment against T was produced. It shows that count 13 was of indecent assault against the applicant, while count 14 involved an individual with a slightly different name, who may have been the applicant (as he says) if a mistake was made or may have been his brother, R, who had also attended the school. I disregard it in considering whether the First-tier Tribunal erred in law as it was not in evidence before it.
7. The applicant had had the assistance of solicitors when preparing his application for compensation. In the course of the lengthy proceedings to date, he had had ample opportunity to submit evidence. Indeed, he had succeeded in obtaining disclosure of various items of evidence, in particular contemporaneous evidence from social services and the police. That material did disclose the allegations of the pyjama incidents. It did not disclose any evidence relating to the other allegations which formed the subject of the application for compensation: indeed, in numerous respects, those further allegations were wholly inconsistent with what the applicant had said at the time to police and social services and some of them were contrary to available health records also.
8. The applicant when a teenager and younger adult appears to have faced some degree of psychological difficulty and/or mental ill-health.
9. The tribunal to whom the case was remitted following the earlier judicial review decided to hold an oral hearing, which allowed the applicant to give oral evidence. The hearing lasted for more than three hours.
10. The interested party was represented then, as now, by Mr Thomas, who had provided a written submission. The submission addressed two main issues. The first was the correct interpretation of paragraph 18 of the 2008 Scheme, on which I had ruled in the first MJ case, a ruling which was evidently unpalatable to the interested party but which it did not see fit to appeal against, but rather to re-run that point at the First-tier Tribunal. I am doubtful whether this was a proper step, given that the matter had been ruled upon in the litigation already and that (if it be relevant) at the time of the tribunal hearing the Upper Tribunal authorities which have taken a different view to mine (MM and AM) had not been promulgated, but as I have not heard argument on the point, the tribunal did not primarily base its decision on the disputed point of interpretation and I am setting aside the decision on other grounds, I need not dwell on that here.
11. The second key area was with regard to limb (a) within paragraph 18. Para 18 states:
“18. (1) An application for compensation under this Scheme in respect of a criminal injury (“injury” hereafter in this Scheme) must be made in writing on a form obtainable from the Authority. It should be made as soon as possible after the incident giving rise to the injury and must be received by the Authority within two years of the date of the incident. A claims officer may waive this time limit only where he or she considers that:
(a) it is practicable for the application to be considered; and
(b) in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period.“
Limb (b) was not in dispute as the interested party did not seek to argue that it would have been reasonable for the applicant, as then a boy aged no more than 13, living away from home and with a rather unsettled family background, to have claimed within two years of the alleged incidents.
12. Reference should also be made to paragraphs 19-21 of the 2008 Scheme, which provide:
“19. (1) It will be for the applicant to make out his or her case including, where appropriate:
(a) making out the case for a waiver of the time limit in paragraph 18; and
(b) satisfying the claims officer dealing with the application (including an officer reviewing a decision under paragraph 60) that an award should not be reconsidered, withheld or reduced under any provision of this Scheme.
(2) Where an applicant is represented, the costs of representation will not be met by the Authority. Where an applicant incurs ancillary costs in making the application, such as a fee paid to an expert for a medical or other specialist report, these will not be met by the Authority unless they are met in accordance with paragraph 21 (medical examination of injury) or the claims officer otherwise considers that it is reasonable for the Authority to meet them, in full or in part.
20. A claims officer may make such directions and arrangements for the conduct of an application, including the imposition of conditions, as he or she considers appropriate in all the circumstances. The standard of proof to be applied by a claims officer in all matters will be the balance of probabilities.
21. Where a claims officer considers that an examination of the injury is required before a decision can be reached, the Authority will make arrangements for such an examination by a duly qualified medical practitioner. Reasonable expenses incurred by the applicant in that connection will be met by the Authority.“
13. In his written submissions to the First-tier Tribunal, Mr Thomas submitted inter alia that:
“There is evidence that both [Mr T and Mr W] were charged with sexual offences and that the applicant was named as one of the children in the original charges against both men (T38)…The applicant was placed on the child protection register on the grounds of sexual assault by Mr W and Mr [T] (T43).”
And later:
“in relation to the charges it is clear that there were a number of other children involved. It also appears that the applicant’s mother was not content for him to be interviewed in connection with the on-going investigation after he had been interviewed initially (see letter T38). It is far from clear therefore whether Mr [T] was ever convicted of any offence with regard to the applicant.”
14. T38 is important. It is a letter dated 22 May 1990 from Ms JR, a social worker with the local authority, to the applicant’s mother. Relevant parts read:
“I am sorry to have to inform you that it has been necessary to investigate allegations of sexual abuse upon children at [S] School. Your son [M] is one of the children who has been named in the charges made against Mr [W], Headmaster, and Mr [T], Housemaster.
Mr W and Mr T were charged with a number of offences of indecent assault and gross indecency…on 17 May 1990…
…
There was a Child Protection Case Conference on 21 May 1990 and [M’s] name was placed on the Child Protection Register in respect of the sexual abuse he has experienced.
With reference to our telephone conversation this morning, I confirm that you are not willing for your son [R] to be interviewed in connection with this investigation. You have also declined the offer of social work support for [M]. However, should you change your mind with regard to these matters please do not hesitate to let us know…”
R, M’s brother, had also been a pupil at the school. Unless the social worker was mistaken in the names she used, it appears that, contrary to the submission, T38 does not support the contention that the applicant’s mother refused to allow him (the applicant) to be interviewed.
15. On 15 May 1990 the applicant had provided a statement to the police (T60). At T62 the statement contains the evidence relating to the pyjama incidents. There is no other contemporaneous evidence of sexual abuse of the applicant and the dates strongly suggest that it was the evidence regarding the pyjama incidents which gave rise to the various steps outlined in the social worker’s letter.
16. The tribunal announced its decision on the day, giving first a written decision and subsequently a statement of written reasons. The tribunal enumerated the categories of evidence available to it (para 14); summarised the application and its accompanying statement (paras 15-20); noted the police statement of 15 May 1990 (paras 23-26); it contrasted what was in the 1990 statement and other contemporaneous documents with what the applicant alleged in his 2010 statement (paras 27-29); reviewed the social services file (paragraphs 30-39) and the court evidence (paras 40-42) (I return to its treatment of these parts of the evidence below); and the applicant’s own evidence (paras 43-51); and recorded parts of the submissions of Mr Thomas, including that:
(a) the interested party did not accept that the applicant was one of the children who were relied upon as victims of sexual abuse at the Crown Court trial;
(b) the focus of the 2010 statement was sexual abuse by W but no sexual allegations had been made against W in 1990;
(c) claims about the cause of physical abuse differed;
(d) facts reported against T were limited in 1990 but in 2010 included much more serious allegations; and
(e) there was no evidence to suggest that the serious injury (broken wrist) now alleged had ever occurred.
17. In the tribunal’s findings of fact (paras 57-67) it inter alia found:
(a) the account given in 1990 had been true and the applicant had been happy to speak up;
(b) a number of boys were involved in allegations of sexual abuse at the school;
(c) the applicant’s statement of 15 May 1990 contained no allegations of a sexual nature against W and “limited” allegations against T;
(d) the applicant had given evidence on three occasions, at each of which was it was said to be true, yet it contained “major discrepancies which went beyond that which might be attributable to lapses of memory given the passage of time”;
(e) the applicant had had legal advice in preparing and submitting his application and obtaining the disclosure of evidence;
(f) he had been reminded more than once that it was for him to make out his case and produce evidence; and
(g) although consideration had been given to submitting medical evidence and medical records had been obtained, none had been submitted in respect of the applicant’s claim.
I return to other findings below, but those above are, in my view, unassailable in the present proceedings.
18. Parts of the findings in paragraphs 62 and 63, however, require further examination.
“62. There is no evidence to support the Appellant’s claim that he was one of the victims in the criminal case against either defendant. The names of those boys who were witnesses for the prosecution are not known on the papers under consideration but were the subject of charges against the Defendants by 9th May 1990; before the Appellant was interviewed on 15th May. His mother refused to allow him to be interviewed further and the evidence was not tested in relation to [W]. The convictions based on [T’s] admissions resulted in a number of allegations being allowed to remain on file.
63. The evidence that the Appellant was placed on the Child Protection Register, now that the Social Service file has been analysed (see above), is of only minor assistance to any future Tribunal in determining whether he was the victim of a specific crime of violence as required by Paragraph 8 of the 2008 Scheme.”
19. The tribunal’s analysis of the social services file involved an examination of the chronology. On 8th May 1990, as the tribunal recorded:
“…police and social services arrived on site… Joint interviews took place throughout the day at the end of which there are concerns but not enough direct evidence for the Police to take action. On the 9th May “some of the children are interviewed once again over a full day they disclose sexual assaults on them which had taken place in the school since 1983”. Later on 9th May “Police confirm at the end of the day that they have sufficient information to arrest and charge [W] and [T]. Decision made to do this the next day. The next entry states 10th May “[W] and [T] arrested and remanded in custody … [W] charged with five counts of indecent assault and one count of gross indecency. [T] charged with seven counts of indecent assault and there counts of gross indecency.”
Significantly, the Appellant was not interviewed until 15th May 1990, after both defendants had been charged and remanded by the court. It seems highly unlikely that allegations involving him could have formed any part of the prosecution case.
…
37. The conclusion of Social Services/Police investigation relating to the Appellant appears to be recorded at T71. “It would appear that [M] has been the butt of quite a lot more physical abuse by staff and I am sure by older pupils as well.” Earlier in the same report sexual interference is denied in relation to [W] and [T’s] conduct is referred to as no more than an attempt to touch him in a sexual manner. This appears to be supported at T4 which reports physical abuse and neglect but not sexual offences.”
20. In relation to the child protection register specifically, the tribunal concluded that four boys, including the applicant, were placed on the register “as a precaution” in May 1990 and that by September 1990, described by the tribunal as “just 3 months later”, the applicant was the subject of proposals to remove him again as the school had closed down and the children been moved.
21. The tribunal then relies on a report of a case conference. It observes that the section marked “results of investigation" being entirely redacted “could be due to the fact that the Appellant was not included in the case that went forward for consideration for prosecution” and it draw on two further references to alleged physical abuse of the applicant in support, the tribunal’s argument by necessary implication being that social services were concerned because of alleged physical abuse of the applicant rather than the alleged sexual abuse which was the subject of the prosecutions.
22. Some of the tribunal’s findings in paragraphs 62 and 63 and its analysis of the social services evidence were significantly flawed. The tribunal rightly would have liked to know whether the applicant was among the pupils who had been the subject of the prosecution. That was indeed a relevant question, but it was certainly not a conclusive one. A significant part of its argument (para 62) was that:
“The names of those boys who were witnesses for the prosecution are not known on the papers under consideration but were the subject of charges against the Defendants by 9th May 1990; before the Appellant was interviewed on 15th May.”
23. The effect of the semi-colon is to create a contrast between the date of charges and the date when the applicant was interviewed. This is wholly to fail to deal with the increase in the number of charges against T from 10 on 9th May to 15 when the matter went to court on 17th May, by which time the applicant had been interviewed. Mr Thomas says the tribunal knew of the increase in charges to 15 because the certificate of conviction was before them; that may be true, but it does not mean that they applied themselves to the implications.
24. It is not disputed that the tribunal’s jurisdiction is inquisitorial and it might be suggested that the tribunal ought to have followed up the otherwise unexplained presence, in a document dated 21 January 2011 and so presumably prepared for this litigation, of the three asterisks against two of the charges and/or sought to obtain a copy of the indictment which would have revealed (and since has revealed) the true position. However, I do not rely on that for this decision. Document T38 is a letter from a reliable source (the local authority social worker) written on 22 May 1990, one week after the applicant was interviewed. It plainly states “It has been necessary to investigate allegations of sexual abuse upon children at [S] School. Your son [M] is one of the children who has been named in the charges made against [W] and [T].” There may be some room for doubt about whether this meant named in charges against both or against at least one of them, as the social worker was using a pro forma letter; but it is crystal clear that a person with a responsible post from the agency which had jointly conducted the investigations with the police, writing at the time, said that the applicant had been named in the charges. As he had provided evidence of what would amount to indecent assault by T and no evidence of any offence against him by W, it was the overwhelming inference that he was named in charges against T.
25. Nor did the social worker’s letter leave any room for doubt about the reason why the applicant was on the child protection register. It was “in respect of the sexual abuse he has experienced”. This both undermines the tribunal’s reasoning that the concern of social services so far as the applicant was concerned was essentially with physical rather than sexual abuse and the finding that he was placed on the register “as a precaution”. Given the reason why he was put on, it was then not surprising that he should subsequently have been taken off again once the school had closed down and the risk of further sexual abuse from that source eliminated.
26. T38 also indicates that there was a child protection conference based on sexual abuse on 21 May 1990. The remainder of the evidence indicates that there was also a case conference on 30 May about physical abuse. The tribunal's preoccupation with the latter and its failure, despite its attention elsewhere to detailed matters of chronology, to mention the conference of 21 May, provides a further reason why I consider the tribunal failed to engage adequately with the content of document T38.
27. The sole reference to document T38 in the tribunal’s statement of reasons (para 40) is to it as the source of the information that W and T were bailed on 17th May 1990 with conditions to protect the children. To confine the significance of the document to that is in my judgment an unreasonably narrow view. If the document did fully engage with T38, but dismissed it, no explanation is offered of why this should be so.
28. A tribunal which addressed itself to all the evidence would thus have been in a position to know what social services thought at the time about the pyjama incidents; to take an informed view about whether the applicant had been included in the charges brought and to form a view (without, or better still, with, calling for further evidence from the Crown Court) as to whether those charges were proceeded with. While no doubt a conviction would have made the tribunal’s task easier, even if it had assumed, against the applicant on the basis that he had failed to prove a conviction involving him, that his was one of the cases ordered to lie on file, that would not be conclusive. If a prosecution was brought at all, there may have been scope for inference, in the light of the codes of practice applicable to prosecutors at that time, as to what the prosecutor thought of the robustness of the evidence and the strength of the case. As to an order that a count lie on file, the purpose of such an order is set out in Archbold, Criminal Pleading Evidence and Practice 2014 Ed at 4-257:
“Where the plea (or pleas) of guilty entered by the defendant is regarded by the prosecution (and by the judge if his approval is sought—see ante, §§ 4-160 et seq.) as an adequate plea to the indictment as a whole—for example, where a defendant pleads guilty to one or more serious offences alleged in an indictment and pleads not guilty to one or more relatively less serious offences—a direction under section 17 of the CJA 1967 (ante, § 4-194) may be wholly inappropriate and it is the practice for the judge to order that the particular count or counts be left on the file marked: “Not to be proceeded with without the leave of the court or the Court of Appeal.” The consent of the judge is required for this order, but as a matter of practice the judge usually does consent, provided that the defence agree. See R. v. Moorhead [1973] Crim.L.R. 36, CA.”
Knowing of the sentencing of T, it is possible to form a view whether or not there might have been anything to be gained by the prosecution pressing on (at the expense of having to call the young witnesses concerned) with any of the counts in respect of which T had pleaded not guilty, including a charge in respect of the applicant, and hence what, if anything, was to be read into the failure to proceed with such a count. These were matters of inference as to which anyone considering the application, as regards the pyjama incidents, would have to take a view. But if the pyjama incidents fell to be considered, it was patently practicable to consider an application in respect of them.
29. Mr Thomas in seeking to defend the tribunal’s decision draws attention to paragraph 42 of its statement of reasons where the tribunal records that “there is no evidence that the Appellant was amongst those included in the prosecution” He points out, correctly, that his submission had conceded (perhaps wrongly in the case of W) that the applicant had been named in charges and that what the tribunal was doing in its para 42 was looking at what the “court evidence” disclosed about “those included in the prosecution” i.e. those in respect of whom the charges, as it were, stayed the course. The paragraph is, he says, an entirely accurate summary of the certificate of conviction and so it is. However in arguing from that that the decision does not reveal an error he faces two difficulties. The first, is that it is in this very section entitled “Court Evidence” that the one, on my view inadequate, reference to T38, not a document originating from the court, occurs, which casts doubt on whether the tribunal in expressing its reasons was in fact doing what Mr Thomas invites me to conclude it was. More fundamentally, whatever the position in relation to paragraph 42, paragraph 62 is not so limited and is in a generalised section of “Findings of Fact” and states, in unqualified terms, that “there is no evidence to support the Appellant’s claim that he was one of the victims in the criminal case against either defendant.”
30. It is evident from the tribunal's summary decision notice that the tribunal was concerned about “areas which could not now be verified”, among them “was his offence ever part of final court charges”; but though a relevant concern, it was not a sufficient concern. The applicant was only required to prove his case on the balance of probability, to which evidence referred to above concerning the initial charges, inclusion on the child protection register and so on was also relevant.
31. Even if para 42 might be defensible, para 62 is not. It cannot be said that as regards T, there was no evidence to support the applicant’s claim to have been one of the victims in the criminal case. There was evidence, at very least in the form of T38. The overlooking of T38, the increase in the number of counts from 10 to 15 and of the existence of the two distinct but overlapping investigations indicate that the tribunal did not have regard to the totality of the evidence. This was despite Mr Thomas having drawn the tribunal’s attention in his submission to the points in the first paragraph quoted at [12] above being conceded. The fact that they had been conceded did not make them irrelevant to what the tribunal had to decide and the tribunal still had to deal with them. If the tribunal was referring to the charges in the indictment, no compelling reasons were offered for how the position revealed by T38 was thought not to flow through to the final indictment.
32. Putting essentially the same point in an alternative way, I consider that the finding that there was no evidence to support the applicant’s claim that he was one of the victims in the criminal case against either defendant is, as regards T, unsustainable and, if it is necessary to establish perversity (and I am mindful of the high threshold for doing so), that it was a conclusion that no reasonable tribunal could reach on the available evidence.
33. If the applicant had applied in respect of the acts constituting the pyjama incidents, and those acts alone, I would have concluded that it was undoubtedly practicable for the application to be considered. The case has, though, become much more complicated, in that the applicant has done nothing of the kind. In his application which, it will be recalled, was made in respect of allegations set out in a statement, he sets no store by the pyjama incidents at all – they are not even mentioned; rather, his statement deals with the relatively more serious allegations against W and the additional ones against T.
34. Mr Thomas submits that the claim for compensation should be considered as it stands and as a whole and that the question of the “practicability” of investigating the claim is a matter for a value judgment. That being so, the authorities conveniently brought together in HMRC v Procter & Gamble UK [2009] EWCA Civ 407 dictate that an appeal court should be slow to interfere with it. I was taken, in particular, to paras 9, 10, 11 and 19 of that case.
35. Paragraph 11, which emphasises the need for “particular deference” to be given to specialist tribunals, following the well-known observations of Baroness Hale in SH (Sudan) at [30], must be read with some caution in the case of an appeal (or, in my view, equally a judicial review) before the Upper Tribunal. I was not taken to AP (Trinidad and Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551, where Carnwath LJ (as he then was) with whom Rimer LJ agreed, said at [46] :
36. Nonetheless, it would clearly be right not to be too ready to second-guess a value judgment, or the expression of the factors that have led to it, for the sort of reasons given by Lord Hoffman in Biogen v Medeva [1997] RPC 1, cited at [10] of Procter & Gamble. Nor should one “assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it” (per Lord Hope in Jones v FtT and CICA [2013] UKSC19 at [25].)
37. However, that does not mean that “anything goes”. There is a world of difference between not being over-hasty to infer that a tribunal below has failed to consider particular parts of the evidence, or to second-guess the value-judgments on the evidence which the tribunal has made, or to pick holes in the expression of the tribunal’s reasons, on the one hand, and finding a tribunal to have erred in law where, on the face of its reasons, it either must have failed to take incontrovertibly important evidence into account or has reached a conclusion which, on that part of the evidence, was one that no reasonable tribunal could reach. Reasons have to “enable the appellate court [I would add, or tribunal] to understand why the judge reached his decision” (per Lord Phillips MR in English v Emery Reimbold [2002] EWCA Civ 605) precisely so that this sort of error can be discerned and corrected.
38. The energy with which this case has been contested by both parties has resulted in a decision which may come across as rather critical of the First-tier Tribunal. In fact, I have a great deal of sympathy for their predicament. If it had not been for the demonstrable errors with regard to the pyjama incidents and the view I take (see [40] below) of the relevance of those incidents in the context of the claim the applicant had brought, I doubt whether permission for judicial review would have been given. It is undeniable that there are very real difficulties associated with the broadening out of the applicant’s application for compensation beyond the pyjama incidents given the conflicts in the evidence and the lack of supporting medical evidence. The range of possible explanations (I am speaking purely hypothetically for the purposes of argument) might range from the applicant only now being able to give the true details because of what he had suffered on the one hand, to the further details being devised as a money-making scheme on the other. I am prepared to accept, as submitted on behalf of the applicant, that there may be a “reality that allegations of historic child abuse are often inconsistent and confused and can emerge piecemeal”. But if it had taken all the evidence into account and reached legally sustainable conclusions in relation to it, the practicability of considering the claim would indeed have been a matter for a value-judgment by the First-tier Tribunal, in which the Upper Tribunal would have had no business to intervene.
39. However, because of the flaws in its approach to the pyjama incidents and the social services, police and court action in relation to them, the tribunal’s approach to the practicability of considering the remainder of the application was in my view tainted. The tribunal’s conclusion was to be found at para 76 of its statement of reasons:
“However, there remains the first limb of the waiver rule, namely waiver can only be exercised where the claims officer considers that it is practicable for the application to be considered. On this issue the Tribunal was emphatically of the view, based on the evidence available, that it would not be practicable for the Application to be considered due to the effect which the extreme delay has had upon the reliability of the evidence and in particular its veracity and integrity. In our view the differing accounts down the years have so undermined the basis for the claim that the evidence cannot be rectified by seeking further information and would make it impossible for the Application to be properly considered were it to be admitted to the Scheme. Accordingly we dismissed the appeal.”
It was thus a matter largely turning on credibility. To proceed on the footing that the allegations of sexual abuse which the applicant had made in 1990 had not been accepted as grounds for intervention by social services when they had and could not have formed the subject of charges when they did is to undermine the applicant’s credibility on a false premise. It also overlooks the possibility that the applicant’s credibility might be different as to evidence given as a boy to the authorities and evaluated by them at the time than as to evidence given subsequently. I reject the submission in the interested party’s written case that any error would not have affected the outcome. That seems to be speculative and, given the scale and subject matter of the error, unrealistic. I also reject Mr Thomas’s submission based on the fact that para 76, the tribunal’s actual conclusion, made no reference to the charges and prosecution. When the statement of reasons is read as a whole, the trouble which the tribunal went to earlier in its statement of reasons to address them, albeit on basis which I regard as flawed, is inconsistent with any suggestion that those matters were not an integral part of the tribunal’s decision-making.
40. In any event, I do not accept the premise (that one should take the application as a whole and not separate out the pyjama incidents) from which Mr Thomas’s argument proceeds. What is the duty of a tribunal if it is faced with claims that it may regard as unverifiable or otherwise unsustainable to their full extent but where the evidence discloses (as I consider it does, for the reasons given above) one or more incidents which it is practicable to investigate and which could, if established, give rise to a right to compensation? It seems to me that when it comes to payments out of public funds in accordance with a scheme backed by law to those who suffer the misfortune of being the victims of a crime of violence, there are close parallels to be drawn with at any rate parts of the social security system, of which perhaps industrial injuries provides the closest analogy. Not for nothing are the two jurisdictions assigned to the Social Entitlement Chamber of the First-tier Tribunal. In relation to social security, as Baroness Hale observed in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372 at [61]:
“Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:
"A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds . . . Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action." “
The jurisdiction of the First-tier Tribunal which, in social security as in criminal injuries, substantially stands in the shoes of the primary decision maker on an appeal to it, is likewise inquisitorial. Against that background, while of course nobody could or should, perhaps least of all in cases concerning sexual abuse, be forced to pursue a claim when he or she does not want to, it is not unreasonable to expect a tribunal, faced with evidence of a related claim which differs from the one being put forward, at least to put the point to an appellant and ask, one way or the other, whether he wishes to proceed with it. Accordingly, even were I to be wrong in my conclusion in [39] in relation to the applicant’s claim as a whole, the tribunal still erred by failing to follow up the possibility that the applicant’s claim extended to the pyjama incidents and if it did, to deal separately with the practicability of investigating that part of the claim.
41. Even though it is my view that as regards the pyjama incidents there is only one conclusion as to practicability to which the First-tier Tribunal could properly come, that is not my view in relation to the rest of the application. Although I invited submissions as to any way by which it might be possible to deal in judicial review proceedings with any difference there might be thought to be between the pyjama incidents and the remainder, none was forthcoming. As to the application for judicial review which is before me, viewed as a whole, therefore, the condition created by section 17(2)(c) of the Tribunals, Courts and Enforcement Act 2007 is not fulfilled and it follows that the question of compliance with limbs (a) and (b) of paragraph 18 of the 2008 Scheme will have to be remitted to a new tribunal.
42. The directions I have given require the applicant or his advisers to clarify before the next First-tier Tribunal hearing which claims are or not being pursued. In the light of my observations in this decision, particularly at [40], it will be the tribunal’s duty to consider the practicability of considering the application in relation to each of the various claims where more than one incident is being relied upon.
43. There remains one further aspect to address. In the earlier litigation, I ruled that on its proper construction, once limbs (a) and (b) of the paragraph were fulfilled, the two year time limit for which paragraph 18 provides had to be waived. Where, as here, the interested party was prepared to concede that it had not been reasonable for an applicant to begin a claim within two years of the incident, the matter thus came down purely to the practicability of considering the claim. As noted, the interested party did not appeal against that decision. In the subsequent cases of MM and AM Upper Tribunal Judges Jacobs and Rowland respectively have taken different views from mine on that point and from each other. Judge Jacobs, whose view the interested party contends is correct, considers that once limbs (a) and (b) are met, a discretion, to be exercised on unspecified grounds, arises. Before this matter is remitted to a fresh First-tier Tribunal to consider whether, in respect of any part of the applicant’s application, limbs (a) and (b) are met, it is desirable, if this matter is not to come before the Upper Tribunal for a third time, to address the conflict of authority and to add a further Direction in this case accordingly. The mechanism for doing that is set out in sub-paragraphs (c) to (e) of paragraph 2 of the Decision.
43. I invite, as I have done previously, both parties to reflect upon their respective positions and to see whether it is not possible to arrive at a common basis on which an award may properly be paid.
CG Ward
17 February 2014
