Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/4792/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Attendances:

 

For the Applicant: Mr Owain Thomas of counsel, instructed by the Treasury Solicitor

 

For the Interested Party: Mr Paul Kingsley Clark of counsel, instructed by Pattinson Brewer Solicitors

 

The Respondent was not represented.

 

 

Decision:  Permission to apply for judicial review is refused.

 

 

REASONS FOR DECISION

 

1. This is an application by the Criminal Injuries Compensation Authority for permission to apply for judicial review of a decision of the First-tier Tribunal dated 30 April 2010, whereby it decided that the Interested Party, Mr Roy Fuller, was entitled to a full award of criminal injuries compensation under the criminal Injuries Compensation Scheme 2008 and it adjourned the hearing to obtain medical evidence to enable it to assess the amount of compensation to be paid.

 

2. The judicial review claim form was received by the Upper Tribunal on 9 December 2013 because it was only after the Supreme Court had given its decision in R.(Jones) v First-tier Tribunal) [2013] UKSC 19; [2013] 2 AC 48; [2013] AACR 25 on 17 April 2013 and after the First-tier Tribunal had decided on 29 August 2013 that the amount of compensation to which Mr Fuller was entitled was £16,225.60 that the Authority sought a statement of reasons for the decision of 30 April 2010.  Determination of the application was deferred by me to await the decision of a three-judge panel of the Upper Tribunal in R.(SB) v First-tier Tribunal (CIC) [2014] UKUT 497 (AAC); [2015] AACR 16.  I then directed an oral hearing and, when it became clear that Mr Fuller would have legal representation at that hearing, further directed that it would be a “rolled up” hearing so that, if permission were granted, the substantive decision would be given.  Therefore, the case has been fully argued before me.

 

 

The facts and the claim for compensation

 

3. The facts of this case are very similar to the facts of the case of Mr Jones that was before the Supreme Court.  Mr Jones was driving a gritting lorry along the dual carriageway A282 north of the Dartford Tunnel on 18 January 2005 when a man ran in front of an articulated lorry that was slightly ahead of Mr Jones’ lorry.  The articulated lorry was unable to avoid the man who had run into its path but its braking caused a collision with Mr Jones’ lorry which resulted in Mr Jones suffering very serious injuries.  As the Supreme Court recorded, the obvious inference from his actions was that the man who ran into the path of the articulated lorry intended to kill himself.  Mr Jones applied for criminal injuries compensation under the Criminal Injuries Compensation Scheme 2001 (which was not materially different from the 2008 Scheme) but the Authority decided that he had not been a victim of a crime of violence and therefore was not entitled to compensation.  That decision was maintained on review and Mr Jones appealed.

 

4. Four years later and only twenty miles away, Mr Fuller was driving an articulated lorry along the dual carriageway A130 near Rettendon on 11 February 2009 when a man lunged in front of his vehicle.  Mr Fuller was unable to avoid running him over and he was killed.  The first vehicle on the scene was a gritting lorry.  The police investigated the accident and concluded that the man run over had intended to kill himself and that Mr Fuller was blameless.  Mr Fuller developed a psychiatric injury as a result of the incident and claimed criminal injuries compensation.  The Authority decided that he had not been a victim of a crime of violence and therefore was not entitled to compensation.  It did so initially on the ground that suicide was not a crime of violence.  Mr Fuller, who had instructed the same solicitors as Mr Jones, applied for a review on the ground that he had been a victim of a crime of violence in that the man run over had committed offences under section 22A of the Road Traffic Act 1988 and section 20 of the Offences Against the Person Act 1861.  The Authority maintained its decision that Mr Fuller had not been a victim of a crime of violence.  The claims officer said: “I cannot accept that the actions of the individual who committed suicide can be seen as reckless, given that in committing suicide they showed themselves to be of unsound mind, and therefore unable to be aware of the consequences to others of their actions.”  Mr Fuller appealed.

 

 

The decision of the First-tier Tribunal

 

5. At this point, the history of Mr Fuller’s case diverges from that of Mr Jones.  Mr Jones’s appeal to what had become by the time of the hearing the First-tier Tribunal was dismissed on 8 May 2009.  In particular, in considering whether he had been a victim of an offence under section 20 of the 1861 Act, the First-tier Tribunal said –

 

38. The Tribunal accepted the evidence of PC Sexton that probably Mr Hughes’ primary aim was to be certain of causing his own death and that in his experience it was very unusual for a suicide in this manner to cause such extensive personal injuries and damage to vehicles. Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions. However, the Tribunal were not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused when he ran out into the dual carriageway, such as to bring his case within s.20 OAPA 1861.

 

6. However, Mr Fuller’s appeal to the First-tier Tribunal was successful.  On 30 April 2010, the First-tier Tribunal decided that he had been a victim of a crime of violence.  In its usual way, it gave its summary reasons orally but recorded them in writing and provided a copy of the written summary to the Authority “for their admin purposes” but not to Mr Fuller’s solicitors (although it would have provided the written summary to Mr Fuller had he not been represented – see the Supreme Court’s judgment in Jones at [36] which refers to the letter dated 23 January 2012 in which the summary reasons in Mr Fuller’s case were eventually sent to his solicitors).  This difference in treatment between the parties seems undesirable but nothing turns on it in this case except that it forms an important part of the history.  The summary reasons said –

 

1.    The alleged offender jumped in front of the lorry when it was travelling on the A130 at 50mph at 8pm with other traffic on the road. We find that the alleged offender should have foreseen that some physical harm to some person, albeit of a minor character, might result, within the meaning of Lord Ackner in R v Savage (1992) 1 AC 699, 752H. He was reckless whether or not anyone else was hurt in the process of his committing suicide.

 

2.    The appellant was put in reasonable fear of immediate physical harm to his own person within the meaning of para 9(a) of the 2008 Scheme. He did not have time to swerve but he had to grip the steering wheel tight to retain control of his articulated lorry. Anything could have happened if he had lost control. The lorry may have veered into other traffic or it may have left the road or it may have overturned.

 

3.    We reject the Authority's argument that the alleged offender was of unsound mind and therefore incapable of knowing the consequences of his actions. We have no evidence as to his state of mind, which might have been knowing and informed. In any event/even if he was insane, that would not of itself put this case outside the 2008 Scheme, having regard to paragraph 10.

 

4.    The Authority relied on p37 of Padley & Begley... 'It is one of the curiosities of the Schemes that no similar provision is available for bus driver...' referring to the provision for railway drivers in pare 8(b) of the 2008 Scheme. We note that para 9(a) does not have to be satisfied by 'the railway driver' suffering psychiatric injury in analogous circumstances by reason of para 9(d). We accept counsel's submission that it would be considerably harder for 'the railway driver' to satisfy pare 9(a) due to the design of the train, its size and its fixed passage on tracks. In analogous circumstances there would probably be no reasonable fear of losing control of the train. That explains why there has to be a separate provision for train drivers. Moreover we read p37 as indicating the author's view that the Scheme ought to provide for bus drivers in analogous circumstances. If para 9(a) is satisfied, we consider it does.

 

5.    This is an important case on the construction of the Scheme which is contentious. We have reached a unanimous decision for the reasons given, but we would not discourage an appeal to the Upper Tribunal for more authoritative guidance on how the Scheme should be interpreted in these circumstances.

 

That invitation was not taken up at the time.

 

 

The judicial review proceedings in Mr Jones’ case

 

7. Mr Jones brought judicial review proceedings of the decision of the First-tier Tribunal in his case.  He was unsuccessful in the Upper Tribunal, where his case was heard with two other cases (R.(HW) v First-tier Tribunal (CIC) [2010] UKUT 199 (AAC)).  He was more successful in the Court of Appeal (R.(Jones v First-tier Tribunal (Social Entitlement Chamber) [2011] EWCA Civ 400; [2012] QB 345) but that decision was reversed by the Supreme Court.

 

8. In the Court of Appeal, counsel for Mr Jones drew attention to the apparently inconsistent decision in Mr Fuller’s case, but he was able only to produce the decision notice, apparently issued on 4 May 2010, and not the written summary reasons that had not yet been sent to his solicitors.  Patten LJ, with whom Rix and Mummery LJJ agreed said –

 

23. … Mr Collins, on behalf of the CICA, submitted that the question whether a crime of violence has been committed is essentially a question of fact for the CICA or, on appeal, the FTT. It would, he says, have been open to them on the facts of this case to reach a decision either way. Both would have been a legitimate outcome based on the relevant material.

 

24. The question whether a criminal offence has been committed and whether the applicant's injuries are directly attributable to that offence are undoubtedly questions of fact for the CICA or the FTT. They are required to weigh up the evidence and decide whether it supports a finding that a relevant criminal offence has been committed. As part of this process, they have to decide what primary facts are established and what inferences it is permissible to draw from those facts. But in this case I do not accept that the determination as to whether a s.20 offence is a crime of violence within the Scheme rules is anything but a question of law which can only admit of one answer.

 

…

 

31. The FTT accepted [PC Sexton’s] evidence as supporting the view that Mr Hughes had suicide as his primary aim and that it could not be satisfied that Mr Hughes either intended to cause harm or was reckless in that regard. The difficulty, however, about this is that P.C. Sexton was responding to a question put to him at the hearing and was not seeking (nor was he qualified) to provide any expert evidence as to whether a person with a suicidal intent blanks out the possibility of harm being caused to others by his actions. The officer could give no admissible evidence on this nor is it clear what facts he based his opinion on. The FTT should therefore have considered whether, on the balance of probabilities, it was likely that some harm was foreseen without attributing any evidential weight to the officer's views on this matter. That was a question for them to decide.

 

32. It is, of course, for Mr Jones to prove that Mr Hughes had the necessary mens rea but the absence of direct evidence about his actual state of mind does not mean that there was no evidence capable of supporting the necessary inference that he must have foreseen the likelihood of harm being caused to persons other than himself. I accept Mr Glancy's submission that it is highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the very least foresee the possibility of an accident and, as a consequence, harm being caused to other road users. A possible mitigating factor is the effect of a suicidal intent on what would otherwise be the accused's state of mind but the FTT had no evidence to assist them on this. They also appear to have given no consideration or weight to the obvious possibility even likelihood of the risk of an accident. Instead they assume in paragraph 35 of the decision that an intention to commit suicide is necessarily inconsistent with a deliberate intention to cause harm.

 

33. If the alternatives are put in those extreme terms it becomes easier to exclude the mens rea for a s.20 offence. It will rarely be the case that a person who runs in front of a lorry intending to kill himself also positively intends to cause harm to the driver concerned and other road users. But my concern about how the FTT approached its task is that it appears to have concentrated on these as the relevant alternatives. This may have been because of the view it took about what was capable of constituting a crime of violence: i.e. a hostile act directed towards the victim: see paragraph 37 of the decision.

 

34. If, as explained earlier, a broader test is appropriate and a s.20 offence involving recklessness is sufficient to come within the Scheme then the fact-finding exercise needs to be differently focussed. In paragraph 38 the FTT refers to recklessness but this is an unreasoned conclusion which is not based on its earlier findings of fact. Moreover, as Mr Glancy pointed out, the terms of paragraph 38 suggest that the FTT may have misunderstood what recklessness involves and did in fact make a finding of recklessness when they say that Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions.

 

35. In these circumstances, the decision of the FTT does, in my view, involve an error of law both in terms of the directions given on the test to be applied and in relation to their finding that there was no evidence from which foresight of some harm on the part of Mr Hughes could be inferred. We were pressed by Mr Glancy to quash the decision and to substitute a finding that Mr Hughes had the requisite mens rea for a s.20 offence. He accepts, however, that such a course could only be justified if that was the only possible outcome on a consideration of all the relevant facts.

 

36. I consider that we should not take that course but should instead quash the decision and remit the matter back to a differently constituted FTT to reconsider the issue of recklessness in the light of this judgment. It will then be for that tribunal to assess the probability or not of Mr Hughes having the necessary foresight of some harm resulting from his actions in the light of the relevant and admissible evidence.

 

9. However, in the Supreme Court, Lord Hope, having said at [18] that the crime that section 20 of the 1861 Act defines will always amount to a crime of violence for the purposes of the scheme for compensation for criminal injury, said –

 

25. The Court of Appeal appears to have been unwilling to accept that the question that the FTT was asking itself was whether it could be satisfied that a section 20 offence had been committed rather than whether Mr Hughes' actions amounted to a crime of violence. It was also unduly critical of the FTT's reasoning, attributing to it things that it did not, in so many words, actually say. It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it. It is true that the FTT said in para 38 that it accepted the evidence of PC Sexton. But the parts of his evidence referred to were elicited from him in cross-examination by counsel who was then appearing for Mr Jones. And PC Sexton's comment that in his experience it was very unusual for a suicide such as this to cause such extensive personal injuries and damage to vehicles can hardly be said to have been outside his expertise.

 

26. There are signs too that the Court of Appeal allowed itself to be unduly influenced by its own view that it was highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the least foresee the possibility of an accident and of consequential harm being caused to other road users. The question whether Mr Hughes did actually foresee this possibility was for the FTT to answer, not the Court of Appeal. Taking its judgment overall, it seems to me that the Court of Appeal failed to identify a flaw in the reasoning of the FTT which could be said to amount to an error of law. The FTT appreciated that the question it had to consider first was whether an offence under section 20 had been committed. It identified correctly the tests that had to be applied and reached the conclusion that it was not satisfied that Mr Hughes did commit that offence. It did not go on to consider whether he had committed a crime of violence within the meaning of the Scheme because, having concluded that no crime was committed, it did not have to.

 

27. … For the reasons mentioned in [18], the question whether a section 20 offence is necessarily a crime of violence admits of only one answer. But the FTT never got to the stage of asking itself that question because of its finding, on the facts, that a section 20 offence had not been committed.

 

10. By this time, Mr Jones’ solicitors had managed to obtain the summary reasons in Mr Fuller’s case and Lord Carnwath, having expressed agreement with Lord Hope, made explicit reference to them.  He said –

 

38. Had this statement of reasons been available to the Court of Appeal, it is unlikely that they would have been unduly troubled by the apparent inconsistency. As is clear from the citations given by Lord Hope, it is not sufficient to establish recklessness that the alleged offender "should have foreseen" that some physical harm might result. It is necessary to show that he "actually foresaw" that physical harm to some other person would be the consequence of his act, even if not the degree of harm which actually occurred (see the passage from R v Mowatt, quoted by Lord Hope at para 11).

 

39. The tribunal's apparent misreading of Lord Ackner's words in R v Savage [1992] 1 AC 699 is perhaps understandable. The passage in question is as follows:

 

"I am satisfied that the decision in Mowatt was correct and that it is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in section 20, ie a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result." (p752 f-g, emphasis added).

 

Taken out of context, the last sentence might seem to support the tribunal's view in Fuller. However, it is clear from the preceding passage that it was not intended to have this effect.  …

 

11. Lord Walker, Lady Hale and Lord Sumption agreed with both Lord Hope and Lord Carnwath.

 

 

The judicial review proceedings in Mr Fuller’s case

 

12. As I have recorded, the First-tier Tribunal decided on 29 August 2013 that the amount of compensation to which Mr Fuller was entitled was £16,225.60.  On 4 September 2013, the Authority emailed the First-tier Tribunal asking “for written reasons to be provided in relation to the Tribunal’s decision that the appellant in the above 2008 Scheme case was eligible for an award”.  On the same day, the First-tier Tribunal emailed back seeking reasons for lateness, to which the authority replied one minute later, saying: “The final decision was made on 29 August 2013 and we were awaiting this before asking for written reasons.”  Ten minutes later, the First-tier Tribunal asked for clarification as to whether reasons were sought for both hearings, pointing out that different judges had been sitting so that there would have to be two written statements if reasons for both decisions were required.  The Authority was also asked to provide full reasons for lateness.  On the following morning, the Authority emailed –

 

Our position is that our request was not made late.  Rule 34 of the Tribunal Rules governs requests for written reasons.  Rule 34(3) allows us to make a written application to the Tribunal for a written statement of reasons following a decision which finally disposes of (a) all issues in the proceedings; or (b) a preliminary issue dealt with following a direction under Rule 5(3)(e).  The decision at the hearing on 30 April 2010 was not made following a direction under Rule 5(3)(e).  in any event. Rule 34(3)(b) was not in force on 30 April 2010; at that time Rule 34 made no reference to preliminary issues, it stated only that a request for written reasons could be made within 1 month of the date on which the Tribunal sent its decision finally disposing of all the issues in the proceedings.  The decision finally disposing of all the issues in the proceedings in this case was made on 29 August 2013.  As out request has been made within a month of that date, it has been made in time in terms of Rule 34.

 

I would therefore be grateful to receive written reasons for the basis of the decision made on 30 April 2010 when eligibility was established.

 

13. A statement of reasons was then prepared.  It is dated 31 October 2013 and was sent to the Authority on 8 November 2013 by fax, having apparently been sent to Mr Fuller’s solicitors by post a couple of days earlier.  In paragraph 1, it said –

 

… Given the passage of time, we have very little recollection of the hearing itself, but with the benefit of our records of proceedings and the appeal bundle we can recollect enough to provide these reasons.

 

It then set out the history, including the whole of the summary reasons.  In paragraph 9, it stated that the panel had been unaware of the First-tier Tribunal’s decision in Mr Jones’ case and referred to the Supreme Court’s decision and in paragraph 10 it conceded that, in light of that decision, “it is clear that we erred in law” and stated that it was therefore open to either party to seek a judicial review of the panel’s decision.  (It also raised the question whether the First-tier Tribunal could itself review the decision under section 9(1) of the Tribunals, Courts and Enforcement Act 2007, but it is rightly common ground before me that it could not do so because the decision was an “excluded decision” under section 11(5)(a).)

 

14. On 9 December 2013, the Authority sent its judicial review claim form both by email and by post.  (The copy in the Upper Tribunal bundle is presumably the one sent by post, as it is date-stamped as received on 12 December 2013.)  8 December 2013 was a Sunday.  Accordingly, if time ran from the date the Authority was sent the statement of reasons on 8 November 2013, it is rightly common ground that the application sent by email is in time.

 

15. The claim seeks an order quashing the decision dated 30 April 2010 with the Upper Tribunal then either substituting its own decision or remitting the case to the First-tier Tribunal.

 

 

Procedural legislation

 

16. It is necessary to set out only three provisions.  First, is rule 5(2) and (3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), which provides –

 

  (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—

(a) extend or shorten the time for complying with any rule, practice direction or direction;

…;

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

…

 

17. Second is rule 34 of those Rules, which until 8 April 2013 provided –

 

34.—(1) In asylum support cases ….

  (2) In all other cases the Tribunal may give reasons for a decision which disposes of proceedings (except a decision under Part 4)—

(a) orally at a hearing; or

(b) in a written statement of reasons to each party.

  (3) Unless the Tribunal has already provided a written statement of reasons under paragraph (2)(b), a party may make a written application to the Tribunal for such statement following a decision which finally disposes of all issues in the proceedings.

  (4) An application under paragraph (3) must be received within 1 month of the date on which the Tribunal sent or otherwise provided to the party a decision notice relating to the decision which finally disposes of all issues in the proceedings.

  (5) …

 

Paragraphs (3) and (4) have now been amended so that, where a direction has been given under rule 5(3)(e) for an issue to be dealt with as a preliminary issue, time for applying for the reasons for the decision on that preliminary issue runs from the date of the decision on that issue rather than the end of the proceedings.

 

18. Third is rule 28 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), which provides –

 

28.—(1) A person seeking permission to bring judicial review proceedings before the Upper Tribunal under section 16 of the 2007 Act must make a written application to the Upper Tribunal for such permission.

  (2) Subject to paragraph (3), an application under paragraph (1) must be made promptly and, unless any other enactment specifies a shorter time limit, must be sent or delivered to the Upper Tribunal so that it is received no later than 3 months after the date of the decision, action or omission to which the application relates.

  (3) An application for permission to bring judicial review proceedings challenging a decision of the First-tier Tribunal may be made later than the time required by paragraph (2) if it is made within 1 month after the date on which the First-tier Tribunal sent—

(a) written reasons for the decision; or

(b) notification that an application for the decision to be set aside has been unsuccessful, provided that that application was made in time.

 

The time limits in rule 28 may be extended under rule 5(3)(a) which is in the same terms as rule 5(3)(a) of the First-tier Tribunal Rules.

 

The implications of SB

 

19. In SB it was held that, where the Authority makes a decision on eligibility, the First-tier Tribunal has jurisdiction only to consider the question of eligibility and does not have jurisdiction to retain the case for the purpose of determining the amount of compensation.  It is therefore rightly common ground before me that the First-tier Tribunal had no power to adjourn the proceedings on 30 April 2010 and that decision was therefore a “decision which finally disposes of all issues in the proceedings” for the purposes of rule 34(3), despite the purported adjournment.  It is therefore also common ground that the First-tier Tribunal had no jurisdiction to make the assessment of compensation on 29 August 2013.  On the other hand, neither party has asked for that decision to be quashed.

 

 

The Arguments

 

20. The Authority submits that it is clear that the First-tier Tribunal’s decision of 30 April 2010 is wrong in law both in the light of the Supreme Court’s decision in Jones and in the light of the First-tier Tribunal’s own confession in its statement of reasons.  It then submits that there is a clear public interest in the error being corrected.

 

21. As to the passage of time, it submits that the judicial review claim was in fact made in time in the light of rule 28(3) of the Upper Tribunal Rules and that even were that not so, it would be right to extend time because the authority was relying on what was, until SB was decided, the common practice.  Had it been the decision of 29 August 2013 that was the decision finally disposing of the proceedings, it would have been entitled under rule 34(3) of the First-tier Tribunal Rules to wait until that decision had been made before applying for a statement of reasons for the decision given on 30 April 2010.  The amendment to rule 34(3) makes no difference, it is submitted, because the First-tier Tribunal did not actually direct that eligibility be dealt with as a preliminary issue.

 

22. It is submitted on Mr Fuller’s behalf that the summary reasons were written reasons under rule 34(2)(b) and therefore the statement of reasons dated 31 October 2013, which did not add materially to those summary reasons was not a statement of reasons for the purposes of rule 28(3) of the Upper Tribunal Rules.  Further or in the alternative, it is submitted, permission to apply for judicial review should be refused because the Authority could have brought judicial review proceedings at any time from 30 April 2010 and Mr Fuller reasonably assumed, and was entitled to assume, that that decision was not open to challenge once three months had passed, unless an extension of time were granted.  Moreover, even after the Supreme Court held that the First-tier Tribunal’s decision in Mr Fuller’s case was wrong in law, the Authority waited almost eight months before bringing judicial review proceedings.  It is pointed out that rule 28(2) of the Upper Tribunal Rules not only provides for a three month time limit but also requires that a claim be made “promptly” so that a claimant is not always entitled to wait until just before the expiry of the period of three months or the extended period allowed under rule 28(3).

 

23. It is further submitted that, although the First-tier Tribunal erred in law when considering the elements of an offence under section 20 of the 1861 Act, it in fact applied the correct test for the purposes of a claim under the 2008 Scheme and, in any event, its error was immaterial.  The argument is that, although it must be proved that a person was actually aware of the risk of harm before that person is convicted in a criminal court, it is not necessary for the purposes of the Scheme to prove that the perpetrator was criminally responsible for it.  Moreover, it is submitted that whether a person should have foreseen a risk is at least relevant to the question whether he did foresee it and, in the light of the Court of Appeal’s observations at [32] in Mr Jones’ case, there is no material difference between the two tests.

 

 

Discussion and conclusion

 

24. It is clear that the First-tier Tribunal’s decision of 30 April 2010 on eligibility was wrong in law and I reject Mr Clark’s submission that the error is immaterial in the sense that it could have made no difference to the outcome, which is simply inconsistent with the Supreme Court’s decision to uphold the First-tier Tribunal’s decision in Mr Jones’ case.  However, Mr Clark is right to submit that the Supreme Court did not say that the Court of Appeal’s view as to the probabilities was wrong in the sense that it was not a view that the First-tier Tribunal could have taken; the Supreme Court merely held that the First-tier Tribunal’s finding was legitimate and its reasoning was adequate and, in the absence of an error of law, the Court of Appeal’s view was therefore irrelevant.  In my judgement, therefore, the position is that the First-tier Tribunal’s error was material in the sense that it could have made a difference to the outcome but not in the sense that it would have made a difference to the outcome.  Had it applied the correct test, it could still have reasoned as the Court of Appeal did in Mr Jones’ case that, on a balance of probabilities (which is the material test under paragraph 20 of the 2008 Scheme), the man run over by Mr Fuller’s vehicle did foresee a risk of harm to another person from his actions.  This is an important consideration when considering the overall justice of the case.

 

25. Indeed, it is an important consideration when assessing the public interest in correcting the error of the First-tier Tribunal.  Although it is always desirable that a decision should be correct as a matter of law, that consideration gives way to others.  Thus time limits are enforced by allowing possibly wrong, or obviously wrong, decisions to stand.  Issue estoppel may also require incorrect decisions to stand – see Watt v Ahsan [2007] UKHL 51; [2008] AC 696 for a striking example.  There is less of a public interest in quashing a decision that, although wrong in law, is possibly the right decision on its merits, than there is quashing a decision that clearly confers an unwarranted benefit.

 

26. I accept that the Authority was following a widely accepted approach to this type of case.  However, it was not a universally accepted approach even before SB was determined.  In particular, the First-tier Tribunal did not accept it.  Notwithstanding the fact that it did not issue directions in terms that eligibility would be dealt with as a preliminary issue, its decision notice contained the following advice (in very small print) –

 

The above decision on eligibility is a final decision, subject to paragraphs 13(c), 13(e), 53 of the Scheme and Rule 8(3) (continued co-operation by the appellant, future criminal convictions and any other change in circumstances or new evidence, compliance with directions and co-operation with the Tribunal).

There is no appeal against this decision save by way of application to being judicial review proceedings on the ground of ‘error of law’.  A party wishing to bring an application for judicial review proceedings must, within 1 month from the date of issue of this decision, make application for a full statement of reasons for this decision to the Tribunals Service ….

 

Moreover, some claimants who sought to challenge eligibility decisions only after compensation had been assessed were not only refused statements of reasons by the First-tier Tribunal but also had their claims rejected by the Upper Tribunal for being out of time.  The tension between these two approaches was one reason for the three-judge panel being convened to determine SB.  The three-judge panel took the view that both approaches were misconceived because the First-tier Tribunal was simply not entitled to adjourn in the way it did.

 

27. I acknowledge that a literal interpretation of rule 34(3) of the First-tier Tribunal Rules suggests that a party could always wait until the final disposal of proceedings before seeking a statement of reasons.  However, it did not impose an obligation to do so and waiting for more than a few months is obviously undesirable if the person applying for the statement of reasons really wants the original reasons for the decision because it wishes to challenge it.  It is not always realistic to expect a tribunal to remember its reasons after such a passage of time.  The delay of over three years in the present case may have been exceptional, but the Authority would have known that delays of one or two years between the making of a decision on eligibility and the assessment of compensation were common.  It is true that the Rules did not make specific provision for the provision of reasons for decisions on preliminary issues until 8 April 2013 but one might have expected the First-tier Tribunal to direct under rule 5 that any request for reasons for the decision on a preliminary issue should be made shortly after that decision was made if it considered that any challenge to a decision on a particular issue should be made before it considered other issues.  In this instance, the First-tier Tribunal seems to have considered that its printed advice was sufficient.

 

28. Moreover, there is no obligation to obtain a statement of reasons before launching judicial review proceedings.  Although in practice it will often be difficult to show an error of law without obtaining such a statement, this was not such a case.  The Authority had the means of knowing that the First-tier Tribunal had erred in law as soon as it received the written summary reasons (even if the oral reasons did not make the error plain) and, moreover, it knew for certain that the First-tier Tribunal had erred in law as soon as it received the Supreme Court’s judgement in Jones, eight months before it made its judicial review claim. 

 

29. I accept that the summary reasons were not intended to be a statement of reasons for the purposes of rule 34, although in practice good summary reasons are often detailed enough to stand as a full statement of reasons.  Apart form anything else, the summary reasons were not provided to both parties as required by rule 34(2)(b), at least until well over two years had passed.  I am also prepared to accept that the statement of reasons dated 31 October 2013 was a statement of reasons for the purposes of rule 34 of the First-tier Tribunal Rules and rule 28 of the Upper Tribunal Rules, even though it added nothing of substance to the summary reasons.  However, if that is so and the effect of providing the statement late was to extend the time for applying for judicial review, as the Authority contends, the First-tier Tribunal plainly ought to have given Mr Fuller an opportunity to make representations before it found that the application was in time or it extended the time for applying for the statement of reasons under rule 5(3)(a).  Given that the First-tier Tribunal could not add anything important to the summary reasons, it is difficult to see any reason why, if there had been an objection, it would have extended time for applying for the statement of reasons, rather than leaving the Upper Tribunal to decide whether to extend time for admitting the application for permission to apply for judicial review.

 

30. In any event, despite its literal meaning, it seems to me that rule 28(3) must be construed as extending the three-month time limit in rule 28(2) but as not interfering with the need for an application to be made promptly. Challenges to criminal injuries compensation decisions are not usually so urgent that the Upper Tribunal would regard an application made within the three months allowed by rule 23(2) as not made promptly.  Nor in a case where an error is revealed only be a statement of reasons will an application usually be regarded as not made promptly where it is made within the extended time allowed by rule 28(3).  However, if the application for a statement of reasons was made late, that will not necessarily be so. 

 

31. If I am wrong as to the limited effect of rule 28(3), the Upper Tribunal still has a broad discretion as to whether to grant judicial review or to grant permission in the light of the broad justice of the case.

 

32. In my judgement, the application for permission to apply for judicial review in this case was not made promptly and whether it is late on a proper construction of the Upper Tribunal Rules or as a matter of discretion, I refuse permission.

 

33. While I accept that the Authority was relying on what it regarded as a settled practice, the practice was obviously unsatisfactory and was not mandated by the Rules even on the conventional understanding of the effect of the First-tier Tribunal’s decision of 30 April 2010.  The decision that Mr Fuller had been a victim of a crime of violence, while flawed legally, would not have been unreasonable on the facts.  The balance of justice favours maintaining the decision.

 

 

Mark Rowland

21 May 2015