Court of Appeal
Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber)
[2018] EWCA Civ 2367
2018 Oct 16; 25
Patten, Hickinbottom, Peter Jackson LJJ
CrimeCriminal Injuries Compensation AuthorityCompensation, whether payableAuthority refusing victim’s application for compensationVictim applying to reopen decision on ground injustice would be caused if decision allowed to standWhether victim’s character relevant on such application Criminal Injuries Compensation Scheme 1996, para 56

The victim of an assault applied under the Criminal Injuries Compensation Scheme 1996 for compensation from the Criminal Injuries Compensation Authority. The authority refused the application on the ground that the victim’s injury was insufficiently serious to qualify for an award, for the purposes of paragraph 24. Some 12 years later, the victim applied to reopen his case under paragraph 56 of the 1996 Scheme on the basis that there had been such a material change in his medical condition that injustice would occur if the original assessment of compensation were allowed to stand. The authority refused the application on the basis that (i) the victim’s character as shown by, among other things, his criminal convictions made it inappropriate to make an award, for the purposes of paragraph 13, and (ii) the victim’s condition had not materially changed, for the purposes of paragraph 56. The First-tier Tribunal struck out the victim’s appeal against that decision. The Upper Tribunal allowed the victim’s appeal and remitted the matter to the First-tier Tribunal, holding among other things that evidence of the victim’s character was not relevant on a consideration of paragraph 56.

On the authority’s appeal—

Held, appeal allowed. Paragraph 56 of the Criminal Injuries Compensation Scheme 1996 on its true construction did not compel the reopening of a decision where the maintenance of the original decision would not create an injustice. The difficulty with the Upper Tribunal’s interpretation was that it was impossible to assess whether injustice existed without taking all relevant circumstances into account. It was artificial to consider one factor (medical change) on its own. That did not allow a proper assessment to be made and did not give effect to the intention of the paragraph. The Upper Tribunal’s conclusion that character evidence was not relevant to paragaph 56 was mistaken. The correct questions for the decision-maker were: would there be injustice if the earlier decision remained in place and would that injustice be the result of a change in the applicant’s medical condition? If the answer to both these questions was “yes” the officer could, and no doubt in practice would, reopen the case. In such cases, one possible approach would be to take the account of medical change at face value and then decide whether injustice would be caused if the original decision stood. If the conclusion was that injustice would not be caused regardless of any medical change, the decision could not be reopened, and it would then be unnecessary to engage with the often complex question of whether or not there had been a sufficiently material medical change. Therefore although the Upper Tribunal had been correct to quash the decisions of the First-tier Tribunal, its interpretation of the nature of the authority’s power to reopen a claim could not be upheld. In the light of the victim’s criminal record, his lack of frankness about that and about his previous applications under the Scheme and the nature of the medical evidence, any tribunal would be bound to dismiss his appeal, both on the basis of the character and disclosure provisions in paragraph 13 and on the basis of the lack of any sufficient evidence of medical change. There was accordingly no purpose in the matter being remitted for further consideration. The Upper Tribunal’s order would be set aside and the First-tier Tribunal’s order striking out the victim’s appeal would be restored (paras 26–27, 31, 35–36, 37, 38).

Decision of the Upper Tribunal (Administrative Appeals Chamber) [2016] UKUT 7 (AAC) reversed.

Ben Collins QC for the authority.

The First-tier Tribunal was not represented.

Scott McGlinchey, Barrister

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