Upper Tribunal (Administrative Appeals Chamber)

 

 

IN THE UPPER TRIBUNAL [2010] UKUT 36 (AAC)

ADMINISTRATIVE APPEALS CHAMBER AAC Ref. No. JR/685/2009

 

Regina (on the application of VAA) v First-tier Tribunal (JRC)

 

DECISION

of Mr Justice Walker, Chamber President,

announced at the hearing at Harp House, London, on Wednesday 20 January 2010

 

The application for judicial review is granted. The decision of the First-tier Tribunal dated 8 December 2008 refusing an extension of time is quashed. The Applicant's request for an extension of time is remitted to the First-tier Tribunal for reconsideration in accordance with this decision.

 

REASONS

 

1.      The applicant, whom I shall call “Mr A”, challenges a decision of the First-tier Tribunal, Social Entitlement Chamber, concerning a claim made to the Criminal Injuries Compensation Authority (“the Authority”) for compensation for criminal injuries. The Authority deals with claims for such compensation by claimants injured in England, Scotland or Wales. Until 3 November 2008 appeals lay from the Authority to the Criminal Injuries Compensation Appeal Panel (“the Appeal Panel”). From 3 November 2008 the functions of the Appeal Panel were transferred to the First-tier Tribunal.

 

2.      The decision of the First-tier Tribunal in Mr A’s case was taken on 8 December 2008. It refused Mr A’s request for an extension of time to appeal from the Authority’s review decision rejecting Mr A’s claim.

 

3.      There is at present no right of appeal from decisions of the First-tier Tribunal concerning compensation for criminal injuries. The only way of challenge is by an application for Judicial Review, which in the circumstances of the present case must be brought in the Upper Tribunal. Mr A has correctly followed that procedure. Permission to apply for judicial review was refused on the papers, but was granted by me on 19 June 2009 after hearing Mr A’s submissions at an oral reconsideration. The Authority and the First-tier Tribunal have helpfully supplied information at my request. Neither of them sought to take part in the judicial review under r 31 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

4.      Mr A made a claim to the Authority. His claim was governed by the 2001 Scheme. A letter dated 19 September 2007 (“the review letter”) advised Mr A of a review decision made under that Scheme rejecting Mr A’s claim.

 

5.      The 2001 Scheme dealt at paragraph 61 onwards with appeals against review decisions. Paragraph 61 stated that a written notice of appeal must be received by the Appeal Panel within 90 days of the review decision.

 

6.      A notice of appeal was received by the Appeal Panel on 9 October 2008. Accompanying that notice of appeal was a covering letter dated 14 September 2008 [TF 21]. This covering letter sought to explain first, why it had taken so long to respond to the review letter, and second, the reasons for disagreeing with the review letter. Sections 1 and 2 of the notice of appeal, where various formal details are required to be set out, had not been completed [TF 36]. When this was pointed out in a letter from the Appeal Panel dated 13 October 2008 Mr A wrote on 3 November 2008 explaining that he had bad eyesight as a result of the criminal attacks which were the subject of the decision he sought to appeal. This letter and the completed form of appeal were both received on 4 November 2008. As indicated above, at that stage the functions of the Appeal Panel had been taken over by the First-tier Tribunal. On 6 November 2008 the Tribunal wrote to Mr A. The author of the letter appears to have been unaware that a revised appeal form had been received on 4 November 2008 – see the first paragraph of the letter of 6 November 2008 which refers only to the notice of appeal that had been received on 9 October. The letter of 6 November 2008 pointed out that the appeal had been received outside the 90 day time limit. It asked for an explanation so that the Tribunal could consider whether the time limit could be extended. No reference was made to the explanation already given in the covering letter of 14 September 2008.

 

7.      Mr A wrote to the Tribunal on 18 November 2008 setting out his explanation. The matter came before Tribunal Judge Alfred J Tyler (“the Tribunal Judge”) for consideration as to whether to exercise his discretion to extend time and admit the appeal. He declined to take this course. The material parts of his written reasons, as set out in a Decision Notice dated 8 December 2008, stated as follows:

 

6. … the Appellant has requested an extension of time and given reasons why the notice of appeal was not provided in time. The reasons are:

(a) he did not receive the review decision until 28 December 2007;

(b) he submitted the Notice of Appeal on 29 December 2007;

(c) when, by April 2008, he had received no response to the Notice of Appeal, he made inquiry and was told that the Notice was incomplete and it was sent back to him for completion;

(d) The incomplete form that was sent back to him was lost/damaged in the post;

(e) The fully completed Notice of Appeal was ultimately submitted under cover of a letter dated 14 September 2008, received by the Tribunal on 9 October 2008.

 

7. Under paragraph 27(4) of the rules, I am able to make a decision which disposes of proceedings without a hearing.

 

8. Taking into account the overriding objective of the Rules to deal with cases fairly and justly, as set out in paragraph 2 of the Rules, and in accordance with the power vested in me by paragraph 5(3)(a) of the Rules, I do not find that it is appropriate to admit this appeal for the following reasons:

 

· The Appellant’s chronology does not match the record on file;

· There is no record of contact from the Appellant in April 2008;

· The incomplete form was not received until 9 October 2008 when it was returned to the Appellant for completion;

· The completed form was received by the Tribunal on 4 November 2008;

· Even accepting the reasons for the original late submission of the Notice of Appeal in December 2007 there is no convincing reason for the delays thereafter.

 

9. The appeal is therefore not admitted.

 

Initial observations

8.      The decision of 8 December 2008 by the Tribunal Judge noted in paragraph 7 that paragraph 27(4) of the Rules (i.e. the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008) permitted him to make a decision which disposed of the proceedings without a hearing. The Tribunal Judge must have decided that it was appropriate to take a decision on the application without a hearing. The decision notice of 8 December 2008, however, does not state this. Moreover it gives no reasons for concluding that it was right to take the decision without a hearing. The Tribunal Judge presumably thought there was no good reason for a hearing. If so, in the circumstances of the present case, he ought to have explained why.

 

9.      At paragraph 8 of the decision the Tribunal Judge stated, “I do not find that it is appropriate to admit this appeal for the following reasons…”. The “following reasons” in paragraph 8 comprised 5 bullet points. Setting out reasons in the form of bullet points is unsatisfactory. A decision notice is a document which may need to be analysed by others. That analysis is hampered when the reader is faced with a series of unnumbered bullet points. For ease of reference, the appropriate course is to use numbered or lettered sub-paragraphs – as was done by the Tribunal Judge in paragraph 6 of the decision notice.

 

10.  The first 4 bullet points are concerned with a particular ground for refusing an extension of time. I shall call it “the mismatch ground.” It concerns discrepancies between Mr A’s account and “the record on file.” This ground is identified in the first bullet point, and particulars are given in the second third and fourth bullet points.

 

11.  As I shall explain below, it is not clear to me whether the fifth bullet point is intended to explain why the mismatch ground warranted refusal of an extension of time, or whether it is intended to provide a fallback ground which would warrant refusal even if the mismatch ground were wrong.

 

 

The Mismatch Ground: an overview

 

12.  The first bullet point asserts that Mr A’s “chronology does not match the record on file…”. Three respects in which his chronology differed from the record on file are then set out in the next three bullet points. The first discrepancy (“D1”) is that, “there is no record of contact from the appellant in April 2008.” (second bullet point). The second discrepancy (“D2”) is that “the incomplete form was not received until 9 October 2008 when it was returned to the appellant for completion” (third bullet point). The third discrepancy (“D3”) is that “the completed form was received by the Tribunal on 4 November 2008” (fourth bullet point). I shall examine each of D1, D2 and D3 in turn below.

 

13.  At this stage, however, I note that the Tribunal Judge does not expressly set out what consequence he draws from the discrepancies between Mr A’s account and “the record on file.” Why was it that discrepancies between Mr A’s chronology and the file made it inappropriate to grant an extension of time? The Tribunal Judge does not explain whether he thought that the file must be right and Mr A’s chronology must be wrong – and in that event, whether he thought Mr A must have been inventing his account of what occurred or had simply misremembered what happened. There is no apparent consideration by the Tribunal Judge of whether the file might be incomplete or inaccurate. There is no consideration by the Tribunal Judge of whether the explanation for the apparent discrepancies may be that he has misunderstood either the file or Mr A.

 

14.  The fifth bullet point does not expressly answer these questions. It says that “[e]ven accepting the original late submission of the Notice of Appeal in December 2007 there is no convincing reason for the delays thereafter.” None of the discrepancies concerns what happened in December 2007. Accordingly, one could read the fifth bullet point as saying that the Mismatch Ground is concerned only with the position after December 2007, and that the consequence drawn from the discrepancies after that date between Mr A’s account and “the record on file” is that there is no convincing reason for delays after December 2007. Even so, neither the fifth bullet point nor any of the others explain what it is about the discrepancies which leads to the conclusion that there is no convincing reason for the delays after December 2007. Nor do they explain why, if what Mr A was saying was that he submitted the Notice of Appeal to the Appeal Panel on 29 December 2007, and this is accepted and there is no criticism of delay to that point, precisely what problem there would have been with the notice of appeal thus submitted. As I explain below this was not in fact what Mr A was saying – but if the Tribunal Judge thought it was what Mr A was saying, then it is difficult to see why there was any good reason for refusing to treat such a submission of the notice of appeal on 29 December 2007 as valid and effective.

 

15.  I discuss the fifth bullet point further below, for two reasons. First, it may be that the fifth bullet point is intended as a fallback ground for refusing an extension, explaining the position if one were to conclude that (1) Mr A submitted a Notice of Appeal in December 2007, and (2) the course of events after that date was the course of events which the Tribunal Judge understood Mr A to have described. Second, the test in the fifth bullet point seems to be whether “convincing reason” was provided for relevant delay, and if so this would call for analysis.

 

 

D1: There is no record of contact from the appellant in April 2008.

 

16.  The Tribunal Judge had two accounts from Mr A of what happened so far as Mr A’s chronology was concerned. The first was Mr A’s letter of 14 September 2008. It began in this way:

… first of all I need to address the major reasons why it took so long [lateness] to respond your letter dated 19 September 2007. [emphasis added]…

 

17.  After giving an account explaining that the letter dated 19 September 2007 had only been received on 29 December that year, the letter of 14 September 2008 continued:

I immediately contacted your Glasgow Office and spoke to a lady called DONNA. She told me that she will put it in your system that the letter got lost in the post, she advised me to respond immediately, I obliged and sent the letter of appeal on the 29 ^th December 2007 to your Glasgow Office.

 

18.  Also in the Tribunal’s file was Mr A’s letter of 18 November 2008. It included the following:

The letter containing the review of my application dated 19^th Sept 2007 did not get to me because the letter got lost in the post. The letter was posted to another address referred to on page 1 and 2 of the letter dated 14^th Sept 2008.

The post-man mistakenly drop off the letter at No 202 Edington Road, and the occupant at No 202 told me he mistakenly opened the letter before realising the letter was addressed to 198 Edington Road, which is my address. I thank the man and asked for his name as well as phone number in case you need clarification, …

I immediately contacted your Glasgow Office and spoke to a lady called Donna, who told me that she would register the circumstances surrounding the lost letter in your system. She also advise me to respond immediately, which I obliged by sending the letter of appeal on the 29^th Dec. 2007 to your Glasgow Office.

By the middle of April 2007 [later corrected to “April 2008”] when I did not get any feedback regarding my appeal, I telephoned your Glasgow Office and spoke to a lady called Marie who told me to leave my phone number in order to verify and phone me within a couple of day, which she did. But she told me during previous telephone conversation that she realised afterward that the letter forwarded to me was incomplete and promised to send a comprehensive letter of review. Unfortunately, it got lost or damaged by postal services.

I enclose the sincere apology letter, which I got from the postal service as proof of reasons why me response to your letter was late. I also telephoned your office and spoke to a gentleman called Tommy who advice me to send my letter of appeal to TEAM 6 and that he would register it in your system that I contacted your office by telephone that the delay was from the postal services.

Basically, your authority can not visit the scene of the post-man who delivered the letter to a wrong address on me, and I made several contacts to your office through some of your staff, which I have referred to in this letter.”

 

19.  In response to my invitation in June 2009 the First-tier Tribunal has supplied a copy of its file, which until 3 November 2008 was the file of the Appeal Panel. There is indeed no record of contact between Mr A and the Appeal Panel in April 2008. The first occasion on which the Appeal Panel appears to have received any written communication from Mr A was, at the earliest, his letter dated 14 September 2008 – although even this does not appear to have been received until 9 October 2008. It seems likely, accordingly, that the file was created in late 2008. If, as the Tribunal Judge appears to have thought Mr A to be saying, there had been a telephone conversation between Mr A and somebody in the Appeal Panel office in April 2008, would one necessarily have expected this to reach the file? The Tribunal Judge does not appear to have considered that question. There is nothing in the file to suggest that anyone in the office had applied their mind to the identification of what, if any, record might have been made of a telephone conversation in April 2008, or where any such record might have been filed.

 

20.  There is nothing to suggest that the Tribunal Judge in this regard gave consideration to anything other than the file created by the Appeal Panel and updated by it and from 3 November 2008 onwards by the First-tier Tribunal. Plainly the Tribunal Judge thought that when Mr A said he “telephoned your Glasgow Office and spoke to a lady called Marie” Mr A was referring to the Glasgow Office of the Appeal Panel. If one reads Mr A’s letters of 14 September carefully, however, and gives consideration to the information available to Mr A in 2008, it seems to me clear that what Mr A was describing was a telephone conversation with the Authority, not the Appeal Panel. First, the letter of 14 September 2008 begins by saying that it seeks to address the major reasons “why it took so long… to respond your letter dated 19 September 2007.” (emphasis added). The letter dated 19 September 2007 was sent by the Authority, not the Appeal Panel. The letter of 14 September 2008 assumes that the Authority and the Appeal Panel are the same thing – an understandable error on the part of a layman. Similarly the letter of 18 November says in the 6^th paragraph, “Basically, your authority …”. This, too, makes it clear that Mr A did not distinguish between the Authority and the Appeal Panel. Finally, it is useful in this regard to consider the documentary material available to Mr A. The letter of 19 September 2007 contained nothing, in the body of the letter, to identify a telephone number for the Appeal Panel. The appeal form eventually completed by Mr A did not have a telephone number for the Appeal Panel. The letter of 19 September 2007 referred to “enclosed information” which explained how to appeal and the procedure involved in an appeal hearing. The Tribunal file did not contain any copy of that information. Further, Mr A himself had said that when he spoke to the lady called Marie in April 2008 she told him that “the letter” forwarded to him was incomplete. All of this suggests that Mr A may not have had a telephone number for the Appeal Panel.

 

21.  Thus as regards D1 I conclude that the Tribunal Judge simply misunderstood what Mr A was saying, and that the second bullet point provides no logical basis for querying Mr A’s account of events.

 

 

D2: Incomplete form not received until 9.10.08

 

22.  The Tribunal file suggests that the Tribunal Judge was right to conclude that the incomplete form was not received by the Panel until 9 October 2008. It seems implicit that the Tribunal Judge is contrasting this with his analysis of Mr A’s reasons why the Notice of Appeal was not provided in time. At paragraph 6(c) the Tribunal Judge describes Mr A as saying that in April 2008 he was told that the Notice of Appeal was incomplete, and it was sent back to him for completion. At paragraph 6(e) the Tribunal Judge describes Mr A as saying that the fully completed Notice of Appeal was ultimately submitted under cover of the letter dated 14 September 2008, received “by the Tribunal” on 9 October 2008.

 

23.  However, what Mr A said in the letter of 14 September 2008 about what happened in April was this:

By the middle of April … when I did not get any response to my appeal I phoned your Glasgow Office and spoke to a lady called MARIE. She told me to give her my phone number because she will have to check and will phone me within a couple of days which she did, but told me that the letter must have got lost in the post. During my conversation with her we both realised that the letter sent to me was incomplete and that she will sent me a comprehensive letter of review. Unfortunately it got lost and damaged.

I enclose the sincere apologies letter from the post office as prove for the reasons why my response to your letter was late. …

 

24.  Similarly in his letter of 18 November 2008 Mr A said this about what happened in April:

[Marie] promised to send a comprehensive letter of review. Unfortunately, it got lost or damaged by postal services.

I enclose the sincere apology letter, which I got from the postal service as proof of reasons why me response to your letter was late.

 

25.  The document from the Post Office which Mr A supplied with his letters said:

Dear Customer

I am sorry that the enclosed item, addressed to you, has been damaged whilst in our care. Although we do all we can to prevent such damage, it does occasionally occur. …

 

26.  It is plain from this material that Mr A was saying that in April he had been told by the lady called Marie that the material sent to him had been incomplete. It is difficult to find anything in the letters of 14 September and 18 November 2008 suggesting – as seems to be asserted in paragraph 6(c) of the Decision Notice - that Marie told him his Notice of Appeal had been received but was incomplete.

 

27.  Moreover, it is equally difficult to see that there is anything submitted by Mr A to suggest that he claimed – as asserted in paragraph 6(e) of the Decision Notice – that the fully completed Notice of Appeal was submitted under cover of his letter of 14 September 2008. On the contrary, the Tribunal Judge had in the file both a copy of the Appeal Panel’s letter of 13 October 2008 telling Mr A that what he had submitted was incomplete, and Mr A’s reply of 3 November 2008 apologising for not completing sections 1 and 2 and explaining that this was caused by “the effect of my bad eyesight, left eye blind and partial sight on the right eye…”

 

28.  Accordingly the third bullet point provides no logical basis for doubting Mr A’s account of events.

 

 

D3: Completed form received on 4.11.08

 

29.  The Tribunal Judge was right to state that the completed form was not received until 4 November 2008. For the reasons given in relation to discrepancy D2, there was nothing in Mr A’s account of events which was in any way inconsistent with this. Accordingly, the fourth bullet point offered no logical basis for doubting Mr A’s account of events.

 

 

The Mismatch ground: evaluation

 

30.  For the reasons given above, the suggested discrepancies between “the record on file” and Mr A’s account had no logical basis. The view taken by the Tribunal Judge that there were such discrepancies was an unreasonable view. Moreover, even if he had been right in thinking that what Mr A said did not correspond with “the record on file”, the Tribunal Judge appears to have made no attempt whatever to inquire into whether there might be any possible reason for such discrepancies. That failure to enquire could of itself justify the quashing of the relevant decision, for it is the duty of persons exercising discretionary power to take ‘reasonable steps to acquaint [themselves] with the relevant information’: see Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1065.

 

 

The fifth bullet point: an “unconvincing” account after December 2007

 

31.  As indicated above, it may be that the fifth bullet point is intended to provide a fallback ground for refusing an extension of time, assuming that what the Tribunal Judge understood to be Mr A’s account was an accurate account. If that were the premise, then I have considerable difficulty in understanding the reasoning. It focuses on what happened after December 2007, and thus assumes that Mr A had, as he explained, sent his “letter of appeal” in December 2007. While, for the reasons given above, I think it clear that Mr A sent his letter to the Authority rather than the Appeal Panel, the Tribunal Judge was proceeding on the basis that Mr A had been communicating with the Appeal Panel. If so, then the premise for the fallback reason is that Mr A had indeed sent his Notice of Appeal to the Appeal Panel in December 2007. I find it difficult to see how events thereafter could be such as to deprive Mr A of an extension of time to December 2007.

 

32.  Quite apart from this, however, the Tribunal Judge does not explain why Mr A’s account of events after December 2007 (even if he had correctly understood that account) provided “no convincing reason for the delays thereafter.”

 

33.  In fact Mr A’s account was of a failure to receive a response to a document he submitted at the end of December 2007, telephone conversations with a lady called “Marie” in April 2008, an explanation by Marie that the material sent to him had been incomplete and would be resent, that material being damaged in the post, with a letter from the Post Office, with a communication from the Post Office provided to support this assertion, followed by a telephone call to “your office” and a discussion with “a gentleman called Tommy” who advised that the letter of appeal should be sent to “Team 6”. All of this is in the context explained in Mr A’s letter of 3 November 2008: he has severe problems with his eyesight. This would no doubt make it difficult for him to read documents sent to him. It could also be expected to cause him difficulties when seeking to express himself in written documents. An important question when considering whether to grant an extension of time must be whether difficulties – of whatever kind – in coping with communications between the citizen and the state may explain what at first sight appears to be a failure to resolve things promptly. One might well ask, for example, why it was that a Notice of Appeal and covering letter dated 14 September 2008 was not received by the Appeal Panel until 9 October 2008? One possibility might well be that Mr A had sent this material to the Authority, which then passed it on to the Panel. The Tribunal file does not contain anything to suggest that the Tribunal Judge looked into that possibility.

 

34.  I expressed concern earlier that the test adopted in the fifth bullet point appears to be whether there was a “convincing reason for the delays.” This is despite the opening words of paragraph 8 of the Decision Notice referring to the over-riding objective. The essence of the task for the Tribunal Judge was to assess the seriousness of Mr A’s failure to comply with the time limit and whether it would accord with the over-riding objective to grant an extension of time.

 

 

The investigation by the Authority

 

35.  In accordance with the invitation in my directions of June 2009 the Authority conducted a prompt investigation. The results of that investigation were helpfully set out in a statement of Mr Alexander Turnbull dated 15 July 2009. The computer records of the Authority are not inconsistent with Mr A’s account and provide support for much of what Mr A described in his letters to the Tribunal.

 

 

Conclusion

 

36.  For the reasons given earlier the refusal to grant an extension of time was vitiated by a misunderstanding of Mr A’s letters, with a consequent failure to take relevant considerations into account, an assessment of the factual position which fell outside the range of reasonable assessments open to the decision maker, and a failure to comply with the duty to investigate. It is clear that if inquiry had been made of the Authority then the account given by Mr A would have been supported. It cannot in my view be said that even accepting Mr A’s account reconsideration is pointless. In those circumstances the only appropriate course is to quash the decision to refuse an extension of time.

 

37.  The consequence is that this matter must be remitted to the First-tier Tribunal so that a fresh decision can be taken on the basis of the material now available. It may well be that on the basis of that material the Tribunal will be minded to conclude that an extension of time should be granted, and if the Authority has no objection to that course, it would be unnecessary for Mr A to lodge further representations with the First-tier Tribunal. For that reason I have suggested to Mr A that before contacting the First-tier Tribunal he should wait for a fortnight to receive any communication that may be sent to him by the First-tier Tribunal. If he receives no such communication within a fortnight he should make contact with the First-tier Tribunal by writing to it at Tribunals Service - Criminal Injuries Compensation, 5th Floor, Fox Court, 14 Grays Inn Road, London, WC1X 8HN. If, on the material now available, the First-tier Tribunal is not minded to grant an extension of time, or the Authority objects to that course then I am confident that the First-tier Tribunal will be able to notify Mr A of further directions within a fortnight of receiving this decision.

 

38.  Mr A must understand that my decision does not mean that his application for an extension of time will necessarily succeed. That application is not for me to decide. It is for the First-tier Tribunal to decide, after a hearing if the Tribunal considers a hearing to be desirable, and in the light of all the information before the Tribunal.

 

 

(Signed on the original)

 

Mr Justice Walker

President of the Administrative Appeals Chamber

 

(Dated) 27 January 2010