R (KS) v First-Tier Tribunal and Criminal Injuries Compensation Authority [2012] UKUT 281 (AAC) (19 July 2012)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

The decision of the First-tier Tribunal that was made on 6 January 2012 under reference X/05/226213 is quashed: section 15(1)(c) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS:

A. The matter is remitted to the tribunal with the following directions under section 17(1)(a) of the Tribunals, Courts and Enforcement Act 2007.

B. The tribunal must consider whether to admit Mrs S’s appeal in accordance with my analysis of the relevant law in my reasons below. In doing so, the tribunal will have to decide whether or not to hold an oral hearing.

Reasons for Decision

A. Introduction

1. Mrs S applied to the Criminal Injuries Compensation Authority for compensation in respect of injuries arising from an assault on 11 August 2004. She received compensation of £1875 for minor facial disfigurement and minor scarring to her lower limbs. She applied for a review, arguing that she had post traumatic stress disorder. The Authority refused to review on the ground that she had not provided evidence from a psychiatrist or psychologist. Its letter notifying her of its decision was dated 24 August 2010. She had a right of appeal against that decision, but she did not lodge her appeal with the First-tier Tribunal until October 2011. The First-tier Tribunal refused to admit her appeal. I gave her permission to apply for judicial review. The tribunal has not taken any part in the proceedings. The Authority, as interested party, has responded contesting the application through its solicitor, Michael Hanlon.

B. The First-tier Tribunal rules

2. The relevant rules are the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685.

3. Rule 22(2)(b) provides that an appellant has 90 days in which to lodge a criminal injuries compensation appeal:

22 Cases in which the notice of appeal is to be sent to the Tribunal

…

(2) An appellant must start proceedings by sending or delivering a notice of appeal to the Tribunal so that it is received—

…

(b) in criminal injuries compensation cases, within 90 days after the date of the decision being challenged.

4. Rules 22(6) provides for a notice that is given late:

(6) If the appellant provides the notice of appeal to the Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 5(3)(a) (power to extend time)—

(a) the notice of appeal must include a request for an extension of time and the reason why the notice of appeal was not provided in time; and

(b) unless the Tribunal extends time for the notice of appeal under rule 5(3)(a) (power to extend time) the Tribunal must not admit the notice of appeal.

5. Rule 5(3)(a) allows the tribunal to extend the time for lodging an appeal:

5 Case management powers

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

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

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

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

Unlike in some cases (rule 23(5) and (8)), there is no absolute time limit on lodging an appeal in a criminal injuries compensation case.

6. The power in rule 5(3)(a) is subject to the overriding objective set out in rule 2:

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

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

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

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

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

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

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

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

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must—

(a) help the Tribunal to further the overriding objective; and

(b) co-operate with the Tribunal generally.

C. The Notice of Appeal to the First-tier Tribunal

7. Section 4 of this form is headed Application for an extension of time. The Section reads:

In exceptional circumstances there may be good reasons why you can not lodge this Notice of Appeal within 90 days from the date of the Authority’s Review decision letter.

· Application for an extension of time within 90 days from the date of the Authority’s Review Decision letter.

You may apply for an extension of time to lodge your appeal by writing to the address at the end of this form stating why you need an extension and for how long. You must do this without delay and in any event before the 90 days has passed.

· Application for an extension of time after the 90 day time limit has passed

If your form will arrive more than 90 days after the date of the Authority’s Review Decision letter or any extended date granted by the Tribunal you must apply for an extension of time on this form.

The Tribunal will consider the reasons you have given. If an extension is not granted, your appeal will not be admitted.

There is then a box for an appellant to ‘give reasons why your appeal was not lodged within 90 days.’ Mrs S wrote:

I knew the decision was wrong which was upsetting at the time but did not know the right route to take to get the decision changed. Mainly because I knew already the information provided was satisfactory to prove PTSD. Not sure how to get a decision changed that went against your own guidelines. Also at the time I was suffering from regular panic attacks and my contact with CICA was affecting my health becoming obsessed with ringing. Having to go over what happened was affecting my mental health.

8. The judge fairly summarised those reasons:

The reasons are: (a) that she felt initially that to pursue and appeal would make her illness worse; (b) that she needed time to allow her mental state to improve; (c) that she did not know the right route through which to pursue her appeal.

D. The First-tier Tribunal’s decision

9. The judge’s decision falls into three parts. First, he set out the history of the case and the relevant provisions in the tribunal’s rules of procedure. Second, he explained why he was not holding an oral hearing. Third, he explained why he had refused to admit the appeal:

Taking into account the overriding objective of the Rules to deal with cases fairly and justly, as set out in Rule 2, and in accordance with the power vested in me by Rule 5(3)(a), I do not find that it is appropriate to extend the time limit for the receipt of the Notice of Appeal for the following reasons:

(a) the Appellant was fully advised in the review letter from the Respondents how her appeal could be pursued and the relevant forms were provided;

(b) the Appellant has provided no medical evidence to show that she was prevented, by mental illness, from pursuing her appeal earlier and I doubt that such evidence would in any event be forthcoming;

E. The correct approach to a late appeal

10. The judge’s approach to Mrs S’s appeal was fundamentally flawed. It is difficulty to place all the blame on the judge, as his error appears to reflect the institutional view of the First-tier Tribunal centrally.

11. The correct approach is this. Mrs S lodged her appeal outside the 90 days allowed by rule 22(2)(b). The tribunal had power to extend that time under rule 5(3)(a). The power is unfettered: R (CD) v First-tier Tribunal (CIC) [2011] AACR 1 at [26]. As such, it has to be exercised judicially and in accordance with the overriding objective in rule 2. Within that framework, the tribunal is required to take account of any factor that is rationally related to the proper judicial exercise of the power to extend time. Those factors were conveniently classified in relation to permission to appeal by McCowan LJ in Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449 at 450:

The matters which this court takes into account in deciding whether to grant an extension of time are first, the length of the delay; secondly, the reasons for the delay; thirdly, the chances of the appeal succeeding if the application is granted; and fourthly the degree of prejudice to the respondent if the application is granted.

It may be that other factors have to be taken into account under the overriding objective. The impact on other users of the tribunal system may be an example. The merits are relevant to extending time even if (as in criminal injuries compensation) the appeal lies of right and without permission: R (Birmingham City Council) v Crown Court at Birmingham [2010] 1 WLR 1287 at [32].

12. The judge dealt only with the factors relevant to the cause of the delay. This was a fundamental flaw. He mentioned the length of the delay in his first paragraph, but did not analyse its significance. And he did not mention the merits at all. There were probably no significant consequences for either the Authority or the tribunal system as a whole if the appeal were admitted.

13. It is true that Mrs S only mentioned the reasons why she had not challenged the decision sooner. But that was because of the question she was asked on the Notice of Appeal form, which limited her to the reasons for delay. She was not invited to make any comments on any other relevant factor. The problem was then compounded by the judge’s decision not to hold an oral hearing. That deprived Mrs S of a chance to refer to other matters. The judge should have taken that into account when deciding whether to hold an oral hearing. Even if the judge had nonetheless decided not to hold an oral hearing, he would have been under a particular duty, given the terms of the question on the form, to take account of any factor that might be relevant. So far as the merits are concerned, he had the documents relevant to Mrs S’s application and award before him as well as her grounds of appeal.

14. As I have said, I do not blame the judge entirely for what has happened in this case. He was certainly aware of the relevant rules, which he cited. But he failed to understand what was involved in applying those rules. The question on the form was too restricted. He failed to realise the significance of that and failed to use his case management powers to remedy it either by directing an oral hearing or by issuing a direction explaining what other information was relevant. He thereby, perhaps without realising it, aligned himself with what appears to be an institutional view within the First-tier Tribunal. This is how the tribunal explains the power to extend time on its website:

Extending the 90 day time limit

In exceptional circumstances there may be good reasons why you cannot send your Notice of Appeal within the 90 day time limit. We may consider an extension to the 90 day limit if:

· it is based on good reasons, and

· it would be fair and just to do so

Example: If you are waiting for further medical reports that you must see before deciding whether or not to make an appeal then we may consider granting an extension whilst you wait for the documents to come to you.

15. I suspect that this approach is a hangover from the days before the First-tier Tribunal came into existence on 3 November 2008. The Criminal Injuries Compensation Scheme 2001 provided for an appeal against a review decision. The appeal had to be lodged within 90 days (paragraph 61). Paragraph 62 dealt with late appeals:

A member of staff of the Panel may, in exceptional circumstances, waive the time limit in the preceding paragraph where he considers that:

(a) any extension request by the appellant and received within the 90 days is based on good reasons; and

(b) it would be in the interests of justice to do so.

The language used by the tribunal on its website and Notice of Appeal form is remarkably similar to that. It is, though, more restrictive, as paragraph 62 was not by its terms limited to good reasons for delay.

F. The Authority’s response

16. I am grateful to Mr Hanlon for his detailed response to my grant of permission to apply for judicial review. I had not, at that stage, realised how fundamentally flawed the tribunal’s approach had been. I only did so because of Mr Hanlon’s reference to the terms of the tribunal’s website.

G. The refusal to hold an oral hearing

17. In giving permission to apply for judicial review, I commented on the judge’s reasons for refusing to hold an oral hearing:

I have seen a First-tier Tribunal decision in very similar terms before. I am sure that paragraph 7 in particular was used in that other case. I notice that in Mansur v Turkey [1995] Series A No.319-B, the European Court of Human Rights took account of the fact that reasons were in stereotyped form in deciding that there had been a breach of the European Convention on Human Rights.

Mr Hanlon has responded that Mansur is distinguishable on the ground that it concerned a series of decisions without individualised reasons whereas this case ‘is concerned with a single decision which fully sets out the material facts and provides considered reasons, by reference to those facts, for the refusal to extend the time limit.’

18. I accept that Mansur is distinguishable. The circumstances were very different from this case. I do not accept, though, that the judge gave considered reasons for refusing to hold an oral hearing. The point I was trying to make was that I had seen those same reasons used in another case in the same form. That factor, together with the very generalised nature of the reasons, suggests to me that these may be standard form. It is efficient for judges to have standard statements that they use as required. But they need to adapt or add to those statements in order to deal with the particular circumstances of the individual case.

H. What happens now?

19. The First-tier Tribunal will now reconsider Mrs S’s application to extend time for appealing against the Authority’s decision. In order to do so, it will have to decide whether or not it is appropriate to hold an oral hearing. Mrs S has, by this decision, notice of the sort of factors that the tribunal will take into account. It will, therefore, not be necessary in this case for the tribunal to remedy the deficiencies in section 4 of its Notice of Appeal form.

Signed on original
on 19 July 2012

Edward Jacobs
Upper Tribunal Judge

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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> R (KS) v First-Tier Tribunal and Criminal Injuries Compensation Authority [2012] UKUT 281 (AAC) (19 July 2012) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2012/281.html Cite as: [2012] UKUT 281 (AAC), [2013] AACR 9

Upper Tribunal (Administrative Appeals Chamber)