IN THE UPPER TRIBUNAL	Case No.  JR/3406/2012
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The decision of the First-tier Tribunal dated 22 August 2011, striking out the claimant’s appeal to the First-tier Tribunal, is quashed and the case is remitted to the First-tier Tribunal for further consideration in the light of the reasons for this decision.

REASONS FOR DECISION

1.	This is an application, brought by the claimant with my permission, for judicial review of a decision of the First-tier Tribunal dated 22 August 2012, whereby it struck out the claimant’s appeal against a review decision of the Criminal Injuries Compensation Authority (“the Authority”) refusing an award of criminal injuries compensation.

2.	The claimant was assaulted on 29 June 2010 in a park near the hospital in which he was then an in-patient on a psychiatric ward.  He had been on 8-hour leave.  The assault involved him being stamped on and kicked in the head several times.  He claimed criminal injuries compensation on a form completed on 10 February 2010, identifying his injuries as “facial cuts x 2; depreciation of mental health” and said that he had scars under both eyes.  The Authority obtained a report from a specialist registrar in the emergency department at the hospital who stated that it had been recorded that the claimant had attended the department on the day of the injury, when he had not waited to be assessed, and on the following day and that he had suffered from bruising below both eyes that would heal without lasting scarring.  No report was sought from the psychiatric ward.  The Authority initially refused an award of criminal injuries compensation on 27 June 2011 on the sole ground that the claimant’s injuries were such that he did not qualify for an award on even the lowest level of the tariff set out in the Criminal Injuries Compensation Scheme 2008.  

3.	The lowest tariff award is £1,000 and such an award is made in respect of “multiple minor injuries”.  Note 12 provides –

“Minor multiple physical injuries will qualify for compensation only where the applicant has sustained at least 3 separate physical injuries of the type illustrated below, at least one of which must still have had significant residual effects 6 weeks after the incident. The injuries must also have necessitated at least 2 visits to or by a medical practitioner within that 6-week period. Examples of qualifying injuries are: 
(a) grazing, cuts, lacerations (no permanent scarring) 
(b) severe and widespread bruising 
(c) severe soft tissue injury (no permanent disability) 
(d) black eye(s) 
(e) bloody nose 
(f ) hair pulled from scalp 
(g) loss of fingernail”

Facial scarring resulting in minor disfigurement attracts an award of £1,500.  Mental illness or temporary mental anxiety attracts awards ranging from £1,000 to £27,000 depending on its severity.

4.	The Authority’s reasons for rejecting the claim were that none of the claimant’s injuries had lasted for six weeks, that the claimant had received treatment only once and that, although the claimant had provided a photograph showing scars, they could not be attributed to the relevant incident in the light of the medical opinion that the injuries seen in the emergency department would have healed without lasting scarring.  On a form received by the Authority on 4 July 2011, the claimant sought a review on the ground that his eyes had been checked and nursed on the psychiatric ward.  However, he did not refer to having suffered any worsening of his mental health as a result of the assault.  

5.	On 14 February 2012, it was decided that the claimant was not entitled to an award on two grounds.  The first was that the claimant’s character, as shown by his convictions in 2011 for criminal offences, made it inappropriate that any award be made in the light of paragraph 13(e) of the Scheme and the second was a reiteration of the original ground, it being effectively said that the claimant’s ground for review was inconsistent with the medical report obtained from the hospital.  

6.	Paragraphs 13(e) and 14(3) of the Scheme provide –

“13. (1) A claims officer may withhold or reduce an award where he or she considers that: 
    (a) …; or 
    (b) …; or 
    (c) …; or 
    (d) …; or 
    (e) 	the applicant’s character as shown by his or her criminal convictions (excluding convictions spent under the Rehabilitation of Offenders Act 1974 at the date of application or death) or by evidence available to the claims officer makes it inappropriate that a full award or any award at all be made. 
  (2) ….

14. (1) …. 
  (2) …. 
  (3) In considering the issue of character under paragraph 13(1)(e), a claims officer must withhold or reduce an award to reflect unspent criminal convictions unless he or she considers that there are exceptional reasons not to do so.”

7.	The claimant appealed on a form dated 2 March 2012.  The first ground of appeal is not material but the second was –

“My character as highlighted with the criminal convictions all happened and was affected by the transitional periods I underwent to and fro lengthy hospital admissions between 2009-2011 and back to the community and this particular attack and readjusting from hospital to community trying to get stability and back to normality, and the attack greatly affected my character to date.” 

8.	However, on 20 June 2012 and seemingly on his own initiative, a judge issued a directions notice, giving the claimant an opportunity to say why the appeal should not be struck out under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) (“the Rules”) on the ground that it had no reasonable prospect of success.  The judge said –

“11.	The Appellant has not challenged the accuracy of these convictions.  It is evident that they are numerous and serious.  He has convictions for 5 offences, all from 2011.  There is one offence in relation to drug possession; the other offences are for assault, harassment and threatening behaviour.  These offences have caused members of the public to be harmed, or put at fear of harm, and all the offences have cost the public purse in relation to the cost of police and the courts and probation services.

12.	In summary, the grounds relied on by the appellant in support of his appeal relating to the eligibility issue under paragraph 13(1)(e) and 14(3) of the Scheme are that the after-effects of the assault in June 2010 caused a change in personality and, but for the assault, the offences would not have been committed.  The Appellant contends that these are ‘exceptional circumstances’ that apply and which should be taken into account in the decision to withhold or reduce the award.

13.	With regard to any ‘exceptional circumstances’ that have to be found to exist before unspent criminal convictions do not have to be reflected in the decision under paragraph 13(1)(e), I do not consider that on the current evidence and information from and relating to the appellant there are any circumstances that can reasonably be termed ‘exceptional’.  I would have expected the appellant to have provided evidence from his medical advisors or those who represented him at court in relation to this alleged ‘change of personality’.

14.	I do not consider that the Appellant’s appeal has any reasonable prospects of success for the following reasons:-
•	The convictions are numerous and serious;
•	The Appellant’s unspent convictions result in 16 penalty points; the normal consequence of 10 penalty points is a 100% reduction from any award of compensation that would otherwise be payable under the Scheme;
•	The grounds relied on by the Appellant for mitigating the normal consequences of 16 penalty points are not relevant because they are not supported by evidence that the Appellant could reasonably have been expected to provide in support of his appeal (as suggested above)
•	I consider that there is no prospect of a Tribunal deciding that the Appellant is eligible for a full or reduced award of compensation.”

Accordingly, the claimant was given three weeks to make representations in relation to the proposed striking out.  The notice was sent to the claimant on 28 June 2012.

9.	On 3 July 2012, First-tier Tribunal received a letter from the claimant in which he said –

“As indicated, you are looking to close the case.

But I would like to appeal for you to truly explore the facts I gave you on my appeal letter 02-03011 by gaining access to my history during the dates mentioned and the crimes caused by myself.”

He reiterated that his character had changed.

10.	On 22 August 2012, the appeal was struck out by a judge who was not the one who had issued the earlier directions notice.  She referred to the directions notice having been sent to the claimant and said –

6.	The Appellant has not replied.  I consider that the prospects of the Appellant being made an award of compensation in these proceedings are virtually non-existent, for the following reason, namely that the reasons given in the Directions Notice for there being no reasonable prospects of the Appellant’s case succeeding remain fully valid.

7.	In those circumstances, the decision of the Respondent’s claims officer in the review decision is correct.

8.	Whilst I have sympathy for the Appellant, I have no alternative but to strike out the appeal in accordance with paragraph 8(3)(c) of the Rules.”

11.	The claimant then applied on 3 October 2012 for permission to apply for judicial review, referring to the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and, possibly more pertinently, including a copy of a “Care Programme Approach Template” (the pages of which have been mixed up by the Upper Tribunal) and a letter from his care co-ordinator dated 17 August 2012, which stated, inter alia, that the claimant’s mental state had been stable for over 18 months.  I directed an oral hearing of the application and subsequently granted permission on 18 February 2013, saying –

“The effect of striking a case out under rule 8(3)(c) is to deprive a person of an oral hearing and it should therefore be used to weed out hopeless cases but not cases that are merely weak.  Moreover, it is important that it is not used in a way that prejudices those better at expressing themselves orally than in writing and in particular so that those with mental health problems are not prejudiced.

In his claim form for criminal injuries compensation, the Applicant had referred not only to the facial cuts but also to his mental health.  I can understand why the Authority did not follow that up, given his other answers, but it is arguable that, once he had appealed, the First-tier Tribunal should not have struck his appeal out without checking whether the Applicant really did intend to make a claim in respect of a deterioration in his mental health and that merely giving the Applicant a general opportunity to show cause why his appeal should not be struck out was not adequate.

It is now clear that the Applicant has been diagnosed as suffering from Schizoaffective Disorder, Alcohol Dependency and Cannabis Misuse and, while those are conditions that pre-date the relevant assault on the Applicant, he told me that his case is that the assault caused a considerable deterioration in his mental health.  His condition was, he said, stable before the assault but not after it.  He also said that the injury to one of his eyes has had a lasting effect, albeit made more serious by a subsequent injury.  Moreover, the convictions recorded against him post-date the assault and he attributes them partly to the deterioration in his mental health.  Arguably, these issues should have been investigated.  Had there been an oral hearing before the First-tier Tribunal, it would have picked up the possible relevance of these issues and could properly have decided whether they needed further investigation or whether it could determine the appeal one way or the other on the basis of the claimant’s oral evidence.  As it was, it made no allusion to the claimant’s mental health.”

12.	In a very thorough, helpful and fair written submission, the Authority resists the application for judicial review.  It does not require an oral hearing but, in the light of the claimant’s mental health issues, would not object to there being one in the particular circumstances of the case.  The claimant does not ask for a hearing either but he too says that he would not object to one.  I have decided that I can properly determine the case without a hearing, for reasons I will explain below.

13.	The Authority first submits that the First-tier Tribunal took sufficient account of the claimant’s submissions concerning his mental health and gave him sufficient opportunity to provide relevant evidence.  It is submitted that the approach taken was proportionate and gave sufficient weight to the complexity of the issues in circumstances where there were clear and significant issues relating to eligibility and that the decision to strike the claimant’s case out cannot be said to be “Wednesbury unreasonable” (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223 at 233-234).

14.	It is conceded that there appears to have been a procedural irregularity because it appears that the judge who struck the case out did so without having had placed before her the claimant’s representations received on 3 July 2012.  However, it is submitted that judicial review should nonetheless be refused because the procedural irregularity was technical in that the representations did not contain anything new, and were not accompanied by further evidence, so that they could have made no difference to the outcome.  Reference is made to the judgment of Stocker J in R. v St Edmundsbury Borough Council, ex parte Investors in Industry Commercial Properties Ltd [1985] 1 W.L.R. 1168 at 1185-1186.

15.	In the alternative, it is argued that, even if the decision was wrong in law, judicial review should be refused as a matter of discretion because it is clear that the First-tier Tribunal would make the same decision if the case were remitted and because there is an alternative remedy.  In relation to the inevitability of the same outcome being reached, reference is made to the judgment of Sir John Donaldson MR in R. v Monopolies and Mergers Commission, ex parte Argyle Group PLC [1986] 1 W.L.R. 763 at 774 and it is submitted that the new evidence provided by the claimant on his application for judicial review undermines the claimant’s case rather than supporting it, for a number of reasons including the fact that it shows that he was abusing cannabis before the assault and that he had threatened to kill his former partner (who seems to have been the victim of the harassment offence in 2011) in 2008, that his mental heath appears to have been stable during 2011 when the offences were committed and that the assault on him on 29 June 2010 does not appear to have been regarded as sufficiently significant to be mentioned anywhere in the Care Programme Approach Template.  The suggested alternative remedy is an application to the First-tier Tribunal to set aside the decision of 22 August 2012 under rule 37 of the Rules on the ground that the First-tier Tribunal did not have before it the claimant’s letter received on 3 July 2012.

16.	There is a great deal of force in each of those submissions but, in my judgment, it is extremely important to have regard in this case to the significance of tribunals having greater powers to determine cases without hearings than do the courts and also to the limits of those powers.

17.	In Labrouche v Frey [2012] EWCA Civ 881; [2012] 1 W.L.R. 881, the Court of Appeal held that the High Court had been wrong to refuse to hear oral argument in support of an application to strike out a claim, whereas rule 27(3) of the Rules expressly provides that the First-tier Tribunal “may in any event dispose of proceedings without a hearing under rule 8 (striking out a party’s case)”.

18.	Rule 27(3) is, on the other hand, an exception to the general principle expressed in rule 27(1) that a party has a right to a hearing – which means “an oral hearing” (see rule 1(3)) – before any decision is made that disposes of proceedings, although he or she may waive the right.  Care must be taken that the exercise of the power to strike a case out without a hearing does not undermine the general right to a hearing of an appeal.  This is particularly so where what is contemplated is that an appeal should be struck out under rule 8(3)(c) on the ground that “the Tribunal considers there is no reasonable prospect of the appellant’s case, or part of it, succeeding”.  Striking a case out on those grounds amounts to a summary determination of at least one of the very issues that would otherwise have been determined in the substantive appeal.

19.	There can be little objection to striking a case out under rule 8(3)(c) without a hearing where the issue is a straightforward point of law arising on uncontentious facts, since an appeal on a point of law or judicial review provides an adequate remedy in the event of a tribunal being wrong.  However, striking a case out under an equivalent to rule 8(3)(c) of these Rules has been held not to be appropriate where there are unresolved issues of fact requiring the hearing of evidence (AW v Information Commissioner [2013] UKUT (AAC)).  In my view, it is also not appropriate where there is a discretion to be exercised upon which oral argument might be appropriate.  A hearing is guaranteed both so that oral evidence may be given and so that there may be oral argument.  This is particularly important where claimants are unrepresented.  Many litigants in person are better at expressing themselves orally than in writing and, as a class, they are notoriously bad at understanding what evidence is required in order to support their cases and how it should be presented or obtained.  Moreover, decisions on fact or as to the exercise of a discretion cannot usually be challenged where an appeal lies only on a point of law or the only method of challenge is judicial review.

20.	In the present case, it seems to me that the significance of the claimant’s letter received on 3 July 2012 lay not in the information contained in it, which as the Authority submits was not new, but in his plea that the First-tier Tribunal “explore the facts … by gaining access to my history”.  Paragraph 13 of the directions notice issued on 20 June 2012 had left it be inferred by the claimant that he should provide medical evidence himself.  It seems to me that, had the judge seen that letter on 22 August 2012, she might have considered whether it was really appropriate to expect the claimant to provide medical evidence or whether the First-tier Tribunal or the Authority should obtain it themselves, which would enable them to do so in terms that would ensure that it addressed the relevant issues (as the Authority would presumably have done had the issue been flagged up more clearly at an earlier stage) or whether the case should not be struck out and should simply be allowed to go to a hearing at which the First-tier Tribunal would be able to hear from the claimant and decide whether it was actually necessary to obtain any further medical evidence.  Even if she had considered that the claimant should provide the evidence, the judge might have thought it appropriate to make that implicit and given further guidance to the claimant as to from where it might have been obtained.

21.	I am therefore satisfied that there was a material irregularity in the proceedings before the First-tier Tribunal because the letter received on 3 July 2012 was not before the judge when she made her decision on 22 August 2012.  But I am also satisfied that the proceedings were more fundamentally flawed because the effect of the directions notice dated 20 June 2012 was to force the claimant to argue his case in writing when he was entitled to an oral hearing.  On the evidence before it, the decision may well have been reasonable, but that is to overlook the fact that there would at least have been additional oral evidence from the claimant had there been an oral hearing.

22.	I also observe that the judge striking out the case said that “the prospects of the Appellant being made an award of compensation in these proceedings are virtually non-existent” (my emphasis), which suggests that she considered that an oral hearing or further evidence might have made a difference, even though she also said that she had “no alternative” to striking the case out (which was certainly not legally accurate given the word “may” in rule 8(3) as opposed to “must” in rule 8(2)).  In those circumstances the case should not have been struck out or, at least, should not have been struck out without a hearing.  (In the Social Entitlement Chamber of the First-tier Tribunal, where substantive hearings are usually very short, there can be few occasions when there is any point in striking a case out under rule 8(3)(c) at a hearing rather than proceeding to hear the substantive appeal, but in other Chambers, where full hearings can go on for days, there may well be a practical purpose in considering an application under section 8(3)(c) at a hearing.)

23.	I could, as the Authority submits, go on to consider whether judicial review should be refused on the ground that quashing the decision would only be a precursor to the First-tier Tribunal making the same decision in the light of the current evidence.  However, as the Authority appears to accept, fairness to the claimant would require me to hold an oral hearing if I were to consider that issue.  Were I holding an oral hearing anyway, there would be no difficulty.  However, it seems to me to be more sensible to determine the case at this level on the papers particularly as, if I were to decide the case in the claimant’s favour, there would have to be another hearing before the First-tier Tribunal in any event.  What the claimant really needs is an oral hearing before the First-tier Tribunal rather than before the Upper Tribunal.  This may be one example of how the Upper Tribunal’s greater ability to determine cases on the papers may lead it to approach some judicial review cases in a slightly different way from that taken by the courts.

24.	As to the alternative remedy, it might have been appropriate for me to have taken the point instead of granting permission to apply for judicial review but, at this stage, it will be a lot simpler for everyone if I grant judicial review rather than requiring the claimant to make another procedural application to the First-tier Tribunal.

25.	I therefore grant judicial review and make a quashing order to quash the decision of 22 August 2012.  The case must be remitted to the First-tier Tribunal.

26.	I stress that the claimant should not assume that because he has been successful before the Upper Tribunal he will succeed before the First-tier Tribunal.  The Authority has a powerful case against him.  However, in relation to paragraph 11 of the directions notice of 20 June 2012, I would point out that on the information available the public disorder offences might have been for insulting words, rather than threatening behaviour, and that the sentences imposed were barely nominal (being one day’s detention in the court house on one occasion and there being no separate penalty in relation to the offence that seems to have arisen out of the same incident as the assault) although they no doubt did cause some cost to the public purse and at least some distress to someone.  Also, only the first two pages of the printout from the police national computer appear to have been reproduced and so the sentence imposed for the harassment offence is not revealed on it.  However, it appears from the Care Programme Approach Template that the sentence of imprisonment listed in the Authority’s schedule may have been suspended (although I appreciate that the Authority’s penalty point calculation does not draw a distinction between suspended and immediate terms of imprisonment).

Mark Rowland
12 July 2013