IN THE UPPER TRIBUNAL	Case No.  JR/3279/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Attendances:

The Applicant appeared in person.

The Respondent neither appeared nor was represented.

The Interested Party was represented by Mr Richard Cole of Counsel, instructed by the Legal Advisor to the Criminal Injuries Compensation Authority

Decision:  This application for judicial review succeeds.  A quashing order is made in respect of the decision of the First-tier Tribunal dated 22 May 2013 and the case is remitted to the First-tier Tribunal, which is directed to reconsider it in the light of the reasons below.

REASONS FOR DECISION

1.	This is an application for judicial review brought with permission granted by Upper Tribunal Judge Lloyd-Davies, in which the Applicant seeks a quashing order in respect of a decision of the First-tier Tribunal dated 22 May 2013, whereby it confirmed a decision of the Interested party, the Criminal Injuries Compensation Authority, that the Applicant was entitled to an award of £2,000 under the Criminal Injuries Compensation Scheme 2008 in respect of sexual assaults while he was a child but was not entitled to an award in respect of a disabling mental illness.

2.	The Applicant suffered sexual abuse as a child.  He subsequently made a claim for criminal injuries compensation under the 2008 Scheme.  Note 5 to the 2008 Scheme provides that: “When a person is a victim of a sexual offence and also suffers a mental injury, the applicant will be entitled only to whichever is the higher of the two tariff amounts”.  It is not in dispute that £2,000 is the right tariff award for the sexual assaults that the Applicant suffered if he was not entitled to a higher award in respect of a mental injury but he submitted that he had suffered a mental injury justifying a higher award.  The Authority did not accept that submission, either initially or on review, and the Applicant appealed to the First-tier Tribunal who directed the Authority to obtain a report from a psychiatrist or clinical psychologist.  This was done because the Applicant’s appeal was supported by evidence from a consultant psychologist but the Scheme requires a disabling mental illness to have been disagnosed by a psychiatrist or clinical psychologist (see the terms of the tariff and note 10 – set out below).  

3.	A report was duly prepared by Dr Paul Dedman MB BCh FRCPsych MRCGP, a consultant psychiatrist.  Paragraph 1 of his opinion was –

“1.	As a result of the 2 index incidents of sexual abuse, the claimant has developed an abnormal sexuality based on sadomasochism.  He has been unable to sustain any long-term relationship.  His condition, however, cannot be considered a disabling mental illness.  It may be classified under ICD 10 as ‘sadomasochism’ (F65.5) as a Disorder of Sexual Preference.  It is not, however, a global mental illness as such and only affects sexual functioning and the formation of relationships.”

4.	In the light of that report, the First-tier Tribunal dismissed the Applicant’s appeal.

5.	At the hearing before the First-tier Tribunal, the Applicant raised various objections to the report and asked for an adjournment, which the First-tier Tribunal refused.  In its statement of reasons dated 1 July 2013, in which it had earlier set out the passage from Dr Dedman’s report that I have set out above save that it omitted the ICD-10 classification, it said:

“15.	…  The Tribunal refused to adjourn the hearing for the purpose of obtaining a second opinion, since Dr Dedman’s evidence was clear cut in saying that the Appellant was not suffering from a disabling mental illness.  The Tribunal found it to be professional and impartial and relied on it.

16.	The Tribunal found that even if the Appellant’s Disorder of Sexual Preference was to be viewed as a mental illness, it was not disabling.  The effects were said to be on sexual function and on the formation of relationships.  The Appellant told Dr Dedman and others that he had been unable to sustain any long term relationship but had not given any evidence to the Tribunal to support his assertion in this respect.  He made no complaint about any effect on his sexual function.  The Tribunal found no evidence of disability.

17.	The Tribunal adjourned briefly to consider a suggestion that it may be possible to make an award for a “medically recognised illness/condition”.  The Tribunal noted however that this category specifically excludes mental illness.  The Tribunal found that, whilst it had been diagnosed that the appellant did not suffer from a disabling mental illness, the illness or condition of Disorder from which he did suffer was a mental illness in this context.  Such an award could not therefore be made.”

6.	In these proceedings, the Applicant has reiterated his objections to Dr Dedman’s report.  However, not only am I satisfied that the First-tier Tribunal did not err in rejecting those objections, but I also consider that the report is in fact favourable to the Applicant.

7.	It is true that Dr Dedman said that the Applicant was not suffering from a disabling mental illness, but he appears to have taken that view because the applicant was merely suffering from a disorder of sexual preference and not from a global mental illness.  That, however, is not the test relevant to the 2008 Scheme and, even if it were, the First-tier Tribunal’s view that the Applicant was entitled to an award under neither of the headings “medically recognised illness/condition – not mental illness” or “mental illness or temporary mental anxiety” appears unsustainable.  

8.	So far as is relevant, the Scheme tariff is as follows –

Description of injury	Level	Standard amount £	
Medically recognised illness/condition - not mental illness

Moderately disabling disorder where the symptoms and disability persist for more than 6 weeks from the incident/date of onset			
	- lasting 6 to 13 weeks		1	1,000	
	- lasting up to 28 weeks		5	2,000	
	- lasting over 28 weeks				
		- not permanent	7	3,300	
		- permanent	12	8,200	
					
Seriously disabling disorder where the symptoms and disability persist for more than 6 weeks from the incident/date of onset			
	- lasting 6 to 13 weeks		5	2,000	
	- lasting up to 28 weeks		9	4,400	
	- lasting over 28 weeks				
		- not permanent	12	8,200	
		- permanent	17	22,000	
					
Mental illness and temporary mental anxiety
Notes:
8. Mental illness includes conditions attributed to posttraumatic stress disorder, depression and similar generic terms within which there may be:
a) such psychological symptoms as anxiety, tension, insomnia, irritability, loss of confidence, agoraphobia and preoccupation with thoughts of guilt or self-harm; and
b) related physical symptoms such as alopecia, asthma, eczema, enuresis and psoriasis.
9. “Medically verified” means that the mental anxiety has been diagnosed by a registered medical practitioner.
10. “Psychiatric diagnosis/prognosis” means that the disabling mental illness has been diagnosed or the prognosis made by a psychiatrist or clinical psychologist.72
11. Mental anxiety or a mental illness is disabling if it significantly impairs a person’s functioning in some important aspect of her/his life e.g. impaired work or school performance or significant adverse effects on social relationships or sexual dysfunction.
			
Disabling but temporary mental anxiety lasting more than 6 weeks, medically verified	1	1,000	
			
Disabling mental illness, confirmed by psychiatric diagnosis:			
	- lasting up to 28 weeks		6	2,500	
	- lasting over 28 weeks to 2 years		9	4,400	
	- lasting 2 years to 5 years		12	8,200	
	- lasting over 5 years but not permanent		14	13,500	
					
Permanent mental illness, confirmed by psychiatric prognosis			
	- moderately disabling		16	19,000	
	- seriously disabling		18	27,000	
 
9.	There may, in some contexts, be a question whether a disorder of sexual preference amounts to a mental illness but what is obvious is that the term “mental illness” must mean the same thing for the purposes of each of the Scheme’s categories “medically recognised illness/condition – not mental illness” and “mental illness or temporary mental anxiety”.  Despite his valiant attempt to defend the First-tier Tribunal’s decision, even Mr Cole felt driven to accept that it was unlikely that the draftsman of the Scheme intended to create a situation where a disabling disorder recognised in the International Classification of Diseases (10th revision) fell in a gap between those two categories and that the draftsman would have sought to achieve that effect by using the term “mental illness” in a different sense in two consecutive paragraphs of the tariff.  I gave him an opportunity to take instructions as to whether it was or was not the Authority’s case that a disorder of sexual preference was a “mental illness” for the purposes of the Scheme.  Unsurprisingly, he has made a written submission to the effect that the Authority accepts that, leaving aside all other issues, the disorder should be regarded as a mental illness, particularly in the light of Note 8.  I accept that submission.

10.	Nonetheless it remains the Authority’s case that Dr Dedman’s opinion that the disorder was not a disabling mental illness was one that the First-tier Tribunal was entitled to, or perhaps even bound, to accept.  However, if the disorder was a mental illness, that submission has to be made on the basis that the disorder was not “disabling” and the difficulty for the Authority is that Dr Dedman’s opinion seems to have been given, understandably, without regard to Note 11 of the Scheme.  He appears to have accepted that the Applicant’s condition affected his ability to form relationships and he appears to have considered that the disorder was not disabling because it was not a global mental illness, by which I take him to have meant, at least in part, that it did not affect other aspects of the Applicant’s life.  Under the terms of Note 11, with its references to social relationships and sexual dysfunction, I have some difficulty in seeing how, on the basis of Dr Dedman’s findings as to the effect of the disorder, it could be found that the disorder was not a disabling mental illness for the purposes of the Scheme.  

11.	In paragraph 16 of the statement of reasons, it appears that the First-tier Tribunal decided not to accept Dr Dedman’s finding that the disorder affected the Applicant’s ability to form long-term relationships, despite having decided in the previous paragraph that his report should be relied upon because it was professional and impartial.  It did so on the basis that the Applicant did not give evidence to them on the issue.  However, it has not indicated in its statement of reasons whether he was asked to give oral evidence on the issue or why it did not regard the accounts he had given to Dr Dedman and the consultant psychologist (who had also found that the abuse had affected the Applicant’s ability to form relationships and had recommended a psychosexual therapist) or in his written submissions to be material, particularly having regard to the extensive history of the Applicant’s relationships recorded by Dr Dedman.  The First-tier Tribunal’s reasoning on this issue is wholly inadequate in the light of the written evidence in this case.  It is also arguable that it took too narrow an approach to “sexual function” but I did not invite submissions on that point.

12.	I am satisfied that the First-tier Tribunal’s decision is wrong in law and should be quashed.  The matter must go back to the First-tier Tribunal so that it can decide afresh whether the Applicant qualifies for a tariff award in respect of disabling mental illness and, if so, at what level.  In doing so, it will be able to take account of the report from a clinical psychologist that the Applicant provided to me but which, as Mr Cole submitted, was not a report I could take into account for the purpose of deciding whether the First-tier Tribunal sitting on 22 May 2013 had erred in law.  The First-tier Tribunal will also need to consider the claimant’s submission, advanced in his original appeal to the First-tier Tribunal, that he is entitled to an award of compensation in respect of a loss of earning capacity and, in particular, will need to consider whether that issue must be further remitted to the Authority in the light of the recent decision in R (SB) v First-tier Tribunal (CIC) [2014] UKUT 497 (AAC).

				
		
Mark Rowland
7 January 2015