Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/3767/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  I grant the Applicant’s application for judicial review.  I make a quashing order in respect of the decision of the First-tier Tribunal dated 14 May 2012 and I remit the Applicant’s claim for compensation in respect of loss of earnings or earning capacity for reconsideration by a differently-constituted panel of the First-tier Tribunal.

 

 

REASONS FOR DECISION

 

1. This is an application, brought with my permission, for judicial review of a decision of the First-tier Tribunal given on 14 May 2012, whereby it dismissed that part of the Applicant’s appeal against a decision of the Criminal Injuries Compensation Authority (“the Authority”) not to reopen a claim for compensation under the Criminal Injuries Compensation Scheme 1996 that related to compensation for loss of earnings. 

 

2. The Applicant has asked for an oral hearing but the Authority is content for the application to be determined without such a hearing.  The First-tier Tribunal has, quite properly, not taken any part in the proceedings.  The case has been very fully argued in writing, by Ms Maya Sikand of counsel, instructed by Deighton Pierce Glynnn, solicitors, for the Applicant and by Mr Gordon Newall, solicitor, for the Authority.  I am satisfied that I can properly determine the Application in the Applicant’s favour without an oral hearing.

 

3. The Applicant was born in 1970.  He came to the United Kingdom as a refugee from Iran in February 2000 and was given indefinite leave to remain in 2002.  He had been subject to persecution and torture by the Iranian authorities.

 

4. On 18 July 2000, not long after he first arrived in the United Kingdom, he was assaulted.  He claimed criminal injuries compensation under the 1996 Scheme but he was initially refused an award and the refusal was upheld on a different ground on review.  He appealed and was eventually awarded, in April 2004, £3,950 in respect of mental disorder, the loss of one front tooth and slackening of teeth requiring dental treatment, the award in respect of mental disorder being reduced by 50% on the basis that there was merely an exacerbation of a pre-existing condition.  He does not appear to have made a claim in respect of loss of earnings or earning capacity at that time.

 

5. In May 2009, the Applicant applied for the reopening of his case on the ground that there had been a material change in his medical condition in the sense that it was now clear that his mental disorder was permanent.  The Authority refused to reopen the case and maintained the refusal on review but, on 5 March 2012, the First-tier Tribunal allowed the Applicant’s appeal.  It accepted that the claimant had suffered a permanent mental disorder but again reduced the award by 50% so that a further tariff award of £6,750 was made.  It adjourned consideration of a claim that had been made in respect of loss of earnings.

 

6. The basis of the claim in respect of loss of earnings had first been set out in a written submission from the Applicant’s solicitors (Doc T423), made in November 2011.

 

“The Applicant was not working when he was assaulted.  However, he had extensive experience of work as a supermarket manager in Iran.  The Applicant came to the UK in February 2000 and immediately began studying English.  He was assaulted in July 2000 and has not been able to work since.

 

It is the Applicant’s submission that, had it not been for the assault, and given his experience in Iran, he would have obtained a post as a supermarket manager once he had had sufficient command of the English language.  It is submitted that, at the latest, this would have been in April 2001.

 

Dr Gibbon’s view is that the Applicant has been unfit for work since the assault.  She expects him to be fit for work in 3-5 years time (see paragraphs E3.3-E3.4 of her report).

 

The Claimant therefore claims past loss of earnings from April 2001 to date on the basis that, were it not for the assault, he would have been working as a supermarket manager since that date.  …”

 

The amount claimed was £216,449.02 past loss of earnings and £119,554.36 future loss of earnings, making a total of £336,003.38.

 

7. Against that, the Authority argued that the claimant would never have earned more than the minimum wage and was not entitled to any compensation because his social security benefits exceeded the loss.  In the “hearing summary” it prepared in March 2011, it commented –

 

“ … the Authority submits that no grounds in support of any claim for loss of earnings have been established.  In relation to the submission by the appellant the Authority would make the following observations:-

 

1) There is no documentary evidence to substantiate the claim that the appellant attempted to learn, or could have learned, English within the timescales indicated and also it is extremely unlikely that he would be offered any managerial position without knowledge of the relevant legislation and laws pertaining to the industry in this country.

2) There is no documentary evidence of the appellant’s ‘extensive experience’ of work as a supermarket manager.  The description of his life at T76 would actually seem at odds with this assertion where it refers to the appellant being “ostracised and discriminated against when applying for jobs and further education.  Life became more and more intolerable for him and he was forced to live in hiding, going from one safe house to another.”

3) It appears that the claim is being made from a period a year before the appellant was allowed to work in this country.  Doc A40 confirms that the appellant was free to take a job in this country from 10/07/2002, when he was granted asylum.

4) It is clear that the appellant’s inability to work is also attributable to factors other than the index incident.  Docs T52, T55 and T60 refer.  In Doc T413, Dr R Gibbons states that “The most important life event contributing to this illness is the previous torture in Iran.”

 

For the reasons outlined above, the Authority would also submit that any award under Paragraph 33 is inappropriate.”

 

8. The reference to “T76” was to the second and third paragraphs of the “personal history” recorded in a report dated 27 August 2003 written by a trauma specialist and the Head of Unit at the Traumatic Stress Service at the Maudsley Hospital for solicitors assisting the Applicant in relation to the housing problems he was having at that time.  It is useful also to set out the first paragraph of the personal history, from the previous page.

 

“[The Applicant] was born into a professional family in Shiraz in South East Iran.  His early years coincided with the Islamic revolution and the change of regime in Iran, during which one of his cousins was killed.  He witnessed an attack on his father, who subsequently lost an eye.  Throughout his teenage years, many of his cousins were killed.  He described them as members of the intelligentsia, doctors and teachers.  He began to read widely and questioned the strict regime of the time.  From the ages of 16 to 19 he was regularly interrogated about his beliefs by the Islamic Association at his school.  He was often removed from the classroom, and on several occasions beaten in front of his classmates.  Although he was academically gifted, he was refused a university place, which he believes was because of his beliefs.

 

[The Applicant] entered into compulsory military service and continued to speak out against the current political regime.  Within weeks he was arrested and was kept in solitary confinement in a cell with no light, for a period of three months.  During this time he was systematically interrogated and tortured.  He recalls being blindfolded and beaten by three or four guards at any one time.  He was suspended from the ceiling for prolonged periods and subjected to electric shocks.  After three months, he was moved to a psychiatric hospital, suffering from the effects of the torture.  He experienced psychosis and hallucinations, was heavily medicated and given a series of ECT treatments.

 

[The Applicant] was returned to the army and, as was customary for dissidents, he was exiled to a particularly dangerous outpost, near the Afghan border.  He was allowed to return to his town after 20 months.  Like many political dissidents, even when released, [the Applicant] was ostracised and discriminated against when applying for jobs and further education.  Life became more and more intolerable for him and he was forced to live in hiding, going from one safe house to another.  He managed to flee the country and arrived in England in February 2000, and [was] subsequently granted full refugee status.”

 

9. The Authority’s hearing summary largely repeated what had been said in earlier versions and had not been fully updated to take account of what had happened at the hearing on 5 March 2012 and of further evidence supplied by the Applicant’s solicitors on that date, including a document apparently showing that the Applicant had had permission to take employment since 22 August 2000.  The evidence had also included a statement from the Applicant’s father, in Farsi with an English translation, to the effect that the Applicant had worked as a supermarket manager in his shop from 1990 to 2000 and a certificate showing that, in June 2000, the Applicant had passed a “basic” examination in English for Speakers of Other Languages.

 

10. At the hearing on 14 May 2012, the Applicant produced an employment consultant’s report and a new submission including more detailed calculations of loss of earnings.  After deducting benefits and reducing the award by 50%, the claim as at the final hearing was for £46,155.47 past loss of earnings and £86,108.73 future loss of earnings, amounting to £132,264.19 in all.  This was a much lower figure than that claimed originally and took on board some of the points made by the Authority.  In particular, it accepted that the claimant would have started earning a figure near the national minimum wage in the summer of 2000, but it suggested that he would have progressed through a supervisory role to junior management and then, by 2008, to a level at which he would have been earning the median rates for retail managers in London.  The calculation was also based on a concession that only half the loss of earnings could be attributed to the assault.

 

11. The employment consultant’s report was based on other documents in the case and an interview with the Applicant at his solicitors’ offices. In relation to the Applicant’s ability to speak English, the report said –

 

“7. At interview [the Applicant] presented as an intelligent man with functional English.  He said that he could nor gauge how his English would have developed had he not been attacked but he felt that if not living in isolation, relying on television, it would have progressed better than it has.”

 

In relation to his employment potential prior to the assault, the report included the following statement of the Applicant’s case –

 

“13. I attempt to provide a detailed chronology for the time [the Applicant] was in Iran because of the slight differences in the medical references.  [The Applicant] completed secondary school and gained a High School Diploma.  On leaving school he was recruited into the Army around his 18^th birthday: that is January 1988.  At the time Iran was still at war with Iraq, a war which continued to August 1988.  During his initial training [the Applicant] had made adverse comments about the Iranian regime and had been reported by an informer.

 

14. After completing training [the Applicant] was taken into custody and held for many months.  During his period he suffered abuse and torture, the intention of this was to abstract information regarding his political activity and those of his family and to force him to sign guarantees about his behaviour.  [The Applicant] did complete his two year military service and with an additional three months added on as punishment, to around April 1990.

 

15. On 5^th April 1990 he signed a contract with his father to manage his father’s supermarket.  He held this post until he came to the UK.  During the 1990’s he took the university examination, the Concours, which he passed.  However [he] appeared to have been blacklisted and was not offered a university place.  He had become involved with student activists and in July 1999 he attended a large opposition demonstration in Tehran.  He was stopped and his car with all his papers was confiscated.  Fearing for his safety he went into hiding and came to the UK in February 2000.

 

16. Dr Gibbons (18.07.11) thought [the Applicant] was vulnerable prior to the assault and I am instructed that the tribunal attributed 50% of psychiatric problems arose from his experiences in Iran.  She does not suggest that [the Applicant] would not have managed full time work and he appeared to manage this in Iran and was also engaged with the student Union and in a degree of politics, in that he attended a demonstration.

 

17. The obvious marker that [the Applicant] was suffering from the effects of torture while in Iran, in a way that affected his ability to work, would be if he had suffered long periods of either treatments for mental ill health or long periods of unemployment.  It does not appear that either was the case.  I understand that from the age of 20 to the age of 29 (July 1999) [the Applicant] had functioned well and worked with his father in Iran.

 

18. [The Applicant] was given permission to seek work from August 2000.  His brother had followed him to the UK and in July 2000 he went to visit his brother in Burnley and this was where the assault took place.  I believe that but for the assault [the Applicant] was likely to have secured employment, given the prevailing labour market and his existing skills, in low skilled retail work, as a shop assistant or in shelf stacking, warehouse role.

 

19. Given the opportunity to improve his English language skills by working in the wider community [the Applicant] would have been able to undertake more complex responsibilities as first a supervisor and then as a deputy manager or department manager.  I believe that with five or six years of experience [the Applicant] would have secured work as a manager in an independent supermarket.”

 

12. It is extremely unfortunate that the report and calculations were provided to the First-tier Tribunal and the Authority’s representative only on the day of the hearing.  The volume of new material was such that the hearing was unable to start until after 3pm.

 

13. The First-tier Tribunal rejected the Applicant’s case and announced its decision at the end of the hearing.  On the following day, the Applicant’s solicitors applied for a statement of reasons, which was sent to them on 4 October 2012.  The statement of reasons set out the background to the case and identified the documentary evidence and then continued –

 

“11. The Appellant gave oral evidence, which was as follows:

 

a. He confirmed the employment Contract entered into with his father who, according to the Appellant, owned the supermarket.

b. His management duties included employing people, arranging shifts, supervising the health and safety of the staff, which current inspections checked, dealing with disciplinary matters relating to the staff, ordering goods and pricing them.

c. The supermarket sometimes had 8 or 12 people.

d. He was also in charge of tax and banking, did all the paperwork and submitted them to the authorities. He was the accountant of the shop and did all the accounts himself. The supermarket did not employ an accountant.

e. He finished working at the supermarket in 1999, when he left Iran. . He was employed in the supermarket for 9 years.

f. He went on to say that even before he did his military service (A58 says he started military service at the age of 20) he worked in his father's shop and helped out in school holidays.

 

In cross-examination he said:

 

i. He started military service at age 18 and not age 20, as stated in A58, which is part of the report prepared by Ms Dionsio, a psychologist, dated 6^th February 2006.

ii. He was tortured when in the military.

iii. The Appellant disagreed with various medical reports, which say he started military service at age 20 and maintained that it was at age 18.

iv. He had military training for 3 months and was then arrested for making political comments. ^'After torture he was taken to a military hospital and this was at age 18.

v. It was put to him that at A58 it says that following his torture "…he became 'robot like'". He was taken to a military hospital where he was pronounced 'mentally ill and incapable of controlling himself...’. [The Appellant] was discharged from hospital and was sent 'to a far removed place in the desert where he was expected to die and was psychologically 'reduced to a zombie'”. He was asked how he worked in the supermarket in this condition.

The Appellant replied that he was in a very bad condition in hospital. When he recovered he was sent to Eastern Iran, which has a tropical climate and that he was age 18 when joining the army.

The Appellant's representative interjected and referred to T76, which deals with the torture. That is part of the report prepared by Mr. G. Djalilian, a trauma specialist and dated 27^th August 2003.

vi. It was put to the Appellant that on T76, second paragraph from top, last sentence reads "life became more and more intolerable for him and he was forced to live in hiding, going from one safe house to another. He managed to flee the country and arrived in England in February 2000....". He was asked, in view of this, whether he was in hiding when he worked for his father.

In view of the above, was he in hiding when working for his father?

The Appellant replied that it was in 1999 that he was involved in political activities such as distributing leaflets.

vii.  He was then asked if he was not afraid of working for his father while involved in political activities?

The Appellant replied that he had to do all his political activities in secret.

viii.  The Appellant said that he was admitted to study medicine and had passed the test but was later refused admission by the University.

ix. He stated that he did not have any payslips for his work, nor did he have copies of his tax returns. He went on to say that in Iran income tax is not paid every year. He said "sometimes they will ask you to pay 5% of tax; sometimes for many years you do not pay any tax because Iran is a rich country".

x. He said he did all tax related paperwork and that his father had sent him all he had. This amounted to only the Employment Contract.

xi. When asked by the Tribunal he said:

·       It was not unusual in his community to have a contract of employment with his father at age 20. as it was his right.

·       When asked about the injections for rabies given in 2008 (T46-T48), he said that related to the index incident. However, the index incident took place in 2000, 8 years prior to the rabies injections.

·       He said from 1990 to 1999 he was involved in political activities in Iran but was very careful.

 

12. No further oral evidence was adduced by the Appellant.

 

SUBMISSIONS

 

13. Respondent The Respondent asked the Tribunal to dismiss the appeal under Paragraph 18 of the Scheme, which says "It will be for the Appellant to make out his case …" In support of her submission the Respondent relied on the following:

a. It is hard to believe that, as the Appellant contends, his torture, being sent to the Eastern part of Iran and kept in hospital did not coincide with working for his father and cited in A58, paragraph starting with "Employment/Marital History", which says "at the age of 20 or so he was called to serve his compulsory military service". In addition, she submitted that in A58 paragraph headed "Account of Trauma" there is a detailed description of torture, and that eight lines from the bottom it says "he was very poorly, having lost an inordinate amount of weight and also psychologically 'reduced to a zombie’”.

She went on to cite A63, last paragraph, which says "... Whilst in compulsory military service at around age 20 he was imprisoned.., tortured in prison.., he was tortured for a prolonged period.... Following this experience he became `robot like'.... He was pronounced `mentally ill'” and submitted that all this seems to coincide with him working for his father. She said that it was hard to believe that with all that he had undergone he could have been fit to work as a manager of a supermarket.

b. In A291, Paragraph B3.1 part of Dr. R. Gibbons' report of 24^th June 2011, he says he was tortured in Iran at around the age of 20. Whereas in A293 Paragraph B6 he says he went to the army at age 17. These inconsistencies further undermine the Appellant's credibility.

c. The Respondent also submitted that the evidence in T75 and T76 does not accord with the Appellant's claim for Loss of Earnings.

The Respondent's representative asked rhetorically how can the Appellant be 'going from one safe house to another', be reconciled with working openly for his father in his supermarket for 10 years, as the Appellant stated in his evidence?

d. In addition the Appellant said that he was politically active from 1997 to 1999, so how could be have worked full time and maintained his job?

e. It is unlikely that^. the Appellant would have acquired a sufficient command of English to be able to work in a major supermarket dealing with the public in the United Kingdom as claimed by the Appellant.

f. The Appellant worked in a small supermarket, one that cannot be described as equivalent to a position in Tesco or Asda.

g. The Employment Consultant's reports say that the Appellant would have become a manager in a major supermarket, but this is not a sustainable argument in view of the Appellant's background.

h. The Respondent's Schedule on Loss of Earnings is based on a minimum wage and in such a case his benefits exceed his earnings.

i. The Appellant had problems with alcohol and backache (from the beatings in Iran) and this would make it difficult to remain in employment.

j. There are serious doubts about the credibility of the Employment Contract, as it is not like a normal employment contract.

k. There are no wage slips, tax returns or any work related documents.

l. The contract does not show that the Appellant worked for 10 years as he claimed.

m.  An award under Paragraph 33 would not be appropriate in view of the evidence - and benefits will have to be taken into account.

 

14. Appellant's Representative's Submissions

He asked the Tribunal to make an award and relied on the following:

a. The Appellant's Schedule of Loss of Earnings has taken into account the torture in Iran by a 50% reduction of Loss of Earnings.

b. T112 in Paragraph headed "Employment / Marital History" which is the psychologist's reports, says that the Appellant was working in his father's supermarket. This was the Appellant's account given to the Psychologist and should be-accepted by the Tribunal.

c. A59/A63 refer to 1988. It is not relevant whether the Appellant was working for his father in 1988 or 1990.

d. The Appellant accepts that he would not have been a manager straight away but would have started at a lower level and progressed on to earn £32,000 a year.

e. The Appellant comes from a professional middle-class family.

f. He would have worked despite his back problems as he did in Iran. The back problems got worse after the assault.

 

FINDINGS OF FACTS

 

15. There is insufficient evidence to conclude that the Appellant had worked in any sustained position prior to coming to the United Kingdom.

 

DECISION AND REASONS

 

16. The Tribunal took all the evidence into account and concluded that it was not satisfied, on balance of probabilities, that the Appellant had the education that he claimed he had and also that the Appellant worked for his father as he contended.

 

The reasons for this decision are as follows and fall in the following categories:

a. Appellant's education background

i. There is no documentary or other independent evidence put before the Tribunal that the Appellant passed the entrance examination for University in medicine or any other discipline

ii. There was no independent evidence to support the Appellant's contention that he was rejected by an institution for higher education because of his political activities.

iii. There was no independent evidence to support the Appellant's claim that he was an undergraduate at Birkbeck College when the index incident took place (T7 — 5.1.6).

iv There is no independent evidence, to support the assertion of the Appellant that he was studying to be an optician as stated in T377.

v. Documentary evidence of the Appellant's education is irreconcilably inconsistent as stated above, and led the Tribunal to conclude that there is no reliable evidence of any education by the Appellant as he claims.

 

b. Appellant's repeated attempts to influence medical opinion

There is considerable evidence, in the bundle of documents, that the Appellant made repeated attempts to influence medical evidence to seek a higher tariff award (see T160 - A. Kitromilides' report dated 13^th June 2007, T183 Dr. S. Minot's report of 13^th June 2007, last paragraph on T197 Dr. Liveras's report dated 27^th July 2008, and a subsequent report, A65, dated 3^rd March 2009).

Such attempts seem to indicate to the Tribunal that the Appellant is only interested in financial gain and is prepared to go to any lengths in furtherance of his Motives. This puts a question mark against his credibility.

c. Previous Employment

i. There is no independent evidence in any form to support the Appellant's claim that he worked in his father's supermarket prior to coming to the United Kingdom in 2000, such as payslips, tax returns, evidence of paperwork he prepared as he claimed for the tax authorities in Iran, a witness statement from an independent source, accounts of the supermarket, or any work that the Appellant did as manager in relation to Health and Safety of the staff he managed.

ii. It is difficult to accept that the Appellant was able to work in a supermarket when he was 'reduced to a zombie', as stated in medical evidence.

iii. It is highly unlikely that the Appellant could have worked in a supermarket out in the open when he was actively involved in the politics of Iran for a substantial period of time, which the authorities strongly stifled.

iv. There is no mention in the father's letter (T456) of there being an employment contract.

v. The Employment Consultant's report is based solely on the Appellant's version, none of which is verified.

 

d. The Appellant's written and oral evidence was inconsistent and lacked any credibility.

 

For the above reasons, the Appellant's claim for loss of earnings was rejected.

 

The Tribunal considered an award under Paragraph 33 and held that:

 

a. even if an award is made, based on minimum wage in the United Kingdom, the benefits would exceed the income as shown by the Respondent’s Schedule of Loss of Earnings.

 

b. There is no reliable evidence on the Appellant’s education, previous employments or prospects of employment, so it was not feasible to make any award.

 

Therefore, no award was made under Paragraph 33.”

 

14. Having been sent that statement of reasons on 4 October 2012, the Applicant’s solicitors sent a “letter of claim in respect of a prospective claim for judicial review” to the First-tier Tribunal on 15 October 2012 in which they set out grounds upon which they considered that the First-tier Tribunal had erred in law and said –

 

“In the light of the above, the action we expect you to take is to set aside the Tribunal’s decision made on 14^th May 2012 and re-list the appeal (insofar as it relates to a loss of earnings claim) for re-hearing before a differently constituted panel.”

 

15. On 23 October 2012, the First-tier Tribunal simply informed the solicitors that, if the Applicant wished to take the matter further, they should contact the Upper Tribunal.  However, the solicitors wrote back on the following day, drawing the First-tier Tribunal’s attention to its own Practice and Guidance Statement Cl-6, in which it is said –

 

“2. A party contemplating making an application to bring judicial review proceedings is requested without delay to provide to the First-tier Tribunal at the address above, written details of the alleged error of law, and all facts and matters relied on in support of the alleged error. The First-tier Tribunal’s Principal Judge or nominated Tribunal Judge will scrutinise the allegation and, where satisfied that it is appropriate to do so in accordance with the paragraphs 36 or 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, will consider correcting or setting aside the decision or part of it.”

 

16. On 1 November 2012, the First-tier Tribunal replied, stating that rules 36 and 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) applied only “if any clerical/administrative error was found”.

 

17. On 8 November 2012, the Upper Tribunal received the application for permission to apply for judicial review.  When I granted permission on the papers, I expressly left open the possibility of the Authority arguing on the substantive application that judicial review should be refused on the ground of delay.  I did so because it had not had an opportunity to object to me extending time and admitting the application for permission.  (The application made to the First-tier Tribunal did not have the effect of extending the time for bringing the application for permission to apply for judicial review because it was not made within a month of notice of the First-tier Tribunal’s decision, as opposed to its reasons, being given.)

 

18. The Authority has submitted that there are grounds for refusing to extend time.  The Applicant rightly points out that time for making the application has already been extended and wishes to make representations on the question whether relief should be refused at a later stage.  I accept that, in the Administrative Court, the question of refusing the substantive application on the ground of delay might well not be addressed until the question whether the claimant was otherwise entitled to relief had been determined but the dynamics of proceedings in the Upper Tribunal, where oral hearings are by no means the norm, are different and I do not see why the consequences of delay cannot be addressed as a preliminary issue on a substantive application, if that is the most efficient way of managing the case as a whole including the permission stage.  I therefore treat the Authority’s submission as being to the effect that, if relief were otherwise appropriate, it should be refused on the ground of delay.

 

19. It is accepted by the Authority that the delay is only four days (see rule 28(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)) and that the Authority has not suffered any significant prejudice as a result of the delay but it is submitted that the letter written by the Applicant’s solicitors to the First-tier Tribunal was plainly misconceived and that the paragraph in the Practice and Guidance Statement after the one I have set out above made it plain that any application for judicial review had to be made in accordance with the Upper Tribunal Rules.

 

20. I accept that the starting point is that there should be compliance with time limits and I also accept that the solicitors’ letter was misconceived and that they could, and should, have complied with the time limit.  On the other hand, the letter was plainly encouraged by the Practice and Guidance Statement, which was misleading, and the correspondence with the First-tier Tribunal was plainly a cause of the delay.  While it is obviously desirable that cases should be set aside by the First-tier Tribunal where possible, rather than there being judicial review proceedings, it would be helpful if the Practice and Guidance Statement gave some indication of the scope of regulations 36 and 37 of the First-tier Tribunal Rules.  The scope of rule 37 is in fact wider than that indicated in the First-tier Tribunal’s letter dated 1 November 2012, since it permits a decision to be set aside where there has been a procedural irregularity that is not merely administrative, but it is not nearly as wide as suggested in the Practice and Guidance Statement.  It is an unfortunate consequence of criminal injuries compensation cases being “excluded decisions”, against which there is no right of appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 that the First-tier Tribunal does not have the wide power to review its decisions conferred on it in most other cases by section 9.

 

21. The solicitors could, of course, have read the Rules.  However, given that they were misled by apparently authoritative information provided by the First-tier Tribunal and given also the amount of money at stake and the fact that the Applicant’s case is far from hopeless, I do not consider that the very minor delay, which has not caused any significant prejudice to the Authority, should be held against the Applicant in this case.

 

22. I therefore turn to the merits of this application.

 

23. There are two strands to the challenge to the First-tier Tribunal which, to some extent, overlap.  First, it is said that the decision is in part irrational or vitiated by procedural defect and, secondly, it is submitted that the First-tier Tribunal gave at least the appearance of being biased in its approach to the case at the two hearings.  The Authority submits that the First-tier Tribunal’s decision is neither irrational nor unreasonable and is not vitiated by procedural defect or apparent bias.

 

24. There seem to me to be two clear errors of law on the part of the First-tier Tribunal.  Others are less clear.

 

25. The first clear error of law relates to paragraph 16(a)(iii) and (iv) of the statement of reasons, where the First-tier Tribunal relies on the lack of independent evidence that the Applicant was an undergraduate at Birkbeck College when the index incident took place or that he later studied to be an optician.  The Applicant argues that that evidence was irrelevant.  When I granted permission, I suggested that the evidence was potentially relevant but that it did not appear that the Applicant had ever been asked to produce it.  The Authority argues that the First-tier Tribunal is not obliged to conduct detailed questioning of a claimant on every aspect of oral or documentary evidence in order to reach its conclusions about the acceptability of evidence.  The Applicant has now made a statement to the effect that he had twice been offered places on degree courses at Birkbeck College, in 2004 and 2008, but had dropped out the first time and been unable to accept the offer on the second occasion due to his mental health problems.  He has produced documentary evidence of the second offer and of his training as an optician.  I also now have before me the notes of evidence made by the First-tier Tribunal on 14 May 2012 which do not suggest that the Applicant was asked about his education in England at all.

 

26. The Authority is right that not every single discrepancy in evidence need be put to a claimant but, if the First-tier Tribunal is going to take a new and discrete point against a claimant, it ought to give him or her an opportunity of dealing with it.  I have no doubt that the First-tier Tribunal was sceptical about the statement in Doc T7 that the Applicant had been enrolled at Birkbeck College as an undergraduate in July 2000, and rightly so.  How could he have been when he had arrived in the United Kingdom only half way through the academic year that had just ended and had only just passed a basic examination in English?  Had the First-tier Tribunal put the point to the Applicant, he would have been able to say that there had been a mistake.  The evidence in question was contained in a psychologist’s report, written in 2011, and it seems not unlikely that the psychologist ran together the pieces of information that the Applicant was studying English in 2000 and that he had been enrolled as a student at Birkbeck College, when the latter event was in fact four years later.  Had the First-tier Tribunal asked for evidence that the Applicant had been studying to be an optician, the evidence now produced to me would no doubt have been produced to the First-tier Tribunal.  The Applicant had had no reason to produce this evidence earlier because he had had no reason to suppose that the First-tier Tribunal would consider it important.  I am satisfied that the First-tier Tribunal acted unfairly in taking these points against the Applicant without giving him an opportunity to deal with them.

 

27. The second clear error of law lies in paragraph 16(b) of the statement of reasons, where the First-tier Tribunal purported to identify four occasions when the Applicant had attempted to influence medical evidence, indicating to the First-tier Tribunal that he “is only interested in financial gain and is prepared to go to any lengths in furtherance of his Motives”.  One of these was in fact merely a report-writer repeating what had been said in earlier reports.  A second was an instance in which the Applicant’s solicitors perfectly properly sought a medical opinion and the Applicant himself was not involved.  The other two were instances where the Applicant had himself asked whether the report-writer would support his claim for compensation.  The Authority argues that, in asking a doctor to write a statement which would support his claim and specifically asking the doctor to make a statement to the effect that he was “permanently disabled”, he was doing more than simply asking what evidence the doctor might be able to give and that the First-tier Tribunal was entitled to find that he was attempting to influence medical opinion.  I accept the Applicant’s submission that that is not so.  There was nothing improper in the Applicant asking a doctor to support his case.  When the doctors declined, he did not put any pressure on them to change their minds.  In fact, as the Authority concedes, when it instructed its own doctor to make a report, that doctor agreed with the Applicant and supported his case that he was permanently disabled, which was the view the First-tier Tribunal had accepted on 5 March 2012.  In my judgment, the First-tier Tribunal was simply wrong to draw any adverse inference against the Applicant on the ground identified in paragraph 16(b) of the statement of reasons and I accept that it acted irrationally in doing so.

 

28. The Applicant relies upon that last matter as one of the indications that the First-tier Tribunal appeared biased.  He also relies on what it is submitted was the First-tier Tribunal’s generally hostile questioning and two areas in which the questioning is said to have been irrelevant, one being questions about his sex life  asked at the hearing of 5 March 2012, which it is said were unnecessary and intrusive, and the other being questions on 14 May 2012 about his escape from Iran, which it is submitted were the sort of questions that might have been asked in the Immigration and Asylum Chamber if there had been an issue as to the genuineness of his claim for asylum but had no bearing on this case.  The Authority submits that the questioning was legitimate.  I agree.  The questioning on 5 March 2012 appears to have been prompted by the way the Authority put its case at that time (see the hearing summary dated 11 January 2012 – “It also appears that he had no difficulties in establishing relationships after the initial award (T62 entry dated 4/4/04)”).  The questioning on 14 May 2012 was potentially relevant to the Applicant’s ability to function at that time, which was not long before the relevant assault.

 

29. What seems to me to be more material than the questioning is what the First-tier Tribunal did, or failed to do, with the answers.  It has not been prepared to accept the claimant’s evidence without corroboration and has taken that approach without appearing to give any consideration to the practicality of obtaining corroboration.  It has also in some instances either ignored the Applicant’s answers or else has failed to give reasons for rejecting them.  The whole point of giving a witness an opportunity to comment on discrepancies or other adverse evidence is so that the witness’s answer may be taken into account when a decision is made.

 

30. The Applicant argues that it was unreasonable of the First-tier Tribunal to refuse to accept the Applicant’s evidence as to his education in Iran without there being documentary evidence (paragraphs 16(i) and (ii) of the statement of reasons).  The Authority submits that the First-tier Tribunal was entitled to take that approach.  In my judgment, it was entitled to take that approach but, if it was to do so, some reasoning was required.  As is submitted on behalf of the Applicant, his evidence to doctors on this issue had been consistent.  There was at least an oblique reference to his education in the report of 2003 that was considered so significant by the Authority (see paragraph 8 above) and more detail was provided in the report of 2006 (Doc A57-58).  There is no rule of law that an Applicant’s evidence must be corroborated and, in particular, paragraph 18 of the 1996 Scheme does not have that effect.  In fact, some corroborative evidence of the Applicant having passed the relevant examination was supplied.  What independent documentary evidence of him being refused a place at university in the early 1990s on political grounds the First-tier Tribunal thought might realistically have been obtained in 2012 is unclear.

 

31. In relation to paragraph 16(c) of the statement of reasons, the Applicant argues that the First-tier Tribunal failed to consider the reasons advanced for the lack of documentary evidence and that the First-tier Tribunal misinterpreted the medical evidence and the claimant’s own evidence and gave a bad reason for rejecting the evidence of the employment contract.  The Authority submits that the First-tier Tribunal was entitled to take the view it did on all these issues.  Again, it seems to me that the issue is whether the First-tier Tribunal gave adequate reasons for its approach in the light of the Applicant’s oral evidence.

 

32. The First-tier Tribunal’s findings of fact are actually in the opening part of paragraph 16, rather than paragraph 15, of the statement of reasons and it appears that the First-tier Tribunal altogether rejected the Applicant’s evidence that he had worked for his father, although it appears to have accepted that his father did own a supermarket.  But the Applicant’s evidence to the doctors had been fairly consistent.  Thus, in 2006, the medical report (Doc A57-58) records –

 

“His father was a businessman and an owner of a supermarket.”

 

“Having been refused the entrance to the university [the Applicant] joined his father in helping him run his business and the supermarket.”

 

33. I can see how at least one of the medical reports could be read as suggesting that the Applicant had not worked in the supermarket after leaving the army and that he was very ill until 2000, but that was not a necessary reading of any of the reports.  Indeed, even the 2003 report (paragraph 8 above) does not support the view that he was too ill to work, given its reference to the Applicant being “ostracised and discriminated against when applying for jobs and further education”, and it was not the account he gave to the psychiatrist instructed by CICA who recorded (doc T409-410) –

 

“[The Applicant] was tortured in Iran at around the age of 20.  He was tortured because while he was in the Army he was vocal about how negative he felt about the regime in Iran.  At this time he developed a brief psychotic episode and was treated in hospital.  [The Applicant] said that from that time until the age of 30 he functioned well and worked in Iran with his father.”

 

“Following leaving the Army he worked with his father.”

 

That was also the account he gave to the First-tier Tribunal.  His case was that the reference to him being “reduced to a zombie” (derived first I think from the 2006 report at Doc A58) referred to his state immediately following being tortured while in the army and that he recovered when he returned home.  The First-tier Tribunal may, as the Applicant suggests, have misunderstood the Applicant’s evidence.  It seems equally possible that it ignored it.  In any event, it gave no explanation for having apparently rejected it.  There is equally no explanation of it having rejected the Applicant’s case that he had been moving from one safe house to another only in 1999, when he had fled after his car had been seized with incriminating leaflets in it, and that until then his political activities had been hidden and were therefore not inconsistent with him working openly in the supermarket.  The Authority may be right to submit that the First-tier Tribunal could reasonably have reached the conclusion it did on this issue, but it ought in my view have given reasons for doing so.

 

34. The Authority accepts that the statement in paragraph 16(a)(v) of the statement of reasons that the “{d]ocumentary evidence of the Appellant’s education is irreconcilably inconsistent as stated above” is inexplicable but, in relation to paragraph 16(d), it submits that the First-tier Tribunal was entitled to find that the Applicant lacked credibility and that it had the necessary expertise and experience to make that judgment.  That may be so, but again the finding is unreasoned.  Every inconsistency in the evidence has apparently been taken to reflect on the Applicant’s credibility without any consideration apparently being given to whether the inconsistencies might be the fault of someone other than the Applicant or whether they might have been the result of an innocent error on his part rather than dishonesty and whether any such inaccuracy was material.  Thus, for instance, a considerable number of the medical reports mentioned that the Applicant was 20 when he joined the Iranian army and, when the Applicant said that he was in fact 18, the Authority argued that his credibility was undermined.  Obviously the reports were partly based on what the Applicant had said to the report-writer, often through an interpreter, but it is highly relevant that most of the report-writers said that they had also relied on earlier reports.  It is not difficult to see how an error in the “background” section of an early report due to confusion between the Applicant’s age when he joined the army and his age when he left it might be adopted in later reports.  The reports were relied upon for their medical judgments and were not signed statements by the Applicant.  Discrepancies in such reports do not necessarily undermine the credibility of the subject of the reports.  Moreover, it is not obvious why the First-tier Tribunal might have thought that the Applicant would have deliberately lied about the age he was when in the army and if he did not lie but was considered merely to be a poor historian whose evidence as to dates was unreliable, it is not clear why the First-tier Tribunal might have thought that that cast doubt on his evidence that he had helped his father to run the supermarket for a significant period.  It is, of course, unclear to what extent the First-tier Tribunal adopted the Authority’s argument but it spent some time questioning the Applicant about his age when he joined the army and paragraph 16(d) of the statement of reasons does not reveal any rejection of any part of the Authority’s submission as recorded at paragraph 13(b).

 

35. I do not find it surprising that the Applicant has put his case in terms of apparent bias, given paragraph 16(b) of the statement of reasons, the unreasoned refusal to accept any of the Applicant’s evidence without corroboration and the unreasoned view that inconsistency in the evidence cast doubt on the Applicant’s credibility on every issue.  But it is not necessary to analyse the decision in those terms.  This may merely be an example of lazy adjudication.  Evidence is seldom perfect but proper consideration has to be given to the significance of imperfections and the statement of reasons for a decision must show that that has been done.

 

36. I accept that some of the imperfections in the evidence in this case were sufficiently obvious not to have required to have been spelled out more than they have been.  I can see, for instance, why the First-tier Tribunal might have been sceptical about the employment contract.  I also accept that the First-tier Tribunal could have supplied reasoning that properly supported its conclusion.  But, I am not prepared to accept that it did have good reasons for its conclusion when there are other conclusions it could equally well have reached.  Nor am I prepared to assume that it would have reached the same conclusion had it given fuller reasons.  I respectfully agree with Sedley J’s observation in R v Solihull Metropolitan Borough Council ex parte Simpson (1993) 26 HLR 370: “Experience shows that [complying with a statutory duty to give reasons] will sometimes produce an opposite conclusion to that which was initially in the decision-maker’s mind before the rigour of formulating acceptable reasons was applied”.

 

37. For these reasons, I am satisfied that the First-tier Tribunal erred in law.  I therefore quash the First-tier Tribunal’s decision of 14 May 2012.  Neither the Applicant nor the Authority challenges the First-tier Tribunal’s decision on the tariff award, made on 5 March 2012, so that part of the decision may stand.  It will be for the First-Tier Tribunal to consider issuing directions requiring the Applicant to submit any further evidence within a specified period and then requiring the Authority to set out its present case in writing in the light of all the evidence that is by then available.

 

 

 

 

 

 

Mark Rowland

9 August 2013