JR/2265/2014

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before:  UPPER TRIBUNAL JUDGE KNOWLES QC

 

 

 

The Applicant was represented by Amrisha Parathalingam of counsel.

The Interested Party was represented by Owain Thomas of counsel. 

 

 

DECISIONS

 

 

The decision of the First-tier Tribunal dated 12 February 2014 is quashed.

 

The assessment decision made by the First-tier Tribunal on 12 February 2014 is remitted to a differently constituted First-tier Tribunal for it to assess the compensation payable afresh.

  

 

 

REASONS FOR DECISION

 

 

Introduction

 

1.        This application for judicial review challenges the decision of the First-tier Tribunal (“the tribunal”) on 6 February 2014 that, on grounds of character, the Applicant’s award of criminal injuries compensation should be reduced by 60%. The award was stated to be a final award of compensation. A hearing took place on 18 November 2013 when the First-tier Tribunal heard evidence from the Applicant and submissions. Its decision was reserved and the tribunal reconvened in a telephone conference on 6 February 2014 to deliberate, confer and determine the appeal before giving full reasons for its decision.

 

2.        This matter has taken a somewhat different course from that envisaged when permission to apply for judicial review was granted on 14 August 2014.  At that stage the grounds on which I gave permission (which were not limited) concerned themselves with the reasoning of the First-tier Tribunal in deciding to reduce the award of compensation to the Applicant by 60%. However, before the hearing of this application for judicial review on 12 February 2014, both parties and the court were faced with the impact on these proceedings of the three judge panel decision in R(SB and others) and First-tier Tribunal and CICA [2014] UKUT 497 (AAC) [“R(SB)”]. That decision cast a very different light on the issues under consideration in this application.

 

3.        In this decision I shall refer to the Applicant as Mr Mbenga and to the Interested Party as CICA. The formal Respondent, the First-tier Tribunal, took no part in these proceedings as is both customary and proper. I held an oral hearing of this application for judicial review in London on 12 February 2015 and thereafter allowed both represented parties a further fortnight to submit any additional written submissions. Mr Mbenga was represented by Miss Amrisha Parathalingam of counsel (who did not appear below) and CICA by Mr Owain Thomas of counsel (who also did not appear below). I am very grateful to both counsel for the helpful manner in which they made their written and oral submissions.

 

4.        I received additional written submissions from the Applicant on 26 February 2015. Outside the allowed timescale,I received a letter from Michael Hanlon, Head of Legal and Policy at CICA on 9 March 2015 which made further submissions about this case. I have considered all of this additional material in reaching my decision.

 

5.        For ease of understanding, I have defined “eligibility” in this decision as eligibility to receive compensation save as limited by paragraphs 13-17 of the Criminal Injuries Compensation Scheme 2001. I have referred to the determination of the amount of compensation payable as a matter of “assessment”.

 

6.        Page references distinguish fairly obviously between the bundle used before the First-tier Tribunal and the judicial review bundle.

 

 

Summary of My Decision

 

7.        In accordance with the decision in R(SB), I conclude that the First-tier Tribunal had no jurisdiction to hear and determine issues of eligibility within the meaning of paragraph 13(e) of the 2001 Scheme. This was because such issues had not been the subject of the review decision by CICA which was under appeal to the First-tier Tribunal. It thus follows that the tribunal’s decision to impose a reduction of 60% on the award of compensation was without jurisdiction.

 

8.        I quash the tribunal’s decision in its entirety. In circumstances where the tribunal had no jurisdiction to reduce the award of compensation by reference to character issues but nevertheless did so, its decision on assessment was flawed by the effect of that want of jurisdiction on its approach to fact finding with respect to eligibility. It follows that I direct that any reconsideration of both eligibility and/or assessment cannot rely on the tribunal’s findings set out in its reasons dated 6 February 2014.

 

9.        However my decision does not prevent a relevant decision maker having regard to the evidence heard by the tribunal on 18 November 2013 which is contained in the notes forming the record of proceedings.  The weight to be placed on that evidence is a matter for the relevant decision maker.

 

10.     I remit to a differently constituted First-tier Tribunal Mr Mbenga’s appeal  and I direct that it determine the assessment of the compensation payable under the Scheme afresh.

 

11.     As the First-tier Tribunal determined eligibility without the jurisdiction to do so, it now falls to CICA to decide whether to reconsider its eligibility decision under paragraph 53 of the Scheme (no final award having been yet made). Any decision CICA may make on this issue will attract a further right of appeal to the First-tier Tribunal.

 

 

The Relevant Law

 

12.     Paragraphs 13-17 of the 2001 Scheme fall under the heading “Eligibility to receive compensation”. Paragraph 13 is the relevant paragraph for the purposes of this appeal and states that a claims officer may withhold or reduce an award in certain circumstances. Paragraph 13(e) identifies one of the applicable circumstances, namely “the applicant’s character as shown by his criminal convictions (excluding convictions spent under the Rehabilitation of Offenders Act 1974 at the date of the 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”. It was evidence other than criminal convictions which was pertinent in this case.

 

13.     A feature of the 2001 Scheme is that all decisions in favour of a claimant are provisional until payment of a final award has been made by virtue of paragraph 50. That paragraph states, inter alia, that title to an award offered will be vested in the applicant when CICA has received notification in writing that he accepts an award.

 

14.     Paragraphs 53-55 provide for the reconsideration of decisions. Paragraph 53 enables a decision of the claims officer to make an award to be reconsidered by that claims officer at any time before payment of the final award. This paragraph does not apply when a claims officer has been directed to make an award by the First-tier Tribunal. For that class of decision only, paragraph 55 applies.

 

15.     If the First-tier Tribunal has directed that an awarding decision is to be made by CICA’s claims officer but further evidence subsequently comes to light to cast doubt on that decision, CICA’s claims officer cannot reconsider that decision but must refer it pursuant to paragraph 55 to the First-tier Tribunal for that tribunal to reconsider its previous decision.

 

The Background to the Appeal before the First-tier Tribunal

 

16.     On 18 September 2004 Mr Mbenga was working as a doorman at a club when he was shot twice at close range by an unknown assailant using a shotgun. Mr Mbenga suffered severe injuries to his right dominant arm such that the elbow was shattered. He sustained compound fractures of the distal humerus, proximal radius and ulna together with radial nerve palsy. He also suffered from subsequent wound infections. Amputation of his right arm was considered. He has been left with a weakened and shortened right arm, serious disfigurement from upper limb scarring and psychological injuries.

 

17.     His claim for compensation under the Criminal Injuries Compensation Scheme 2001 was received by CICA on 27 October 2005. On 12 October 2010 a claims officer wrote to Mr Mbenga’s legal representatives with an assessment of the compensation payable. This amounted to £65,749.50, this sum having been reduced by 25% as Mr Mbenga had unspent criminal convictions [FTT, A70]. Mr Mbenga applied for a review of that decision and on 19 July 2012 a review decision was issued. This assessed the amount of compensation payable as £63,710. Importantly it stated in clear terms that there should be no reduction in respect of Mr Mbenga’s previous conviction [FTT, A79]. It did not raise any other matters of character within paragraph 13 of the 2001 Scheme.

 

18.     Mr Mbenga’s representatives sought a further review and on 15 January 2013 another review decision was issued by CICA. This assessed compensation at £110,410 and was expressed to be a final offer of compensation under the Scheme. Significantly the offer made no reference to any reduction of the compensation payable because of any of the factors listed in paragraph 13 of the Scheme [FTT, A90-93]. It is this review decision which was the subject matter of the appeal to the First-tier Tribunal.

 

19.     On 29 July 2013 a detailed case summary prepared by counsel for Mr Mbenga was filed and served. It concerned itself with the assessment of compensation payable rather than whether the amount of compensation payable should be reduced because all or some of the matters listed in paragraph 13 were applicable [FTT, T60-64]. However, on 21 August 2013 Tribunal Judge Dodgson gave a direction which, for the first time, made it clear that CICA would be raising issues at the appeal relating to Mr Mbenga’s character which might result in the withholding of an award or a reduction in the compensation payable [FTT, T66]. This development in CICA’s case was not founded upon the issue of any additional review decision which explained CICA’s reasoning as to why character issues were now engaged in Mr Mbenga’s case.

 

The Decision of the First-tier Tribunal

 

20.     The First-tier Tribunal held a hearing on 18 November 2013 when it heard Mr Mbenga’s oral evidence and submissions from both parties. I am unclear whether CICA’s submissions on the issue of character were fully set out in pleadings prior to the hearing: neither counsel who appeared before me was able to assist. In a section of the Statement of Reasons headed “The hearing and the parties’ main submissions”, paragraph 7 listed each of the character issues which CICA contended required the tribunal to consider a reduction in the amount of compensation payable [UT 66-67]. The reasons do not record whether CICA submitted an overall percentage figure by way of reduction in the award. On the day of the hearing counsel then representing Mr Mbenga indicated that she was content for the tribunal to proceed to hear the case and she did not seek an adjournment to deal with the character issues raised by CICA.

 

21.     The tribunal’s decision was reserved until 6 February 2014 when a comprehensive statement of reasons was issued alongside the decision. The tribunal decided that, as a victim of a crime of violence, Mr Mbenga should receive a final award of compensation in the sum of £308,508. However it reduced the amount of compensation payable by 60% on the basis that paragraph 13(e) of the Scheme applied. As Mr Mbenga had already received interim payments of £54,000, the balance of £69,403 was due to him. The Decision Notice was headed “Final Decision Notice (Award made)” and the award of compensation was described in that notice as being “final” [UT 64].

 

22.     As the tribunal’s reasoning shows, it was evidence of character other than criminal convictions which was pertinent in this case.  

 

23.     Its reasoning on the issue of character is set out in paragraphs 58-63 towards the end of the Statement of Reasons. The tribunal reminded itself that Mr Mbenga was a victim of a “horrific assault in which he received severe injuries” [paragraph 58, UT 80] and that he had tried to mitigate his loss in that he was “trying his hardest to restore his right arm to something approaching its pre-shooting condition at a time when he was suffering psychologically and struggling to come to terms with his disability” [paragraph 59, UT 80]]. Nevertheless it concluded [UT 80-81]:

 

“61. However we cannot ignore what we consider to be the unlawful tendency and dishonest streak in the Appellant’s character that manifests when it suits him as evidenced by our findings, particularly by the following:

a) his failure to declare his earnings to the Inland Revenue before or after the shooting, thereby avoiding tax and national insurance liabilities;

b) his failure to declare his post-shooting doorman earnings to the Benefits Agency from April 05 to August 06, thereby preventing them from considering whether he should continue to receive all or any of his incapacity benefit over that period;

c) his selective history given to the medical experts reporting to CICA and to the Tribunal, and

d) his attempts to mislead this tribunal particularly regarding the duration of his pre-shooting work as a doorman, his marriage, and his intention to return to work for NS Optimum in October 2004.

 

62. Likewise, his willingness to acquire steroids illegally, as he had earlier acquired cannabis… and against medical advice, shows him to be a determined character who is willing to bend the rules to the point of acting illegally when it suits him. By themselves these matters would not warrant any reduction of the award. Their relevance is that they show the unlawful tendency in his character.

 

63. We consider it would contradict the intention of the Scheme for the Appellant to receive a full award of compensation from public funds in the light of his character as evidenced by these findings. We consider the reduction should be substantially more than half the award. Accordingly we reduce his award by 60% under paragraph 13(e) from £308,508 i.e. a reduction of £185,105, leaving an award of £123,403.

 

64. He has already received interim payments of £54,000 and so a balance of £69,403 is due to the Appellant.”

 

24.     On 28 April 2014 Mr Mbenga applied for judicial review of the tribunal’s decision on the basis that it had erred in its findings and/or relied on irrelevant findings so as to reduce the award of compensation by 60% and that it had unjustly reduced the award by that percentage.

 

 

The Effect of the Upper Tribunal’s decision in R(SB) v First-tier Tribunal and CICA

 

25.     This decision by a three judge panel of the Upper Tribunal is dated 4 November 2014. The main issue in that case concerned the jurisdiction or powers of the First-tier Tribunal, namely whether the First-tier Tribunal’s powers were limited to determining the issue which was the actual subject of the appeal or whether the tribunal could go on to decide other issues which might arise for determination before the final disposal of the compensation claim.

 

26.     In paragraph 5 the Upper Tribunal summarised the effect of its decision as follows:

“5. On the central issue that was argued before us we have concluded that the FtT is limited to deciding whether CICA’s review decision is correct on the issue (or issues) it has addressed and decided. Once it has decided that issue (or those issues) the FtT’s jurisdiction on the appeal ends (i.e. it is functus) and, accordingly, any remaining issues that may then arise in order to determine whether any award of compensation should be made under the criminal injuries compensation scheme (including the amount of any such compensation) falls to CICA to decide. Any such further decisions made by CICA will attract a further right of appeal to the FtT.”

 

27.     Thus, once the First-tier Tribunal has decided the issue which is the subject of the review decision under appeal to it, it has no power to decide any other matters.

 

28.     Applying the reasoning set out in that decision to the circumstances of this case, I find that the tribunal followed the practice found wanting in R(SB). It adjudicated on the issue of eligibility so as to reduce Mr Mbenga’s award in circumstances where it had no jurisdiction to do so. This was because CICA’s review decision dated 15 January 2013 had made no reduction of the award of compensation by reference to issues of character arising within paragraph 13(e) of the Scheme.

 

29.     Both Miss Parathalingam and Mr Thomas were in agreement that the First-tier Tribunal had acted outside its powers as I have described.

 

30.     Where they disagreed was the effect this want of jurisdiction should have in this particular case. Mr Thomas argued that the part of the tribunal’s decision relating to the reduction in the award of compensation should be remitted to the First-tier Tribunal which in turn should remit it to CICA. CICA would then consider whether there was any new evidence or change in circumstances which might warrant a reconsideration of Mr Mbenga’s eligibility for a full award under paragraph 53 of the Scheme. Mr Thomas sought to uphold the part of the tribunal’s decision relating to the assessment of the amount of compensation absent the reduction for character.

 

31.     Mr Thomas moreover sought to maintain the tribunal’s findings of fact on issues of character. He argued that these findings were reached in the course of determining issues which were properly before the tribunal, namely the amount of Mr Mbenga’s entitlement to compensation under the Scheme for his injury under the tariff, loss of earnings and other special expenses claimed.

 

32.     In additional written submissions, Miss Parathalingam argued that it would be manifestly unfair for CICA to rely on findings of fact as to character made by the tribunal in circumstances where the tribunal had no jurisdiction to make those findings. She invited me to quash those findings and to remit this matter to the tribunal which should then remit it to CICA. If I were to accede to this request, it would follow that CICA would not be able to rely on the tribunal’s findings about Mr Mbenga’s character when considering the issue of eligibility. In the alternative she argued that the tribunal’s decision in its entirety should be quashed and the matter remitted to a freshly constituted tribunal for a rehearing of the appeal limited to the review decision taken in January 2013.

 

Can the decision on character be severed from that on assessment/quantum?

 

33.     Mr Thomas’ submission has pragmatic force. Why should assessment issues properly before the tribunal on which a determination was validly made by CICA not stand? If they were to do so, this would limit the scope of reconsideration by CICA to eligibility issues alone and thus limit the scope of any subsequent appeal.

 

34.     I have, however, come to the conclusion that the constituent elements of the tribunal’s decision cannot be approached in a pick and mix fashion. The tribunal’s decision was that Mr Mbenga was entitled to an award of £69,403. The reduction of 60% formed an indivisible part of the tribunal’s calculation. This means that the award, and by extension the tribunal’s decision, either stands in its entirety or falls in its entirety. If the tribunal’s decision making was flawed because it did not have the jurisdiction to consider a reduction in the award, this means that the entire decision is flawed and must be quashed. Fairness dictates that nothing else will do.

 

35.     I observe that the tribunal knew at the start of the hearing that CICA argued certain issues of character required it to consider, pursuant to paragraph 13 of the Scheme, whether the award of compensation should be either reduced or withheld. I consider that it is inevitable that the tribunal’s approach to the evidence was shaped by those considerations. 

 

36.     An analysis of the findings made by the Tribunal in the course of determining assessment issues demonstrates that some of those findings had an obvious bearing on the eligibility issue. Both issues were thus inextricably interwoven with respect to fact. I give two examples by way of illustration.

 

37.     First, the tribunal’s assessment of Mr Mbenga’s past loss of earnings was directly affected by its findings that he had attempted to mislead the tribunal about the duration of his pre-shooting work as a doorman and about his intention to return to work installing cabling for NS Optimum in October 2004. In essence, he sought to minimise the time he had been employed as a doorman and contended that, but for the injury, he would have resumed work for NS Optimum. Had his case been accepted, he would have been entitled to a larger award for past loss of earnings based on the higher salary he would have received installing cabling. The tribunal did not believe him on these two issues and thus assessed his past loss of earnings on his lower wages as a doorman [see paragraphs 11, 16-19, and 49-50 of the Statement of Reasons at UT 67-70 and 78].

 

38.     Second, the tribunal’s findings about the distant and unconventional nature of Mr Mbenga’s marriage had relevance to its assessment of the tariff award for his injuries to which he was entitled under the Scheme. Mr Mbenga’s case was that, in consequence of the shooting, he suffered from a permanent disabling mental illness from which he was unlikely to recover so as to be meaningfully employed in the future. The consultant psychiatrist, Dr Roberts, who assessed Mr Mbenga proceeded on the basis that his relationship with his wife had been placed under enormous strain as a result of the shooting such that no effective reconciliation was likely to occur in the foreseeable future. The tribunal found that Dr Roberts had been under a mistaken impression as to the nature of Mr Mbenga’s relationship with his wife and, in part reliance on that fact, had formed an overly pessimistic view about Mr Mbenga’s mental health. The tribunal departed from Dr Roberts’ view as to prognosis and found that Mr Mbenga suffered from a disabling mental illness which was not permanent in nature. Thus the tariff award was lower than Mr Mbenga had contended for [see paragraphs 13-15, 41, 44, 45, 47 and 48 of the Statement of Reasons at UT 68-69 and 75-78].

 

39.     The two examples I have given illustrate vividly the factual connections between issues of eligibility and assessment. In circumstances where the tribunal had no jurisdiction to reduce the award of compensation but nevertheless did so, its decision on assessment was flawed by the effect of that want of jurisdiction on its approach to fact finding.

 

40.     In R(SB) the three judge panel recognised that a tribunal might in future be required to determine both issues of eligibility and assessment at the same time if the terms of the CICA review decision encompassed both of those issues. It gave as an example a case where CICA decided that paragraph 13(b) of the Scheme applied [where an applicant failed to co-operate with the police or other authority in attempting to bring the assailant to justice] with a 50% reduction and assessed the level of compensation to which that reduction applied so as to make a final award and the claimant appealed against both aspects of that decision. Paragraph 104 of R(SB) stated that:

“…In such an example we can see that in some circumstances it may be sensible for the FtT to hold separate hearings on the two issues under appeal. We are cautious about giving detailed guidance as to how the FtT should approach such a scenario given that it is hypothetical and none of the parties made detailed or contested arguments on this issue…”

The rationale for suggesting separate hearings was based on the need for a careful approach by the tribunal to the issues in dispute and on the need for the tribunal to make it clear to the parties if any eligibility or compensation issue had been finally determined.

 

41.     Had Mr Mbenga’s case been founded on such a review decision seeking a 60% reduction for eligibility followed by an assessment in the light of that reduction, it might have been feasible - given the factual interconnectedness already referred to - for the tribunal to have dealt with both issues at the same time as long as it approached the issue of eligibility first and made that clear in its reasoning. As a matter of logic, it is that issue which then shapes the assessment of the amount of compensation payable. However, because Mr Mbenga’s case was not founded on a correct review decision, the tribunal’s determination of the issues lacked not only jurisdiction but also the logical approach suggested by the structure of the Scheme and endorsed in R(SB).

 

42.     In conclusion and for all of the above reasons, I quash in its entirety the tribunal’s decision both as to eligibility and assessment.

 

 

Can the tribunal’s findings of fact stand even if its decision is quashed?

 

43.     I must also deal with the practical effect of my decision given that Mr Thomas invites me to rule to the effect that the tribunal’s findings encompassing both character and assessment should stand irrespective of any quashing decision.

 

44.     I do not think this is a tenable argument. The tribunal’s decision is indivisible from the reasoning and fact finding which supports it. If the decision must be quashed, then it follows that the reasons and facts found fall in consequence. This is especially so in a case where the tribunal had no jurisdiction to determine the issue of eligibility. It would be manifestly unfair to maintain findings of fact in these circumstances.

 

45.     I direct that any reconsideration as to both eligibility and assessment cannot rely on the tribunal’s findings set out in the decision notice and the Statement of Reasons dated 6 February 2014. 

 

46.     However this does not mean that the evidence given by Mr Mbenga to the tribunal (contained in the notes which form the record of proceedings) cannot be considered by a CICA claims officer/reviewer or, if necessary, by a First-tier Tribunal. The weight to be attached to that material will depend on all the circumstances of the case including, but not limited to, the other evidence available about what Mr Mbenga has said in the past about matters in dispute. I note that, in addition, there was a great deal of information about character issues available to CICA well in advance of both its January 2013 review decision and the decision of the tribunal.

 

47.     Any decision maker will need to explain the reasoning behind any decision and should identify the material relied upon in so doing.

 

 

Conclusion: What happens next

 

48.     Section 17(1)(a) of the Tribunals, Courts and Enforcement Act 2007 empowers me, on making a quashing decision, to remit the matter to the court, tribunal or authority who made the decision with a direction to reconsider the matter and reach a decision in accordance with the findings of the Upper Tribunal.  I remit Mr Mbenga’s appeal to a differently constituted First-tier Tribunal and direct that it assess the compensation payable afresh. It may be prudent for the First-tier Tribunal to postpone such a decision until CICA has reconsidered its eligibility decision

 

49.     The reviewer at CICA had made a decision on eligibility in January 2013 which did not entail the reduction of any award of compensation. As the tribunal determined this matter without the jurisdiction to do so, it is not a matter which I can formally remit to the First-tier Tribunal for reconsideration. It will now be a matter for CICA to decide whether it should reconsider its eligibility decision under paragraph 53 of the Scheme, no final award of compensation having yet been made.  

 

 

 

 

 

GWYNNETH KNOWLES QC

 

Judge of the Upper Tribunal

 

8 April 2015.

 

[signed on the original as dated]