Criminal Injuries Compensation Authority v Criminal Injuries Compensation Appeals Panel & Anor

When a compensation scheme permits reopening after a material change in medical condition, the relevant comparison is with the claimant’s condition at the original decision. The existence of some symptoms at that time does not prevent a later, significant deterioration from constituting a material change. The decision-maker should identify the current condition, determine whether it is directly attributable to the injury, and compare it with the earlier condition. Where the evidence permits the renewed application to be considered without extensive further enquiries, the two-year restriction on reopening is not a bar. A conclusion which disregards clear evidence of deterioration may be perverse. Further enquiries may still be made after reopening if appropriate.

Mrs Lamb received compensation in 1999 for a strained back following an assault. She did not then claim for psychiatric injury. In 2006 she applied to reopen the claim, stating that her psychological condition had progressively deteriorated. A nominated adjudicator refused the application. On judicial review, HHJ Sycamore quashed that decision concerning the psychiatric condition and ordered the claim to be reopened, while upholding the decision concerning back pain. There was no cross-appeal on the back-pain issue. The Criminal Injuries Compensation Authority appealed to the Court of Appeal. The central issues were whether there had been a material change under paragraph 56 of the Scheme and whether paragraph 57 required further extensive enquiries.

The appeal was dismissed.

1. For the purpose of paragraph 56 of the Scheme, the adjudicator should address three questions: the claimant’s current psychiatric condition; whether that condition was directly attributable to the assault; and whether there had been a material change since the hearing in March 1999.
2. The only proper conclusion on the first question was that Mrs Lamb was suffering florid symptoms associated with post-traumatic stress disorder. On the second question, the evidence, particularly the consultant psychiatrist’s opinion supported by the general practitioner’s evidence, established that those symptoms were caused by the assault. Other factors affecting her depression and anxiety did not displace that conclusion.
3. On the third question, there was no material suggesting that Mrs Lamb had suffered the same florid PTSD symptoms at the time of the original hearing. Her later assertion that her condition had worsened was supported by her daughter and a friend, and by the absence of earlier medical treatment followed by later treatment and referral. A significant deterioration could constitute a material change even if lesser symptoms had existed earlier. It was perverse not to find paragraph 56 satisfied.
4. Paragraph 57 did not require further extensive enquiries before reopening where the evidence already presented permitted the application to be considered. The Criminal Injuries Compensation Authority could make further enquiries after reopening, but there was no need for them at that stage.
5. The court concluded that HHJ Sycamore had applied the proper judicial-review test by asking, in substance, whether the adjudicator’s conclusion was perverse. The psychiatric aspect was therefore to be reopened and considered. The court noted that the lower court should not have added words expressly directing compliance with paragraphs 56 and 57, but that observation did not alter the result.

1. Court of Appeal (Civil Division): The appeal by the Criminal Injuries Compensation Authority was dismissed under [2010] EWCA Civ 1433.
2. Upper Tribunal (Administrative Appeals Chamber): HHJ Sycamore quashed the adjudicator’s decision concerning psychiatric injury and ordered the claim to be reopened, while upholding the decision concerning back pain. No cross-appeal was brought on the back-pain issue.