Rust-Andrews v First Tier Tribunal (Social Entitlement Chamber) & Anor

Compensation under the Criminal Injuries Compensation Scheme 2001 is determined by the Scheme rather than common law rules. Authorities concerning analogous common law issues may nevertheless provide assistance.

The balance of probabilities governs issues that can reasonably be proved in that way. Broader assessment may become necessary when future loss cannot be determined as a matter of fact. Whether an applicant’s disabling illness would have continued after recommended treatment was a factual question bearing on the duration of continuing loss. The applicant therefore had to establish that fact on the balance of probabilities. A probability below 50% did not require an award for loss of a chance where the tribunal permissibly found that no continuing loss had been established beyond the specified date.

The appellant developed severe post-traumatic stress disorder after a workplace assault. The Criminal Injuries Compensation Authority made a tariff award but declined compensation for lost earnings. On appeal, the First-tier Tribunal increased the tariff award and awarded past and future earnings, while limiting future loss to June 2010. It found that appropriate cognitive behavioural therapy should have been undertaken and that continuing incapacity after treatment had not been established on the balance of probabilities.

The Upper Tribunal dismissed an application for judicial review. The appellant appealed, arguing that medical evidence of a 40% risk of continuing incapacity should have produced a proportionate award for loss of a chance. The central issue was whether the First-tier Tribunal had lawfully declined to compensate that risk under the Criminal Injuries Compensation Scheme 2001.

1. Permission to appeal was granted, but the appeal was dismissed unanimously. The First-tier Tribunal’s decision was confirmed.

2. Compensation had to be determined in accordance with the Criminal Injuries Compensation Scheme 2001. The question was therefore not whether common law principles governed the award. Common law authorities could nevertheless assist where they reflected experience of analogous issues.

3. The Scheme laid down the balance of probabilities as the general standard for issues reasonably capable of proof. That did not require every aspect of future loss to be forced into a binary determination. A stage could arise at which proof gave way to broader assessment, as paragraph 33 recognised.

4. No such difficulty arose here. Once the tribunal found continuing loss at the assessment date, paragraph 32 required it to determine the period of that loss. The critical questions were whether the appellant should reasonably have received the recommended cognitive behavioural therapy and whether, following that treatment, her disabling illness would have continued beyond June 2010.

5. The first question was no longer disputed. The second was a factual question on which the appellant bore the burden of proof. The tribunal was entitled to find that continuing loss was established until June 2010 but not thereafter. The psychiatrist’s assessment of a 40% risk was important, but the tribunal properly considered all the evidence. Its conclusion disclosed no error of law.

6. Provisionally and obiter, for the purpose of Rule 17.4A of the Civil Procedure Rules 1998, a decision is “given” when it is received, or would ordinarily be received, by the party. Clear wording would be required before an appeal period could run from an earlier date.

1. Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed unanimously. The First-tier Tribunal’s decision was confirmed: [2011] EWCA Civ 1548.
2. Upper Tribunal (Administrative Appeals Chamber): Judge Rowland dismissed the appellant’s application for judicial review of the First-tier Tribunal’s decision.
3. First-tier Tribunal (Social Entitlement Chamber): The tribunal increased the psychiatric injury tariff award, awarded compensation for past and future lost earnings and pension loss, and limited future earnings loss to June 2010.