Hutton v First Tier Tribunal (Criminal Injuries Compensation) & Anor

A waiver of the two-year time limit under the Criminal Injuries Compensation Scheme (2001) requires the Claims Officer to identify the actual or distinct circumstances of the individual case and then decide overall whether waiver is reasonable and in the interests of justice. Particular circumstances do not mean unusual or extraordinary circumstances. The decision-maker must consider all relevant factors, including the length and reasons for delay and the nature of the claim, while recognising the general rule that claims should be made promptly and within two years. Where an arguable error of law may have affected that assessment, and a properly directed tribunal could reasonably reach another conclusion, permission to seek judicial review should be granted.

Claims were made under the Criminal Injuries Compensation Scheme (2001) approximately 42 years after the appellant’s father had been fatally stabbed. The Claims Officer and reviewing officer refused to waive the time limit. The First-tier Tribunal dismissed the appeal. The Upper Tribunal accepted that the First-tier Tribunal had misstated the relevant questions, but refused permission for judicial review because it considered that the result could not have been different.

The appeal concerned the construction of paragraph 18 and whether, on the correct approach, a properly directed tribunal could reasonably waive the time limit. The position of the appellant’s mother and sister, who had continuing mental health problems, also required consideration.

Appeal allowed. Permission to bring judicial review proceedings was granted in respect of all three applicants. The substantive judicial review was remitted to the Upper Tribunal.

1. Construction of paragraph 18. The First-tier Tribunal had erred in law by treating particular circumstances and the interests of justice as separate questions. Paragraph 18 requires the Claims Officer first to establish the actual or distinct circumstances of the individual case and then to ask whether, by reason of those circumstances, it is reasonable and in the interests of justice to waive the time limit. Particular circumstances do not have to be unusual, extraordinary or otherwise special.
2. Relevant factors. The decision-maker must consider all relevant factors and reach an overall decision. Relevant considerations may include the length of the delay, the reasons for it and the nature of the claim. Their relative importance depends on the circumstances of the particular case. The general rule remains that claims should be made as soon as possible and, in any event, within two years of the incident.
3. Arguability. The delay was exceptionally long, and waiting to gather detailed information before applying might have been mistaken. Delay could also make assessment of compensation, including dependency and loss of parental services, more difficult. Nevertheless, it was reasonably arguable that a properly directed tribunal could conclude that the time limit should be waived.
4. Separate claimants. The case of the appellant’s mother and sister was stronger because their mental health problems meant that they could not be blamed for delays arising from the appellant’s conduct in researching and presenting the claims.
5. Remittal. The Court of Appeal declined to determine the substantive judicial review. Further argument and investigation were required concerning the different forms of compensation and the separate positions of the three applicants, matters for which the Upper Tribunal was better equipped.

1. Court of Appeal (Civil Division): Allowed the appeal, granted permission to bring judicial review proceedings and remitted the substantive judicial review to the Upper Tribunal.
2. Upper Tribunal (Administrative Appeals Chamber): On 3 March 2011, refused permission to apply for judicial review, while accepting criticisms of the First-tier Tribunal’s reasoning.
3. First-tier Tribunal (Social Entitlement Chamber): On 25 September 2009, dismissed the appeal against the reviewing officer’s refusal to waive the time limit.
4. Claims Officer and reviewing officer: Refused to waive the two-year time limit under the Criminal Injuries Compensation Scheme (2001).