Colefax v First Tier Tribunal (Social Entitlement Chamber) & Anor

Under paragraph 18(b) of the Criminal Injuries Compensation Scheme (2008), a late applicant must show that, in the particular circumstances, it was not reasonable to expect a timely application for compensation for any of the personal injuries caused by the incident. The inquiry is not confined to the injury whose causal connection was diagnosed late.

“Reasonable to expect” asks whether the applicant both could and should have applied within time, having regard to the particular circumstances. It imports reasonable diligence but no requirement for exceptional circumstances. The Scheme’s provisions on reconsideration and re-opening support this construction by reflecting finality and economy. Tough consequences for some victims do not justify a strained construction of the Scheme.

The appellant was assaulted in May 2007 and sustained serious jaw injuries. He later developed epilepsy, which was diagnosed in September 2009 as post-traumatic epilepsy caused by the assault. He applied for compensation in November 2009, after the Scheme’s two-year time limit had expired.

The Compensation Authority, and then the First-tier Tribunal, refused to waive the time limit. The First-tier Tribunal accepted that the application was practicable to consider but found no acceptable explanation for failing to claim in time for the physical injuries. On judicial review, the Upper Tribunal rejected the appellant’s challenge.

The appeal concerned whether paragraph 18(b) of the Criminal Injuries Compensation Scheme (2008) permits a waiver where an injury is diagnosed late, despite a timely claim having been reasonably possible for another injury from the same incident.

1. Appeal dismissed. Lord Justice Briggs, with whom Lady Justice Black and Lady Justice Arden agreed, held that paragraph 18(b) required the appellant to show that it was not reasonable to expect him to make an application for compensation within two years. It did not permit the inquiry to be confined to the subsequently diagnosed epilepsy.

2. The Scheme had to be construed by the ordinary meaning of its words, in their statutory context and having regard to its purpose. It was inappropriate to force it into a common-law or limitation-law model: see S v First Tier Tribunal [2014] 1 WLR 1313 and Rust-Andrews v First Tier Tribunal [2011] EWCA Civ 1548.

3. Paragraph 8 defined “criminal injury” as one or more personal injuries. Paragraph 27 also assumed a single application for multiple injuries by prescribing tariff reductions for separate injuries. Paragraph 18(a) referred to the actual late application, whereas paragraph 18(b) asked whether an application for one or more personal injuries should reasonably have been made within time.

4. “Reasonable to expect” did not mean merely that an applicant reasonably could have applied. It asked whether, in the particular circumstances, the applicant both could and should have done so. It therefore allowed a late applicant to show that it was reasonable not to claim for an immediately apparent, relatively minor injury. No exceptional circumstances were required.

5. The reconsideration and re-opening provisions showed that the Scheme balanced compensation against finality and economy. Those considerations supported the ordinary reading of paragraph 18(b). The court left open whether paragraph 56 could in some circumstances accommodate a late diagnosis of causation.

6. The First-tier Tribunal’s formulation that the appellant had to show that he “could not” reasonably have claimed in time was too stringent in general. However, the error made no practical difference here. Before the First-tier Tribunal, the appellant had advanced no significant reason for failing to claim in time for his physical injuries. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): dismissed the appeal: [2014] EWCA Civ 945.
• Upper Tribunal (Administrative Appeals Chamber): rejected the judicial-review challenge and held that paragraph 18(b) of the Criminal Injuries Compensation Scheme (2008) required consideration of a timely application for any injury caused by the incident.
• First-tier Tribunal (Social Entitlement Chamber): dismissed the appellant’s compensation appeal on 20 January 2011.