Criminal Injuries Compensation Authority v First Tier Tribunal

Under note 12 of the Criminal Injuries Compensation Scheme, a claim for minor multiple physical injuries requires at least two actual visits to or by a medical practitioner within six weeks. It is insufficient that attendance would have been justified. The requirement provides an evidential threshold for verifying whether the injuries meet the minimum award. A tribunal cannot be criticised for failing to consider a possible brain injury first raised in judicial review proceedings, particularly where no medical evidence supports it. The appeal was allowed and the First-tier Tribunal’s strike-out decision restored.

The interested party was assaulted and applied for compensation under the 2008 Criminal Injuries Compensation Scheme. The Authority refused the application, and the First-tier Tribunal struck out his appeal under rule 8 of the 2008 Tribunal Rules because the evidence could not establish injuries meeting the minimum Level 1 threshold and he had not attended a doctor.

The Upper Tribunal, on judicial review, quashed that decision and remitted the matter. It held that actual medical attendance was not a prerequisite under note 12 and considered that the evidence raised a possible assault-related brain injury. The Authority appealed, raising the proper interpretation of note 12 and whether the Upper Tribunal had been entitled to interfere on that issue.

1. Appeal allowed. The Upper Tribunal’s decision was set aside and the First-tier Tribunal’s decision restored.
2. Note 12 required at least two actual attendances on or by a medical practitioner within six weeks. “Necessitates” meant that the injuries made attendance necessary, not merely appropriate or warranted. The mandatory expressions “must have” and “at least”, together with the reference to visits, supported an actual-attendance requirement.
3. This interpretation was consistent with the scheme’s purpose. The requirement created a readily verifiable evidential threshold for claims seeking the minimum award. A tribunal could not reliably assess, months later and without contemporaneous medical records, whether attendance had been necessary merely from the applicant’s assertions.
4. The Upper Tribunal was wrong to quash the First-tier Tribunal’s decision because of a possible brain injury. The First-tier Tribunal had considered the evidence before it. The brain-injury suggestion was first made in the judicial review proceedings and was unsupported by medical evidence. The applicant therefore could not discharge the burden of proof under paragraphs 19 and 20 of the scheme.
5. On the evidence, the First-tier Tribunal was entitled to conclude that the injuries did not meet the minimum Level 1 requirements under paragraphs 25 and 26. The assault was serious, but the scheme imposed minimum requirements for compensation which had not been proved.

• Court of Appeal (Civil Division) [2015] EWCA Civ 1329: appeal allowed; the Upper Tribunal’s decision was set aside and the First-tier Tribunal’s decision restored.
• Upper Tribunal (Administrative Appeals Chamber): judicial review granted; the First-tier Tribunal’s strike-out decision was quashed and the matter remitted for rehearing.
• First-tier Tribunal (Social Entitlement Chamber): appeal struck out under rule 8 of the 2008 Tribunal Rules.
• Criminal Injuries Compensation Authority: application for compensation refused on 23 May 2012, with the review decision also adverse.