VP, R (on the application of) v First-tier Tribunal (CIC)

For the purposes of the Criminal Injuries Compensation Scheme 2008, a recognised disorder cannot fall between the tariff categories for a medically recognised illness or condition and for mental illness because the expression “mental illness” bears a consistent meaning in both. Whether mental illness is disabling depends on the functional impairment specified by the Scheme. Significant adverse effects on social relationships or sexual function may satisfy that requirement.

A tribunal must apply that test to the expert evidence. It must give adequate reasons if it rejects a specialist’s finding about the effect of the condition, particularly where the written evidence addresses that issue.

The applicant had suffered sexual abuse as a child and received a tariff award of £2,000 under the Criminal Injuries Compensation Scheme 2008. He contended that he was entitled to a higher award for mental injury.

The Criminal Injuries Compensation Authority rejected that contention. The First-tier Tribunal confirmed its decision on 22 May 2013 after receiving a consultant psychiatrist’s report that diagnosed sadomasochism as a disorder of sexual preference but described it as not disabling mental illness. The tribunal also found no qualifying illness or condition under the alternative tariff category.

On judicial review, the issue was whether the tribunal had applied the Scheme’s definitions of mental illness and disability lawfully and given adequate reasons for its treatment of the evidence.

1. The application for judicial review succeeded. The Upper Tribunal quashed the First-tier Tribunal’s decision and remitted the case for reconsideration.

2. The psychiatrist’s distinction between a disorder of sexual preference and a “global” mental illness was not the test under the Criminal Injuries Compensation Scheme 2008. The expression “mental illness” had to bear the same meaning in the adjacent tariff categories. It was untenable for a disabling ICD-10-recognised disorder to fall into a gap between them. The Authority accepted, and the Upper Tribunal held, that the applicant’s disorder should be treated as mental illness for Scheme purposes.

3. Whether the illness was disabling had to be decided by applying Note 11. That note treats mental illness as disabling where it significantly impairs functioning in an important aspect of life, including social relationships or sexual function. The psychiatrist had accepted that the condition affected the applicant’s ability to form relationships. On that evidence, the conclusion that it was not disabling could not properly rest on the absence of a global mental illness.

4. The First-tier Tribunal had purported to rely on the psychiatrist’s professional and impartial report, but then rejected its finding about relationships without adequate reasons. It did not explain why the written accounts given to the psychiatrist, psychologist and tribunal were immaterial, whether oral evidence had been sought, or why the recorded relationship history was insufficient. Its reasoning was therefore inadequate and its decision erroneous in law.

5. On remittal, the First-tier Tribunal was to decide afresh whether the applicant qualified for an award for disabling mental illness and, if so, the appropriate tariff level. It was also to consider the applicant’s loss-of-earning-capacity claim and whether that issue required further remittal to the Authority.

• Upper Tribunal (Administrative Appeals Chamber): The judicial-review application succeeded. The First-tier Tribunal decision of 22 May 2013 was quashed and the matter remitted for reconsideration.
• First-tier Tribunal: It had confirmed the Criminal Injuries Compensation Authority’s award of £2,000 for sexual assaults and rejected a higher award for disabling mental illness.
• Criminal Injuries Compensation Authority: It had rejected the applicant’s mental-injury claim initially and on review under the Criminal Injuries Compensation Scheme 2008.