Criminal Injuries Compensation Authority v Hutton & Ors

Judicial review of a specialist tribunal’s fact-finding decision is not an opportunity for an appellate tribunal to substitute its own assessment of the evidence. The reviewing tribunal may intervene only for a public law error, and must respect permissible factual inferences and a decision reached within the tribunal’s jurisdiction.

Under paragraph 18 of the Criminal Injuries Compensation Scheme 2001, a late claim requires an overall assessment of the claimant’s actual circumstances. The length and explanation of delay, prejudice to a fair inquiry, and the likely viability of the claim may all be material. A very long delay, coupled with prejudice and an unlikely entitlement to any award, entitled the tribunal to refuse an extension.

The claimants sought fatal-award compensation following the 1966 killing of their father and former partner. Their application was made in 2008, almost 40 years after the event. The Criminal Injuries Compensation Authority refused to waive the two-year time limit. The First-tier Tribunal dismissed their appeals.

On judicial review, the Upper Tribunal quashed the First-tier Tribunal decisions and remitted the claims to a new panel. It considered that the First-tier Tribunal had speculated about when information became available, dealt inconsistently with the deceased’s conduct, and inadequately addressed a conventional award and procedural fairness.

The Authority appealed. The central issue was whether the Upper Tribunal had identified a reviewable error of law in the First-tier Tribunal’s refusal to waive time.

1. Appeal allowed. The Upper Tribunal had exceeded its judicial review jurisdiction. Its decisions were quashed and the First-tier Tribunal decisions refusing to waive the time limit were reinstated.

2. The First-tier Tribunal was the tribunal of fact. Applying the restraint described in [2007] UKHL 49 and [2013] UKSC 19, the Upper Tribunal could not set aside its findings merely because it preferred a different view of the evidence. The First-tier Tribunal’s conclusions about when Vincent and Fiona Hutton could have obtained the information needed to claim were permissible inferences, not speculation.

3. Yvonne Akers was not a qualifying claimant under paragraph 38(a)(i) of the Criminal Injuries Compensation Scheme 2001. The provision posed a simple factual question. The First-tier Tribunal was entitled to find, from the contemporaneous evidence, that she had not lived with the deceased as husband and wife in the same household for the qualifying period. It would therefore have been futile to extend time for her claim.

4. The First-tier Tribunal’s treatment of the deceased’s conduct was neither inconsistent nor irrational. Under paragraphs 13(d), 15 and 38, that conduct could reduce or preclude a fatal award, including a conventional award. The tribunal could conclude that the available material pointed to no award, while also finding that the long delay prevented a fair inquiry into the claimants’ challenge to that conclusion. Its reasons also sufficiently explained why a reduced conventional award was inappropriate.

5. There was no procedural unfairness. A paragraph 18 waiver requires a wide inquiry into the particular circumstances. The claimants, who had legal representation before the First-tier Tribunal, could not reasonably have been taken by surprise by consideration of their mental health, the deceased’s conduct, or Ms Akers’s qualifying status.

6. The First-tier Tribunal correctly applied the paragraph 18 test. The claim was brought decades late; the claimants could have claimed substantially earlier; delay prejudiced fair resolution of dependency and conduct issues; Ms Akers had no qualifying claim; and Vincent and Fiona were unlikely to obtain even a conventional award. Its refusal to waive time was plainly one it was entitled to reach.

• Court of Appeal (Civil Division): Allowed the Authority’s appeal, quashed the Upper Tribunal decisions and reinstated the First-tier Tribunal decisions.
• Upper Tribunal (Administrative Appeals Chamber): On 16 July 2015, granted judicial review, quashed the First-tier Tribunal decisions and remitted the claims to a differently constituted panel.
• First-tier Tribunal (Criminal Injuries Compensation): On 9 May 2013, refused to waive the paragraph 18 time limit for all three claims.
• Court of Appeal (Civil Division), earlier stage: Allowed the claimants’ appeals, granted permission to seek judicial review of the 2009 First-tier Tribunal decision, and remitted the judicial review to the Upper Tribunal: [2012] EWCA Civ 806.