BC v First-tier Tribunal & Anor

Under Criminal Injuries Compensation Scheme 2012, paragraph 89(a) requires a decision-maker to determine separately whether there were exceptional circumstances and whether those circumstances meant that the applicant could not have claimed at an earlier date.

“Earlier” means any date before the claim was made. It is not confined to a date within the ordinary two-year time limit. Whether circumstances are exceptional is primarily factual, but the conclusion must be reasonable. A tribunal errs in law if it treats matters such as bereavement or an unusual pattern of addiction as unexceptional without a rational assessment, or fails to consider relevant evidence.

The applicant sought compensation for childhood physical and sexual abuse under the Criminal Injuries Compensation Scheme 2012. He reported the abuse after police contacted him in 2010, and the offender was convicted in 2011. The applicant claimed in April 2013, after the ordinary time limit had expired.

The Criminal Injuries Compensation Authority refused to extend time. The First-tier Tribunal (Social Entitlement Chamber) dismissed his appeal, holding that his addiction, bereavement and lack of knowledge of the scheme were not exceptional circumstances. The applicant sought judicial review in the Upper Tribunal.

The central issue was the proper application of paragraph 89(a), including the meaning of the requirement that exceptional circumstances meant the applicant could not have applied earlier.

1. The application succeeded. The Upper Tribunal quashed the First-tier Tribunal’s decision and remitted the matter for a fresh hearing before a differently constituted tribunal.

2. Paragraph 89(a) of the Criminal Injuries Compensation Scheme 2012 requires two distinct inquiries: first, whether exceptional circumstances existed; secondly, whether any such circumstance meant that the applicant could not have applied earlier. The First-tier Tribunal did not identify or separately address that two-stage process, and thereby erred in law.

3. The question whether circumstances are exceptional is primarily one of fact for the Authority or tribunal. However, the conclusion must be reasonable. The First-tier Tribunal’s treatment of the applicant’s father’s death as unexceptional, coupled with speculative reasoning that he would have overcome its effects after a short period, was unreasonable. Its conclusion that the pattern of addiction was unexceptional was also legally erroneous.

4. The tribunal further failed to consider relevant matters. These included the effect on the applicant of the offender’s conviction, his subsequent condition, the impact of his alcohol and drug dependency, and the chronology of his contact with solicitors. Its finding about when he had consulted solicitors was founded on a material factual error.

5. “Earlier” in paragraph 89(a) means any date before the date on which the claim was actually made. It does not mean only an earlier date within the two-year period in paragraph 88(1)(b). Accordingly, an application cannot be accepted under paragraph 89(a) if it could in practice have been made at any earlier date, whether or not that date fell within the ordinary time limit.

• Upper Tribunal (Administrative Appeals Chamber): On judicial review, quashed the First-tier Tribunal’s refusal to allow an appeal against the Authority’s decision and remitted the matter for a fresh hearing.
• First-tier Tribunal (Social Entitlement Chamber): On 11 November 2014, confirmed the Criminal Injuries Compensation Authority’s refusal to extend time for the compensation claim.
• Criminal Injuries Compensation Authority: Refused to waive the time limit on 29 April 2013 and maintained that decision on review on 26 February 2014.