RT v The First-tier Tribunal (Social Entitlement Chamber) & Anor

Under paragraph 13(1)(b) of the Criminal Injuries Compensation Scheme 2008, the tribunal must address whether an applicant failed to co-operate with efforts to bring the assailant to justice. It must not add a requirement that the applicant bore no responsibility for a retraction, or treat autonomy as the decisive question.

Where accepted evidence shows that a victim of sustained domestic abuse temporarily withdrew co-operation because her will was overborne by abuse, pressure and fear, a deduction may be irrational. An appeal from a CICA review is confined to the issues decided on review. The First-tier Tribunal cannot investigate or assess compensation matters not addressed in that decision.

The applicant claimed compensation under the Criminal Injuries Compensation Scheme 2008 for rape and prolonged domestic abuse by her husband. She had initially reported the offences but later retracted the allegations. She was convicted of falsely retracting a true allegation of rape.

The First-tier Tribunal found her eligible for compensation. It reduced any award by 40% under paragraph 13(1)(b) for failure to co-operate with the police, and by 30% under paragraph 13(1)(e) for unspent motoring convictions. It also adjourned for updated psychiatric evidence concerning assessment of compensation.

Following a transfer from the Administrative Court, the Upper Tribunal considered whether those deductions and the adjournment involved legal error.

1. The judicial-review application succeeded in part. The Upper Tribunal quashed the 40% deduction under paragraph 13(1)(b) of the Criminal Injuries Compensation Scheme 2008 and the directions adjourning the appeal for psychiatric evidence. It substituted a decision that no paragraph 13(1)(b) deduction be made, and referred the outstanding claim matters to CICA.

2. Paragraph 13(1)(b) permits, but does not require, a reduction where an applicant failed to co-operate in bringing the assailant to justice. The First-tier Tribunal erred by asking whether the applicant had made an autonomous decision and by proceeding on the false premise that no deduction could be avoided only if she bore no responsibility for her retraction. That was an impermissible gloss on the Scheme’s language.

3. The tribunal also relied on matters irrelevant to co-operation, including the partial reconciliation and consensual sexual contact. On its accepted findings and the unchallenged expert evidence, the applicant’s temporary withdrawal of co-operation arose from chronic abuse, coercion, fear and vulnerability. No reasonable tribunal could have made a deduction under paragraph 13(1)(b) in those circumstances.

4. The 30% deduction under paragraph 13(1)(e) remained. Paragraphs 13(1)(e) and 14(3) required a reduction for unspent convictions unless exceptional reasons justified a different course. Exceptional reasons were reasonably arguable, but the First-tier Tribunal was entitled to reject them. Judicial review did not justify intervention, and the removal of the 40% deduction made the totality argument academic.

5. Applying [2014] UKUT 0497 (AAC), the First-tier Tribunal’s jurisdiction on an appeal from CICA was confined to the correctness of issues addressed in CICA’s review decision. It therefore had no jurisdiction to obtain evidence or determine the amount of compensation, which CICA had not reviewed.

• Upper Tribunal (Administrative Appeals Chamber): Judicial review granted in part. The tribunal quashed the paragraph 13(1)(b) deduction and the adjournment directions, substituted a decision of no deduction under that provision, and left the paragraph 13(1)(e) deduction in force.

• Administrative Court: The applicant initially commenced judicial-review proceedings in the High Court. The application was transferred to the Upper Tribunal because it had exclusive jurisdiction.

• First-tier Tribunal (Social Entitlement Chamber): Allowed the applicant’s appeal to the extent of finding eligibility for an award, but imposed 40% and 30% deductions under the Criminal Injuries Compensation Scheme 2008 and adjourned for psychiatric evidence.