Criminal Injuries Compensation Authority v First-tier Tribunal & Anor

For eligibility under paragraph 5 of the Criminal Injuries Compensation Scheme 2012, whether a person was taking an exceptional risk must be assessed by reference to what that person believed the risk to be when it was taken. A tribunal must nevertheless consider the whole course of conduct. A risk may become exceptional when the claimant’s understanding of the situation and its objective reality coincide, and the risk would not normally be expected in the course of that person’s work.

Training alone does not determine whether a risk is exceptional. On an appeal from a compensation review decision, the First-tier Tribunal may decide only issues addressed in that review.

A firefighter was injured while dealing with an arson fire in a block of flats. He entered believing that residents’ lives were in danger. He later discovered that the fire was in an unoccupied storeroom containing debris and flammable material, but continued working in hazardous conditions.

The Criminal Injuries Compensation Authority refused compensation under paragraph 5 of the Criminal Injuries Compensation Scheme 2012. The First-tier Tribunal allowed the claimant’s appeal and also made a finding of 100% eligibility. The Authority sought judicial review of both aspects of that decision. The central issue was whether the claimant took an exceptional risk and whether the tribunal had jurisdiction to make the percentage finding.

1. The application succeeded to a limited extent. The Upper Tribunal declined to disturb the First-tier Tribunal’s conclusion that the claimant met paragraph 5 of the Criminal Injuries Compensation Scheme 2012. It quashed the tribunal’s finding of 100% eligibility and substituted a decision referring percentage eligibility and the outstanding matters to the Authority.

2. Paragraph 5 requires an exceptional and justified risk. Under paragraph 5(2), a work-related risk is not exceptional if it would normally be expected in the course of the claimant’s work. Whether a person is taking a risk must be assessed by reference to that person’s belief at the time. Accordingly, the claimant’s entry into the building, while he believed life was endangered, was not itself an exceptional risk.

3. The assessment could not be confined to entry into the building. After discovering the storeroom and its dangerous contents, the claimant continued to work in smoke-logged, hot and hazardous conditions. At that stage his subjective understanding and the objective reality coincided. The tribunal was therefore entitled to regard the continuing conduct as an exceptional risk not normally expected of him in his work.

4. The Scheme does not make training determinative of exceptionality. The guidance suggesting otherwise was misleading and should be revised.

5. Applying SB and Others v First-tier Tribunal and CICA [2014] UKUT 0497 (AAC), the First-tier Tribunal’s appellate jurisdiction extended only to issues addressed by the Authority’s review decision. Since 100% eligibility had not been addressed on review, the tribunal lacked jurisdiction to determine it.

• Upper Tribunal (Administrative Appeals Chamber): On judicial review, allowed the Authority’s application to a limited extent and quashed the percentage-eligibility finding.
• First-tier Tribunal (Social Entitlement Chamber): Allowed the claimant’s appeal on 30 April 2015, with written reasons dated 8 June 2015, finding eligibility under paragraph 5 of the Criminal Injuries Compensation Scheme 2012 and making a 100% eligibility finding.
• Criminal Injuries Compensation Authority: Refused the claim on 23 April 2014 and maintained that refusal on review on 6 October 2014.