BD v First-tier Tribunal (Criminal Injuries Compensation) & Anor

Under the 2008 Scheme, a disabling mental illness is directly attributable to a crime of violence if the crime was a substantial or significant cause. It need not be the sole cause.

Where an injury has several effective causes, the Scheme does not permit a tribunal to reduce the tariff award simply by assigning a percentage contribution to the criminal incident. The express provision for reflecting acceleration or exacerbation applies only where the criminal injury accelerated or exacerbated a pre-existing condition.

A tribunal which makes no finding on direct attribution, but rejects the claim through impermissible percentage apportionment, errs in law.

The applicant, a bus driver, was assaulted by a passenger in August 2008 and later developed disabling mental illness. The Criminal Injuries Compensation Authority awarded £1,500 for facial scarring but refused compensation for mental injury and loss of earnings.

The First-tier Tribunal dismissed his appeal. It found that the assault had contributed at most 10% to his mental illness, calculated 10% of the relevant £13,500 tariff award, and concluded that Tariff Note 5 prevented a separate mental-injury award.

On judicial review, the Upper Tribunal considered whether the Tribunal had applied the correct causation standard and whether the 2008 Scheme permitted that percentage reduction.

1. Judicial review granted. The First-tier Tribunal’s decision was wrong in law. It was quashed and the applicant’s appeal against the Authority’s review decision was remitted to a differently constituted First-tier Tribunal.

2. The Tribunal had not decided whether the mental illness was directly attributable to the August 2008 incident. Instead, it proceeded on the assumption that the incident was responsible for at most 10% of the illness and treated 10% of the £13,500 tariff amount as the award for mental injury.

3. That approach was not authorised by paragraph 26 of the 2008 Scheme. Its final sentence concerns an injury which accelerates or exacerbates a pre-existing condition. It did not permit a general percentage reduction where a mental illness had several effective causes, most of which arose after the criminal incident. Subject to the possible pre-existing-condition qualification, an applicant with a qualifying mental illness caused by a criminal offence is entitled to the unreduced tariff award.

4. The proper causation question was whether the illness was directly attributable to the incident. The incident need only have been a substantial or significant cause; it did not need to be the sole cause. The Judge followed R v CICB, ex parte Ince [1973] 3 All ER 808 on that point. The material-increase-in-risk approach in Fairchild v Glenhaven Funeral Services [2002] UKHL 22, developed for a particular tort context, was not relevant.

5. The Upper Tribunal declined to withhold relief. Under section 17(2) of the Tribunals, Courts and Enforcement Act 2007, it could remake the decision only if the First-tier Tribunal could have reached no other decision without the error. That was not so. Attribution, including whether any discrete aspect of the illness was directly attributable to the incident, was for the new Tribunal on the evidence.

• Upper Tribunal (Administrative Appeals Chamber): Judicial review granted. The First-tier Tribunal’s decision of 18 June 2015 was quashed and the appeal was remitted to a differently constituted tribunal.

• First-tier Tribunal: Dismissed the applicant’s appeal against the Criminal Injuries Compensation Authority’s review decision of 27 May 2010.