M v First Tier Tribunal & Anor

The duty under the overriding objective to deal with cases fairly and justly is not reduced by a compensation scheme provision requiring an applicant to make out his or her case. A tribunal must consider practicable steps to enable a party, particularly one affected by serious mental ill health or impaired capacity, to participate fully and present the case.

The tribunal need not construct a party’s case. It must nevertheless consider whether obstacles to effective participation should be removed or mitigated before striking out an appeal. Failure to address material evidence relevant to the prospects of success is an error of law.

The claimant sought judicial review of two decisions of the First-tier Tribunal which struck out, as having no reasonable prospect of success, his appeals against the Criminal Injuries Compensation Authority’s refusals to extend time for reviews under the 2008 criminal injuries compensation scheme.

One original compensation claim had been refused for alleged non-co-operation with the police. The other had been refused because of criminal convictions. The claimant had severe mental health problems, resided in a mental health hospital, and there was evidence raising doubts about his capacity to manage financial matters.

The central issues were whether the First-tier Tribunal had properly applied its overriding objective when striking out the appeals, and whether it had overlooked material matters concerning police co-operation and spent convictions.

1. The applications for judicial review succeeded. The Upper Tribunal quashed both strike-out decisions and remitted the appeals to the First-tier Tribunal for rehearing.

2. Rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 required the First-tier Tribunal to deal with cases fairly and justly, including, so far as practicable, ensuring that parties could participate fully. The requirement in the 2008 criminal injuries compensation scheme that an applicant make out the case neither diluted nor modified that obligation.

3. Full participation includes presenting one’s case. The tribunal did not have to construct a case for an applicant, but had to consider whether the applicant’s circumstances created obstacles which it should practicably remove or mitigate. Possible steps included facilitating attendance from a mental health institution, seeking consent to obtain medical records, and adopting a more inquisitorial approach.

4. Given the claimant’s severe mental health problems and evidence concerning capacity, the First-tier Tribunal erred by failing to consider those steps before strike-out. It also failed adequately to address whether the claimant’s hospital-order conviction was spent, a matter capable of affecting the prospects of the appeal.

5. There was no proper evidential basis for finding that the claimant had failed to co-operate with the police. The First-tier Tribunal erred by failing to take that relevant consideration into account when assessing whether the related appeal had a reasonable prospect of success.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the judicial review applications, quashed the First-tier Tribunal’s decisions of 3 August 2015, and remitted the appeals.

• First-tier Tribunal: Struck out the claimant’s appeals against the Criminal Injuries Compensation Authority’s refusals to extend time for review applications, on the ground that they had no reasonable prospect of success.