Criminal Injuries Compensation Authority v First-Tier Tribunal (Social Entitlement Chamber) & Anor

On judicial review of a tribunal decision, a material error of law ordinarily requires the decision to be quashed. The Upper Tribunal may substitute its own decision only where the statutory conditions are satisfied, including that, without the error, only one decision was open to the original tribunal. A reviewing tribunal cannot uphold a decision on a new factual or legal basis that was not argued or determined below. It must remit the matter. Conversely, where several distinct reasons were given and removal of legally irrelevant reasons leaves an unchallenged, rational and independently sufficient reason, the decision may be upheld.

The Criminal Injuries Compensation Authority rejected compensation claims by a firefighter and a police officer under paragraph 5(2) of the Criminal Injuries Compensation Scheme 2012. The First-tier Tribunal allowed both appeals. On judicial review, Upper Tribunal Judge Levenson found errors of law because the First-tier Tribunal had considered facts discovered after the risks were taken, but upheld both awards on alternative reasoning.

The Authority appealed. The central issue was whether the Upper Tribunal could uphold the First-tier Tribunal decisions after finding material errors of law, or whether it had to quash and remit them.

Disposition. Coulson LJ gave the leading judgment. Gross LJ agreed and specifically endorsed the observations concerning the proper process and the likely merits of Mr Mailer’s case. The appeal was allowed in Mr Mailer’s case and dismissed in Mr Haigh’s case.

1. Under sections 15 to 17 of the Tribunals and Courts Enforcement Act 2007, the Upper Tribunal must apply the principles governing judicial review in the High Court. Once a material error of law is established, the decision is ultra vires and prima facie cannot stand. The authorities included R v Hull University Visitor ex parte Page [1993] AC 682, R (Edwards) v Environment Agency [2009] 1 All ER 57, Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 and Governing Body of the London Oratory School v Schools Adjudicator [2005] EWHC 1842 (Admin).
2. The power to substitute a decision is restricted. The original decision must have been made by a court or tribunal, quashed for error of law, and capable of only one lawful outcome. The reviewing tribunal must not substitute itself as the primary decision-maker.
3. In Mr Mailer’s case, the First-tier Tribunal had considered only the risk when he entered the building. The Upper Tribunal introduced a new enquiry concerning the risk involved in remaining inside after the true circumstances became apparent. That issue had not been argued, evidenced or decided below. It was not necessarily the only conclusion available to the First-tier Tribunal. The Upper Tribunal therefore had to quash and remit the decision.
4. Mr Haigh’s case was different. The First-tier Tribunal had identified three distinct reasons for finding an exceptional risk. Once two legally irrelevant reasons were removed, the remaining reason—his colleagues’ failure to assist while he arrested a violent and resisting offender—was rational and independently sufficient. No cogent challenge to that reason had been made. The Upper Tribunal was therefore entitled to uphold the award.

• Court of Appeal (Civil Division) — in [2018] EWCA Civ 1175, allowed the Authority’s appeal concerning Mr Mailer and dismissed its appeal concerning Mr Haigh.
• Upper Tribunal (Administrative Appeals Chamber) — Upper Tribunal Judge Levenson found errors of law in both First-tier Tribunal decisions but upheld both awards on alternative reasoning.
• First-tier Tribunal (Social Entitlement Chamber) — allowed both claims under the Criminal Injuries Compensation Scheme 2012.