Criminal Injuries Compensation Authority v First-Tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) (Rev 1)

Under Criminal Injuries Compensation Scheme 1996, paragraph 56 permits reopening only where leaving the original decision in place would cause an injustice and that injustice would result from a material change in the applicant’s medical condition.

The assessment of injustice requires account to be taken of all relevant circumstances. Those circumstances may include matters of character, eligibility and disclosure. A medical change alone does not require reopening where another ground means that no injustice would arise if the original decision stands.

The interested party sought to reopen a final 2000 refusal of compensation for an assault in 1998. The Criminal Injuries Compensation Authority refused reopening in 2012, relying on the absence of a material medical change and on the applicant’s criminal record and false information about convictions and previous applications.

The First-tier Tribunal struck out his appeal on the erroneous basis that a claim without an original award could not be reopened. The Upper Tribunal quashed that decision and remitted the appeal, holding that character evidence was irrelevant to paragraph 56 of the Criminal Injuries Compensation Scheme 1996. The Authority appealed on the construction of paragraph 56 and the appropriate disposal.

Appeal allowed. Peter Jackson LJ, with whom Patten LJ agreed and Hickinbottom LJ agreeing with the reasons and proposed disposal, held that the Upper Tribunal had adopted an incorrect construction of paragraph 56 of the Criminal Injuries Compensation Scheme 1996.

1. Paragraph 56 makes final decisions normally final, subject to a power to reopen. The power exists to prevent injustice. Its wording requires two matters: whether an injustice would occur if the earlier decision remained in place, and whether that injustice would result from a material change in the applicant’s medical condition.

2. The question of injustice cannot sensibly be assessed by isolating medical change from all other circumstances. Character evidence and other matters bearing on entitlement may show that the original decision would cause no injustice even if the medical condition had changed. In that event there is no power to reopen. The Upper Tribunal was therefore wrong to treat character evidence as irrelevant to paragraph 56.

3. The word “may” was consistent with that construction, although the conclusion did not depend on it. An officer reviewing a refusal to reopen under paragraph 60(1) has no wider power than the original officer under paragraph 56. The argument concerning paragraph 53 was made out, but was subsumed by the conclusion on paragraph 56.

4. Although the Upper Tribunal had correctly quashed the First-tier Tribunal’s erroneous conclusion that reopening required an original award, remittal served no purpose. The appellate court could determine the matter itself because there was only one possible outcome. The applicant’s criminal record, lack of frankness about it and his previous claims, and the insufficient evidence of medical change meant that any tribunal would be bound to dismiss the appeal. No injustice arose from leaving the original decision in force.

The court set aside the Upper Tribunal’s order and restored the First-tier Tribunal’s strike-out. The reviewing officer’s refusal of 18 July 2012 accordingly remained effective.

• Court of Appeal (Civil Division): In [2018] EWCA Civ 2367, allowed the Criminal Injuries Compensation Authority’s appeal, set aside the Upper Tribunal’s order and restored the First-tier Tribunal’s strike-out.
• Upper Tribunal (Administrative Appeals Chamber): On 31 December 2015, quashed the First-tier Tribunal’s decisions and remitted the appeal for rehearing. It held that paragraph 56 of the Criminal Injuries Compensation Scheme 1996 required medical change to be considered without character evidence.
• First-tier Tribunal (Social Entitlement Chamber): On 16 January 2014, struck out the appeal on the mistaken basis that a case could not be reopened without an original award of compensation.