QA Mongson v First Tier Tribunal (Social Entitlement Chamber) & Anor

Under the Criminal Injuries Compensation Scheme 2012, acceptance of a compensation award and the review-and-appeal process are mutually exclusive alternatives. An applicant who accepts a review determination, and receives payment, has disposed of the application and cannot subsequently appeal to the First-tier Tribunal. The applicant’s reluctance or motive for accepting the award does not alter that result.

An appeal brought after final acceptance is a nullity and the tribunal has no jurisdiction to determine it. Although a requested oral hearing should have been convened, no remittal is required where the tribunal’s lack of jurisdiction makes a further strike-out inevitable.

The respondent sought compensation after a criminal assault. The Criminal Injuries Compensation Authority made an award of £1,500 and, following a review which rejected a loss-of-earnings payment, sent him an acceptance form. He signed it, accepted the award in full and final settlement, and received payment. He then appealed to the First-tier Tribunal seeking loss of earnings.

The First-tier Tribunal struck out the appeal. On judicial review, the Upper Tribunal quashed that decision and remitted the matter, considering that acceptance accompanied by dissatisfaction might not preclude an appeal and that the requested oral hearing should have been held. The Authority appealed. The central issue was whether an applicant who has accepted and received a final award may nevertheless appeal the review decision to the First-tier Tribunal.

1. Appeal allowed. The First-tier Tribunal had correctly concluded that it could not entertain the respondent’s appeal. The Upper Tribunal’s decision was quashed.

2. The structure of the Criminal Injuries Compensation Scheme 2012 creates a clear division between accepting a determination and pursuing review and appeal. Paragraphs 100, 101, 123 and 127 require an applicant either to accept the award or to reject the determination and use the review-and-appeal route. Acceptance following review, followed by payment, disposes of the application. The definition of a final award in Annex 8 confirms that result, subject only to the limited reopening power in paragraphs 114 to 116.

3. The respondent accepted the review determination, albeit reluctantly, and received payment. His motives and the merits of his loss-of-earnings claim were irrelevant. He could not both accept the award and appeal it. The appeal was therefore a nullity and the tribunal lacked jurisdiction. This construction also accords with the public-administration value of finality noted in Law Society v LSC [2010] 2550 EWAC (Admin).

4. The First-tier Tribunal should, strictly, have struck out the proceedings under rule 8.2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, because it lacked jurisdiction, rather than under rule 8.3(c). That procedural point was not material to the result.

5. The Authority accepted that the requested oral hearing should have been convened. However, because any reconsideration would inevitably result in strike-out for want of jurisdiction, the procedural error did not justify remitting the case for an oral hearing.

• Court of Appeal (Civil Division): allowed the Criminal Injuries Compensation Authority’s appeal and quashed the Upper Tribunal’s decision.
• Upper Tribunal: on judicial review, quashed the First-tier Tribunal’s strike-out decision and remitted the matter for reconsideration.
• First-tier Tribunal (Social Entitlement Chamber): struck out the respondent’s appeal on 6 January 2016 after concluding that acceptance and payment of the award had ended the claim.