NM v First-tier Tribunal (Social Entitlement Chamber)

An accepted award under the Criminal Injuries Compensation Scheme 2001 may be reopened only where the claimant establishes the required material change and injustice, and, after two years, the renewed application can be considered without further extensive enquiries. Whether enquiries are extensive is an evaluative question which must give proper weight to the word “extensive”.

General Note 5 prevents a further separate award for mental injury where compensation has already been paid for a tariff sexual offence. A possible loss-of-earnings claim is not barred by that note, but it may still require complex causation enquiries. An error in overlooking that possibility is immaterial where independent and sustainable findings defeat reopening.

The applicant accepted an £8,200 tariff award under the Criminal Injuries Compensation Scheme 2001 for childhood sexual abuse. In 2016 she sought to reopen the award, relying on a deterioration in her mental health and seeking further compensation.

The Criminal Injuries Compensation Authority refused to reopen the case. The First-tier Tribunal dismissed her appeal on 26 July 2019. It found that she had not established a material change in her medical condition and that determining causation and entitlement would require further extensive enquiries.

The applicant brought judicial review in the Upper Tribunal. The central issues were whether those findings were lawfully open to the First-tier Tribunal, whether General Note 5 barred a further mental-injury award, and whether a possible loss-of-earnings claim had been adequately addressed.

1. The application for judicial review was dismissed. The First-tier Tribunal was entitled, on the evidence before it, to find that the applicant had not established a material change in her medical condition since the accepted award. Contradictions in her account of the onset and progression of symptoms, and the medical records, were matters for that tribunal of fact to assess.

2. The First-tier Tribunal was also entitled to find that reopening would require further extensive enquiries within paragraphs 56 and 57 of the Criminal Injuries Compensation Scheme 2001. “Extensive” must be given proper weight. Education, employment and benefits records will often be obtainable without difficulty, but the tribunal could properly regard the task of disentangling the effects of abuse from other traumatic events, and determining causation and prognosis, as complex and extensive.

3. Either finding independently justified refusal to reopen. The First-tier Tribunal may not have adequately considered a possible loss-of-earnings award. General Note 5 did not bar such a claim, although it did bar a further separate mental-injury award after compensation for the tariff sexual offence had been paid. Any omission concerning loss of earnings was immaterial because that claim would still require proof of causation and therefore the same extensive enquiries.

4. Paragraph 23 of R(SB) v FtT and CICA [2014] UKUT 0497 did not address when an award should be reopened. The First-tier Tribunal had therefore misstated its effect. The Upper Tribunal left open whether injustice might exceptionally arise otherwise than through an increased award.

5. A time-limited personal independence payment award could permit an inference about prognosis, but only limited weight could be given to it in the circumstances. Any error in relying on it was immaterial because the First-tier Tribunal had other sustainable reasons for finding that further extensive enquiries were required.

• Upper Tribunal (Administrative Appeals Chamber): Judicial review dismissed: [2022] UKUT 107 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): Dismissed the applicant’s appeal against the refusal to reopen the award on 26 July 2019.
• Criminal Injuries Compensation Authority: Refused to reopen the accepted award on 19 May 2017; the refusal was confirmed on review on 19 February 2018.