AXO, R (on the application of) v The First-tier Tribunal

For paragraph 49(1) of the Criminal Injuries Compensation Scheme 2008, a payment is recoverable where it has a sufficient factual connection with the injury for which the criminal injuries award was made. The expression “in respect of” is deliberately wider than “for the same injury” and should be applied in context rather than exhaustively defined. The basis of a settlement must be determined from the settlement terms and relevant documents and circumstances. A causal connection is not essential. Separate heads of loss must nevertheless be examined individually. A payment for breach of Article 2 reflecting the victim’s death was recoverable, while a payment for breach of Article 3 reflecting the applicant’s own treatment was not.

The applicant had received a criminal injuries compensation award following her mother’s death. She later settled a human rights claim for £15,000, apportioned as £10,000 for breach of Article 2 and £5,000 for breach of Article 3. CICA decided that the settlement was a payment in respect of the same injury under paragraph 49(1) of the Criminal Injuries Compensation Scheme 2008, and the First-tier Tribunal upheld that decision.

On judicial review, the Upper Tribunal considered whether either or both parts of the settlement related to the death for which the original award had been made.

1. Disposition. The First-tier Tribunal’s decision was quashed under section 15(1)(c) of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal substituted its own decision under section 17(1)(b): the £10,000 Article 2 payment was received in respect of the same injury, but the £5,000 Article 3 payment was not.
2. Paragraph 49(1) uses “in respect of” to indicate a connection between the payment and the injury. The expression is wider than “payment for the same injury”. It should be applied in the context of the Scheme and not replaced by an artificial definition. Under paragraphs 8 and 9 of the Scheme, the relevant injury was the applicant’s mother’s death.
3. The reference to the same injury includes relevant consequences or related matters. The Scheme’s distinction between compensation fixed by reference to the injury and compensation for resulting loss did not justify dividing the two concepts for paragraph 49(1). The purpose of paragraph 49 is wider than preventing double recovery for precisely the same loss. It also protects public funds by limiting when a criminal injuries award may be retained.
4. Where a claim is settled, the basis of payment must be determined from the settlement itself and any relevant document or surrounding circumstance. The applicant’s solicitor’s report, prepared for approval of the settlement of a protected person’s claim, was significant evidence of the basis on which the sums were agreed. What was paid, rather than the whole scope of the claim, was decisive.
5. The Article 2 payment reflected the loss of the mother’s life and the defendants’ failure to protect that life. The domestic-abuse context supplied a sufficient factual connection with the mother’s death, although the failures did not cause the murder. The Article 3 payment reflected the applicant’s own treatment. Its connection with the mother’s death was insufficient, even though both formed part of a wider pattern of domestic abuse.
6. DSD v Commissioner of Police for the Metropolis [2014] EWHC 2493 (QB) was respected but not followed on the interpretation of paragraph 49(1). The relevant issue had not been before the High Court judge and the conclusion had been reached without analysis of the Scheme. VG v First-tier Tribunal [2017] 49 UKUT (AAC) 39 was confined to its facts and did not establish general factors for future cases.

• First-tier Tribunal (Social Entitlement Chamber): upheld CICA’s decision requiring repayment of the settlement. Decision dated 4 March 2021, reference CI019/20/00029.
• Upper Tribunal (Administrative Appeals Chamber): quashed the First-tier Tribunal’s decision under section 15(1)(c) of the Tribunals, Courts and Enforcement Act 2007 and substituted its own decision under section 17(1)(b).