JP v First-tier Tribunal

Where a criminal-injuries claimant relies on self-defence, a tribunal must assess that case by reference to the right to use reasonable force in defence of oneself or another. It must evaluate the full evidential context, including any perceived threat, disparity of strength, purpose for holding an object and the limited time available for judgment.

Under paragraph 25 of the 2012 Scheme, the tribunal exercises a discretionary judgment whether an award, including a nil award, is appropriate. It need not follow a rigid sequence requiring consideration of a reduced award before a nil award. However, that discretion is unlawfully exercised where material findings selectively disregard relevant evidence or lack an evidential basis.

The applicant sustained serious head injuries after an altercation with his sister’s former boyfriend. The Criminal Injuries Compensation Authority refused compensation under paragraph 25 of the 2012 Scheme, considering that the applicant’s abusive language and decision to answer the door while holding a mallet had materially contributed to the incident.

The First-tier Tribunal dismissed the applicant’s appeal. It treated his conduct as aggressive and found that he had brandished the mallet. On judicial review, the applicant contended that the tribunal had failed to address his self-defence of himself and his sister, and had failed to consider the full context of the incident.

The central issue was whether the First-tier Tribunal had made a material error of law in its treatment of self-defence and the discretion under paragraph 25.

1. Application for judicial review allowed. The First-tier Tribunal’s decision was quashed and the appeal against CICA’s review decision was remitted to a differently constituted tribunal for a fresh hearing.

2. Paragraph 25 conferred a discretion whether to make an award, a reduced award or no award. Applying R v CICB ex parte Cook, the tribunal was not required to adopt a rigid staged approach. Its conclusion that a nil award was appropriate did not itself disclose an error of law.

3. The tribunal nevertheless made a material error of law in its treatment of self-defence. A person may use reasonable force to defend himself or another, and need not await the first blow. The tribunal failed to address whether the applicant’s conduct was a reasonable response to the perceived threat to himself and his sister.

4. Its findings were selective and inadequately based on the evidence. It disregarded evidence that the assailant initiated the confrontation and evidence explaining why the applicant held the mallet. The finding that he had brandished it had no evidential basis. Describing his conduct as violent also assumed, rather than determined, the self-defence issue.

5. Although appellate restraint is owed to first-instance fact-finding, it does not prevent intervention where the tribunal’s defective treatment of a material issue produces an error of law. The rehearing tribunal must make fresh findings and decide for itself whether paragraph 25 requires no reduction, a reduction, or exclusion of an award.

• Upper Tribunal (Administrative Appeals Chamber): Allowed judicial review, quashed the First-tier Tribunal’s decision and remitted the appeal for rehearing: [2022] UKUT 49 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): Dismissed the applicant’s appeal against CICA’s review decision on 26 January 2021.
• Criminal Injuries Compensation Authority: Refused the applicant’s review application on 27 August 2020 under paragraph 25 of the 2012 Scheme.