JM v The First-Tier Tribunal & Anor

A tribunal errs in law where a material factual finding has no evidential basis, where it overlooks evidence directly contradicting its findings, or where it gives inadequate reasons for accepting an unreasoned medical opinion.

Under the Criminal Injuries Compensation Scheme (2012), a psychiatrist or clinical psychologist must confirm the existence of disabling mental injury. The Upper Tribunal indicated, without finally deciding the issue, that the Scheme does not necessarily require such a clinician to confirm the injury’s duration.

JM appealed to the First-tier Tribunal against the Criminal Injuries Compensation Authority’s assessment of compensation under the Criminal Injuries Compensation Scheme (2012) following an assault.

The First-tier Tribunal awarded compensation for headaches, neck scarring and disabling mental injury lasting between 28 weeks and two years. It found that JM’s PTSD had repeatedly been reported as mild, accepted a psychiatrist’s view that it was disabling for no more than 12 months, and rejected a tinnitus claim.

JM sought judicial review. The central issues were whether the tribunal had made unsupported findings, given adequate reasons for its conclusion about the duration of disabling PTSD, and overlooked relevant medical evidence concerning tinnitus.

1. The application for judicial review succeeded. The First-tier Tribunal’s decision was quashed and JM’s compensation appeal was remitted to a differently constituted tribunal for a fresh determination after a hearing.

2. The finding that JM’s PTSD had been reported as mild several times in the medical records had no supporting evidence. The only reference to mild PTSD occurred when one clinician sought a specialist opinion about possible symptoms. It was not a diagnosis, and the later specialist evidence referred to significant PTSD symptoms.

3. The tribunal gave inadequate reasons for accepting the psychiatrist’s opinion that the PTSD had ceased to be disabling after eight to 12 months. The opinion did not explain that period by reference to changes in JM’s lifestyle or medical evidence. The tribunal’s reliance on activities which JM could undertake did not, without further findings and explanation, show that her mental injury was no longer disabling.

4. The tribunal also failed to consider relevant evidence when it found that tinnitus had never been formally diagnosed and had not been linked to the assault. A senior audiologist had diagnosed bilateral tinnitus and recorded an onset date of September 2017.

5. The judge further indicated that the tariff in Annex E to the Criminal Injuries Compensation Scheme (2012) requires psychiatric or psychological confirmation of the existence of disabling mental injury. The judge was inclined to conclude that duration need not also be formally confirmed by such a clinician, but did not finally decide that issue because it was unnecessary to dispose of the claim and had not been fully argued.

• Upper Tribunal (Administrative Appeals Chamber): Judicial review application allowed. The First-tier Tribunal’s decision of 16 November 2021 was quashed under the Tribunals, Courts and Enforcement Act 2007, and JM’s compensation appeal was remitted for redetermination.
• First-tier Tribunal (Social Entitlement Chamber): Allowed JM’s appeal against CICA’s determination and awarded a total of £3,075 under the Criminal Injuries Compensation Scheme (2012).