JA, R (on the application of) v First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation)

Ignorance of the existence of a criminal injuries compensation scheme is not automatically excluded from consideration as an exceptional circumstance justifying an extension of time. The tribunal must examine why the applicant was unaware of the scheme and whether, in the circumstances, earlier enquiries could reasonably have been expected. The context of any advice sought and the applicant’s reasons for not pursuing it may be material. A tribunal determining an appeal involving a vulnerable adult must properly ascertain the nature of the applicant’s vulnerabilities, explain how they were addressed, and record compliance with the relevant procedural guidance. These requirements are particularly important where the hearing is conducted by telephone.

The applicant sought judicial review of a decision of the First-tier Tribunal concerning her late application for compensation under the Criminal Injuries Compensation Scheme 2012. The application was made almost five years after the incident and therefore required satisfaction of rule 89.

The First-tier Tribunal found that the applicant could have discovered the scheme earlier and that the evidential requirements for extending time were not met. The Upper Tribunal considered whether the tribunal had properly addressed the applicant’s ignorance of the scheme, the rule 89(b) test, and her vulnerabilities as a vulnerable adult.

1. Judicial review allowed. The First-tier Tribunal’s decision was quashed and the appeal was remitted to an entirely freshly constituted First-tier Tribunal for a face-to-face oral hearing.
2. The First-tier Tribunal erred in law by failing to show through its reasons that it had fully ascertained the applicant’s vulnerabilities as a vulnerable adult and how those vulnerabilities should be addressed. This was particularly significant because the hearing had been conducted by telephone. The tribunal was required to comply with the relevant Practice Direction and record how it had facilitated the applicant’s evidence.
3. There could be no a priori exclusion of ignorance of the law, or of the existence of the scheme, from the exceptional circumstances contemplated by rule 89(a) of the Criminal Injuries Compensation Scheme 2012. The question was part of the overall evaluation whether the applicant could reasonably have made earlier enquiries.
4. The tribunal had to establish the context in which the applicant sought advice from the Citizens Advice Bureau. It mattered whether she was seeking advice about compensation or other redress, or only about obtaining a prosecution. That context was relevant to what she knew, what she might reasonably have been expected to discover, and whether exceptional circumstances existed.
5. The Upper Tribunal expressed no concluded view on rule 89(b). The question whether the application could be determined without further extensive enquiries remained for the new First-tier Tribunal to decide on the evidence.

• Upper Tribunal (Administrative Appeals Chamber): judicial review granted. The First-tier Tribunal decision was quashed and the appeal remitted for a fresh hearing.
• First-tier Tribunal (Social Entitlement Chamber): decision dated 1 February 2022 concerning the late claim under the Criminal Injuries Compensation Scheme 2012.
• An earlier First-tier Tribunal decision concerning the same claim had previously been quashed in separate judicial review proceedings.