AS v First-tier Tribunal (Social Entitlement Chamber)

A tribunal errs in law if it overlooks material medical evidence bearing on causation and fails to explain why that evidence does not establish the causal connection alleged. This is especially material where causation may determine whether a claimant’s incapacity for work was directly caused by a compensable criminal injury under paragraph 43(1) of the Criminal Injuries Compensation Scheme 2012.

Where that error means that evidence must be evaluated afresh, the appropriate remedy is to quash the decision and remit the appeal for a complete rehearing before a differently constituted tribunal.

Miss S applied for criminal injuries compensation in respect of domestic violence. The Criminal Injuries Compensation Authority awarded compensation for disabling mental injury and physical abuse, but made no loss-of-earnings award. The First-tier Tribunal upheld that decision on 28 July 2021.

On judicial review, the applicant contended that her back condition resulted from domestic violence and had caused more than 28 weeks’ absence from work. The central issue was whether the First-tier Tribunal had lawfully rejected that causal connection when determining the potential entitlement to a loss-of-earnings payment.

1. Judicial review allowed to the extent of remittal. The Upper Tribunal quashed the First-tier Tribunal’s decision of 28 July 2021 and remitted the appeal for a fresh hearing before a differently constituted panel.
2. The First-tier Tribunal had erred in law by failing to take account of repeated medical-record entries showing treatment for back pain before the road traffic accident of 14 August 2014. Those entries were material to the contention that the back condition was caused by domestic violence rather than the accident.
3. The error was compounded by the absence of an explanation for the conclusion that, despite the pre-accident records, the back pain was not caused by domestic violence. Later notes recording the applicant’s requests that her doctor attribute pain or absence from work to the accident could not remove the evidential significance of the earlier records.
4. The causation issue was material because paragraph 43(1) of the Criminal Injuries Compensation Scheme 2012 requires very limited capacity for paid work to result directly from the injury qualifying for compensation. The Upper Tribunal made no findings on the other grounds originally advanced; they could be raised if relevant at the rehearing.
5. Remittal was appropriate because the evidence required fresh consideration and further evidence might be needed. The case was directed to be reheard entirely afresh by a panel containing none of the members of the panel that made the quashed decision.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the judicial review to the extent of quashing the First-tier Tribunal’s decision and remitting the appeal for a complete rehearing.
• First-tier Tribunal (Social Entitlement Chamber): On 28 July 2021, upheld the Criminal Injuries Compensation Authority’s review decision, including its refusal of a loss-of-earnings payment.
• Criminal Injuries Compensation Authority: On review dated 14 January 2021, maintained the award for disabling mental injury, increased the physical-abuse award, and made no loss-of-earnings payment.