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

Paragraph 115(b) of the Criminal Injuries Compensation Scheme 2012 must be interpreted as a whole. A tribunal must assess the interaction between change, materiality, medical condition and injustice, rather than treating dictionary definitions as determinative or applying a fixed checklist.

“Condition” is deliberately broad. According to context, it may encompass aetiology, diagnosis, symptoms, disablement, treatment or medication. Its breadth remains constrained by the requirements for a material change and injustice. The balance of probabilities governs findings of fact, but not evaluative judgments such as whether allowing the original award to stand would cause injustice.

LXR accepted an award for childhood sexual abuse under the Criminal Injuries Compensation Scheme 2012. The award did not include a separate payment for mental injury. He later sought to reopen the application, relying on psychological evidence that his understanding of the causes of his condition, and aspects of his symptoms, had changed.

The Criminal Injuries Compensation Authority refused to reopen the claim. The First-tier Tribunal dismissed LXR’s appeal. It held that a changed understanding of his condition and ability to engage with treatment were not a change in “medical condition”, and also considered that any change was not directly attributable to the childhood abuse.

On judicial review, the central issue was the proper interpretation and application of paragraph 115(b) of the Scheme.

1. The application for judicial review was granted. The First-tier Tribunal’s decision was quashed and the matter remitted for rehearing. Its erroneous interpretation of paragraph 115(b) may have affected its assessment of the evidence and attribution.

2. Paragraph 115(b) must be read as a whole. The question is whether there has been so material a change in the applicant’s medical condition that allowing the original determination to stand would give rise to an injustice. The concepts of materiality, change, medical condition and injustice inform each other. A tribunal must not derive the meaning of “medical condition” conclusively from dictionary definitions.

3. Dictionaries may reveal possible meanings and exclude plainly irrelevant ones, but they are only an aid to contextual interpretation. The word “condition” is deliberately broad and, in the relevant context, may cover aetiology, diagnosis, symptoms, disablement, treatment or medication. A change in an applicant’s understanding of symptoms and their causes may therefore be a change in condition if the evidence establishes that it is fundamental to the nature or treatment of that condition.

4. The breadth of “condition” does not decide the issue alone. Materiality means that the applicant would now qualify for a more favourable tariff award. The tribunal must make the required evaluative judgment about injustice in the circumstances of the individual case.

5. R v Criminal Injuries Compensation Board, ex parte Williams [2000] PIQR Q339 is binding for what it decided, but it was not a comprehensive checklist for reopening cases. Its use of “serious” reflected earlier Scheme wording; paragraph 115(b) instead requires a “material” change. The statutory question is injustice, not general unfairness. The balance of probabilities applies to factual findings, not to evaluative assessments of whether injustice would arise.

6. The tribunal must rehear the matter, including any discrimination issue that arises. Whether the medical evidence shows a late manifestation of a new type of injury is for that tribunal to determine.

• Upper Tribunal (Administrative Appeals Chamber): On judicial review, quashed the First-tier Tribunal’s decision under section 15(1)(c) of the Tribunals, Courts and Enforcement Act 2007 and remitted the matter under section 17(1)(a).
• First-tier Tribunal (Social Entitlement Chamber): Dismissed LXR’s appeal against the refusal to reopen his criminal-injuries compensation application, by a decision dated 9 May 2023.