SH v The First-tier Tribunal (Social Entitlement Chamber)

A tribunal assessing a disabling mental injury under the Criminal Injuries Compensation Scheme 2012 must apply the test in Note 2 accurately. The injury is disabling only where it has a substantial adverse effect on the person’s ability to carry out normal day-to-day activities for the specified period. Permanence concerns the duration of that effect; it is not a separate test requiring a further substantial adverse effect.

Where a tribunal considers an expert report inadequate on an issue that it directed the expert to address, it should seek clarification or further evidence before relying on the perceived inadequacy against the claimant. Material evidence must be properly considered and given appropriate weight. Unsupported factual findings, mischaracterisation of evidence and excessive reliance on indirect indicators may amount to errors of law.

The applicant claimed compensation under the Criminal Injuries Compensation Scheme 2012 for sexual abuse suffered as a child. The Criminal Injuries Compensation Authority initially refused the claim for non-cooperation, but later made an award for sexual assault. On appeal, the First-tier Tribunal increased the award to £13,500 for a disabling mental injury lasting five years or more but not permanent, while making no award for loss of earnings.

The applicant sought judicial review of the First-tier Tribunal’s decision. Permission was granted on grounds including misapplication of Note 2 to the Tariff, inadequate treatment of psychiatric evidence, failure to investigate perceived deficiencies in an expert report, and findings unsupported by the evidence. The central issues were whether the First-tier Tribunal had materially erred in law and, if so, whether the case could be remitted directly to CICA or had to be reheard by the First-tier Tribunal.

1. Judicial review allowed to the extent of remittal. The First-tier Tribunal’s decision was quashed and the case was remitted for a completely fresh hearing before a differently constituted panel.
2. The First-tier Tribunal misquoted and misapplied Note 2 to the Tariff. A disabling mental injury must have a substantial adverse effect on the ability to carry out normal day-to-day activities for the specified period. The effect is relevant both to whether the injury is disabling and to the period for which it has lasted. The tribunal appeared to treat substantial adverse effect as relevant only to permanence.
3. The tribunal erred in law by failing to seek a further report from Dr Holt on matters which it considered inadequately addressed. The tribunal had directed CICA to obtain an expert report and had formulated questions substantially reflecting Note 2. Any perceived deficiency in the response required further enquiry rather than being held against the applicant.
4. The tribunal also erred in failing to recognise that Dr Holt’s report addressed day-to-day functioning and provided evidence capable of supporting permanence. The report described pervasive effects on parenting, domestic activities, employment, relationships, intimacy, sleep, concentration and other activities, and referred to a permanent impact on employment and interpersonal relationships.
5. Further errors included failure to give sufficient weight to earlier reports by Dr Alachkar and other evidence predating the compensation claim; failure to engage adequately with evidence about leaving school at 13 and spending most of the time in a bedroom; inadequate consideration of the applicant’s partner’s statement; excessive reliance on a contraceptive implant and the absence of GP entries about sexual dysfunction; mischaracterisation of the applicant’s evidence about her relationship; an unsupported finding about why she stopped driving; and insufficient weight given to evidence concerning her grandmother’s home.
6. The Upper Tribunal held that it was not empowered in this case to remit directly to CICA. Section 17 of the Tribunals, Courts and Enforcement Act 2007 permitted remittal to the court, tribunal or authority that made the quashed decision. The substitution power was not available because it could not be said that, without the errors, only one decision was possible.
7. The case was therefore remitted to the Social Entitlement Chamber of the First-tier Tribunal. The rehearing must be entirely afresh and no member of the original panel may sit on it. The First-tier Tribunal might consider whether a stay would assist CICA to consider making a fresh decision.

• Upper Tribunal (Administrative Appeals Chamber): the First-tier Tribunal’s decision dated 6 December 2023 was quashed and the case was remitted for a fresh hearing.
• First-tier Tribunal (Social Entitlement Chamber): allowed the compensation appeal in part, awarding £13,500 for a disabling mental injury lasting five years or more but not permanent, but made no award for loss of earnings.