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

A tribunal assessing disabling mental injury under the Criminal Injuries Compensation Scheme 2012 must evaluate all material evidence bearing on the claimant’s ability to carry out normal day-to-day activities and the duration of the injury. It errs in law if it makes material factual findings unsupported by the evidence, fails to consider material contrary evidence, or leaves unresolved whether a claimant’s withdrawal from education resulted from the disabling injury.

Evidence of functioning, such as caring responsibilities, driving and educational attendance, must be assessed alongside evidence of deterioration, self-harm, overdoses and subsequent mental-health symptoms. Where those errors may affect the applicable tariff bracket, the decision should be quashed and remitted for a fresh determination.

OW sought judicial review of a First-tier Tribunal decision of 8 December 2023 which had partly allowed her appeal from the Criminal Injuries Compensation Authority. The tribunal upheld a 25% conduct reduction and awards for severe abuse and significant facial scarring. It also awarded compensation for disabling mental injury lasting between 28 weeks and two years.

The applicant contended that the tribunal had wrongly assessed the psychological evidence. The central issue was whether the tribunal’s findings on her functioning, social-services involvement, mental-health history and departure from college disclosed material errors of law affecting the duration of disabling mental injury and therefore the tariff award.

1. Judicial review allowed to the extent of remittal. Upper Tribunal Judge Perez quashed the First-tier Tribunal’s decision and remitted the case for a wholly fresh rehearing before a differently constituted panel.

2. The First-tier Tribunal made material findings that the applicant cared for her child without social-services involvement. Those findings were unsupported by the evidence and overlooked records showing involvement by children’s services and a social worker. That was an error of law.

3. The tribunal also failed to take account of, or give adequate weight to, material evidence of poor mental health after the abuse and final assault. Its reliance on positive indicators of functioning, including driving, education, a new relationship and childcare, did not permit it to leave out evidence of overdoses, self-harm, emergency treatment and later deterioration in mental health.

4. Under Note [2] to the Tariff in the Criminal Injuries Compensation Scheme 2012, a mental injury is disabling where it has a substantial adverse effect on normal day-to-day activities for the specified period. Continuing education was capable of being relevant to that inquiry. However, the tribunal erred by failing to determine why the applicant eventually left college, including whether disabling mental injury caused her to do so.

5. The errors were material. On a fresh determination, the prognosis in the clinical psychologist’s report might be accepted, potentially placing the injury in a higher tariff bracket; the First-tier Tribunal could also direct a further expert report if required.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the judicial review to the extent of remittal, quashed the First-tier Tribunal’s decision, and directed a fresh rehearing: [2024] UKUT 387 (AAC).

• First-tier Tribunal (Social Entitlement Chamber): On 8 December 2023, partly allowed the applicant’s criminal injuries compensation appeal. It upheld the conduct deduction and made tariff awards for severe abuse, disabling mental injury and significant facial scarring.

• Criminal Injuries Compensation Authority: On review, it maintained an award for significant facial scarring but reduced it by 25% for conduct.