The Criminal Injuries Compensation Authority, R (on the application of) v the First-tier Tribunal

An appeal under the Criminal Injuries Compensation Scheme 2012 is ordinarily confined to the review decision under challenge. The First-tier Tribunal cannot itself determine the application; if it allows an appeal, it may direct a claims officer to determine it.

However, a reviewing officer’s failure to consider an alternative eligibility ground may itself be an error. The tribunal may allow an appeal where that ground should have been considered on the material available on review, or is raised with evidence on appeal. It must then remit the matter with directions, rather than decide the new ground itself.

GHI applied for criminal injuries compensation after discovering that she had been conceived following the rape of her birth mother. CICA refused the application, and then upheld that refusal on review, solely because GHI was not the direct victim of the rape for the purposes of paragraph 4 of the Criminal Injuries Compensation Scheme 2012.

On appeal, GHI relied additionally on paragraph 5(1)(c), contending that her psychiatric injury was directly attributable to the exceptional and justified risk involved in bringing the offender to justice. The First-tier Tribunal allowed the appeal under paragraph 5.

CICA sought judicial review. The central issue was whether the tribunal could decide an eligibility ground which the review decision had not considered, in light of R (SB) v First-tier Tribunal and Criminal Injuries Compensation Authority [2014] UKUT 497 (AAC).

1. The application for judicial review was granted. The First-tier Tribunal’s decision was quashed. The matter was remitted to CICA for a fresh decision on eligibility under paragraphs 4 and 5 of the Criminal Injuries Compensation Scheme 2012.

2. The essential reasoning in R (SB) v First-tier Tribunal and Criminal Injuries Compensation Authority [2014] UKUT 497 (AAC) applied to the 2012 Scheme. Under sections 3(4), 4 and 5(1) of the Criminal Injuries Compensation Act 1995, claims officers determine applications, while the tribunal determines appeals from review decisions. Paragraph 129 confirms that, after allowing an appeal, the tribunal gives directions for determination by a claims officer. It has no power to determine the application itself.

3. The tribunal’s jurisdiction remains limited by the scope of the decision under appeal. That limitation does not mean that an omitted alternative eligibility ground is beyond review. A review decision may be erroneous because the reviewing officer failed to consider such a ground on the evidence and information available at review, or on material presented to the tribunal on appeal.

4. The Scheme provides no route for CICA to consider a new eligibility ground after a review decision where no award has been made. A further review is barred by paragraph 118, reconsideration and re-opening powers do not apply, and a new application is barred by paragraph 18. Construing the appeal power to permit identification of the omission therefore preserves the statutory review and appeal structure.

5. The tribunal may allow the appeal and direct CICA to consider the omitted ground. It may not decide for itself whether the applicant satisfies that ground. The Upper Tribunal declined to extend the additional reasoning in SB requiring a review decision to address all eligibility criteria before refusing an award.

• Upper Tribunal (Administrative Appeals Chamber): On judicial review, quashed the First-tier Tribunal decision and remitted the application to CICA for a fresh decision under paragraphs 4 and 5 of the Criminal Injuries Compensation Scheme 2012.
• First-tier Tribunal (Social Entitlement Chamber): On 9 January 2023, allowed GHI’s appeal under paragraph 5 of the Scheme.
• CICA review: Upheld the refusal of compensation on the basis that GHI was not a direct victim under paragraph 4 of the Scheme.