LXR, R (on the application of) v First Tier Tribunal (Social Entitlement Chamber)

Under para 115(b) of the Criminal Injuries Compensation Scheme 2012, an accepted award may be reopened only where the applicant’s medical condition has materially changed, the change is directly attributable to the relevant crime, and leaving the award in place would cause injustice. A revised diagnosis or causal opinion is not itself such a change. A change in understanding matters only insofar as the evidence shows a resulting change in symptoms or presentation.

The First-tier Tribunal’s conclusion on the medical evidence was factual and could not be displaced on judicial review absent an error of law. A court may decide an unargued point of law, but fairness requires notice and a reasonable opportunity to respond. The indirect discrimination challenge failed for want of evidence of disproportionate impact and, in any event, the Scheme’s finality and certainty rules were proportionate.

LXR had accepted an award of £11,000 for childhood sexual abuse. The Criminal Injuries Compensation Authority refused to reopen the award after receiving medical evidence attributing his psychiatric injuries primarily to the childhood abuse and evidence of a changed understanding of their cause.

The First-tier Tribunal dismissed his appeal, finding no material change in his medical condition and, alternatively, no direct attribution to the relevant crime. On judicial review, the Upper Tribunal quashed that decision and remitted the matter, holding that a change in understanding could constitute a change in condition. The CICA appealed. The central issues were whether the Upper Tribunal had lawfully intervened and whether para 115(b) permitted reopening on the facts or was incompatible with Article 14 of the ECHR.

1. Disposition. The appeal was allowed on grounds 2 and 3. The order of the Upper Tribunal was set aside and the order of the First-tier Tribunal was restored. Ground 1 did not justify allowing the appeal because the Upper Tribunal had raised the point during the hearing and no procedural injustice was caused.
2. Reopening an accepted award. The authorities on criminal-injuries compensation establish that reopening requires a qualifying change in medical condition, materiality, direct attribution to the original crime and injustice if the original determination remains in force. A pure comparison is required between the applicant’s condition at the date of the original award and the condition when reopening is sought. Misdiagnosis, mis-prognosis or a later change in medical opinion is not itself a qualifying change. The provisions governing late initial applications do not answer the separate question whether an accepted award may be reopened.
3. Assessment of the evidence. LXR’s case before the First-tier Tribunal was advanced cumulatively: diagnosis, his understanding of causation and deterioration in symptoms. The Tribunal was entitled to consider that case as a whole and to find that treatment had changed his understanding rather than that his medical condition had materially changed. Its conclusion was essentially factual and was reached after consideration of detailed medical evidence by a tribunal including a medical member. The Upper Tribunal therefore had no public-law basis to interfere.
4. Procedural fairness and specialist tribunals. A court or tribunal may decide a point of law not advanced by either party, provided it acts fairly by drawing the point to the parties’ attention and allowing a reasonable opportunity for submissions. The First-tier Tribunal is the tribunal of fact, while the Upper Tribunal’s role is confined to correcting errors of law. Specialist tribunal decisions require restraint and cannot be disturbed merely because another decision-maker might have reached a different conclusion.
5. Article 14. LXR failed to prove that the neutral reopening provisions caused disproportionate impact on people with mental rather than physical injuries. Individual medical reports were insufficient; evidence addressing affected groups generally, including detailed statistical evidence, was required. Even assuming indirect discrimination, the Scheme’s bright-line approach was objectively justified and proportionate in a social-welfare scheme distributing finite public resources. Finality, certainty, administrative ease, consistency and Parliamentary approval were material considerations, although mental-health stigma required careful scrutiny. No read-down or disapplication under sections 3 or 6(1) of the Human Rights Act 1998 was necessary.

• Court of Appeal (Civil Division): Allowed the CICA’s appeal on grounds 2 and 3, rejected the Article 14 arguments, set aside the Upper Tribunal’s order and restored the First-tier Tribunal’s order.
• Upper Tribunal (Administrative Appeals Chamber): In [2024] UKUT 208 (AAC), quashed the First-tier Tribunal’s decision and remitted the matter to it.
• First-tier Tribunal (Social Entitlement Chamber): Dismissed LXR’s appeal on 9 May 2023, with written reasons dated 4 July 2023, upholding the refusal to reopen the accepted award.