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

A tribunal decision may contain a material error of law where an applicant did not receive notice of the hearing and consequently did not attend. The error is material where the applicant would have attended if notified and there is a realistic possibility that the evidence or explanation she would have given could have affected the outcome. In such circumstances, the Upper Tribunal may quash the decision and remit the case for a hearing entirely afresh.

The applicant sought judicial review of a decision of the First-tier Tribunal dated 6 March 2024, which had dismissed her appeal against the refusal of criminal injuries compensation under paragraph 23 of the Criminal Injuries Compensation Scheme 2012. She said that she had not received notice of the First-tier Tribunal hearing because it had been sent to the wrong address, and therefore had been unable to explain her fear of supporting a prosecution.

The Upper Tribunal considered whether the lack of notice and resulting non-attendance constituted a material error of law, and what remedy should follow.

1. The judicial review was allowed to the extent of remittal. The First-tier Tribunal’s decision was quashed.
2. The applicant had not received notice informing her of the First-tier Tribunal hearing. The Upper Tribunal accepted her evidence about the address to which the notice had been sent.
3. The non-attendance was material. The applicant would have attended had she known the hearing date, as shown by her engagement with the Upper Tribunal proceedings and her evident wish to explain her fear of supporting a prosecution.
4. There was a realistic possibility that the explanation she would have given could have affected the application of paragraph 23 of the Criminal Injuries Compensation Scheme 2012, under which an award is withheld unless the applicant has co-operated as far as reasonably practicable in bringing the assailant to justice.
5. The case was remitted to the First-tier Tribunal to be reheard entirely afresh. The rehearing panel must contain no member of the panel that decided the case on 6 March 2024.

• First-tier Tribunal (Social Entitlement Chamber): On 6 March 2024, dismissed the applicant’s appeal against the refusal of criminal injuries compensation.
• Upper Tribunal (Administrative Appeals Chamber): Quashed the First-tier Tribunal’s decision and remitted the case for a fresh rehearing.