R (SP) v The First-tier Tribunal

Under paragraph 115(b) of the Criminal Injuries Compensation Scheme 2012, reopening requires both a material change in medical condition and injustice if the original determination stands. The assessment must take account of the tariff framework underlying the original award. Where the claimed change would move a disabling mental injury from a long-term, non-permanent tariff category to a permanent category, the tribunal must consider permanence and prognosis before assessing the level of disablement required for that higher award.

Failure to address that tariff distinction may be an error of law, but relief may be refused if it is highly likely the outcome would not have been substantially different. The tribunal’s inquisitorial duty to seek further evidence depends on context and does not displace the claimant’s responsibility to establish the case.

SP received an award under the Criminal Injuries Compensation Scheme 2012 for a disabling mental injury assessed as lasting five years or more but not permanent. After a psychologist diagnosed Recurrent Psychotic Disorder, SP sought to reopen the award, arguing that her condition was permanent and entitled her to a higher tariff.

The Criminal Injuries Compensation Authority refused to reopen the award under paragraph 115(b). The First-tier Tribunal (Social Entitlement Chamber) upheld that refusal on 3 April 2024, finding no material change in SP’s condition between acceptance of the award and her request. SP applied to the Upper Tribunal for judicial review, challenging the Tribunal’s treatment of prognosis and the absence of further medical evidence. The central issues were whether the First-tier Tribunal had made an error of law and whether any error was material or rendered the proceedings procedurally unfair.

1. The application for judicial review was dismissed. The First-tier Tribunal made errors of law by failing to address the relevant tariff distinction and to find whether SP’s prognosis had changed from long-term to permanent. Those errors were not material to the outcome.
2. Paragraph 115(b) of the Criminal Injuries Compensation Scheme 2012 requires both a sufficiently material change in medical condition and injustice if the original determination remains in place. The test must be considered in light of the reasoning for the original determination and the legal framework underlying it.
3. Part A of Annex E distinguishes disabling mental injuries that are long-term but not permanent from permanent injuries. For this application, the Tribunal had to consider whether the newly diagnosed condition was permanent first; only if that threshold were met would it need to assess whether the permanent injury was moderately or seriously disabling. The First-tier Tribunal’s failure to address permanence was an error because that distinction was directly relevant to whether a higher tariff and potential injustice arose.
4. Under section 31(2A) of the Senior Courts Act 1981 and section 15 of the Tribunals, Courts and Enforcement Act 2007, relief could be refused if it was highly likely the outcome would not have been substantially different without the error. The psychologist’s letter gave no prognosis, did not indicate permanence, and provided no clinical basis for finding it. The evidence of stability, recovery with medication and planned reduction of medication meant no rational tribunal was likely to find a permanent injury. There was therefore no need to assess the further disablement threshold.
5. The First-tier Tribunal’s inquisitorial duty, informed by rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, depends on procedural fairness in the circumstances. It may require clarification or further exploration of evidence, particularly for an unrepresented or vulnerable party, but the party bearing the burden of proof remains responsible for advancing the case. Here, nothing in the medical letter suggested that further clarification was likely to support permanence or increased disablement. The failure to obtain further evidence was not procedurally unfair.

1. Upper Tribunal (Administrative Appeals Chamber) — dismissed the application for judicial review, finding errors in the First-tier Tribunal’s reasoning but holding them immaterial.
2. First-tier Tribunal (Social Entitlement Chamber) — on 3 April 2024, dismissed SP’s appeal and upheld CICA’s refusal to reopen the award.
3. Criminal Injuries Compensation Authority — on review on 27 September 2023, refused to reopen the award under paragraph 115(b) of the Criminal Injuries Compensation Scheme 2012.