KH, R (on the application of) v First-Tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation)

On judicial review of a Criminal Injuries Compensation appeal, the First-tier Tribunal must deal with the case in accordance with the overriding objective and fairly consider relevant evidence available at the hearing. Evidence should not be excluded merely because the hearing was intended to obtain the applicant’s oral account, particularly where the evidence is short and can be considered within the allotted time.

A tribunal must make adequate findings on the facts necessary to apply paragraph 25 of the Criminal Injuries Compensation Scheme 2012. That includes the applicant’s conduct and, where relevant, the response causing the injury. Findings unsupported by the evidence, or conclusions that are irrational or wholly unsupported, amount to errors of law. Intoxication is relevant under paragraph 25 only according to the terms of its second sentence.

The Criminal Injuries Compensation Authority withheld an award under paragraph 25 of the Criminal Injuries Compensation Scheme 2012, concluding that the applicant’s conduct before, during or after an incident made an award inappropriate. The First-tier Tribunal dismissed his appeal on 23 October 2024 and issued its full statement of reasons on 3 January 2025.

The applicant sought judicial review, challenging the Tribunal’s factual findings, its refusal to view CCTV evidence brought to the hearing, its approach to paragraph 25, and the absence of a Tribunal bundle. The Upper Tribunal considered whether the Tribunal had made material errors of law, including procedural unfairness, inadequate reasoning and perverse findings.

1. Application allowed. The Upper Tribunal quashed the First-tier Tribunal’s decision under section 15(1)(c) of the Tribunals, Courts and Enforcement Act 2007 and remitted the case for reconsideration by a differently constituted First-tier Tribunal at an oral hearing.
2. The Upper Tribunal’s jurisdiction was confined to public law error in the First-tier Tribunal’s application of the Criminal Injuries Compensation Scheme 2012. An error of fact is not ordinarily an error of law, unless the conclusion is perverse, meaning irrational or wholly unsupported by the evidence. The First-tier Tribunal must be read fairly and as a whole, with appropriate restraint when reasons are challenged.
3. The First-tier Tribunal had made inadequate and perverse factual findings. It had not addressed the circumstances of the punch which caused the claimed injury. It had also described the applicant as argumentative in places without evidential support and had found that he lashed out at police officers and paramedics in the plural, although the evidence showed only a grab for one officer.
4. Those findings were material because proper application of paragraph 25 required an adequate factual assessment of the applicant’s conduct and the police response. Whether compensation was inappropriate depended, at least in part, on whether the response causing the injury was proportionate.
5. The refusal to view CCTV evidence brought to the hearing was procedurally unfair. The evidence was apparently relevant and short enough to be viewed within the allotted hearing time. The hearing’s purpose was to decide the appeal fairly on all the evidence, not merely to obtain the applicant’s oral description. The overriding objective therefore required the Tribunal to consider the evidence.
6. The second sentence of paragraph 25 prevents withholding or reducing an award because intoxication made the applicant more vulnerable to becoming a victim of a crime of violence. If intoxication did not have that effect, it may be considered as conduct. Since the First-tier Tribunal had not relied on intoxication as conduct justifying withholding or reducing the award, the second sentence had no further relevance on the facts then found. The remitted Tribunal was required to apply the whole of paragraph 25 to its own findings.
7. The alleged failure to provide the Tribunal bundle might also have been material, given the volume and complexity of the evidence, but it was unnecessary to decide that issue because the other errors required the decision to be quashed.

• Upper Tribunal (Administrative Appeals Chamber): judicial review allowed; the First-tier Tribunal decision dated 23 October 2024 was quashed and the case remitted for rehearing.
• First-tier Tribunal (Social Entitlement Chamber): appeal against CICA’s decision dismissed on 23 October 2024; full statement of reasons issued on 3 January 2025.
• Criminal Injuries Compensation Authority: award withheld on 5 February 2022 under paragraph 25 of the Criminal Injuries Compensation Scheme 2012.