IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER	Case Nos.:  JR/1406/2009
JR/1416/2009	

Before: Upper Tribunal Judge Rowland

The Applicant appeared in person.

The Respondent neither appeared nor was represented.

The Interested Party was represented by Mr Ben Collins of counsel, instructed by the Treasury Solicitor.

DECISIONS AND DIRECTIONS

In JR/1406/2009, the First-tier Tribunal’s decision is quashed and the case is remitted for reconsideration by the First-tier Tribunal.

In JR/1416/2009, permission to apply for judicial review is granted, the First-tier Tribunal’s decision is quashed and the case is remitted for reconsideration by the First-tier Tribunal.

Subject to any further direction by a judge of the First-tier Tribunal, the two remitted cases should be heard together.  The panel hearing them should either be the same panel as sat on 11 February 2009 or an entirely different panel.

Before the remitted cases are listed for hearing, the Criminal Injuries Compensation Authority shall obtain and submit to the First-tier Tribunal such evidence as it would have sought from the Applicant or from other sources had it found that the Applicant was eligible for compensation on the claim on file X/03/256973 and had it been aware that the Applicant wished to make a claim in respect of lost earning capacity.

REASONS FOR DECISIONS

1.	These two cases, brought by the same applicant, raise questions about the construction of the Criminal Injuries Compensation Scheme 2001 (“the Scheme”) and about decision-making under it.

The Scheme

2.	In so far as is relevant, paragraphs 7, 8 and 9 of the Scheme, under the heading “Eligibility to apply for compensation”, provide:

“7.	No compensation will be paid under this Scheme in the following circumstances:
    (a)	…; or
    (b)	where the criminal injury was sustained before 1 October 1979 and the victim and the assailant were living together at the time as members of the same family.

8.	For the purposes of this Scheme, ‘criminal injury’ means one or more personal injuries as described in the following paragraph, being an injury sustained in Great Britain (see Note 1) and directly attributable to:
    (a)	a crime of violence (including arson, fire-raising or an act of poisoning); or
    (b)	…; or
    (c)	….

9.	For the purposes of this Scheme, personal injury includes physical injury (including fatal injury, mental injury (that is temporary mental anxiety, medically verified, or a disabling mental illness confirmed by psychiatric diagnosis) and disease (that is a medically recognised disease or condition).  Mental injury or disease may either result directly from the physical injury or from a sexual offence or may occur without any physical injury.  Compensation will not be payable for mental injury or disease without physical injury, or in respect of a sexual offence, unless the applicant:
    (a)	was put in reasonable fear of immediate physical harm to his own person; or
    (b)	…; or
    (c)	in a claim arising out of a sexual offence, was the non-consenting victim of that offence (which does not include a victim who consented in fact but was deemed in law not to have consented); or
    (d)	….”

3.	Paragraphs 23 to 27 of the Scheme provide:

“Types and limits of compensation

23.	Subject to the other provisions of this Scheme, the compensation payable under an award will be:
    (a)	a standard amount of compensation determined by reference to the nature of the injury in accordance with paragraphs 26-29;
    (b)	where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury …, an additional amount in respect of such loss of earnings, calculated in accordance with paragraphs 30-34;
    (c)	where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury … or, if not normally employed, is incapacitated to a similar extent, an additional amount in respect of special expenses, calculated in accordance with paragraphs 35-36;
    (d)	….;
    (e)	….

24.	The maximum award that may be made (before any reduction under paragraphs 13-15 above) in respect of the same injury will not exceed £500,000.  …

25.	The injury, or any exacerbation of a pre-existing condition, must be sufficiently serious to qualify for compensation equal at least to the minimum award under this Scheme in accordance with paragraph 26, but lesser compensation may be paid if an award is reduced under paragraphs 13, 14 or 15 of the Scheme.

Standard amount of compensation

26.	The standard amount of compensation will be the amount shown in respect of the relevant description of injury in the Tariff, which sets out:
    (a)	a scale of fixed levels of compensation;
    (b)	the level and corresponding amount of compensation for each description of injury; and
    (c)	qualifying notes.
Level 1 represents the minimum award under the Scheme, and Level 25 represents the maximum award for any single description of injury.  Where the injury has the effect of accelerating or exacerbating a pre-existing condition, the compensation awarded will reflect only the degree of acceleration or exacerbation.

27. 	Minor multiple injuries will be compensated in accordance with Note 12 to the Tariff. The standard amount of compensation for more serious but separate multiple injuries will, unless expressly provided for otherwise in the Tariff, be
calculated as:
    (a) 	the Tariff amount for the highest-rated description of injury; plus
    (b) 	30 per cent of the Tariff amount for the second highest-rated description of injury; plus, where there are three or more injuries,
    (c) 	15 per cent of the Tariff amount for the third highest-rated description of injury.”

4.	From the Tariff, which I do not set out, it can be seen that Level 1 is an award of £1,000 and Level 25 is £250,000.  Level 1 is awarded in respect of, among other things, “minor injuries: multiple” (as defined in Note 12, which requires the claimant to have suffered at least 3 separate injuries, at least one of which must still have had significant residual effects 6 weeks after the incident and which must also have necessitated at least two visits to or by a medical practitioner within that 6-week period) or “physical abuse of children – minor abuse” consisting of “isolated or intermittent assault(s) resulting in weals, hair pulled from scalp etc.”.  Level 1 is also awarded in respect of “disabling but temporary mental anxiety lasting more than 6 weeks, medically verified”.  Mental illness, confirmed by psychiatric diagnosis, attracts awards of between Level 6, £2,500, and Level 18, £27,000.

5.	Paragraph 25 is not just a statement of the obvious:  if a person does not qualify for the minimum tariff award under paragraph 26, he or she does not qualify for compensation for loss of earnings or earning capacity or in respect of special expenses either.  However, although no compensation is payable in respect of the first 28 weeks of loss of earnings or earning capacity, the amount of compensation for any further loss is calculated under paragraphs 30 to 34 along the lines of damages at common law.  Consequently, the amount payable in respect of loss of earnings or earning capacity may be considerably more than the tariff award, being limited only by paragraph 24.  

The facts

6.	The claimant, who was born in 1969, had, as the Fist-tier Tribunal found, a dreadful childhood.  She was subjected to physical and sexual abuse by her father and emotional abuse by both parents and her father introduced her to a paedophile ring, members of which subjected her to further sexual abuse.  As an adult, she has been receiving psychiatric treatment.  A psychiatric report prepared at the request of the Criminal Injuries Compensation Authority (“the Authority”) in 2006 diagnosed post-traumatic stress disorder, depression and a number of psychosomatic illnesses.

7.	In 2003, she made two separate claims for criminal injuries compensation under the Scheme arising out of the abuse she had suffered as a child: one in respect of the abuse at home and one in respect of the sexual abuse by the other paedophiles.  The police had investigated the allegations the previous year but it had been decided that there was insufficient evidence to warrant a prosecution.

8.	The Authority rejected both of the claimant’s claims on the simple ground that the there was not enough evidence to support them.  In other words, it did not believe the claimant.  The decisions were maintained on review and the claimant appealed.

9.	The First-tier Tribunal did believe the claimant.  However, it rejected the claim in respect of abuse by her parents on the ground that no compensation was payable in respect of injuries sustained before 1 October 1979 due to the effect of paragraph 7(b) of the Scheme and no compensation was payable in respect of injuries sustained after that date due to the effect of paragraph 25 because the only relevant injuries were not sufficiently serious to qualify her for a tariff payment of compensation of at least £1,000.  It allowed the claim in respect of the sexual abuse by the other paedophiles and made three separate tariff awards, totalling £16,300, reasoning that there were three separate assaults by different men on different occasions, which were not multiple injuries for the purposes of paragraph 27 of the Scheme.

10.	The claimant sought permission to apply for judicial review of both decisions.  On the papers, I granted permission to apply for judicial review of the decision in respect of the abuse by her parents but refused permission to apply for judicial review of the decision in respect of the abuse by the paedophiles.  The claimant asked for a hearing of the application for permission that I had rejected and I directed a “rolled-up hearing” of that application to be heard at the same time as the substantive application in the other case.

JR/1406/2009

11.	It is convenient to deal with the substantive application first.  

12.	Insofar as the First-tier Tribunal relied on paragraph 7(b) of the Scheme, its decision is, in my judgment, unchallengeable.  An injury is “sustained” when it is inflicted, even though the effects may appear only some time later.  Paragraph 7(b) is unambiguous and its plain effect is that compensation cannot be awarded in respect of the effects of injuries sustained before 1 October 1979.  Although the claimant’s human rights were undoubtedly breached by her parents, it does not follow that the State was obliged to set up a compensation scheme or that, having set one up from 1 October 1979, it was unlawful not to give it retrospective effect.  Arguments to the contrary were rejected by the Court of Session in DJS v Criminal Injuries Compensation Appeal Panel [2007] CSIH 49.

13.	However, the Applicant’s main submission is that the decision of the First-tier Tribunal did not adequately consider the injuries she sustained from 1 October 1979 onwards and I granted permission on the ground that it was arguable that the First-tier Tribunal had taken too narrow a view of what amounted to a crime of violence.

14.	The First-tier Tribunal’s decision summarises the evidence at paragraphs 8 to 12:

“8.	The Panel had before it the same documents as the Appellant.  These included the transcript of her police video interview, and a report dated 2 February 2006 of Dr Deresari Consultant Psychiatrist.  …  In addition to these documents, the Tribunal heard oral evidence from the Appellant and from PC Harrison.  

9.	The Appellant told the Tribunal that she had been abused physically and sexually by her parents from a very young age.  While the sexual abuse and the worst of the physical abuse had ended before 1st October 1979, they continued to behave in an emotionally abusive and intimidating manner, making threats and alluding to the previous abuse in a way she found very distressing and frightening, and which she said had adversely affected her mental health.  She said her father in particular was also still prone to violent acts, albeit to a lesser degree than previously.  She described three such assaults which she said caused cuts and bruises, but her injuries had not been such as to have required medical attention and the cuts and bruises healed in a few weeks.  She said however that her parents were careful not to let doctors see any injuries sustained and that it was only when she suffered a fracture that she was actually taken to a doctor (this injury having occurred prior to 1st October 1979).  She thought that she may have sustained scars as a result of some of the later assaults, but could not recall when and in what incidents any scarring had been sustained.  

10.	The video transcript largely concerned earlier abuse and incidents by persons other than her parents (which were subject to a separate claim) with less said about assaults by her parents after 30th September 1979.  However one of the later assaults by her father, which she described in oral evidence, was also specifically described in the transcript, namely that her father had grabbed her by the hair, thrown her to the floor and repeatedly kicked her in the face and stomach because for some reason she could not leave the house.  Other incidents she alluded to more generally as being punched hit and threatened.  In the video transcript she also said that she had scars on her body but did not say when and in what incident(s) these had been sustained.  

11.	The report of Dr Deresari who had been the Appellant’s treating psychiatrist, referred to her suffering prolonged severe physical and sexual abuse at the hands of her parents.  Dr Deresari noted that the abuse largely stopped when she was about eight years old but that her parents continued to intimidate and torment her.  Dr Deresari does not describe any actual violence occurring after this time.  

12.	PC Harrison told the Tribunal that she was experienced in relation to abuse investigations and had taken evidence from the Appellant, specifically conducting the video interview.  The investigation had concerned physical and sexual abuse by the Appellant’s parents and by a paedophile ring to which she was allegedly introduced by her father.  In relation to assaults by her parents after 30th September 1979, PC Harrison clearly thought that something untoward had occurred, but was not able to say whether these incidents had occurred as described.  It was clear however that the bulk of the investigation concerned the more serious earlier allegations of abuse and the allegations about the paedophile ring, with less emphasis on allegations of later assaults in particular by her father, which is the subject of this appeal.”

15.	The findings and reasons for the First-tier Tribunal’s decision are set out at paragraphs 15 and 16:

“15.	Having considered all the evidence, the Panel made the following findings of fact –
    (a)	The Applicant suffered intimidation from her parents after 30th September 1979.  While distressing, this did not amount to a crime of violence in terms of paragraph 8 of the Scheme.  
    (b)	She suffered at least one assault at the hands of her father after 30th September 1979 when he kicked and punched her and dragged her by the hair.
    (c)	This assault did not, however, result in injuries which were sufficiently serious to meet the requirements for at least the minimum level of award.

Reasons

16.	The reasons for the decision were:-
    (a)	The Tribunal were persuaded by the evidence of the Appellant that she had suffered at least one assault when she was about 13 by her father.  This assault was also described in some detail in the video transcript.  While she may have suffered other later assaults, she was not able to give evidence of these in sufficient and convincing detail to meet the test of balance of probability.
    (b)	However no medical treatment was required following this incident and her injuries did not meet the requirements for an award for multiple minor injuries for which at least two attendances at a doctor would be required.  She was unable to say when and how any scarring had been sustained.  From psychiatric evidence it was clear that her mental health was already adversely affected by earlier events, and there was no evidence that it had been significantly further affected by this particular incident.  
    (c)	The Tribunal concluded that while the Appeal was upheld in respect of paragraph 8(a) of the Scheme, i.e. that she had been the victim of a crime of violence, it failed under Paragraph 25, in that there was insufficient evidence of injuries which would attract an award of at least the minimum level of the Tariff.” 

16.	I granted permission to apply for judicial review because it seemed to me that the abuse suffered by the claimant at the hands of her parents could have been an offence under section 1(1) of the Children and Young Person’s Act 1933, even when not amounting to an assault, and that that raised the question whether such an offence could be a “crime of violence” within the scope of paragraph 8(a) of the Scheme.  Section 1(1) of the 1933 Act provides that a person who “wilfully assaults, ill-treats, neglects, abandons, or exposes” a child under 16 “in a manner likely to cause him unnecessary suffering or injury health (including injury to or loss of sight, or hearing, or limb, or organ of the body and any mental derangement)” shall be guilty of an offence.

17.	Mr Collins submitted that some offences under section 1(1) would be crimes of violence while others would not.  In this context, I accept his submission.  The phrase must take its colour from paragraph 9 of the Scheme.  Giving “crime of violence” a wide meaning would be of limited assistance to a claimant if he or she must in any event show that the crime caused physical injury, was a sexual offence or put him or her in reasonable fear of immediate physical harm.  Ill-treatment or neglect causing long-term psychological damage may be an offence under section 1(1) of the 1933 Act but will not, without more, give rise to a claim for compensation under the Scheme.  Indeed, given that an assault is any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence, one can see why, in most cases where subparagraphs (b), (c) and (d) of paragraph 9 are not in issue, a crime of violence is likely to involve an assault.  However, that will not necessarily be so.  A mere omission to act cannot amount to an assault, whereas it could, if wilful, amount to an offence under section 1(1) of the 1933 Act and it could also cause a child to suffer physical injury or reasonably to fear immediate physical harm.  I draw attention to this point but it is not necessary for me to decide whether the phrase “crime of violence” should be construed so as to include or exclude wilful neglect of a child that actually causes physical injury or causes the child to fear immediate physical harm.

18.	In this case, the claimant does not suggest that she was injured by what her parents failed to do but by what they did.  The First-tier Tribunal considered whether there was an assault and was satisfied that there had probably been just one since 1 October 1979, although it accepted that it was possible that there had been others.  It was entitled to take that view and, in the circumstances of this case, its general approach was not inappropriate.  Moreover, it was entitled to take the view that the injury caused by the assault did not justify an award in respect of “minor injuries: multiple” or scarring or an award in respect of exacerbation of the claimant’s pre-existing mental injury.

19.	The claimant’s complaint is that she suffered psychiatric injury through her parents’ verbal abuse of her from 1 October 1979 and that an award should have been made to compensate for that injury.  The First-tier Tribunal accepted that the claimant had been intimidated.  However, mere insults that were not themselves threatening did not cause the claimant reasonably to fear immediate physical harm and were not crimes of violence, even if they might cumulatively have been a crime under section 1(1) of the 1933 Act.  Although threats and intimidation could also have amounted to ill-treatment within the scope of section 1(1) of the 1933 Act and operated because the claimant was afraid of violence in the light of the past behaviour of her father, the lack of actual physical harm over a period of many years shows that she had learned to comply with her parents’ demands and continually did so.  The threatened physical harm was conditional on the claimant not doing what she was told.  Even if she did what she was told only because of the fear that she would otherwise suffer physical harm, I do not consider that, in this particular context, she can be said to have reasonably feared immediate physical harm whenever she was threatened.  She knew how to avoid the risk.  Paragraph 9(a) should in my judgment, be construed narrowly in order to give it its intended effect, because it is an exception to the general rule that cases where a person suffers only mental trauma are generally excluded from the scope of the scheme, perhaps because there are often evidential difficulties with such cases.  In any event, the claimant’s fear was substantially caused by the earlier violence.  Had all that violence been inflicted after 1 October 1979, the claimant would have been entitled to compensation in respect of the psychiatric injury she suffered.  The First-tier Tribunal considered that the claimant’s mental health had already been affected by earlier events and, although it considered only whether the single later assault had significantly further affected it, I suspect that it would also have taken the view that the whole course of conduct since 1 October 1979 had not done so.

20.	However, another point occurred to me during the course of the hearing.  This was whether the First-tier Tribunal erred in not expressly considering whether the claimant might have been entitled to an award of £1,000 under the heading “physical abuse of children – minor abuse”.  One difficulty with the definition of “minor injuries: multiple”, as set out in Note 12 to the Scheme, is that the injuries must have necessitated visits to a medical practitioner.  Where a child is injured, the perpetrator may be the person who decides whether or not medical attention is sought.  It might be possible to construe the note as requiring, at least in the case of a child or a vulnerable adult, that the injuries be ones where medical attention ought to have been sought, but the existence of the separate tariff entry for minor physical abuse of a child makes that unnecessary in the case of a child and I doubt that that would be the right construction in the case of an adult, given that one purpose of the requirement may be to aid verification.  It is to be noted that a single minor injury to a child can lead to a tariff award under the heading “physical abuse of children – minor abuse”, whereas more than one minor injury is required before an award is made under the heading “minor injuries: multiple”.  Obviously, though, a single injury must be sufficiently serious to justify an award of £1,000 if an award is to be made.

21.	Mr Collins was unable to obtain instructions on this point during the hearing but, in a subsequent written submission, has argued that there was no error of law because, in the absence of a medical report or any evidence that medical treatment was required for any injuries, the First-tier Tribunal was entitled to find that there was no injury within the terms “physical abuse of children – minor abuse”.  I do not doubt that the First-tier Tribunal would have been entitled to find that the injuries sustained during the assault were not sufficiently serious to qualify for an award under that heading and had it recorded a decision to that effect with a brief explanation, it would have been unchallengeable.  However, it made no allusion to the issue at all and it is not so obvious from the descriptions of the assault in the papers and in the First-tier Tribunal’s statement of reasons that it must be inferred that injuries were not severe enough to justify an award of £1,000.  Either the First-tier Tribunal did not address the question or it failed to give reasons sufficient to show that it had addressed the question and done so properly.  Given the thoroughness of the rest of the decision and its clear reasons for not making an award under the heading “minor injuries: multiple” or in respect of scarring, I suspect that the First-tier Tribunal simply overlooked the possibility of making an award in respect of “physical abuse of children – minor abuse”, as I did until the hearing before me.  In any event, whether it failed to make a decision on the point or it failed to give adequate reasons for its decision, its decision is erroneous in point of law and should be quashed.

22.	Despite the modest amount in issue, I am unable to substitute my own decision because I am not satisfied that there is only one decision that the First-tier Tribunal could have reached (see section 17(2)(c) of the Tribunals, Courts and Enforcement Act 2007).  Accordingly, I must remit the case to the First-tier Tribunal.

JR/1416/2009

23.	I turn to the second case.  Here, the claimant does not challenge the tariff awards but she again argues that the mental effects of the abuse she suffered have not been adequately compensated.  The First-tier Tribunal explained its approach in paragraph 17(d) of its decision:

   “(d)	While it was clear from the medical evidence that the Appellant suffered from a disabling mental illness.  However Note 5 of the Scheme states:

	‘When compensation is paid for physical injury or for any sexual offence described in the tariff, a separate award for mental injury will not be made (as the tariff award includes an element of compensation for this); save that in the case of an award for physical injury, if the compensation for mental injury is the same as, or higher than, the level of compensation for the physical injury, the applicant will be entitled to awards for the separate injuries calculated in accordance with paragraph 27 of the Scheme (the serious multiple injury formula).  When compensation is paid for any sexual offence, a separate award for mental injury will not be made.’

	The last sentence of Note 5 is always interpreted by the Tribunal as meaning that if a sexual assault leads to a mental illness then the award should be the higher of the two awards for the assault and for the mental illness respectively.  From psychiatric evidence it was clear that her mental health had been adversely affected by a long history of abuse at the hands of her parents, and other stressful events had also had an adverse effect.  Only a partial award reflecting the degree of contribution to her mental ill health made by these three specific incidents could be made in this case.  The Tribunal considered that any such partial award would be bound to be less than the award for the acts of abuse and that under Note 5 no award for mental illness was appropriate.”

24.	The claimant submits that she suffers from a permanent mental illness in respect of which compensation would be paid either at Level 16, £19,000, if the illness is moderately disabling or at Level 18, £27,000, if the illness is seriously disabling and that such an award should have been made in her case.  However, the First-tier Tribunal’s approach seems to me to have been perfectly proper.  The three incidents in respect of which it made tariff awards were particularly horrible offences of sexual abuse, but the claimant had already suffered repeated sexual abuse at home, as well as physical abuse and emotional abuse, and the First-tier Tribunal was quite entitled to find that her mental injury had been largely caused by the abuse she had suffered at home.  Any award paid in respect of the abuse by the paedophile ring would have been made only in respect of the exacerbation of the pre-existing condition (see the last sentence of paragraph 26 of the Scheme).  The Scheme fails to explain how the exacerbation is to be calculated and I suspect it depends on which items in the Scheme are in issue.  Here, it was not necessary for the First-tier Tribunal to do a very precise calculation.  Awards in respect of sexual offences are likely to be substantially in respect of the mental injury caused by such offences, since the physical effects are often relatively short-lived, which is why Note 5 says that no separate award will be made in respect of mental injury.  The approach conventionally taken by the First-tier Tribunal and its predecessor of awarding the greater of an award for mental injury or an award for a sexual offence is obviously necessary to avoid the anomaly that would otherwise arise where mental injury is so severe that an award for mental injury alone would be greater than the award for the sexual offence.  In the present case, the awards totalling £16,300 must be regarded as having been substantially in respect of the mental injury caused by the offences of the paedophile ring.  The First-tier Tribunal was quite entitled to take the view that, the claimant’s mental injury being largely attributable to the sustained abuse to which she had been subjected at home, the awards in respect of these three offences were sufficient to cover any exacerbation of the mental illness attributable to the respective offences or, in other words, that any awards in respect of the exacerbation would be bound to be smaller than the awards made so that Note 5 should be applied.  

25.	The claimant argued that paragraph 9(c) of the Scheme provides for compensation to be paid to a person who is the non-consenting victim of a sexual offence and suffers mental injury and that that overrides Note 5.  However, the Scheme cannot be read like that.  Note 5 is part of the Scheme just as much as paragraph 9 is.  As Mr Collins submitted, paragraph 9 imposes a threshold condition, defining the circumstances in which compensation may be paid.  The Tariff, including Note 5, is concerned with the calculation of the amount of compensation.  In the light of Note 5 and the First-tier Tribunal’s findings, the claimant has been awarded all that she is entitled to under the Tariff.  The mental injury caused by the offences has not been ignored.  The compensation for it is included in the amount awarded under the Tariff.

26.	However, this leads to another point that emerged during the hearing before me.  The claimant does not regard the compensation as reflecting her true loss.  She submits that her whole life has been affected by her mental illness, including her ability to gain qualifications and employment.  This raises the question whether she has suffered a loss of earning capacity or, more precisely, whether the First-tier Tribunal ought to have considered whether she was, or might have been, entitled to an award of compensation under paragraphs 23(b) and 30 to 34 of the Scheme.  It is on this issue that I now grant permission to apply for judicial review.

27.	It is important to note that an award may be made not just for loss of earnings but also for loss of earning capacity.  Thus, it is not necessary for a person to have been in work at the time the injury was sustained.  It is not even necessary for the loss to have materialised at the time of the claim, provided it can be proved that a future loss is the likely consequence of the injury.  In my admittedly fairly limited experience of criminal injuries compensation cases, unrepresented claimants find it difficult to understand the idea of claiming compensation for loss of earning capacity, as opposed to loss of earnings, and to formulate a claim.  Indeed, it is hard to see how a claimant can be expected to formulate a claim for loss of earning capacity without advice – legal advice on claims for criminal injuries compensation still being within the scope of the legal aid scheme, although under threat on grounds that include “the straightforward and succinct nature of the application process” – and it is unfortunate that much of the literature published by the Authority does not provide a great deal of assistance.  For instance, the notes to assist claimants complete the claim form say:

“Section 9: Loss of earnings and special expenses

“If your injury causes you to lose earnings or earning capacity for longer than 28 full weeks, you may be eligible for compensation for loss of earnings.  Compensation is not payable for the first 28 full weeks of lost earnings or earning capacity.

You may be considered for an additional amount of compensation if, as a direct result of the injury, you have been incapacitated for more than 28 full weeks and have incurred special expenses.

‘Incapacitated’ means, for example, that your injury prevented you from working, or attending school, or, if retired, prevented you from following your normal lifestyle to a significant extent.  You do not have to have been at work at the time of the injury to qualify for special expenses.

…” (underlining in the original)

28.	It might be more helpful if the note also said that a person does not have to have been at work at the time of the injury to qualify for compensation for loss of earning capacity.  I appreciate that those who answer “yes” to the relevant questions on the claim form are sent a further form to complete and may be given further advice and assistance, but if they do not answer that question correctly on the first claim form they are likely to be treated as not having made a claim for loss of earnings.

29.	It would have been particularly complicated for the claimant in the present case to have formulated a claim.  Her claim would have been based on the mental disablement arising from the three incidents of sexual abuse in respect of which awards had been made.  Against the background of the First-tier Tribunal’s finding the mental disablement was substantially the result of the abuse at home, the claim for loss of earning capacity would have been only for the loss of earning capacity arising from any exacerbation of the existing mental disablement, so that expert evidence would have been required, which the Authority might have obtained as part of the psychiatric report it requested.  It would then have been necessary for the claimant to suggest to what extent that exacerbation had led to her having any greater difficulty in obtaining qualifications or employment and to what extent her earnings when in employment would have been higher had the three particular incidents not occurred.  This would have involved a considerable amount of estimation.  It is quite possible that she would have been unable to prove any loss of earning capacity arising out of these three relevant incidents.  However, one of the incidents appears to have been particularly traumatic for the claimant and I cannot rule out the possibility that a claim for lost earning capacity might have succeeded.  Even if the lost capacity was small as a proportion of potential earnings, the total award over a number of years might have been significant.

30.	However, there was no specific claim for compensation in respect of lost earning capacity before the First-tier Tribunal.  On her original claim form, in answer to the question “Have you been, or do you expect to be off work or similarly incapacitated for more than 28 full weeks as a result of the injury?”, she had answered neither “yes” nor “no” but instead had written “N/A”.  She had done the same in answer to the question “Have you lost, or do you expect to lose earnings or earning capacity for more than 28 full weeks as a result of the injury?”  If the first question had properly been understood, the answer to it should have been ether “yes” or “no”.  “N/A” might perhaps have been taken as meaning that she did not have a claim for loss of earnings or earning capacity, but one would then have expected “no” as the answer to the second question.  Moreover, she had answered “no” to the question whether she had incurred any special expenses.  Therefore, it seems to me clear that the claimant had misunderstood the questions about loss of earnings or earning capacity and that the instruction on the claim form to “read explanatory note 9 carefully before answering the questions in this section” had not assisted her. 

31.	The First-tier Tribunal, does appear to have realised that this was a case where the claimant had a potential claim in respect of loss of earning capacity.  In a letter to the Upper Tribunal dated 18 July 2009, the claimant wrote that the judge had said that she had not done herself justice and that she could have applied for a lot more by claiming loss of earnings.  At the hearing before me she said that she had been asked whether she wished to make a claim for loss of earnings but had been too emotional to carry on.  Whether she said nothing, as she has said in a subsequent letter, or said “no” makes little difference because the First-tier Tribunal appears to have understood her to mean “no”.  I see no reason not to accept the claimant’s evidence that the First-tier Tribunal did raise the issue of a claim for compensation for loss of earning capacity.  The question arises whether the First-tier Tribunal should, despite the claimant’s reaction, have adjourned so that she could formulate a claim for loss of earnings.

32.	Mr Collins accepts that it is not possible for the Authority to consider a claim for compensation in respect of loss of earnings once the First-tier Tribunal is seised of the question whether or not an award of criminal injuries compensation should be made.  There is a single award on each claim for criminal injuries compensation, albeit consisting of different elements.   Accordingly, the First-tier Tribunal had to determine any claim for compensation for loss of earnings within the overall claim for compensation. Mr Collins also accepts that the First-tier Tribunal would have erred in law if not adjourning amounted to a denial of justice.  However, he submits that there was no denial of justice in this case because the claimant had not made a claim for compensation for loss of earning capacity or clearly indicated that she wished to do so.

33.	Paragraph 19 of the Scheme states that “It will be for the applicant to make out his case …”.  However, it does not follow that the Authority or the First-tier Tribunal can sit back and wait for an unrepresented claimant to make his or her case unaided.  Nor do they do so in practice, as shown by the Authority’s obtaining of the psychiatric report in this case.  There is no difference in principle between a claim for criminal injuries compensation and a claim for a social security benefit, in respect of which Lord Hope of Craighead said in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 W.L.R 1372 (also reported as R1/04(SF)) at [16] –

“(1) Facts which may reasonably be supposed to be within the claimant’s own knowledge are for the claimant to supply at each stage of the enquiry.  (2) But the claimant must be given a reasonable opportunity to supply them.  Knowledge as to the information that is needed to deal with his claim lies with the department, not with him.  (3) So it is for the department to ask the relevant questions.  The claimant is not to be faulted if the relevant questions to show whether or not the claim is excluded by the Regulations were not asked.  (4) The general rule is that it is for the party who alleges an affirmative to make good his allegation.  It is also a general rule that he who desires to take advantage of an exception must bring himself within the provisions of the exception.”

34.	Where a claimant has been asked a question but there is reason to suppose that he or she has misunderstood the question, it may be necessary to ask the question again.  

35.	It also seems to me that it would be good practice for a tribunal that makes or confirms a tariff award always to check whether an award for loss of earnings or earning capacity or for special expenses should be considered and, if not, to record why.  That will normally require no more than a single sentence but it will make it clear that the issue has been considered.  A failure to do that will not render a decision erroneous in point of law if it is obvious that, say, there had ceased to be any disablement resulting from the relevant injury within 28 weeks or if it is clear that the disablement has had no effect on the claimant’s earnings after that period.  However, in a case where disablement lasts longer than 28 weeks and it is not clear from the papers why a claim for loss of earnings or earning capacity that might well be substantial has not been made, an enquiry may be in order and the result should be recorded and a failure to do so may render a decision erroneous in point of law.

36.	In this case, the First-tier Tribunal raised the question of a claim for compensation for loss of earning capacity with the claimant but the statement of reasons does not record why the First-tier Tribunal did not consider such a claim.  It may well be that the First-tier Tribunal understood that the claimant did not wish to pursue a claim for loss of earning capacity.  However, given the way she had argued her case and the First-tier Tribunal’s findings in her favour, I find it difficult to see why the claimant should not have pursued a claim for compensation for loss of earning capacity once she had understood that she could, other than a desire for the proceedings to come to an end.   Had she wished to make such a claim, it seems inevitable that there would have had to be an adjournment to enable her to formulate her case in the light of the First-tier Tribunal’s findings.  In my judgment, given what was at stake from the claimant’s point of view, justice required that there be an adjournment in this case so that she could make an informed decision as to whether she wished to pursue a claim for compensation for lost earning capacity before the First-tier Tribunal finalised its decision and, if so, could formulate her claim.  If the First-tier tribunal had in its mind a consideration that is not apparent to me, it should have recorded it in its statement of reasons.

37.	In these circumstances, while I understand that the First-tier Tribunal may have faced this issue unexpectedly towards the end of a difficult hearing, I am satisfied that its decision was erroneous in point of law and should be quashed.

38.	Judicial review is, of course, a discretionary remedy and in his summary grounds for resisting the application, Mr Collins reserved the right to refer in that context to the question whether the First-tier Tribunal had rightly treated this claim as three separate claims and made three separate awards.  He submitted that Notes 13 and 14 to the Scheme suggested that it was wrong to do so and that a single award should have been made on the basis that the Applicant was a victim of a pattern of abuse.  He did not develop the argument at the hearing but has refined it in a recent written submission made at my request and has now made it clear that the Authority merely reserves the right to make submissions as to whether or not the three incidents should have led only to one award should the case be remitted to the First-tier Tribunal.  I ought, nonetheless, to say something on this issue.

39.	Notes 13 and 14 appear as notes to the Tariff.  Note 13 appears under the heading “Physical abuse to adults” and says:

“In the case of adult applicants where there has been a series of assaults, (sexual and/or physical) over a period of time, it may be that an applicant will qualify for compensation only for the single most recent incident, if in relation to the earlier incidents she/he failed to report them to the police without delay and/or failed to co-operate with the police in bringing the assailant to justice.  Where the applicant is entitled to compensation for the series of assaults, she/he will qualify for an award as the victim of a pattern of abuse, rather than for a separate award for each incident.”

40.	Note 14 applies Note 13 to the section of the Tariff headed “Sexual assault/abuse of victims of any age (if not already compensated as a child)” but neither note applies to either “Physical abuse of children” or to “Sexual assault/abuse of children …”.   The reason for this is presumably partly that the first sentence of Note 13 is a reference to paragraph 13(a) and (b) of the Scheme and is applicable only in the case of adults and partly that the second sentence does not add anything to what is implicit in the structure of the Tariff anyway.

41.	The four sections of the Tariff dealing with physical abuse and sexual assault/abuse of adults and children contain entries that refer to injuries arising from individual incidents and other entries that refer to more than one incident.  Where a person is entitled to an award under an entry in respect of a number of incidents, it is obviously intended that he or she should not be entitled to an award in respect of each of the individual incidents.

42.	However, in relation to “Sexual assault/abuse of children”, the Tariff does not include entries for more than one incident of different types, although it does include entries for more than one incident of the same type.  Thus “Indecent assault – serious – non-penetrative indecent act under clothing” attracts an award at Level 5 (£2,000).  A pattern of repeated such acts attracts an award at level 7 (£3,300).  “Indecent assault – non-penile penetrative and/or oral-genital acts – one incident” also attracts an award on Level 7.  “Indecent assault – non-penile penetrative and/or oral-genital acts – two or more isolated incidents” attracts an award at level 9 (£4,400).  A pattern of repetitive, frequent such incidents attracts an award at Level 11 (£6,600) or 12 (£8,200), depending on whether the incidents occurred over a period up to 3 years or exceeding 3 years.

43.	Where a single assault involves more than one sexual act, it seems fairly clear that an award is to be made only in respect of the most serious of the acts.  However, what if a person suffers one non-penetrative assault and, on a different occasion, one penetrative assault by the same person?  The Tariff makes no provision.  There seems no reason why no award should be made in respect of the former assault.  On the other hand, an award of £2,000 for the former assault and £3,300 for the more serious assault would amount to more than is awarded for two of the more serious assaults.  That suggests that paragraph 27 must be applied, giving a total of £3,900 which is more consistent with the Tariff.  Although the term “multiple injuries” in paragraph 27 might naturally suggest injuries sustained at the same time, in this context it must also mean injuries incurred as a result of a pattern of behaviour.

44.	Although the Tariff refers in several places to a “pattern” of incidents, there is no clear indication as to what amounts to a pattern either in the Tariff or in paragraph 27.  I do not consider that Notes 13 and 14 throw any light on the issue at all.  The mere fact that a person has suffered two injuries is not sufficient to bring paragraph 27 into play if the assaults are completely unrelated to each other.  In the present case there was the common feature of the claimant’s father’s involvement in introducing her to her attackers.  Nonetheless, the First-tier Tribunal took the view that paragraph 27 should not be applied because “these were three separate assaults by different men on different occasions”.  Mr Collins does not suggest that it was not open to the First-tier Tribunal to reach the conclusion that the three assaults were not part of a pattern bringing paragraph 27 into play but he does submit that the First-tier Tribunal “does not appear to have considered the issue and has made no findings of fact as to whether or not the three incidents formed part of a pattern”.  As this point has not been fully argued before me, I prefer not to express a view on that submission.

45.	 However, I should make it clear that, although the question whether two or more assaults amount to a pattern of behaviour sufficient to bring paragraph 27 into play is plainly in part a question of fact, it is, in my judgment, capable of including questions of law, particularly if the assaults were carried out by different people.  It should not be assumed that the Authority’s decision not to challenge the First-tier Tribunal’s conclusion in this case means that those questions of law will not be determined by the Upper Tribunal in another case.

46.	The Applicant must not assume that, because she has been successful before me, she will necessarily be successful before the First-tier Tribunal.  In view of the complexity of her cases and, in particular, her claim in respect of loss of earning capacity, she may wish to seek legal or other expert advice, possibly through a citizens’ advice bureau in the first instance.

Mark Rowland
6 May 2011