Neutral Citation Number: [2016] EWCA Civ 1305
Case No: C3/2015/3262, C3/2015/3263 & C3/2015/3264
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Upper Tribunal Judge H. Levenson
JR/2188/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 20/12/2016
Before :
LORD JUSTICE GROSS
LADY JUSTICE RAFFERTY
and
LORD JUSTICE FLOYD
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Between :
CRIMINAL INJURIES COMPENSATION AUTHORITY / Appellant- and -
(1) VINCENT HUTTON
(2) FIONA HUTTON
(3) YVONNE AKERS
- and –
FIRST TIER TRIBUNAL
(CRIMINAL INJURIES COMPENSATION) / Respondents
Interested
Party
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Owain Thomas QC (instructed by Criminal Injuries Compensation Authority) for the Appellant
Chris Buttler (instructed by Stephensons Solicitors LLP) for the Respondents
Hearing date : 07 December, 2016
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Approved Judgment
Judgment Approved by the court for handing down. / Criminal Injuries Compensation Authority –v- Hutton & OthersLord Justice Gross :
Judgment Approved by the court for handing down. / Criminal Injuries Compensation Authority –v- Hutton & OthersINTRODUCTION
1. This matter reaches us by way of an appeal by the Appellants (“CICA”), from decisions of the Upper Tribunal (“UT”), quashing decisions of the First-Tier Tribunal (“FTT”), itself refusing appeals against CICA decisions not to waive the time limit for claiming an award under the Criminal Injuries Compensation Scheme 2001 (“the Scheme”).
2. Though overlaid with important considerations as to the jurisdiction and role of the FTT, the UT and, indeed, this Court, the underlying question is whether the Respondents (“the claimants”) are entitled to an extension of time of some 40 years in order to advance their claims for compensation under the Scheme.
3. Sympathy and understanding cannot determine the outcome of these proceedings but the Court, as we indicated during the hearing, is very much alive to the family tragedy which has had a profound impact on the lives of all the claimants.
4. Since 1964, a scheme has been in place for the payment of compensation to, or in respect of, persons who have sustained a criminal injury, inter alia, personal injury directly attributable to a crime of violence. The version of the scheme with which this appeal is concerned is the 2001 Scheme (i.e., the Scheme). Where the victim of a criminal injury sustained on or after 1st August, 1964 has since died, compensation may be paid to an applicant who is a qualifying claimant within the meaning of the Scheme. CICA claims officers determine claims for compensation in accordance with the Scheme.
5. On the 4th December, 1966, Abraham Roy Hutton (“the deceased”) was stabbed and killed by De Courcey Griffiths (“Griffiths”) in Bedford. In the event, on 16th February, 1967, Griffiths, though charged with the deceased’s murder, was convicted of manslaughter and was sentenced to 18 months’ imprisonment.
6. The claimants, Vincent Hutton (“VH”) and Fiona Hutton (“FH”) are, respectively, the son and daughter of the deceased. Yvonne Akers (“YA”) is the mother of VH and FH. As will be seen below, a question arose as to the precise nature of her relationship with the deceased; that question is of importance to her position but not to that of VH or FH.
7. On the 2nd June, 2008, nearly 40 years out of time, VH made a claim under the Scheme, on his own behalf and on behalf of FH and YA as well.
8. Pausing here and insofar as material, the Scheme provides as follows:
“ Eligibility to receive compensation
13. A claims officer may withhold or reduce an award where he considers that:
(d) the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made; …
15. Where the victim has died since sustaining the injury (whether or not in consequence of it), paragraphs 13 and 14 will apply in relation both to the deceased and any applicant for compensation under paragraphs 37-44 (fatal awards).
Consideration of applications
18. An application for compensation under this Scheme in respect of a criminal injury (‘injury’…) must be made in writing on a form obtainable from the Authority. It should be made as soon as possible after the incident giving rise to the injury and must be received by the Authority within two years of the date of the incident. A claims officer may waive this time limit where he considers that, by reason of the particular circumstances of the case, it is reasonable and in the interests of justice to do so.
19. It will be for the applicant to make out his case including, where appropriate:
(a) making out his case for a waiver of the time limit….
(b) satisfying the claims officer ….that an award should not be reconsidered, withheld or reduced under any provision of the Scheme.
Compensation in fatal cases
…..
38. Where the victim has died since sustaining the injury, compensation may be payable, subject to paragraphs 13-15 (actions, conduct and character), to any claimant (a ‘qualifying claimant’) who at the time of the deceased’s death was:
(a) the partner of the deceased, being only, for these purposes:
(i) a person who was living together with the deceased as husband and wife….in the same household immediately before the date of death and who, unless formally married to him, had been so living throughout the two years before that date….
(c) a natural child of the deceased…..
64. The standard of proof to be applied by the Panel in all matters before it will be the balance of probabilities. It will be for the appellant to make out his case…..”
9. It may be noted that there are broadly three types of compensation for death payable under the Scheme. First, the “standard amount” of compensation, i.e., what may be termed a “conventional” award. Secondly, “dependency”, where the qualifying claimant has suffered financial loss flowing from the death. Thirdly, “loss of parental services”, where the claimant is a child under the age of 18.
10. As explained by the Guide to the 2008 Scheme (which was, so far as material, in the same terms as the Scheme), the conventional award:
“ …recognises the fact that someone very close to you has died as a result of a crime of violence. No amount of money can make up for the death of a close relative – the standard amount is a gesture of public sympathy for the grief caused by the death.”
The amount payable by way of a conventional award is a fixed sum: £11,000 if there is only one qualifying claimant; £5,500 for each person if there is more than one qualifying claimant.
11. Reverting to the history, on the 11th August, 2008, CICA rejected all the claims, saying this:
“ Under paragraph 18 of the Scheme we must receive all applications for compensation within two years of the date of the incident. We can only accept an application outside this time limit if it is reasonable and in the interests of justice to do so. In your case, because of the delay in sending us the application, we have been unable to get police information to confirm the facts surrounding the incident in which the deceased was involved. In these circumstances I am unable to waive the time limit.”
12. The claimants requested and obtained an internal review. On the 10th February, 2009, CICA confirmed that it was unable to make an award under the Scheme. Its reasons were as follows:
“ Under paragraph 18 of the Scheme we must receive all applications for compensation within two years of the incident. We can only accept an application outside the time limit if it is reasonable and in the interests of justice to do so. In your case, there are no particular circumstances which make it reasonable or in the interests of justice for us to accept a late application. I note that you have applied for compensation 42 years after the incident. The ….Scheme has been in existence since 1964. Although you have provided us with information about the sad incident in which you lost your father, and I note that you were a child at the time, it is reasonable in the circumstances to expect an application to be submitted when you reached adulthood at the age of 21. I am therefore unable to waive the time limit.”
13. Very protracted litigation has since ensued. On the 25th September 2009, the claimants’ appeals to the FTT failed. Subsequently, the UT refused the claimants permission to bring Judicial Review. That might have been the end of the road but the claimants enjoyed better fortune when the single Lord Justice granted permission to appeal to the Court of Appeal.
14. On the 14th June, 2012, a different constitution of this Court allowed the claimants’ appeals, granted permission to bring Judicial Review proceedings in respect of the FTT’s (2009) decision but remitted the matter to the UT to determine the actual Judicial Review: see, [2012] EWCA Civ 806. The crux of the Court’s reasoning appears from the judgment of Aikens LJ, at [41] – [42]:
“ 41. In my view Judge Ward undoubtedly erred in law in his construction of paragraph 18 of the Scheme terms. He considered that the first question he had to ask was whether there were any relevant ‘particular circumstances’ in this case and the second question was whether or not it was in the ‘interests of justice’ to waive the time limit. That misreads the last sentence of paragraph 18. That states that a Claims Officer ‘may waive’ the 2 year time limit where he considers that ‘by reason of the particular circumstances of the case, it is reasonable and in the interests of justice to do so’. To my mind, the words ‘particular circumstances’ mean the actual or distinct circumstances of this individual case. They do not mean ‘special’ circumstances in the sense of being unusual or extraordinary circumstances. So the task of the Claims Officer or Reviewing Officer is to establish the actual circumstances of this particular case. Having done so he has then to ask: given the circumstances of this particular case, is it reasonable and in the interests of justice to waive the time limit.
42. In performing that exercise, I think that the wording requires that the Claims Officer must consider all relevant factors. These may include the length of the delay in making the claim, the reasons for the delay and the nature of the claim itself. The relative importance of particular factors will depend on the particular circumstances of the case being considered. The Claims Officer has to make an overall decision bearing all those circumstances in mind. In doing so he will have to take account of the fact that the general rule is that claims should be brought as soon as possible and, in any event, within two years of the incident giving rise to the claim. ”
The Court went on to conclude it was arguable that (but for this error of law) the FTT might reasonably have concluded that the time limit should be waived. Via the UT, the matter then wound its way back to the FTT.
THE FTT DECISIONS OF 9th MAY, 2013 (“The FTT Decision”)
15. I deal here compendiously with the FTT Decisions of 9th May, 2013 in respect of all three claimants. References are to paragraph numbers in the Decision on VH’s claim, unless otherwise stated. On this occasion, the claimants were represented by counsel. The FTT heard evidence from both VH and FH.
16. The FTT had the central issue clearly in mind. At [9] of the Decision, the FTT said this:
“The particular issue for the Tribunal to decide is whether in the particular circumstances of this case, it is reasonable and in the interests of justice to waive the time limit referred to in paragraph 18 of the Scheme.”
At [36] (repeated later under the heading “Conclusion”), the FTT answered this question:
“ The Tribunal finds it is neither reasonable and in the interests of justice to do so.”
17. The route from question to answer appears from the FTT Decision. At [10] – [34], the FTT carefully focused on the facts and the evidence it had heard, including the very significant consequences for VH, FH and YA of the deceased’s death, at a time when VH was some 5 months old and FH 17 months old. Both were taken into care until they were 18 years old, thus 1984 and 1983 respectively. Within a month of the deceased’s death, YA began to suffer from mental health problems and was hospitalised for a time. At various points in time, it would appear that both VH and FH have themselves struggled with mental health problems, albeit while holding down various employments at other times.
18. At [35], the FTT made its “Findings of Fact”, before turning to its “Decision and Reasons” at [36] and following, correctly observing (at [37 i]) that the burden of proof rested on the claimants.
19. At [37 iv], the FTT found that there were inconsistencies in VH’s evidence “which undermined his credibility”. The FTT did not accept that it was not until 2006 – when VH had obtained counselling – that he was able to tackle the task of finding out how his father had been “murdered”. That evidence was not consistent with VH’s own evidence that he had started his inquiries at the age of 8 and that, from the age of 18, he had made annual enquiries of the Coroner’s Office, together with, inter alia, attending libraries and contacting social services. Moreover, in about 1998 (at [37 v]), he had a meeting with his paternal aunt, whom FH had traced in 1996 and who had given FH a “huge amount” of information about the deceased and the circumstances of his death. In the FTT’s view, it was “likely” that his aunt would have told him the name of his father’s killer “as by then it was known to her and her family”.