Hutton and Others v First-tier Tribunal (Social Entitlement Chamber)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Lord Justice McFarlane,Lady Justice Arden |
| Judgment Date | 14 June 2012 |
| Neutral Citation | [2012] EWCA Civ 806 |
| Date | 14 June 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2011/1630 |
[2012] EWCA Civ 806
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE APPEALS CHAMBER
THE UPPER TRIBUNAL
JR0667,0668,0669/201
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Aikens
and
Lord Justice Mcfarlane
Case No: C3/2011/1630
Mr Christopher Buttler (acting pro bono) for the Appellants
Mr Owain Thomas (instructed by Treasury Solicitors) for the Respondent
Hearing date : 26th of April 2012
The substantive question raised in this case is: by what criteria should a Claims Officer decide whether or not to waive the two year time limit within which claims for compensation in respect of criminal injury should be brought under the Criminal Injuries Compensation Scheme (2001): "the Scheme". In form this is an appeal against the order of HHJ Edward Jacobs, sitting in the Upper Tribunal (Administrative Appeals Chamber)—the "UT"—dated 3 March 2011, whereby he refused to grant permission to apply for judicial review of the dismissal by the First Tier (Social Entitlement Chamber) ("FTT") of an appeal from the decision of a Claims Officer against waiving the two year time limit for bringing claims for compensation under the Scheme. The appeal is brought by Mr Hutton on his own behalf and also on behalf of his sister and his mother. Permission to appeal to this court was granted by Rix LJ on 23 November 2011, following an oral hearing.
Mr Buttler appeared pro bono on behalf of the three appellants and I received much assistance from his submissions. I am also grateful for the helpful submissions of Mr Thomas on behalf of the Criminal Injuries Compensation Authority, the Interested Party, whom I shall refer to as "The Authority".
Mr Buttler requested that if this court decided to allow the appeal, so that we granted permission to bring Judicial Review proceedings, then we should deal with the Judicial Review itself. There is power to allow this, pursuant to section 16(8) of the Tribunals, Courts and Enforcement Act 2007.
The relevant terms of the Criminal Injuries Compensation Act 1995 and The Scheme
The Scheme was promulgated by the Secretary of State pursuant to powers granted by sections 1 to 6 and 12 of the Criminal Injuries Compensation Act 1995. Schemes for compensation for criminal injuries have existed since 1964. The original scheme has been revised on a number of occasions including revisions in 1979 and 1990. Paragraph 1 of the present Scheme provides that applications received on or after 1 April 2001 for the payment of compensation to, or in respect of, persons who have sustained criminal injury would, in principle, be considered under the 2001 Scheme. Claims for compensation pursuant to the Scheme are to be determined by "Claims Officers". Compensation will be paid in accordance with the Scheme to an applicant who has sustained a criminal injury on or after 1 August 1964: paragraph 6 (a). An applicant can make a claim on his own behalf and on behalf of others, as has been done in this case by Mr Hutton: paragraph 6(b). "Criminal injury" means a "personal injury" sustained in Great Britain, which is attributable to (amongst other things) a crime of violence: paragraph 8(a). "Personal injury" includes both physical injury and mental injury or disease, including those that may occur without any physical injury, but, in that case only if certain conditions are satisfied as laid down in paragraph 9(a) to (d). Paragraph 13 sets out various circumstances in which a Claims Officer will be entitled to reduce or withhold an award under the Scheme.
Paragraphs 37 to 42 set out the detailed provisions concerning compensation in cases where a victim has died as a result of a criminal offence. They are relevant to this appeal and are set out in the Appendix to this judgment. The "standard amount of compensation" at Level 10 and Level 5 referred to in, respectively, paragraphs 39 and 42(a) of the Scheme are amounts of, respectively, £5,500 and £2,000. Those figures are found in the "Levels of Compensation" tables at the end of the Scheme's terms.
The key paragraphs of the Scheme for the purposes of this appeal are paragraphs 18 and 19, which I set out here:
"Consideration of applications
18. An application for compensation under this Scheme in respect of a criminal injury ("injury" hereafter in this Scheme) 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 in the preceding paragraph; and
(b) satisfying the claims officer dealing with his application (including an officer reviewing a decision under paragraph 60) that an award should not be reconsidered, withheld or reduced under any provision of this Scheme.
…………………."
Paragraph 20 stipulates that the standard of proof to be applied by a Claims Officer to all matters before him will be the balance of probabilities.
The factual background to the proceedings.
Mr Hutton's parents had come to the UK from the Caribbean in about 1960. His father was Abraham Hutton. His mother is called Yvonne Akers and she was married to Abraham Hutton. Mr Hutton's sister, called Fiona, is about 17 months older than Mr Hutton. Mr Hutton was born on 2 July 1966. By December 1966 Abraham Hutton was aged 26 and he was employed by British Railways.
In the afternoon of 4 December 1966 Abraham Hutton was fatally stabbed by Courtland de Courcey Griffiths in broad daylight in a street in Bedford. At the time of Abraham Hutton's death, Yvonne Akers was 21 years old; Fiona was about 22 months old and Mr Hutton was barely 5 months old. As a result of this tragedy, all three were traumatised. Yvonne Akers had a nervous breakdown and was later cared for by her mother. She has continued to have mental problems. Mr Hutton and her elder sister were taken into care by the local authority. Mr Hutton later went to boarding school. Fiona has suffered from mental problems. Both children knew of their father's death from about the age of 8 but were not told any of the details.
Since Mr Hutton has reached adulthood he has tried to find out details of the circumstances of his father's death. He had little or no success until, in 2007, he discovered relevant documents in the National Archive, formerly the Public Record Office, which is now located at Kew, Middlesex. It transpires that on 16 February 1967 Mr Abraham Hutton's attacker was found guilty of manslaughter at the Leicestershire Assizes and he was sentenced to 18 months imprisonment. Copies of the depositions of the witnesses (taken at the old-style committal proceedings in front of the Justices) are in our papers. These too had been deposited in the National Archive. It seems clear that Abraham Hutton was stabbed after an argument in a pub; both men may have been drinking.
On 2 June 2008, that is just under 42 years after his father was unlawfully killed, Mr Hutton made a claim to the Authority. He made claims also on behalf of his sister and his mother, from whom he had obtained written authority to do so. It is, I think, accepted by the Authority, for the purposes of this appeal at least, that Mr Hutton is the only one of the three claimants who is capable of making an application on behalf of all three, because of the continuing mental health problems of the other two.
There is a standard form which has to be completed by applicants for compensation under the Scheme. Mr Hutton completed separate forms for himself, his sister and his mother. I will refer only to Mr Hutton's own form. He filled out the various details as requested. These included the name of his deceased father and his occupation at the time of his death, his address at the time of the stabbing and the address where the incident occurred. Under paragraph 1(m) Mr Hutton completed questions which, the form explained, needed answers so that the Claims Officer could decide if the applicant was financially dependent on the person who died at the time when he died, in which case the applicant might be eligible for "further compensation for dependency or loss of parental services or both if you are under 18 (paragraphs 40 and 42 of the Scheme)". The form stated that if the Claims Officer found that the applicant was eligible, he would be sent a form for "dependency or parental services" and those considering the claims would use the information provided "to make further enquiries to consider your application". Mr Hutton stated that he was financially dependent on his father at the time that the latter had died and that, at that time, Mr Hutton was, himself, under 18.
At paragraph 5(a) of the form Mr Hutton set out the date and time of the incident in which his father was killed. Paragraph 5(b) in the form poses the following question: "if the incident happened more than two years ago, why have you not applied before now?". Mr Hutton's response was:
"Have been trying to gather all the facts regarding my father's murder. I have been and still remain traumatised by his brutal death and the loss of not having my father around".
Mr Hutton...
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