MP v First-tier Tribunal and Criminal Injuries Compensation Authority

JurisdictionUK Non-devolved
JudgeJudge Ward
Neutral Citation[2022] UKUT 91 (AAC)
Subject MatterCriminal injuries compensation - other,Human rights law - article 14 (non-discrimination),Tribunal procedure,practice - tribunal jurisdiction,Ward,C
CourtUpper Tribunal (Administrative Appeals Chamber)
Published date11 April 2022
MP v FTT and CICA (CIC)
[2022] UKUT 91 (AAC)
1
IN THE UPPER TRIBUNAL Case No. UA-2019-002633
ADMINISTRATIVE APPEALS CHAMBER (Previously JR/295/2019)
Between: MP Applicant
- v
First-tier Tribunal (Social Entitlement Chamber) Respondent
(1) Criminal Injuries Compensation Authority
(2) Secretary of State for Justice Interested Parties
Before: Upper Tribunal Judge Ward
Hearing date: 23 March 2021 (with subsequent written submissions)
Representation:
Applicant: Ariane Adam and Geeta Koska, instructed by Scott-Moncrieff &
Associates Ltd
Respondent: No appearance or representation
Interested Parties: Robert Moretto, instructed by Government Legal Service
DECISION
The application for judicial review is refused.
REASONS FOR DECISION
1. The applicant is a national of Sri Lanka and has at all material times been
ordinarily resident there. He is the father of a man born in 1988, who was murdered
in Sheffield on 27 October 2013. The deceased, who was also a national of Sri
Lanka, was lawfully residing and working, and ordinarily resident, in the UK when he
was killed.
2. The applicant applied to the first interested party for compensation under the
Criminal Injuries Compensation Scheme 2012 (”the Scheme). By a decision dated
14 September 2016 his claim was refused because he could not satisfy the eligibility
requirements contained in paragraph 10 of the Scheme (see [28] below). On his
appeal to the First-tier Tribunal (“FtT”), the submission on his behalf was that he was
discriminated against contrary to art.14 and article 1 of protocol 1 (“A1P1” ) of the
European Convention on Human Rights when para.10 was applied to reject his
MP v FTT and CICA (CIC) [2022] UKUT 91 (AAC)
Case no: UA-2019-002633 (previously JR/295/2019)
2
claim. The appeal was dismissed by a decision dated 18 October 2018. The FtT’s
decision stood as its statement of reasons.
3. The FtT held:
(a) relying on the Court of Appeal’s decision in JT v First-tier Tribunal and
CICA [2018] EWCA Civ 1735, a claim under the criminal injuries
compensation scheme was within the ambit of A1P1;
(b) the applicant’s claim had failed because he was neither ordinarily resident
in the UK nor a British citizen. “Residence or domicile” had been held to
amount to an “other status” for the purposes of art.14: R (RJM) v SSWP [2008]
UKHL 63, so the applicant had an “other status”;
(c) the provisions were not “without reasonable foundation” (sic); and
(d) even if the FtT had concluded otherwise in relation to (c), it could not
properly have disapplied para.10.
4. On 28 May 2019 Upper Tribunal Judge Levenson gave permission to apply for
judicial review and on 29 July 2019 he granted an application by the second
interested party to be joined under rule 9. A substantial delay followed while the
applicant pursued an application for legal aid, ultimately successfully. The parties
sought an oral hearing and in December 2020 the case was transferred to me to
conduct it.
5. A hybrid hearing was held on 23 March 2021 in Rolls Building, initially by Kinly
CVP. Counsel and the applicant’s solicitor attended in person. The interested
parties’ solicitor and representatives of her clients observed remotely, as did the
applicant himself (in Sri Lanka). Some problems of feedback were observed and so
far as possible addressed but after some 50 minutes a message was received from
the interested parties’ solicitor that she was finding it impossible to follow every
speaker because of the feedback. After an adjournment, the hearing continued using
a combination of telephone conferencing and Kinly CVP. There was a further short
adjournment towards the end of the day as some participants’ phone batteries were
out of charge, to allow them to borrow phones or make other suitable arrangements.
I am satisfied that counsel, being present in person throughout, were able to
participate fully. There was no suggestion (and nor has there been since) that the
difficulties in hearing part of the submission experienced by the interested parties’
solicitor (and very possibly by her clients also) had rendered the hearing unfair.
6. The interested parties sought to raise additional points challenging those parts of
the FtT’s decision which had gone in the applicant’s favour. This Chamber of the
Upper Tribunal has not previously followed a formal system of pleading. I am
satisfied that each party had a fair opportunity to consider all the points raised by the
other party.
7. By the same token, having considered the submissions made up to and including
those made at the oral hearing, I decided to invite post-hearing written submissions
addressing (or addressing further the parties take differing views on whether a new
point is involved but, for the reasons below, it ultimately does not make any
difference) whether this was in reality a Thlimmenos case, by reason of the Schemes
failure to make provision, by way of allowing reliance to be placed on the residence
qualification of the deceased person in cases where the deceased had met the
residence (etc.) requirements. In due course such submissions were received and,
as regards substantive matters, are considered further below.

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