R (TH) v First-tier Tribunal (Social Entitlement Chamber)
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] UKUT 87 (AAC) |
| Year | 2022 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
2022 Feb 2; March 17
Upper Tribunal Judge
Crime - Criminal Injuries Compensation Authority - Compensation, whether payable - Claim for additional compensation on basis of claimant’s financial dependency on deceased - Claim precluded on ground deceased’s only normal income from social security benefits - Whether working tax credit “social security benefits” -
Following the death of her husband as a result of a criminal injury, the claimant made a claim for compensation under the Criminal Injuries Compensation Scheme 2008F1, including a claim under paragraph 40 for “additional compensation” for loss of financial dependency. The Criminal Injuries Compensation Authority refused to award additional compensation. The First-tier Tribunal dismissed the claimant’s appeal, holding that pursuant to paragraph 40(1) of the Scheme additional compensation was not payable because the husband’s only normal income, which included working tax credit payable under the Tax Credits Act 2002F2, had been from “social security benefits”.
On the claimant’s claim for judicial review—
Held, dismissing the claim, that it was abundantly clear that working tax credit paid under the Tax Credits Act 2002 fell within the definition of “social security benefits” in paragraph 40(2) of the Criminal Injuries Compensation Scheme 2008, which included “all United Kingdom social security benefits, other state or local authority benefits”; that, in particular, working tax credit was a “state benefit”, within paragraph 40(2), notwithstanding that it was administered by HM Revenue and Customs rather than the Department for Work and Pensions; that, therefore, the working tax credit which the husband in the present case had received was a “social security benefit” for the purposes of paragraph 40(1) of the Scheme; and that, accordingly, the First-tier Tribunal had not erred (post, paras 46, 48, 80).
Per curiam. If a deceased person was dependent on “social security benefits” for a time or times, it is a question of fact as to whether those benefits constituted their “only normal income” for the purposes of paragraph 40 of the Scheme. For those purposes, a tribunal will look at what periods were spent with and without dependence on those benefits. And if a deceased person was dependent on those benefits at the time of death, a tribunal may consider whether that dependency was shortly about to change to the extent that the benefits may not be considered to constitute the deceased person’s “only normal income” or, alternatively, whether that dependency represented matters as they stood (post, para 15).
The following cases are referred to in the judgment:
HI v Secretary of State for Work and Pensions
Hutton v Criminal Injuries Compensation Board
The following additional case was cited in argument or referred to in the skeleton arguments:
Humphreys v Revenue and Customs Comrs
CLAIM for judicial review
By an application to the Upper Tribunal (Administrative Appeals Chamber), and with permission granted by Upper Tribunal Judge Levenson, the claimant, TH, whose husband had died as a result of a criminal injury, sought judicial review of the decision dated 26 November 2020 of the First-tier Tribunal (Social Entitlement Chamber) dismissing the claimant’s appeal against the refusal of the interested party, the Criminal Injuries Compensation Board, to include within the claimant’s compensation under the Criminal Injuries Compensation Scheme 2008 “additional compensation” for loss of a dependency. The grounds of challenge were that: (1) the tribunal had incorrectly characterised working tax credit as a “social security benefit” within the meaning of paragraph 40 of the Scheme and relied on that error of law in reaching its conclusion that the deceased’s only normal income was derived from social security benefits, so as to preclude a claim for additional compensation; and (2) the tribunal had erred in its approach to the evidence in a number of respects.
The facts are stated in the judgment, post, paras 1–5, 17–28.
Carin Hunt (instructed directly) for the claimant.
Victoria Webb (instructed by
The First-tier Tribunal was not represented.
The Upper Tribunal took time for consideration.
17 March 2022. UPPER TRIBUNAL JUDGE ROWLEY promulgated the following judgment.
Introduction and summary1 The applicant brings these judicial review proceedings with the permission of Upper Tribunal Judge Levenson. The applicant’s husband (who was born in 1977) sadly died on 23 November 2009 as a consequence of a criminal injury which he had sustained on 2 August 2009. The applicant witnessed the horrific, violent attack on her husband, which had taken place outside the family home. All aspects of a claim for criminal injuries compensation for the applicant and her six children have been resolved, with the exception of the one with which this case is concerned. Intending no disrespect, but in order to preserve anonymity, in this decision I will refer to the applicant’s husband as “the deceased”.
2 The respondent First-tier Tribunal has taken no part in the proceedings. The Criminal Injuries Compensation Authority (“CICA”) is an interested party. At an oral hearing held on 2 February 2022 the applicant was represented by Ms Carin Hunt of counsel and CICA was represented by Ms Victoria Webb. As I said at the conclusion of the hearing, I am grateful to them both for their helpful submissions.
3 The case is governed by the Criminal Injuries Compensation Scheme 2008 (“the Scheme”). The part of the applicant’s claim with which I am concerned was for “additional compensation” for loss of financial dependency under paragraph 40 of the Scheme. No award may be made under that paragraph if the deceased person’s only normal income was from social security benefits. The main issue in this case is whether working tax credit (“WTC”) should be categorised as a “social security benefit” for the purposes of paragraph 40 of the Scheme. This issue is considered at paras 29–48 below.
4 CICA refused to make an award under paragraph 40 of the Scheme. The applicant appealed to the First-tier Tribunal, which conducted an oral hearing of the appeal over the telephone on 26 November 2020. The applicant, who was also represented by Ms Hunt at that hearing, gave evidence to the tribunal about the deceased’s work history and plans. The tribunal dismissed the applicant’s appeal on the basis that the deceased’s only normal income was from social security benefits. On 14 January 2021 it provided written reasons for its decision.
5 The applicant applied to bring judicial review proceedings. She relied on two grounds of appeal. The first was that the tribunal had incorrectly characterised WTC as a social security benefit within the meaning of paragraph 40 of the Scheme. The second was that the tribunal had erred in its approach to the evidence in a number of respects.
6 Upper Tribunal Judge Levenson gave permission to proceed with the application for judicial review on the basis that: “The grounds of appeal are reasonably arguable (although, at this stage, I put it no higher than that).”
7 CICA opposes the application for judicial review.
The relevant provisions of the Scheme8 Paragraphs 37–44 of the Scheme provide for “compensation in fatal cases”. The relevant parts of paragraph 38 provide that if a deceased’s death was in consequence of an injury, compensation may be payable to a qualifying claimant under paragraphs 39–43.
9 Paragraph 40 concerns a claim for loss of dependency, and paragraph 41 makes provision for the calculation of such a claim. Paragraph 40 is in these terms:
“(1) Additional compensation calculated in accordance with paragraph 41 may be payable to a qualifying claimant where a claims officer is satisfied that the claimant was financially or physically dependent on the deceased. A financial dependency will not be established where the deceased’s only normal income was from social security benefits.
“(2) For the purposes of this Scheme, ‘social security benefits’ includes all United Kingdom social security benefits, other state or local authority benefits and all such benefits or similar payments paid from the funds of other countries.”
10 For the purposes of this case, the references to a claims officer are to be taken as references to the First-tier Tribunal.
11 It is not in dispute that it is for an applicant to establish, on a balance of probabilities, that they were financially dependent on the deceased person.
Working tax credit12 WTC was introduced by the Tax Credits Act 2002. It provides state support for low-paid working adults. In general terms, a claimant will qualify for WTC if (among other things) they work at last 16 hours per week and their income is sufficiently low. Administered by Her Majesty’s Revenue and Customs (“HMRC”), WTC is calculated as an annual amount and then paid to claimants in instalments every week or every four weeks during the tax year. WTC counts as income for the purposes of entitlement to many means-tested benefits such as housing benefit.
13 The forerunners to WTC were family income supplement (introduced in 1971 and administered by the Department of Health and Social Security) and family credit (which replaced family income supplement in 1988 and which was administered by the Department of Social Security). It should also be noted that WTC has now transitioned to universal credit, a benefit which is administered by the Department for Work and Pensions.
14 For completeness, I should add that there is another tax credit which was introduced by the Tax Credits Act 2002. It is called child tax credit. It is received independently of a...
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