Rust-andrews v First Tier Tribunal (Social Entitlement Chamber) and Another The Criminal Injuries Compensation Authority (Interested Party)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH,Lord Justice Stanley Burnton,Sir Robin Jacob |
| Judgment Date | 19 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1548 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2011/0715 |
| Date | 19 December 2011 |
[2011] EWCA Civ 1548
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
UPPER TRIBUNAL ADMINISTRATIVE APPEAL CHAMBER
UPPER TRIBUNAL JUDGE ROWLANDS
JR/1690/2009
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lord Justice Stanley Burnton
and
Sir Robin Jacob
Case No: C3/2011/0715
and
David Sanderson (instructed by Rogers & Norton Solicitors) for the Appellant
No attendance in Court by the Respondent's Counsel
Ben Collins for the Interested Party
Hearing date : Monday 7 th November, 2011
This is an appeal from the decision of the Upper Tribunal (Judge Rowland) on an application for judicial review of a decision of the First-tier Tribunal, relating to compensation under the Criminal Injuries Compensation Scheme 2001 ("the 2001 Scheme").
Facts
On 28 June 2002 Sally Rust-andrews (the Appellant) was violently assaulted at her workplace, Norwich City College. At the time, she was employed by the College as a lecturer in the Textile Department, as she still is. Although the physical consequences of the assault were relatively minor, she suffered and continues to suffer severe Post Traumatic Stress Disorder (PTSD), which substantially reduces her capacity to work.
On 21 February 2003 she applied to the Criminal Injuries Compensation Authority (CICA) for an award of compensation. On 26 July 2004 CICA awarded £1,500, for her physical injuries only. She submitted a request for review, supported by medical evidence and other material. The medical evidence was from Dr Ann Stanley, Consultant Forensic Psychiatrist, initially in a report in April 2005, supplemented by answers to questions in July 2006.
On 4 December 2007 CICA gave notice of the outcome of the review:
i) The tariff award was increased to £8,650 (a level 12 award of £8,200 for a disabling mental illness lasting 2 to 5 years and £450 for her physical injuries).
ii) No award was made for loss of earnings or reduced earning capacity.
On 29 February 2008 she appealed to the then Criminal Injuries Compensation Appeals Panel (CICAP) (now part of the First Tier Tribunal (FTT)). Following a hearing on 30 March 2009, the FTT delivered its Decision on 17 April 2009:
i) The FTT increased the tariff award for psychiatric injury to level 14 (£13,500): a disabling mental illness lasting over 5 years, but not permanent.
ii) They awarded £19,028 for her past and future loss of earnings and £1,000 for her loss of pension.
iii) For special expenses, they awarded the prospective cost of a course of Cognitive Behavioural Therapy and travel expenses (£2,504).
Only (ii), the award for future earnings, is now in issue. The claim had been for about £100,000.
On 13 July 2009 she applied for judicial review to the Upper Tribunal, permission for which was granted on 13 August 2009. Following a hearing on 17 May 2010, Judge Rowland gave his decision on 22 December 2010, dismissing the application. The appeal to this court is made with permission given by the judge.
The medical evidence
Before turning to the 2001 Scheme, it is convenient to refer to the medical evidence which has been central to the issues in the appeal. It is sufficient to refer to Judge Rowland's summary:
"6. According to Dr Ann Stanley, a consultant forensic psychiatrist, there was evidence that the claimant had suffered from Post Traumatic Stress Disorder. In August 2005, three years after the assault, Dr Stanley recorded that the claimant still had not been able to return to work on a 0.8 basis but she was back on a 0.5 basis and it was anticipated that she would be able to increase her hours in the next 12 to 18 months. Dr Stanley also considered that, on the balance of probabilities, the claimant was unlikely ever to meet her full potential.
7. A year later, the claimant was still working on a 0.5 basis, although her employers had continued to pay her on a 0.8 basis. On 22 June 2006, Dr Stanley answered a number of specific questions put to her by the claimant's solicitors, although she emphasised that she had not seen the claimant since the previous year. She estimated the risk of the moderately disabling mental illness continuing beyond the fifth anniversary of the assault at 70%. Without treatment from a chartered clinical psychologist, she put the risk of the illness being permanent also at 70% but said that, with such treatment, the risk dropped below 50%. She recommended a further 18 months of such treatment, which would be available from the NHS in some areas. Crucially, in an answer corrected on 5 July 2006, she considered the risk of the claimant not being able to increase the extent of her work from 0.8 to 0.5 was 60% without such treatment but 40% with treatment…
8. On 2 August 2006, a chartered psychologist estimated that the claimant would need 8–20 sessions of cognitive behaviour therapy which would cost £80 each if done privately. Her GP had said that there would be a wait of about 3 months for an assessment and another 6 months for treatment on the NHS and that about 6 sessions would be available. The psychologist repeated her advice on 12 February 2008. During the intervening period, the claimant had not sought cognitive behaviour therapy but had continued with counselling paid for by her employers."
The 2001 Scheme
The Criminal Injuries Compensation Act 1995 provides the statutory foundation for the Criminal Injuries Compensation Scheme 2001. By Section 2(1), the amount of compensation payable under an award "shall be determined in accordance with the provisions of the scheme".
As to standard of proof, section 3(2) provides:
"Where, in accordance with any provision of the scheme, it falls to one person to satisfy another as to any matter, the standard of proof required shall be that applicable in civil proceedings."
This approach is also reflected in the wording of the scheme itself. Thus, paragraph 20 states:
"The standard of proof to be applied by a claims officer in all matters before him will be the balance of probabilities."
Similarly in relation to the Panel, paragraph 64 provides:
"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".
The award was made under paragraph 23 of the scheme. It starts with 23(a):
"a standard amount of compensation by reference to the nature of the injury in accordance with paragraphs 26–29"
The standard amounts are set by reference to a tariff, which specifies different amounts, depending on the type and seriousness of the injury, ranging from level 1 to 25. In this case, the relevant injury was "mental health" (which the tariff defines as including "post-traumatic stress disorder"), the relevant levels being 12 and 14:
"disabling mental illness, confirmed by psychiatric diagnosis:
—lasting 2 years to 5 years (12) £8,200
—lasting over 5 years but not permanent (14) £13,500"
As noted above, in raising the award from £8,200 (level 12) to £13,500 (level 14) the tribunal were accepting that it would last longer than 5 years from the date of the injury. This aspect of the award is not in issue.
Lost earnings are dealt with by para 23(b):
" (b) where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury (other than injury leading to his death), an additional amount in respect of such loss of earnings, calculated in accordance with paragraphs 30–34;"
Paragraphs 30–34 prescribe the method of calculation, in summary: 30 (exclusion of first 28 weeks); 31 (loss up to the time of assessment); 32 (future loss); 33 (lump sum for future loss, where 32 impracticable); 34 (cap by reference to 1 1/2 times average industrial earnings).
In this case 32 and 33 are potentially relevant:
"32. Where, at the time the claim is assessed, a claims officer considers that the applicant is likely to suffer continuing loss of earnings and/or earning capacity, an annual rate of net loss (the multiplicand) or, where appropriate, more than one such rate will be calculated on the basis of:
(a) the current rate of net loss calculated in accordance with the preceding paragraph; and
(b) such future rate or rates of net loss (including changes in the applicant's pension rights) as the claims officer may determine; and
(c) the claims officer's assessment of the applicant's future earning capacity;…
For the "current rate of net loss" (para (a)), reference has to be made to the preceding paragraph 31, under which the loss of earnings is calculated by reference to a formula, the starting point for which is—
"(a) the applicant's emoluments… at the time of the injury and what those emoluments would have been during the period of loss;…"
Compensation under this paragraph 32 is assessed as a lump sum "in respect of each period of continuing loss", calculated by reference to the product of the "multiplicand" assessed as above and "an appropriate multiplier", assessed by reference to a set of tables. But this apparently prescriptive scheme is qualified by the power of the claims officer to—
"make such adjustments as he considers appropriate to take account of any factors and contingencies which appear to him to be relevant."
It is further qualified by paragraph 33:
"33. Where a claims officer considers that the approach in the preceding paragraph is impracticable, the compensation payable in respect of continuing loss of...
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