IN THE UPPER TRIBUNAL	Case No.  JR/642/2011
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Attendances:

The Appellant: appeared in person, by videolink.

The Respondent neither appeared nor was represented

The Interested Party was represented by Mr Ben Collins of Counsel, instructed by the Treasury Solicitor

Decision:  The claimant’s application for judicial review is dismissed.

REASONS FOR DECISION

1.	This is an application for judicial review, brought by the claimant with permission granted by Judge Mesher, of a decision of the First-tier Tribunal dated 14 February 2011 whereby it dismissed her appeal against a decision of the Criminal Injuries Compensation Authority dated 21 September 2009 refusing, on review, to make an award under the Criminal Injuries Compensation Scheme 2001.

2.	The claimant’s claim for compensation under the Scheme was received by the Authority on 5 June 2006.  It was made in respect of “depression and possible heart problems” suffered by the claimant since she had discovered in 2003 that her son, born in 1970, had been sexually abused by a family friend between 1975 and 1985.  Her son had been very upset when she discovered about the abuse but she persuaded him to go to the police because she was concerned that the perpetrator was still abusing other children.  The perpetrator was charged but committed suicide before being tried.  Sadly, the claimant’s son committed suicide on 17 March 2006.  

3.	The claim was initially rejected by the Authority on the ground that it had been made too late and that decision was maintained on review.  However, the claimant’s appeal against the review decision was allowed on 21 August 2008 by an adjudicator who waived the time limit but expressed some doubt as to whether the claim would ultimately succeed in the light of paragraph 9(b)(ii) of the Scheme. 

4.	So far as is relevant, paragraph 8 of the Scheme provides –

"8. 	For the purposes of this Scheme, 'criminal injury' means one or more personal injuries as described in paragraph 9, being an injury sustained in and directly attributable to an act occurring in Great Britain…which is: 
    (a) 	a crime of violence (including arson, fire-raising or an act of poisoning); …"

Paragraph 9 provides –

"9. 	For the purposes of this Scheme, personal injury includes physical injury (including fatal injury), mental injury (that is temporary mental anxiety, medically verified, or a disabling mental illness confirmed by psychiatric diagnosis) and disease (that is to say a medically recognised illness or condition).  Mental injury or disease may either result directly from the physical injury or a sexual offence or may occur without any physical injury.   Compensation will not be payable for mental injury or disease without physical injury … unless the applicant:
    (a) 	was put in reasonable fear of immediate physical harm to his or her own person; or 
    (b) 	had a close relationship of love and affection with another person at the time when that person sustained physical and/or mental injury (including fatal injury) directly attributable to conduct within paragraph 8(a) …, and:
    (i) 	that relationship still subsists, unless the victim has since died,
    (ii) 	the applicant either witnessed and was present on the occasion when the other person sustained the injury, or was closely involved in its immediate aftermath ..."

5.	The claimant’s doctor was asked by the Authority what injuries the claimant had suffered resulting from the abuse of her son.  She replied that the claimant had not suffered any physical injuries but had suffered mental distress, which had led to depression.  The claimant had already been unable to work due to unrelated physical disabilities but her mental health had deteriorated since her son’s suicide. 

6.	In the light of that evidence, the authority rejected the claim on the ground that paragraph 9(b)(ii) was not satisfied.  That decision was maintained on review.  The claimant appealed but, on 14 February 2011, the First-tier Tribunal dismissed her appeal.  The claimant’s application for permission to apply for judicial review was refused on the papers by Judge Levenson but, after a hearing by videolink, Judge Mesher granted permission on 12 January 2012 on three grounds: that it was arguable that the First-tier Tribunal had not applied the proper test under paragraph 9(b)(ii), that it was arguable that there had been a breach of the rules of natural justice because the First-tier Tribunal had not had before it material documents that had been considered by the Authority and that it was arguable that the First-tier Tribunal had not given the claimant an opportunity to comment on the relevance of an legal authority upon which it relied.  In relation to the first of those grounds, Judge Mesher said –

“The test in paragraph 9(b)(ii) is of witnessing and being present on the occasion when the other person sustained the injury or of close involvement in its immediate aftermath.  There ‘its’ plainly refers to the injury sustained by the other person.  In a great many cases the injury will be sustained in the course of the commission of the crime of violence.  However, the Scheme in its nature encompasses cases where the injury or elements of it is only sustained at some date after the commission of the crime.”

However, because the proper approach to paragraph 9(b)(ii) was to be considered by a three-judge panel of the Upper Tribunal, he stayed the proceedings to await that decision.  

7.	In the event, that decision, R.(RS) v First-tier Tribunal (CIC) [2012] UKUT 205 (AAC), was the subject of an appeal to the Court of Appeal, brought by the Authority.  The Court of Appeal’s decision is reported as S v First-tier Tribunal (Social Entitlement Chamber) [2013] EWCA Civ 1040; [2014] 1 W.L.R 1313.  

8.	The Authority submits that the Court’s decision, which is binding on the Upper Tribunal, can only lead to the conclusion that the claimant’s claim for compensation in the present case was bound to fail.

9.	At paragraph 13 of his judgment, Laws LJ, with whom Lewison and McFarlane LJJ agreed, said –

“13.	…  Although, as the CICA accept, a series of events may amount to an ‘occasion’ within 9(b)(ii) (compare North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792), the expression in 9(b)(ii) ‘witnessed and was present on which the occasion when the other person sustained the injury’, must in my judgment refer to the event which constituted the infliction of the injury, in effect the commission of the crime. I accept of course (and this was much emphasised by Miss Begley this morning) that the primary victim may only have suffered mental injury. In that case, if there is a secondary victim it must be on the footing that he or she witnessed and was present at the occasion when that injury was inflicted. In this case too that will refer to the commission of the crime (see paragraph 8(a)). Later consequences of the event when the injury was inflicted are not the occasion on which it was inflicted. The secondary victim is to be compensated if and only if he too suffers injury because of his presence at that event or his involvement in its immediate aftermath. If the ‘occasion’ in question is extended to later consequences, the application of the term ‘immediate aftermath’ becomes strained and artificial, and the scope of the scheme as it applies to secondary victims becomes much broader and more uncertain than is suggested by the plain words ‘witnessed and was present on the occasion’. Thus, to take examples discussed by both parties (see Mr Collins' skeleton, paragraph 28; Miss Begley's skeleton, paragraph 7), where the primary victim suffers an epileptic fit after a head injury sustained in an assault a putative secondary victim could not claim compensation for witnessing the fit, nor for being present at the amputation of a limb in a case where the primary victim had suffered a gunshot wound.

Thus, the Court clearly rejected the construction of the legislation that Judge Mesher had considered correct when granting permission to apply for judicial review in the present case.  

10.	It is not in doubt that the claimant’s son was the victim of crimes of violence.  There is no evidence that the claimant suffered physical injury as a result such crimes.  Her case is that she suffered mental injury as the result of the crimes.  However, the last sentence of the opening part of paragraph 9, has the effect that no award may be made under the Scheme unless either of subparagraphs (a) or (b) is satisfied.  Subparagraph (a) is plainly not satisfied.  Everything therefore turns on subparagraph (b).

11.	It is not in dispute that the claimant had a close relationship of love and affection with her son throughout his life.  Thus the opening part of subparagraph (b) is satisfied and so is head (i).  

12.	It is equally not in dispute that the claimant neither witnessed nor was present when her son suffered the sexual abuse.  What paragraph 13 of the Court’s decision makes clear is that it was when he was abused that “the occasion when [her son] sustained the injury” occurred.  In the context of this Scheme, “the occasion when [he] sustained the injury” was not at the time of any subsequent mental reaction or his suicide.

13.	The claimant nonetheless argued that she could be considered to have been “closely involved in its immediate aftermath”.  In the light of the Court’s decision, that must mean being closely involved in the immediate aftermath of the abuse, rather than of her son’s subsequent behaviour or suicide. Moreover, the key word in this case is “immediate”.  In paragraph 19 of his judgment, Laws LJ, having referred to W v Essex County Council [2000] UKHL 17; [2001] 2 A.C. 592 and McLoughlin v O'Brien [1983] 1 A.C. 410, made two pertinent observations –

“First, though of course Lord Slynn referred in W to McLoughlin v O'Brien, I consider with respect that some caution needs to be exercised in drawing assistance from the common law cases in tort in relation to immediate aftermath. It is important that the decision maker should not be distracted from applying the ordinary meaning of the scheme's words. Second, as to that, while I accept that immediate aftermath may allow a degree of temporal and spatial flexibility, the focus of the provision is upon the secondary victim's exposure to the overt consequences of the paragraph 8 event, and in the nature of things these are likely to follow the event more or less immediately.”

14.	The case of W to which Laws LJ referred was an appeal to the House of Lords against a decision upholding the striking out of proceedings brought by parents who claimed to have suffered mental injury as a result of discovering that their children had been sexually abused by a foster child, placed with the family by the County Council despite knowing him to have a history of sexual abuse and despite the parents having made it clear that they would not accept an abuser as a foster child.  Lord Slynn of Hadley said –

“Whilst I accept that there has to be some temporal and spatial limitation on the persons who can claim to be secondary victims, …, it seems to me that the concept of ‘the immediate aftermath’ of the incident has to be assessed in the particular factual situation. I am not persuaded that in a situation like the present the parents must come across the abuser or the abused "immediately" after the sexual incident has terminated. All the incidents here happened in the period of four weeks before the parents learned of them. It might well be that if the matter were investigated in depth a judge would think that the temporal and spatial limitations were not satisfied. On the other hand he might find that the flexibility to which Lord Scarman referred indicated that they were.

… I have come to the conclusion that the parents' claim cannot be said to be so certainly or clearly bad that they should be barred from pursuing it to trial. I stress to the parents that I am not giving any indication either way as to the outcome of the case but, win or lose, if they wish to pursue the claim they should not be barred from doing so.”

15.	Thus even Lord Slynn, who was prepared to allow the parents’ appeal, was doubtful as to whether the parents would be able to persuade a judge that they had suffered mental injury in the immediate aftermath of the abuse of their children.  In S, Laws LJ clearly considered that accepting that the immediate aftermath of a crime of violence might include discovering about the incident four weeks later would be stretching the words of paragraph 9(b)(ii) of the Scheme too far, given their context.

16.	In any event, in the present case, the claimant did not discover about the abuse of her son until eighteen years afterwards and I agree with the Authority that to regard her as having suffered mental injury as a result of being “closely involved in [the] immediate aftermath” of the abuse of her son would certainly be to stretch the meaning of the words of the Scheme too far.

17.	Accordingly, even if her factual case were to be accepted in its entirety and it were to be accepted that she has suffered mental illness as a result of discovering about the abuse of her son, she could not be entitled to an award under the Scheme.  It follows that the First-tier Tribunal reached the only conclusion open to it and any unfairness in the proceedings cannot have affected the outcome.

18.	In these circumstances, this application for judicial review must be dismissed.

Mark Rowland
29 May 2014