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Neutral Citation Number:	2012 UKUT 281 AAC
Reported Number:
File Number:	JR 479 2012
Appellant:	R (KS)
Respondent:	First-Tier Tribunal and Criminal Injuries Compensation Authority
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	19/07/2012
Date Added:	05/09/2012
Main Category:	Criminal Injuries Compensation
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 9 Practice and procedure – extension of time for appeals – correct application of Tribunal Procedure Rules The appellant applied to the Criminal Injuries Compensation Authority (CICA) for compensation arising from an assault on 11 August 2004. She received compensation for various physical injuries but applied for a review saying she was also suffering from post traumatic stress disorder. The CICA refused to review the case in the absence of any medical evidence from either a psychiatrist or psychologist and confirmed its decision in its letter to the appellant of 24 August 2010. Under the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 the appellant had 90 days in which to lodge an appeal with the First-tier Tribunal (F-tT). She did not do so until October 2011 and gave three reasons for her delay on the Notice of Appeal form, namely: (a) she initially felt that to appeal would make her illness worse; (b) she needed time to allow her mental state to improve; and (c) she did not know the right route through which to pursue her appeal. The issue before the F-tT was whether or not it would be both fair and just to extend the time limit under the Rules. The F-tT judge decided, without an oral hearing, that it would be inappropriate to do so in the absence of any medical evidence to explain the delay. The appellant applied for a judicial review of that decision to the Upper Tribunal. Held, allowing the appeal and quashing the decision, that: 1. a F-tT has unfettered power to extend the 90 days time limit for submitting an appeal: R (CD) v First-tier Tribunal (CIC) [2010] UKUT 181 (AAC); [2011] AACR 1. In proceeding the F-tT must act judicially and in accordance with the overriding objective in rule 2 by taking account of any factor rationally related to the proper judicial exercise of the power to extend time. These include those factors classified by McCowan LJ in Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449, namely: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding; and (4) the degree of prejudice to the respondent if the application is granted. But there may also be other factors, including the impact on other users of the tribunal system. The merits are also relevant even if, as in criminal injuries compensation cases, the appeal lies as of right and without permission: R (Birmingham City Council) v Crown Court at Birmingham [2009] EWHC 3329 (Admin); [2010] 1 WLR 1287 (paragraph 11); 2. the F-tT’s approach to the appeal was flawed as it dealt only with the factors relevant to the cause of the delay; it failed to consider or analyse the significance of the delay, the merits of the case or the consequences, for either the CICA or the tribunal system as a whole, if the appeal were admitted (paragraph 12); 3. the question on the Notice of Appeal form was too restricted limiting the appellant to the reasons for delay and failing to invite her to make any comments on any other relevant factor. The problem was compounded by the judge’s decision not to hold an oral hearing, thereby depriving the appellant of a chance to refer to other matters. The judge should have taken that into account when deciding whether or not to hold an oral hearing and, if he decided not to do so he was under a particular duty, given the terms of the question on the form, to take account of any factor that might be relevant (paragraphs 13 to 14). The judge remitted the case to the F-tT for reconsideration in accordance with his directions.
Decision(s) to Download:	JR 0479 2012-00.doc [2013] AACR 9ws.doc