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Neutral Citation Number:	2012 UKUT 383 AAC
Reported Number:
File Number:	JR 1145 2011
Appellant:	Colefax
Respondent:	First-tier Tribunal and CICA
Judge/Commissioner:	Judge S M Lane
Date Of Decision:	08/07/2014
Date Added:	07/01/2013
Main Category:	Criminal Injuries Compensation
Main Subcategory:	claims
Secondary Category:
Secondary Subcategory:
Notes:	Court of Appeal decision reported as [2015] AACR 36. Criminal injuries compensation – late applications – whether reasonable to expect an applicant to claim within the two-year time limit In May 2007 the applicant was injured during an assault and required surgery for a fractured jaw. Following two epileptic seizures in December 2007 and July 2008, others occurred with increasing frequency. In September 2009 the appellant was diagnosed with post-traumatic epilepsy caused by the attack. In November 2009 he applied to the Criminal Injuries Compensation Authority (CICA) for compensation, explaining that the epilepsy had only recently been diagnosed but offering no reasons for not claiming for his physical injuries before. Paragraph 18 of the Criminal Injuries Compensation Scheme 2008 (the Scheme) provides for a two-year time limit from the date of the relevant incident for the making of an application for compensation. It can only be waived if the claims officer considers that (a) it is practicable for the application to be considered; and (b) in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period. CICA rejected the application and reaffirmed its decision on review that a claim could and should have been made sooner given the appellant’s significant injuries. The First-tier Tribunal (F-tT) dismissed his appeal and he brought proceedings for judicial review to the Upper Tribunal (UT). The Upper Tribunal (UT) dismissed the application and the appellant appealed to the Court of Appeal. The issues before both the UT and the Court of Appeal were whether it was reasonable to expect the appellant to have made an application within the two-year period and whether or not the words “an application” meant an application in respect of any injury caused by the incident or an application in respect of the particular injury or injuries in respect of which compensation was sought. Held, dismissing the appeal, that: 1. the meaning of paragraph 18 of the Scheme had to be interpreted by reference to the ordinary meaning of the words used and not by seeking to fit it in to a pre-conceived “common law” model: Criminal Injuries Compensation Authority v RS [2013] AACR 34 and Rust-Andrews v First-tier Tribunal [2012] AACR 33. This requirement to give the words their ordinary meaning inevitably required them to be construed both in the context of the Scheme as a whole, and with due regard to its evident purpose (paragraphs 17 to 18); 2. the expression in paragraph 18(b) “an application” meant an application for compensation in respect of one or more personal injuries. The tariff for compensation under the Scheme plainly proceeded upon the implicit assumption that a victim will make a single application for all his or her qualifying personal injuries, rather than separate applications in relation to each, both as a matter of definition and practical operation (paragraphs 25 to 26); 3. paragraph 18(b) required the applicant to prove only that it would not be “reasonable to expect” him to make an application in time, which imported a notion of duty, even if only a duty to pursue his own interests with reasonable diligence. Ultimately the question was not merely whether he reasonably could have made an application in time but whether, in his particular circumstances, he both could and should have done so, which was precisely the formulation adopted by the authority on its review (paragraph 29); 4. it was open to an applicant seeking a waiver for a late claim under paragraph 18 to show that, even if he had suffered some immediately apparent relatively minor injury, it was reasonable for him, in his particular circumstances, not to make it the subject of a compensation claim, even if another person in the same circumstances might reasonably have done so. The reference to the “particular circumstances of the case” imported no requirement to show exceptional circumstances: see Hutton v First-tier Tribunal [2012] AACR 47 (paragraph 30); 5. the burden was on late applicants to show that they did not fail to comply with a reasonable expectation that they would pursue their compensation rights in a timely manner. This accorded with the principles of finality and economy underlying the provisions within the Scheme for the reconsideration of decisions and re-opening of cases. The fact that some apparently deserving victims may fall through the compensation net was not, of itself, good reason for the court to search for a strained interpretation, or to re-write the Scheme otherwise than as authorised by statute (paragraphs 31 to 32).
Decision(s) to Download:	JR 1145 2011-00.doc [2015] AACR 36ws.doc