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Neutral Citation Number:	2014 UKUT 279 AAC
Reported Number:
File Number:	JR 553 2012
Appellant:	R(MJ)
Respondent:	FTT and CICA (No.3)
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	17/06/2014
Date Added:	02/07/2014
Main Category:	Criminal Injuries Compensation
Main Subcategory:	claims
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 3. Criminal injuries compensation – late applications - claims officer’s discretion to waive two-year limit – conflict of authority regarding construction of paragraph 18 of the 2008 Scheme – proper approach identified The appellant was sexually abused at boarding school, between the ages of six and 13, by two teachers. Following investigations into his allegations one of the teachers committed suicide and the other was convicted and imprisoned. The appellant experienced various emotional problems. His initial application for compensation was made when he was 33 years old. The First-tier Tribunal (F-tT) upheld the Criminal Injuries Compensation Authority’s (CICA) rejection of his claim, deciding that it was not practicable to consider the claim, given the elapsed time, and that it should have been made within 2 years of the applicant’s 18th birthday. The Upper Tribunal (UT) judicially reviewed that decision and remitted the case for reconsideration by another F-tT. Further F-tT and UT hearings occurred. The UT eventually decided that a three-judge panel was appropriate given the conflicting views as to the correct construction of paragraph 18 of the Criminal Injuries Compensation Scheme 2008 by previous UTs: (R(MJ) v First-tier Tribunal and Criminal Injuries Compensation Authority [2011] UKUT 402 (AAC); (R(AM) v First-tier Tribunal (CIC) [2012] UKUT 55 (AAC) and (R(MM) v First-tier Tribunal and Criminal Injuries Compensation Authority [2013] UKUT 402 (AAC). The issue before the UT was the proper meaning and application of the two-year time limit under paragraph 18 of the Scheme and the possibility of its waiver where a claim was made late. Held, allowing the application, that: 1. the word “may” usually connotes the conferring of a discretion and the addition of the qualifying word “only” within paragraph 18 did not have the effect of turning what would otherwise be a discretion to waive the time limit into a duty to do so. Rather the effect was to limit the situations in which discretion could be exercised. Thus (a) and (b) were conditions precedent for the exercise of a discretion to waive the time limit, not exceptions to it (paragraph 26); 2. the primary aim of the Scheme was not an absolute or open-ended goal but one which had to be traded off against other considerations. The making of timely applications was a legitimate objective of the Scheme, as stale claims are more likely to consume scarce administrative resources. Time limits thus serve the purposes of good public administration (paragraph 28); 3. in those cases involving child sexual abuse, condition (b) will nearly always have no purchase and the only pre-condition that had to be satisfied was condition (a). Where a decision-maker accepted that (a) and (b) were both satisfied, then there would have to be good reasons to justify not exercising discretion in the applicant’s favour. It would be wrong to lay down an exhaustive list of such circumstances but examples may include those cases where a very late claim was bound to be rejected in any event or where there was no good reason for the delay. The decision maker should set out the reasons for the exercise of the discretion (paragraphs 30 to 34); 4. where a claim was made in respect of historic sexual abuse of a child it was not enough simply to decide the application was out of time. That would be to ignore the very real reasons such an individual would have for not disclosing either the abuse itself, or the full extent of such abuse, and the time that it takes to begin to come to terms with such traumatic experiences: JM v Advocate General for Scotland [2013] CSOH 169; 2014 SLT 475. The present case was neither patently hopeless nor one where the delay was obviously inexcusable (paragraph 35). The decision of the F-tT was set aside and the appeal remitted to a differently constituted tribunal to be decided in accordance with the Upper Tribunal’s directions
Decision(s) to Download:	[2015] AACR 3ws.doc