Domestic assault victim fails in appeal over ‘time-barred’ claim for criminal injuries compensation

A judge in the Court of Session held that there was “no error of law” in the tribunal’s decision and that it was entitled to conclude that that there was no reason to waive the statutory two-year time limit.

Lord Kinclaven heard that the petitioner “LM” sought judicial review of a decision of a First-tier Tribunal dated 8 October 2014 to refuse to waive the two-year time limit for making applications under the Criminal Injuries Compensation Scheme 2008.

The court was told that the petitioner, 59, was seriously assaulted when she was 17 by her then boyfriend, who was subsequently charged with attempted murder but pled guilty to breach of the peace and assault.

The petitioner claimed that she suffered “significant physical and psychological injuries” as a consequence of the assault, including “palpitations, hair loss, guilt, agoraphobia, anxiety and depression”.

After leaving school and obtaining a degree in English, she worked as a writer and tutor, but was diagnosed with ME in 1988 and the following year she claimed she was the victim of a random assault by a gang who threatened to kidnap and rape her, which “heightened her existing psychological problems”.

Then, in July 1995 the petitioner received a head injury in an accident, after which she complained of being unable to concentrate and experiencing panic attacks, and between 1998 and 2005 she received hospital treatment for anxiety and depression.

From 2006 to 2010 the petitioner studied for an honours degree in law at Strathclyde University, although she continued to receive treatment for anxiety and depression.

It was only in August 2010 when she submitted two applications to the respondent, the Criminal Injuries Compensation Authority under the 2008 scheme – one relating to the domestic assault and the other in respect of the alleged gang assault.

In terms of the Criminal Injuries Compensation Act 1995, the respondent is responsible for the administration of the scheme, which states at paragraph 18 that applications for compensation should be made “as soon as possible” after the incident giving rise to the injury and must be received “within two years of the date of the incident”.

A claims officer may waive this time limit only where he or she 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.

Paragraph 19 states that it is for the applicant to “make out his or her case” including, where appropriate: (a) making out the case for a waiver of the time limit.

But both applications were refused by the respondent a year later and reviews of both decisions were unsuccessful, while appeals against the decisions were also refused following a hearing before the First-tier Tribunal in October 2014.

The petitioner sought reduction of the decision to refuse the appeal, but only in relation to her claim for the domestic assault.

In refusing the appeal, the tribunal considered that paragraph 18(a) of the 2008 scheme had been met, but that paragraph 18(b) was not satisfied.

Accordingly, the petitioner’s application was “time-barred” as both sub-heads (a) and (b) required to be satisfied “as conditions precedent to the exercise of the discretion to waive the time-limit”.

However, the petitioner challenged the decision on the grounds that the tribunal “erred in law” by misdirecting itself as to the issue to be determined, by “failing to take all relevant factual material into account and to give proper and adequate reasons for its decision”, and by “having made a material error of fact”.

It was submitted that, in the circumstances, the question for the tribunal was whether she had suffered from a psychological or psychiatric injury which prevented her from making an application for compensation any earlier.

The fact that she had been able to function successfully in respect of other aspects of her life did not automatically mean that it would have been reasonable for her to make an application for criminal injuries compensation.

Refusing the appeal, the judge noted the “extraordinary length of time” that had passed between the incident giving rise to the application for compensation and the application being made – some 33 years.

Lord Kinclaven said: “Whilst the primary question for the tribunal must be whether the conditions set out in paragraphs 18(a) and (b) are generally met, including whether it would have been reasonable to expect an application to have been made within the two-year period, it remains the case that applications nonetheless require to be made ‘as soon as possible’ after the incident in question. That requirement is not qualified by, and does not fly off in circumstances otherwise justifying waiver of the two-year time limit.”

The judge concluded that “no material justification” had been put forward for interfering with the tribunal’s decision

In a written opinion, Lord Kinclaven said: “The tribunal was entitled to take account of the petitioner’s whole circumstances in order to ascertain the point at which an application ought reasonably to have been made, although late, in all the circumstances. Further, the tribunal was entitled to conclude, in those circumstances, that the petitioner had not discharged the burden placed on her in terms of paragraph 19 of the 2008 scheme to make out a case for waiver of the time limit. There is nothing disclosed in the tribunal’s reasoning to suggest that the tribunal’s ultimate conclusion was not justified by the evidence before it. In light of the evidence and the passage of time no reasonable tribunal could have decided otherwise.

“The tribunal plainly took account of the petitioner’s whole circumstances to the date of the appeal hearing. The petitioner’s criticisms of the tribunal’s approach and the tribunal’s decision are without substance. In the whole circumstance, having regard to the submissions of counsel, the documents before me, and the authorities produced, I am satisfied that the respondent’s submissions are well founded. There was no material error of law on the part of the First-tier Tribunal.”