Lord Ordinary orders rehearing for criminal injuries compensation case arising from sexual assaults in the 1980s

About this case:

• Citation:
  [2023] CSOH 55
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Petitioner DM argued that the First-tier Tribunal’s Social Entitlement Chamber had failed to afford him a fair hearing when it refused his appeal in October 2022. He maintained that he had not been given adequate opportunity or time to explain that the significant distress of what happened to him had prevented him from applying for compensation within the usual timescale.

The petition was heard by Lord Sandison, with the petitioner appearing as a party litigant and the respondent represented by Iridag, advocate.

Considerable trauma

On 27 August 2020, the petitioner through his then-solicitors, made an application to the Criminal Injuries Compensation Authority in respect of sexual assaults committed against him in 1983 and 1984 when he was between 11 and 12 years old. The application narrated that he had reported the assaults to the police in or around August 2016 and suffered from mental health issues and PTSD as a consequence of the assaults. It also stated that he had not made an application for compensation previously as he had not been aware of the existence of a compensation scheme.

A claims officer acting for the Authority wrote back to the petitioner in January 2021 to advise him that he was ineligible for compensation because he had an unspent conviction for threatening and abusive behaviour which would only become spent in June 2024. The letter went on note that the application would have required to have been made within two years of the petitioner reporting the crime to the police and no exceptional circumstances had been made out to extend the time limit.

In February 2021 a new firm of solicitors wrote to the Authority seeking review, noting that the petitioner denied having a conviction and an anticipated judgment of the UK Supreme Court was germane to the issue. At a Tribunal hearing in October 2022, before which he had been told the only issue at the hearing was his previous conviction, he was asked questions by the Authority’s presiding officer about the lateness of his application which he had not been prepared for, and in retrospect he felt he was not given a real opportunity to explain his circumstances fully.

It was submitted by the petitioner that he had suffered considerable trauma as a result of the assaults and had made his claim to the Authority as soon as he felt able to address the matters which such a claim would inevitably entail. This could fall to be regarded as exceptional circumstances within the meaning of the compensation scheme. In respect of the hearing, he had understood that the issue to be discussed was his previous conviction, and the Tribunal ought to have allowed him and his solicitors more time to address other matters raised at the hearing more fully.

Extraordinary state of affairs

In his decision, Lord Sandison began by observing: “The root of the problems which have given rise to this application for judicial review appear to lie in the way in which the Authority first expressed its decision to refuse the petitioner’s claim for compensation in January 2021. It had determined (wrongly) that the claim failed in terms of paragraph 26 of the Scheme because of the supposed nature of the petitioner’s conviction in June 2019.”

He continued: “The position of the Authority, however, did not remain the same over that period. By its decision letter on the petitioner’s application for a review of the refusal of his application, the Authority again wrongly stated that the claim fell foul of paragraph 26, but this time added that it also failed because there were no exceptional circumstances justifying the extension of the time limit provided for by paragraph 88, for the reason that the petitioner had stated in his application that it had been made late because he had previously been unaware of the existence of the Scheme. Although not identified as such in its decision letter, this amounted to a subtle change of position on the part of the Authority.”

On the petitioner’s behaviour during the hearing, Lord Sandison explained: “It must have become clear to the Tribunal during the course of the hearing that the petitioner had suffered, and continued to suffer, from serious mental health issues. The petitioner’s solicitor did not ask him any questions about the paragraphs 88 and 89 issue, despite that being the only matter upon which the Authority continued to rely. The Tribunal seemingly made no attempt to enquire as to what might lie behind the rather extraordinary state of affairs which was developing in front of it.”

He concluded: “The petitioner has an explanation for the lateness of his application which has never been heard in the appropriate forum. The circumstances of his case are at least analogous to those in which the Authority instructs its claims officers to permit late applications unless there are compelling reasons to refuse them. In those circumstances a conclusion that a fair hearing before the Tribunal would be bound to end in failure for the petitioner on that issue is quite impossible.”

The judgement of the First-tier Tribunal was therefore reduced, with the Tribunal required to rehear the petitioner’s appeal before a differently-constituted panel.