Rust-Andrews v First Tier Tribunal (Social Entitlement Chamber) & Anor

This is an appeal from the decision of the Upper Tribunal (Judge Rowland) on an application for judicial review of a decision of the First-tier Tribunal, relating to compensation under the Criminal Injuries Compensation Scheme 2001 (“the 2001 Scheme”).

On 28 June 2002 Sally Rust-Andrews (the Appellant) was violently assaulted at her workplace, Norwich City College. At the time, she was employed by the College as a lecturer in the Textile Department, as she still is. Although the physical consequences of the assault were relatively minor, she suffered and continues to suffer severe Post Traumatic Stress Disorder (PTSD), which substantially reduces her capacity to work.

On 21 February 2003 she applied to the Criminal Injuries Compensation Authority (CICA) for an award of compensation. On 26 July 2004 CICA awarded £1,500, for her physical injuries only. She submitted a request for review, supported by medical evidence and other material. The medical evidence was from Dr Ann Stanley, Consultant Forensic Psychiatrist, initially in a report in April 2005, supplemented by answers to questions in July 2006.

On 4 December 2007 CICA gave notice of the outcome of the review:

On 29 February 2008 she appealed to the then Criminal Injuries Compensation Appeals Panel (CICAP) (now part of the First Tier Tribunal (FTT)). Following a hearing on 30 March 2009, the FTT delivered its Decision on 17 April 2009:

Only (ii), the award for future earnings, is now in issue. The claim had been for about £100,000.

On 13 July 2009 she applied for judicial review to the Upper Tribunal, permission for which was granted on 13 August 2009. Following a hearing on 17 May 2010, Judge Rowland gave his decision on 22 December 2010, dismissing the application. The appeal to this court is made with permission given by the judge.

Before turning to the 2001 Scheme, it is convenient to refer to the medical evidence which has been central to the issues in the appeal. It is sufficient to refer to Judge Rowland’s summary:

“6.

According to Dr Ann Stanley, a consultant forensic psychiatrist, there was evidence that the claimant had suffered from Post Traumatic Stress Disorder. In August 2005, three years after the assault, Dr Stanley recorded that the claimant still had not been able to return to work on a 0.8 basis but she was back on a 0.5 basis and it was anticipated that she would be able to increase her hours in the next 12 to 18 months. Dr Stanley also considered that, on the balance of probabilities, the claimant was unlikely ever to meet her full potential.

7.

A year later, the claimant was still working on a 0.5 basis, although her employers had continued to pay her on a 0.8 basis. On 22 June 2006, Dr Stanley answered a number of specific questions put to her by the claimant’s solicitors, although she emphasised that she had not seen the claimant since the previous year. She estimated the risk of the moderately disabling mental illness continuing beyond the fifth anniversary of the assault at 70%. Without treatment from a chartered clinical psychologist, she put the risk of the illness being permanent also at 70% but said that, with such treatment, the risk dropped below 50%. She recommended a further 18 months of such treatment, which would be available from the NHS in some areas. Crucially, in an answer corrected on 5 July 2006, she considered the risk of the claimant not being able to increase the extent of her work from 0.8 to 0.5 was 60% without such treatment but 40% with treatment…

8.

On 2 August 2006, a chartered psychologist estimated that the claimant would need 8-20 sessions of cognitive behaviour therapy which would cost £80 each if done privately. Her GP had said that there would be a wait of about 3 months for an assessment and another 6 months for treatment on the NHS and that about 6 sessions would be available. The psychologist repeated her advice on 12 February 2008. During the intervening period, the claimant had not sought cognitive behaviour therapy but had continued with counselling paid for by her employers.”

The Criminal Injuries Compensation Act 1995 provides the statutory foundation for the Criminal Injuries Compensation Scheme 2001. By Section 2(1), the amount of compensation payable under an award “shall be determined in accordance with the provisions of the scheme”.

As to standard of proof, section 3(2) provides:

“Where, in accordance with any provision of the scheme, it falls to one person to satisfy another as to any matter, the standard of proof required shall be that applicable in civil proceedings.”

This approach is also reflected in the wording of the scheme itself. Thus, paragraph 20 states:

“The standard of proof to be applied by a claims officer in all matters before him will be the balance of probabilities.”

Similarly in relation to the Panel, paragraph 64 provides:

“The standard of proof to be applied by the Panel in all matters before it will be the balance of probabilities. It will be for the appellant to make out his case”.

The award was made under paragraph 23 of the scheme. It starts with 23(a):

“a standard amount of compensation by reference to the nature of the injury in accordance with paragraphs 26-29”

The standard amounts are set by reference to a tariff, which specifies different amounts, depending on the type and seriousness of the injury, ranging from level 1 to 25. In this case, the relevant injury was “mental health” (which the tariff defines as including “post-traumatic stress disorder”), the relevant levels being 12 and 14:

“disabling mental illness, confirmed by psychiatric diagnosis:

- lasting 2 years to 5 years (12) £8,200

- lasting over 5 years but not permanent (14) £13,500”

As noted above, in raising the award from £8,200 (level 12) to £13,500 (level 14) the tribunal were accepting that it would last longer than 5 years from the date of the injury. This aspect of the award is not in issue.

Lost earnings are dealt with by para 23(b):

“ (b) where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury (other than injury leading to his death), an additional amount in respect of such loss of earnings, calculated in accordance with paragraphs 30-34;”

Paragraphs 30-34 prescribe the method of calculation, in summary: 30 (exclusion of first 28 weeks); 31 (loss up to the time of assessment); 32 (future loss); 33 (lump sum for future loss, where 32 impracticable); 34 (cap by reference to 1½ times average industrial earnings).

In this case 32 and 33 are potentially relevant:

“32.

Where, at the time the claim is assessed, a claims officer considers that the applicant is likely to suffer continuing loss of earnings and/or earning capacity, an annual rate of net loss (the multiplicand) or, where appropriate, more than one such rate will be calculated on the basis of:

(a)

the current rate of net loss calculated in accordance with the preceding paragraph; and

(b)

such future rate or rates of net loss (including changes in the applicant’s pension rights) as the claims officer may determine; and

(c)

the claims officer’s assessment of the applicant’s future earning capacity;…

For the “current rate of net loss” (para (a)), reference has to be made to the preceding paragraph 31, under which the loss of earnings is calculated by reference to a formula, the starting point for which is –

“(a)

the applicant’s emoluments... at the time of the injury and what those emoluments would have been during the period of loss; ...”

Compensation under this paragraph 32 is assessed as a lump sum “in respect of each period of continuing loss”, calculated by reference to the product of the “multiplicand” assessed as above and “an appropriate multiplier”, assessed by reference to a set of tables. But this apparently prescriptive scheme is qualified by the power of the claims officer to -

“make such adjustments as he considers appropriate to take account of any factors and contingencies which appear to him to be relevant.”

It is further qualified by paragraph 33:

“33.

Where a claims officer considers that the approach in the preceding paragraph is impracticable, the compensation payable in respect of continuing loss of earnings and/or earning capacity will be such other lump sum as he may determine.”

It is necessary to analyse the tribunal’s decision with some care to understand how they arrived at the part of the award which is now under scrutiny. I would pay tribute to the thoroughness with which they approached that task and the careful reasoning which led them to that conclusion.

Dealing first with the “tariff award” (para 16ff), they noted that the claimant’s argument that the authority’s level 12 award (based on a disabling illness lasting between 2 and 5 years) should be raised to level 16, appropriate for a permanent “moderately disabling” mental illness. They explained their reasons for rejecting that submission, including reference to their view that the appellant in evidence had been “at times unreliable and exaggerating her level of disability” (para 18(ii)), and to Dr Stanley’s opinion that with treatment from a psychologist with appropriate expertise –

“the risk of the Appellant permanently suffering from a moderately disabling mental illness would drop to below 50%”

They concluded “in view of all of the evidence read and heard” that the injury should be compensated at level 14, based on a disabling illness over 5 years but not permanent, adding:

“On the balance of probabilities according to Dr Stanley, following treatment, the risk of the Applicant permanently suffering from a moderately disabling mental illness falls to below 50% and therefore cannot be said to exist on the balance of probabilities, which is the standard set out in paragraph 64 of the Scheme.”

Under loss of earnings “to date of assessment and following date of assessment”, they found (paras 22-4) that there was “a failure by the Applicant to mitigate her past losses” by not taking the advice of Dr Stanley to undergo appropriate psychological treatment. They noted that, even if she had undergone the delay involved in waiting for treatment on the NHS, the treatment could have been completed by the time of the hearing, and they rejected her explanation that the failure was linked to the birth of her second child. They referred again to the requirement for her to prove her case on the balance of probabilities:

“Dr Stanley has not advised that the problems with tiredness will on the balance of probabilities prevent the Applicant being able to return to full-time employment. They “might” only do so. The Tribunal is not satisfied on the balance of probabilities that, by reason of psychiatric injury arising from the attack, the Applicant will be prevented from returning to full-time employment...”

They then assessed her loss, first for her free-lance work (para 29-30). They accepted that her period of loss would have run up to “say, June 2010, a period of 8 years from the date of the assault on 28^th June 2002”. They started with “past loss” (i.e. Scheme para 31) up to the date of assessment, which they took as 31^st March 2009 (para 29). That was taken as a period of 6 years 9 months from the date of the assault, multiplied by an annual loss of £650, giving a total past loss of £4,387.50. Future loss for the same work was taken at the same rate from 1^st April 2009 to 23^rd June 2010, “to allow for the CBT treatment and rehabilitation”, that is 1 year 3 months, giving a total of £812.50. These figures gave a round total of £5,200 lost earnings for freelance work. The tribunal also expanded (para 32) on their reasons for not being satisfied “on the balance of probabilities” that the loss on freelance income would extend beyond 23^rd June 2010. This passage includes comments based on the oral evidence of the claimant and her husband.

A similar exercise was next done in respect of her earnings from the College (paras 35-36). For past losses, they awarded £9,228 lost income up to 31^st March 2009, based on the difference between “potential earnings but for the attack” of £28, 211 and actual earnings of £18,983. Future loss was again limited to the period to 23^rd June 2010, for the same reason. They noted her concession that, following the birth of her second child, she was unlikely to return to work at the College until January 2010, so that the future loss was for only 6 months. They considered it “impracticable” to assess this under paragraph 32, and therefore decided to determine a lump sum (implicitly, under para 33) which they fixed as £4,600. The total for past and future College earnings (£13,828) was rounded up to £14,000.

Thus they arrived at a total figure for all past and future earnings of £19,200. Finally they rejected, again “on the balance of probabilities”, a claim based on the prospect of promotion (para 38-42).

The main issue before the Upper Tribunal was as to the treatment of future earnings. (A further issue relating to their finding on the prospect of promotion is not pursued in this court.) The judge noted the submission of counsel for the appellant:

“Mr Sanderson argues that the assessment of loss for the purposes of the 2001 Scheme should follow the approach of the courts in personal injury cases and that, had it applied that approach to its findings, the First-tier Tribunal ought to have compensated the claimant on the basis that, even if she had had the cognitive behaviour therapy, there would have been a 40% chance that she would have continued to have a loss of earnings.”

Mr Sanderson had relied on the contrast between the words “would have been” in paragraph 31(a) and the word “likely” in the opening words of paragraph 32, which he submitted was “consistent with the use of the balance of probabilities for proving past loss and the evaluation of a chance for assessing future loss”. He also referred to statements in the annual reports of the authority, to the effect that the 2001 Scheme “reflects the basic elements of common law claims”, and that paragraph 33 was designed to permit a lump sum award in line with the guidance “given in common law cases such as Smith v Manchester Corp.”

For the authority, Mr Collins submitted that common law rules did not apply to the 2001 Scheme, but that even if they were applied the result would be the same.

The judge started by referring to the well-known authorities under the Fatal Accident Acts: Mallett v McMonagle [1970] A.C. 166 and Davies v Taylor [1974] A.C. 207. In the former (at p 176) Lord Diplock said:

“In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.”

In Davies v Taylor, Lord Reid said (at p 213):

“You can prove that a past event happened, but you cannot prove that a future event will happen and I do not suppose that the law is so foolish as to suppose that you can. All you can do is evaluate the chance. Sometimes it is virtually 100 per cent.: sometimes it is nil. But often it is in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent. and a probability of 49 per cent.”

He noted also cases such as Smith v Manchester Corporation (1974) 17 K.I.R. 1 and Moeliker v Reyrolle & Co Ltd [1977] 1 W.L.R. 132, where claimants had undoubtedly suffered permanent disabilities but the quantification of loss depended on the evaluation of the chance of a loss of employment happening in the future.

Commenting on the submission that the 2001 scheme required all matters to be decided on the balance of probabilities, he said:

“However, that argument ignores Lord Reid’s point that one cannot prove that a future event will happen… in my judgment, the common law does require loss to be proved to the balance of probabilities. It is just that, where the common law requires loss to be quantified by the evaluation of a chance, what it requires to be proved on a balance of probabilities is firstly causation and secondly the assessment of the risk.” (para 27)

He went on examine the requirements of the 2001 Scheme against that background. The reasoning deserves to be read in full, but for the purposes of this judgment it is enough to refer to the passage in which he deals with the central question:

“32.

The question that arises is to what extent the standard of proof is relevant in these circumstances. At common law, past loss must be proved on the balance of probabilities, except where it depends on the evaluation of a chance of a third party having acted in a particular way. In my view, paragraph 31 requires the same approach. I do not regard the words “would have been” in subparagraph (a) as requiring a different approach where the loss depends on the action of a third party. Evaluating the chance is then the proper way to determine what “would have been” the emoluments of, say, a person who was a child at the date of the injury but an adult at the date of the calculation of compensation. What paragraphs 20 and 64 require the claimant to prove on the balance of probabilities is the current degree of probability of the chance materialising. They do not require that the degree of probability itself be over 50%.

33.

The position is even clearer in relation to paragraph 32, where subparagraph (c) recognises that there must be an “assessment” of future earning capacity and where paragraph 33 allows a different approach if the mathematics required by paragraph 32 is impractical. It is hard to see why the mathematics should be impractical if all the elements must be proved on the balance of probabilities. Paragraph 33 seems a clear acceptance of the approach taken in Smith v Manchester Corporation and similar cases. Again, the claimant must prove the degree of probability of the chance materialising.”

Against that background he concluded that the FTT had not erred in law:

“I accept Mr Collins’ submission that Dr Stanley’s assessment of the probability of the claimant not being able to increase her work due to her illness continuing if she did, or did not have, the relevant treatment went to causation (the issue arising under paragraph 23(b) of the 2001 Scheme) rather than quantification (the issue arising under paragraphs 31 to 33 of the Scheme). The First-tier Tribunal was prepared to accept that the claimant would not be able to return to work full-time until June 2010 but it did not accept that there would be any reduction in earning capacity after that. This case is distinguishable from Smith v Manchester and other cases where a continuing loss of earning capacity was proved on the balance of probabilities and what remained was merely the quantification of the resultant loss of earnings. Therefore I agree with Mr Collins that the common law approach does not assist the claimant on this part of the case.” (para 35)

This appeal is limited to a single issue, namely whether the Upper Tribunal was correct to uphold the limit placed by the FTT upon the Appellant’s claim for future loss of earnings, so that no award was made for the risk that the Appellant would suffer a loss of earnings beyond 23 June 2010. On this issue the submissions on either side (represented by the same counsel as below) have generally followed those before the Upper Tribunal.

Mr Sanderson argues that the balance of probabilities test applies only in relation to causation. On this basis, it was proved that the mental injury was caused by a criminal act, and that as a result she lost earning capacity for longer than 28 weeks. Having reached that point, all that was left was the quantification of damages, which did not require to be proved on the balance of probabilities. Based on the medical evidence of Dr Stanley she had a 40% chance of being unable to increase her hours, she should have been awarded for that “loss of a chance”, that is 40% of the difference between 0.5 and 0.8 over the course of the rest of her likely career.

He illustrates the distinction between quantification and causation, by considering the converse case where Dr Stanley might have advised that with CBT treatment there was only a 40%, (rather than 60%) chance of allowing the Appellant to return to full time work. Can it be right, he asks, that her award would not be discounted to take account of the 40% chance that she would recover and return to full-time work? The correct approach, he says, is to start from the amount payable if she never recovers her ability to work full time (i.e. £6,190 x the Scheme multiplier of 13 = £80,470). That figure should be discounted to reflect the 40% chance that she will not be able to return to fulltime work: £80,470 x 40% = £32,188.

For the authority Mr Collins disputes this analysis. He relies on the Gregg v Scott [2005] AC 176, in which Lord Nicholls said:

“11.

Thus the question whether a claimant's hand was damaged in an accident at work is a matter to be decided on the balance of probability. So also is the hypothetical question whether, if the employer had duly provided the necessary protective equipment, the claimant would have worn it… By way of contrast, whether the claimant's damaged hand will develop osteoarthritis in later life calls for an estimate of the chances of that happening. Whether, hypothetically, his hand would have been likely to develop osteoarthritis in the future even without the accident also calls for such an estimate.”

As he puts it in his skeleton:

“… the task of the FTT was to assess what the outcome would have been if the claimant had undertaken the proposed treatment. It did so, relying on Dr Stanley’s evidence that with appropriate treatment the risk would have reduced to 40%.Even at common law it would not have been appropriate to approach this issue on the basis of a loss of a chance. This is a question of pure causation, as analysed by the House of Lords in Gregg v Scott… Gregg is authority for the proposition that in a common law claim for personal injury, questions as to what would have happened if a past event had taken place are properly decided according to the balance of probabilities, not by the assessment of a loss of a chance.”

In my view, with respect to Mr Sanderson’s persuasive arguments, if one looks simply at the Scheme, rather than trying to fit it into a pre-conceived “common law” model, this is a relatively straightforward case. The issue is not whether “common law principles” apply. The Act answers that question in the negative, since it expressly requires compensation to be determined in accordance with the Scheme. However, as the judge I think acknowledged, that does not require the exercise to be conducted in a straitjacket, or mean that no help can be gained where appropriate from the wisdom reflected in authorities at the highest level dealing with similar issues.

It is also provided that the standard of proof is to be “on the balance of probabilities”. That lays down the general rule, to be applied to those issues which can reasonably be approached on that basis. But there must come a stage, as indeed paragraph 33 acknowledges, where proof will have to give way to broader assessment.

In my view no such problem arises in this case, if the tribunal’s process of reasoning is properly understood. Earlier in this judgment I have analysed their decision in some detail, in order to identify the issues which they had to resolve. Having decided that there would be continuing loss after the date of assessment, so as to bring the case within paragraph 32, they had to decide for what period or periods to assess it. For that purpose, the critical questions as they saw them were, first, whether the appellant should reasonably have had the recommended CBT treatment, and, secondly, if she had, whether her disabling illness would have continued beyond June 2010. The first is not now in dispute. The second was an issue of fact on which the burden of proof lay on her. Applying the balance of probabilities they were satisfied that a continuing loss had been shown for the period up to June 2010, but not thereafter. Dr Stanley’s evidence was clearly very important to that conclusion, but they also set it in the context of the evidence as a whole. In my view, their findings were open to them on the evidence and they raise no issue of law.

For completeness, I should mention a procedural point which was raised at the permission stage. Because there was a possible issue whether the notice of appeal had been lodged in time, Stanley Burnton LJ did not grant permission but adjourned the application to court to allow submissions if necessary. In the event the respondent sensibly agreed to take no objection on that point. Accordingly, there is no obstacle to the grant of permission. However, in case the issue arises in a future case, it may be helpful to address it briefly.

The relevant rules are found in CPR Part 52 rule 17:

“17.3

Subject to paragraph 17.4A, the appellant must file the appellant’s notice at the appeal court within 28 days after the date of the decision of the lower court being appealed.”

17.4

Where a statement of the reasons for a decision is given later than the notice of that decision, the period for filing the appellant’s notice is calculated from the date on which the statement is received by the appellant.

17.4A (1) Where the appellant wishes to appeal against a decision of the Administrative Appeals Chamber of the Upper Tribunal, the appellant’s notice must be filed within 42 days of the date on which the Upper Tribunal's decision on permission to appeal to the Court of Appeal is given.” (emphasis added)

The issue arises under 17.4A which is a special provision for appeals from the Upper Tribunal (Administrative Appeals Chamber). The question is when the decision is “given”.

In this case Judge Rowland’s decision granting permission to appeal bears the date 1 February 2011, it was sent to the Appellant’s solicitors under cover of a letter dated 16 February 2011 and was received on 17 February 2011. There was then some delay caused by problems in relation to insurance in respect of the Conditional Fee Agreement. The Notice of Appeal was delivered on 16 March 2011, 27 days after receipt of the permission to appeal, but 44 days after the date of Judge Rowland’s decision to grant permission to appeal. It was initially filed without the requisite fee and was rejected. It was then re-filed with the fee on 23 March 2011, 34 days after receipt of the permission to appeal but 51 days after the date of Judge Rowland’s decision.

The question is when the decision was “given”: was it the date on the decision itself, the date when it was sent by the office, or the date of receipt. Mr Sanderson submits that common sense, and a purposive interpretation, require it to be construed as the time when the potential appellant receives notice of the decision. He refers for example to the definition of “give” in the Oxford Paperback Dictionary: “to cause another person to receive or have, to supply; to deliver (a message)”. We were told that this also accords with the practice of the Civil Appeals Office

As we have not heard argument on the point, I can do no more than express my provisional view. Regrettably, PD 52.17.4 and 4A identify the date from which time is to be calculated in three different ways, which are italicised in the citation above. It seems to me that as a matter of fairness and principle, one would expect an appeal time limit to run from the date when the appellant knows or can be taken to know of the decision he wishes to appeal and the reasons for it. It therefore requires clear wording to provide that an appeal time limit runs from a time earlier than when the appellant received or can be taken to have received the decision in question and the reasons for it (cf R(Anufrijeva) v SSHD [2004] 1 AC 604 para 26). “Given” is insufficiently clear so to provide. I do not think, for instance, that a decision is “given” on the date it is posted to the parties, if they are unaware of it. It is given (to them) when it is received or can be taken to have been received by them. The giving of a decision requires the transmission of the decision to the party in question, and it is given to him when in he receives it or would in the ordinary course receive it.

Finally, the court noted with some concern the long delay in the handling of this case by the authority and asked for an explanation. I record Mr Collins’ comment on instructions:

“The CICA moved from London to Glasgow in September 2007. In the years before the move, a series of problems had arisen in dealing with cases. These problems were noted in a National Audit Office Report of December 2007 and have since been successfully addressed. The regrettable delays which occurred in this case in 2004-2007 are not indicative of the way the CICA functions today…”

For the above reasons, I would grant permission to appeal, but dismiss the appeal, and confirm the decision of the First-tier Tribunal.

I agree.

I also agree.