Colefax v First Tier Tribunal (Social Entitlement Chamber) & Anor

This appeal raises a short but important point of interpretation of paragraph 18 of the Criminal Injuries Compensation Scheme (2008). It provides a two-year time limit (from the date of the relevant incident) for the making of a written application for compensation, but continues:

“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(1)(a) places the burden of making out a case for a waiver under paragraph 18 squarely on the applicant.

The issue of interpretation may, in general terms, be stated as follows: if the victim of a violent crime suffers immediate consequential injury (“injury A”), but also suffers some different injury (“injury B”) which, even if apparent within two years, is only diagnosed as having been caused by the violent crime after the expiry of the two-year period, is the condition in paragraph 18(b) capable of being satisfied by reference to an application which includes or is limited to compensation for injury B, or must the condition be satisfied by the applicant showing that it would not have been reasonable to expect him to have made, within the two-year period, an application for compensation in relation only to injury A, which he knew from the outset had been caused by the violent crime?

Prior to these proceedings, this question had not been the subject of any (or at least any reported) authority. Nonetheless both the First-tier Tribunal (“FTT”) and the Upper Tribunal (“UT”) in the present case concluded that the second of those alternative formulations set out above was correct.

The question is of importance because there may well be more cases than just the present case in which the victim suffers an immediately apparent injury A as the result of a crime for which, for good reasons or bad, he decides not to seek, or simply fails to seek, compensation, but also suffers a much more serious, life-changing and incurable injury B, which either manifests itself after the two-year period or which, although apparent before that, is only diagnosed as having been caused by the violent crime more than two years after the relevant incident. In such cases the interpretation of paragraph 18(b) favoured by the Tribunals in this case will make it impossible for the victim to obtain the necessary waiver of the time limit, however good his reasons for not making an application for compensation for injury B, if he cannot show some good reason for not making a claim in relation to injury A in time.

The uncontroversial facts about the present case bear out the importance of the question. They are as follows.

The appellant, Mr. Stuart Colefax, was the victim of a violent assault by two men on about 21^st May 2007. They smacked his head against a brick wall, causing loss of consciousness, multiple fractures of his jaw, and a wound over his right eye. He had surgery to repair his jaw later that month, including the insertion of plates and pins, causing him to lose a number of teeth.

In December 2007, Mr. Colefax suffered an epileptic seizure. A second seizure occurred in July 2008, and thereafter his seizures have continued with increasing frequency.

It was only in September 2009 that Mr. Colefax was diagnosed by a neurologist as suffering from post-traumatic epilepsy caused by the violent attack in May 2007. Thereafter, Mr. Colefax made his application for compensation under the Scheme on 26^th November 2009, in relation both to his physical and mental injuries.

The standard form for applications for compensation under the 2008 Scheme requires an applicant seeking compensation out of time to explain why the application is late. Mr. Colefax, who appears to have filled in the application himself, stated only that it had taken 2 years for the neurologist to diagnose. That short observation plainly referred only to his epilepsy. He provided no explanation at all for having made no application within time in relation to his serious physical injury.

Miss Maya Sikand for Mr. Colefax told us that her client’s epilepsy was a life-changing and probably permanent condition, although he is being treated for it. His seizures usually require admission to hospital, together with round-the-clock personal care. They are plainly much more serious in terms of their consequences for him than his physical injury from which, apart from the permanent loss of some of his teeth, he has recovered.

The Compensation Authority rejected Mr. Colefax’s application in January 2010. He applied to the Authority for a review on 19^th March, supported by a signed statement, referring to paragraph 18 of the Scheme, and continuing:

“As you may appreciate I have undergone a lot since the incident and my priorities laid with getting diagnosed and recovering.

At the time of the incident I was in such a state that I did not report the matter to the Police, and it was the Hospital who did that for me. This was a positive step to addressing the issue then.

I did not receive any assistance from the Police in relation to making a claim.

Even if I had, it may have led to me being undercompensated as my injuries were not fully diagnosed until 25^th September 2009, over 2 years after the incident took place.”

The Compensation Authority reaffirmed its original decision on 30^th June 2010. The review letter referred to paragraph 18 of the Scheme, and continued:

“In this case, these criteria have not been met because while a formal diagnosis of epilepsy was not made for some time, it is obvious from the information provided that the applicant suffered other, significant injuries. As such, I am satisfied that a claim could and should have been lodged earlier. I am therefore unable to waive the time limit.”

Mr. Colefax’s appeal to the FTT was dismissed on 20^th January 2011. The written decision acknowledged that condition (a) in paragraph 18 (that it was practicable for his application to be considered) was satisfied. In relation to condition (b) the decision stated that:

“No explanation acceptable to me has been advanced by the Appellant in the Notice of Appeal and subsequent submission in support of this issue as to why the appellant could not have submitted a claim before he had his first seizure in December 2007 or in the period after this before his next seizure in July 2008 for his broken jaw and scar.”

Mr. Colefax obtained permission to bring proceedings for judicial review against the FTT’s decision, on 21^st June 2011, and his application was heard on 20^th February 2012. During that application it was asserted for the first time by Miss Sikand for Mr. Colefax that the reason why he had made no application for compensation for his physical injury within the two year time limit was because he had been unaware of the Scheme until informed about it thereafter by his neurologist. Judge Lane held that, since this reason had not been advanced at any time until after the conclusion of the appeal to the FTT, it came too late to be taken into consideration. It has not been pursued on appeal to this court.

It was in the UT that the point of interpretation which arises on this appeal was first analysed. Judge Lane identified two issues:

In my view Kitchin LJ’s question best encapsulates the main issue which we have to decide. Like any other provision in a statutory scheme, it is to be interpreted, at least as a starting point, by reference to the ordinary meaning of the words used, without being distracted by an inappropriate endeavour to fit the statutory scheme within the confines of some analogous legal context, either at common law or (as in this case) under the Limitation Acts: see S v First Tier Tribunal [2014] 1 WLR 1313, per Laws LJ at paragraph 19, a case about a different provision in the same Scheme.

A slightly qualified version of the same point is to be found in paragraph 34 of the judgment of Carnwath LJ in Rust-Andrews v First Tier Tribunal [2011] EWCA Civ 1548, a case about the 2001 version of the Scheme. He said:

“In my view,… if one looks simply at the Scheme, rather than trying to fit it in to 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.”

To that, I would add that the requirement to give the words of a statutory scheme their ordinary meaning nonetheless inevitably requires those words to be construed both in the context of the Scheme as a whole, and with due regard to its evident purpose.

Central to Miss Sikand’s submissions was the proposition that an interpretation of paragraph 18(b) of the type adopted by the UT was liable, for no sensible reason, to leave uncompensated the victim of a serious injury B where that injury either manifested itself for the first time more than two years after the violent crime or (as here), where injury B was only diagnosed after that period as having been caused by that crime. There was, she submitted, simply no logic in making the availability of a discretionary waiver of the time limit dependent upon whether the victim could advance a good reason for not having made a timely claim for compensation for some entirely different and possibly much less serious physical injury A. This is a powerful submission, and needs to be addressed by a review of all those provisions in the 2008 Scheme which seek to deal with the problems likely to be thrown up by the late manifestation of, or deterioration in, the medical condition of the victim.

Under the heading ‘Reconsideration of decisions’, paragraph 53 of the 2008 Scheme enables a claims officer to reconsider a decision by reference to new evidence or a relevant change in circumstances at any time before actual payment of a final award, notwithstanding that a decision has been made. This would, on its face, permit consideration both of the late manifestation of a new type of injury, and of the late diagnosis of a causal connection between the crime and an apparent injury, but only during a relatively restricted period.

Under the heading ‘Re-opening of cases’, paragraphs 56 and 57 of the 2008 Scheme enable a claims officer to re-open a case, “where there has been such a material change in the victim’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand, or where the victim has since died in consequence of the injury”. Paragraph 57 limits the power to re-open a case under paragraph 56 more than two years after the date of the final decision to the situation where the case officer is satisfied on the basis of evidence that the renewed application can be considered without a need for further extensive enquiry.

The power to re-open cases in paragraphs 56 and 57 will (subject to its limited availability after two years) readily accommodate the late manifestation of a new type of injury. But it is not clear that it would accommodate the late diagnosis of the requisite causal link between the crime and a medical condition which had not first appeared, or deteriorated, since the making of the claims officer’s decision: see R v CICB ex parte Williams [2000] PIQR Q339, per Ward LJ (obiter) at para 35. That question does not arise directly for decision in this case (any more than it did in the Williams case). In my view paragraph 56 would not accommodate late diagnosis but, in view of Lady Justice Arden’s view, expressed tentatively during the hearing that it might do in some circumstances, I am content to leave the point open.

Neither of these provisions for reconsideration of decisions, or re-opening of cases, affords any assistance to a victim where a serious injury manifests itself, or is first diagnosed as caused by the incident, more than two years after it, if he has not already made an application for compensation in time. The availability of compensation for such an applicant must rest squarely on satisfying the conditions imposed by paragraph 18(a) and (b) and even then the waiver of the two year time limit is still a matter of discretion for the claims officer, rather than of right: see Re MJ (No 3) [2014] UKUT 0076.

But paragraphs 53 and 56-7 do display a less than open-ended provision for satisfying claims for compensation in respect of late manifested or diagnosed injuries, even where the victim has made an application in relation to other injuries within time. The general thrust of those provisions is to recognise and give effect to the underlying desirability of finality in relation to claims for compensation, and a need to protect the Scheme from the expense of the extensive investigation of claims in respect of deterioration in medical condition after an award has been made. I shall refer to those considerations as finality and economy.

Returning to paragraph 18, it is important to note (as did the UT) that the expression in the first sentence “criminal injury” is a defined term. Paragraph 8 provides that:

“For the purposes of this Scheme, “criminal injury” means one or more personal injuries…”

Thus the phrase at the beginning of paragraph 18 “an application for compensation under this Scheme in respect of a criminal injury” means an application for compensation in respect of one or more personal injuries, rather than an application in relation to a specific personal injury. Thus it follows that the expression in paragraph 18(b) “an application” means an application for compensation in respect of one or more personal injuries.

This is no mere accident of definition. The tariff for compensation under the scheme plainly proceeds upon the implicit assumption that a victim will make a single application in respect of all his or her qualifying personal injuries, rather than separate applications in relation to each. Thus paragraph 27 provides for a series of increasing discounts against the Tariff amounts for serious but separate multiple injuries, such that the highest rated description of injury qualifies for the full Tariff amount, the second highest for 30% of the Tariff amount, and the third highest for 15% of the Tariff amount.

The fact that the Scheme works in this way, both as a matter of definition and practical operation, points firmly towards the correctness of the UT’s interpretation. So does the evident distinction between sub-paragraph (a) of paragraph 18 which speaks of “the application” and sub-paragraph (b) which speaks of “an application”. Sub-paragraph (a) directs attention to the specific application actually made out of time. By contrast sub-paragraph (b) requires the applicant to show, in the particular circumstances of his or her case, that it would not have been reasonable to expect the applicant to have made an application for compensation for one or more personal injuries.

I was initially troubled by the notion, reflected in paragraph 17.4 of the FTT’s decision (to which I have already referred) that an applicant might be unable to satisfy the paragraph 18(b) condition if he could reasonably have made an application for compensation for some personal injury within the two year period. On one reading the condition appeared to be incapable of being satisfied unless it could be said that it would have positively unreasonable for the applicant to have made any application. There will be many cases where the victim of a violent crime would be regarded as acting reasonably both if he did and if he did not bring a claim for compensation, and it would appear perverse for the Scheme to have prohibited a late claim for a much more serious lately emergent or diagnosed injury B in circumstances where the applicant could not reasonably be blamed for having decided not to pursue his rights in relation to a much less serious, but patent, injury A.

I have however been persuaded after illuminating argument that the paragraph 18(b) condition is not as severe or apparently perverse as that, even if construed in the manner adopted by both Tribunals. This is because the condition requires the applicant to prove only that it would not be “reasonable to expect” him to make an application in time. The concept behind the phrase “reasonable to expect” does I think import a notion of duty, even if only a duty of an applicant to pursue his own interests with reasonable diligence. Putting it another way, the question is 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. This is precisely the formulation adopted by the Compensation Authority on its own review, in the letter from which I have quoted. In my view the re-definition of the form of abuse of process constituted by bringing a second claim for relief which could and should have been sought in an earlier claim, in Johnson v Gore Wood [2002] 2AC 1, affords an illuminating and persuasive analogy.

The result of that analysis is that it is open to an applicant seeking a waiver in respect of 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” imports no requirement to show exceptional circumstances: see Hutton v First Tier Tribunal [2013] 1WLR 124, per Aikens LJ at paragraph 41.

There are cases where the literal and slavish application of the ordinary meaning of words in a statute produces capricious, perverse or absurd results such that (as is commonly done in interpreting contracts) the court needs to search for some secondary meaning which better gives rational effect to the underlying statutory purpose. I have explained why my initial concern at the apparent stringency of paragraph 18(b) led me to wonder whether this was indeed such a case, so as to avoid deserving victims of violent crimes going uncompensated for serious life-changing personal injuries which emerged, or which were only diagnosed as caused by the crime, more than two years after the event. I consider that the ordinary meaning of paragraph 18(b) is, as both Tribunals held, to require the late applicant to show that it was not reasonable to expect him to make any application for compensation within time. The result of that interpretation is to place the burden 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 accords with the principles of finality and economy which I have found to underlie those provisions of the Scheme dealing with reconsideration of decisions and re-opening of cases.

Miss Sikand submitted that the principle of economy was sufficiently reflected in paragraph 18(a), and so it is to a limited extent. But the existence of those two principles underlying the Scheme as a whole seems to me to save the potentially tough consequences of the paragraph 18(b) condition, construed in accordance with the ordinary meaning of its words, from being regarded as irrational, absurd, or plainly contrary to the purposes of the Scheme. The fact that some apparently deserving victims may fall through the compensation net is not, of itself, good reason for the court to search for a strained interpretation, still less to re-write the Scheme otherwise than as authorised by statute.

It follows that, on his main ground of appeal, Mr. Colefax fails.

The Grounds of Appeal advanced the additional contention that the FTT failed altogether to consider whether there was a reasonable explanation for the lack of a claim for each of the Appellant’s personal injuries. In fact, as I have illustrated via my quotations from Mr. Colefax’s original application for compensation, and his signed statement in support of his application for review, he advanced no significant reasons at all before the hearing in the FTT for not having pursued a claim in time in respect of his serious physical injuries. He confined himself to an explanation for not having pursued a claim for his epilepsy. It was only in the Upper Tribunal that it was suggested, for the first time, that he advanced no claim at all in time because he was then unaware of the Scheme. As Miss Sikand sensibly conceded, this is not an explanation which she could pray in aid at that stage.

It might be said that the FTT applied too stringent an interpretation of paragraph 18(b) in assuming, in the passage from its decision quoted above, that Mr Colefax needed to show that he “could not” reasonably have brought any claim in time. The better formulation is that used by the Compensation Authority in its review letter, also quoted above, namely that he “could and should” have applied in time. But in a case where no significant reasons at all were given for not applying in relation to his physical injury, that is a distinction without a practicable difference, however important it may be in other cases.

The result is that, in my judgment, this appeal should be dismissed.

I agree.

I also agree.