QA Mongson v First Tier Tribunal (Social Entitlement Chamber) & Anor

The Scheme is a statutory scheme established under the Criminal Injuries Compensation Act 1995. The Scheme in its current form was issued in 2012 and provides for compensation to be paid to eligible victims of crime. The Scheme provides as follows. Under paragraph 99, a claims officer will notify an applicant in writing of the determination of the application. Paragraphs 101 and 103 of the Scheme then provides for three possible outcomes. Either, (a) the applicant accepts the determination by sending written notice of their acceptance within a set time period: see paragraph 100 or, (b) the applicant does not accept the determination in which case it is to seek a review by sending an application for review within a set period of time: see paragraph 101 or, (c) the applicant fails to respond within a set time period following which the claims officer may withdraw the determination: see paragraph 103.

Acceptance of the award determines the application. The wording of the Scheme does not permit an applicant to seek the determination of an award, then apply to review it. In the event an award is accepted a number of other provisions come into play. The Scheme provides (a) by paragraph 106 for the giving of directions and for the payment of administration of the award; (b) by paragraph 109 for the reconsideration of a determination before final payment of an award where the claims officer becomes aware of evidence or a change in circumstances; (c) by paragraph 110 for the payment of all or some of the award; (d) by paragraphs 114 to 116 for the reopening of an application after a final award has been made.

The circumstances in which an application may be reopened pursuant to paragraphs 114 to 116 after a final award has been made are narrowly circumscribed.

The conditions referred to in paragraph 114 are:

a person who has accepted an award subsequently dies as a result of the criminal injury giving rise to the award; or

there has been so material a change in the medical condition of the applicant that allowing the original determination to stand will give rise to an injustice to the applicant.

An application may only be reopened under paragraph 114,

within two years after the date on which the authority received, notice of acceptance of the determination or the date of a tribunal direction to make an award; or

If later, with supporting evidence, which means that the application can be determined without further extensive enquiries by a claims officer."

If the applicant wishes to challenge the Criminal Injuries Compensation Authority (CICA's) determination, the Scheme requires him not to accept the award, but to seek a review of it. By paragraph 117 the applicant may seek a review of a number of matters, including by paragraph 117(a) of a decision as to the determination of an award or its amount including, on a reopening under paragraph 114. Paragraphs 119 to 121 make provision for the process and timescale of a review. Paragraph 112 says that the claims officer conducting the review must send the applicant written notice of the decision on the review. Paragraph 118 says in terms that an applicant may not seek a review of a decision made on a review or appeal. After a review, the applicant is faced with a choice. By paragraph 123 the applicant can let the claims officer proceed to determine the application in accordance with the review decision or in the alternative, an applicant can appeal the review decision to the FTT, see paragraph 125. If the claims officer processes the application in accordance with the review decision and the award is paid to the applicant, this determines the application. The payment of the award is final and disposes of the application. There is no provision in paragraph 125 for the acceptance of the award and for the making of an appeal.

Paragraphs 126 to 134 make provision for various eventualities, which may occur in the event there is an appeal. The Scheme, for example, provides for a claims officer, upon receipt of a notice of appeal, to revise the review decision. When this occurs, paragraph 127 requires the applicant to either accept the revised review decision or to reject it. Finally, the definition of a final award for the purposes of the Scheme is to found in annex 8 of the Scheme. It is defined as, "An award which but for the possibility of being reopened in accordance with paragraph 114 disposes of the application.

On 20 June 2015, Mr Mongson lodged an appeal with the FTT saying this was “for loss of income." Mr Mongson said he had been out of work for 18 months after the attack and requested an oral hearing before the FTT. It appears that Mr Mongson's appeal was withdrawn but then subsequently reinstated. Mr Mongson then repeated his request for an oral hearing in a letter dated 7 October 2015. On 20 November 2015, the FTT issued a directions notice giving Mr Mongson the opportunity to make written representations in relation to the proposed striking out of the whole of his proceedings. The direction notice gave particulars of the reasons why the FTT considered there was no reasonable prospect of Mr Mongson's case succeeding. This was that Mr Mongson had already been offered and accepted an award of compensation. By accepting that award, the matter had come to an end. Mr Mongson did not reply to those directions.

By a decision notice dated 6 January 2016, the FTT struck out Mr Mongson's case on the basis it did not consider there was any reasonable prospect of Mr Mongson's case succeeding. The FTT judge concluded as follows:

the Appellant has already received compensation for the index assault in respect of which he claimed. He states to the effect that he was always unsure of the merits for trying to claim for any loss of earnings and so he did not pursue that. He has mentioned that he feared that by appealing and pursuing losses, there was a risk of losing what had been offered. It seems that he has attempted to secure the Tariff award first and then subsequently has put forward

Paragraph 109 of the 2012 Scheme states that the authority can only reconsider their determination on a claim BEFORE final payment has been made,

the Appellant accepted the award in full and final settlement;

in these circumstances, there is no possibility of reopening the claim."

On 24 May 2016, the Upper Tribunal granted Mr Mongson permission to apply for judicial review of the FTT's decision of 6 January 2016 on the following grounds:

According to CICA's review documentation, loss of earnings had been before CICA and considered by the officer. The Upper Tribunal went on:

The submission of the appellant is crystallised into two grounds. Ground 1 is that Mr Mongson's appeal to the FTT was misconceived and hopeless. Furthermore, the FTT had no jurisdiction to entertain it. The FTT was correct to strike it out. The Upper Tribunal was wrong to focus on the FTT's criticism of Mr Mongson's "motives" or "tactics" as these are irrelevant to the legal test which has to be applied. Ground 2 is that while Mr Mongson was entitled to an oral hearing under rules 27.4 of the Tribunal Rules, in the circumstances of this case, no purpose was served by remitting the matter back for reconsideration at an oral hearing and the Upper Tribunal should not have exercised its discretion to interfere with the FTT's process.

On the facts of this case, the respondent applied for an award. He was dissatisfied with the determination. He asked for a review, which then took place and he then accepted the determination pursuant to that review, albeit with some reluctance. An award was duly made and then paid to the respondent. On my reading of the Scheme, this was the end of the matter. The common thread running through these provisions and the procedural regime they create is the demarcation between acceptance of a determination and payment of the award on the one hand and rejection of the determination and review/appeal on the other. See in particular paragraphs 100, 101, 123 and 127 of the Scheme. The sense of this is obvious from an administrative and legal perspective for reasons of finality and certainty as Mr Purnell submits. In this context he draws attention to the observations of Moses LJ in Law Society v LSC [2010] 2550 EWAC (Admin), at paragraph 116 where he says:

Quite apart from those considerations, however, in my view this is the position that emerges from the clear wording of the Scheme itself. If the respondent was satisfied with the review decision and wanted to appeal it, that route would have been open to him. But under the rules of the Scheme, he could not both accept the award and then appeal it. With respect to the Upper Tribunal judge, he did not grapple with this fundamental issue but seemed to be diverted by a point that was not material, either to the decision made by the FTT or by him, namely whether the respondent's decision to accept the award was a tactical one, or not. The motives of the respondent were, however, irrelevant. Once he had accepted the award, however reluctantly, and a final award had been made, the application had been disposed of. It follows that the appeal to the FTT was a nullity and the FTT had no jurisdiction to deal with the matter on appeal. Though this is not material for present purposes, I should add that the appeal should have been struck out under the tribunal rule 8.2 of the Tribunal Rules rather than under the rule used by the FTT, that is rule 8.3(c) which permits a claim to be struck out on the ground it has not reasonable prospect of success. The material part of rule 8.2 provides that, "The tribunal must strike out the whole or a part of the proceedings if the tribunal, a) does not have jurisdiction in relation to the proceedings or that part of them ..."

In this appeal it is accepted by CICA that the FTT was in error in failing to convene the oral hearing that the respondent had asked for, for the strike out to be reconsidered. However that may be, CICA is right to say, so it seems to me, that in the present circumstances where, as I would find, the FTT had no jurisdiction, any reconsideration would be bound to result in the strike out of the respondent's appeal. For the reasons I have given, I would quash the decision and allow this appeal.