JM v The First-Tier Tribunal & Anor

The grounds on which the Appellant (JM) was granted permission to bring judicial review proceedings, and the background to this case, were described as follows in the Upper Tribunal’s permission decision:

“[JM’s] grounds

4.

[JM’s] written application for permission to bring judicial review proceedings argues that the Tribunal failed to deal with her criticisms of a Dr Cardoza’s opinion as to the period of her disabling mental injury, and overlooked evidence about her tinnitus. The application also explains why [JM] thinks she is entitled to a greater award, but I shall not address that because my role is not to decide the amount of compensation; it is to consider the lawfulness of the Tribunal’s decision.

5.

At the [permission] hearing before myself, [JM] further argued:

(a)

the Tribunal failed to take into account her oral evidence that she was still waiting to see an Ear, Nose and Throat specialist;

(b)

the Tribunal overlooked medical evidence about her tinnitus and therefore made a flawed finding that her medical records made no mention of that condition before March 2020. In particular, the Tribunal failed to take into account that tinnitus was referred to in 2017 GP records and that she had a hospital appointment for tinnitus in 2019;

(c)

the Tribunal overlooked medical evidence that she had been diagnosed with severe PTSD;

(d)

the Tribunal did not give her the opportunity to put the evidence about her lifestyle in its proper context. Had she been asked to do so, she would have informed the Tribunal that her ability to do things varied day-to-day, the Asda supermarket referred to by the Tribunal was very close to her home as was the school mentioned in its statement of reasons.

Background

6.

In this section of my reasons, I focus on those background features of this case that are of particular relevance to [JM’s] grounds of challenge.

[JM’s] application

7.

[JM’s] application to CICA, dated 4 January 2018, related to an incident on 2 September 2017 in a public park attended by herself, her daughter, sister, and mother. The incident was preceded by a dispute about some children’s use of play equipment and culminated, in [JM’s] words, with their parents threatening and then “attacking us”. The incident was reported to the police on that same day.

8.

[JM’s] application included amongst her ongoing symptoms “memory loss” and “tinnitus”. She wrote that, one the day of the incident, she was admitted to A&E and also underwent dental surgery. [JM’s] A&E discharge summary stated, “minor head injury (adults)” and “discharged – no follow up”.

Medical evidence before CICA

9.

On 4 September 2017, [JM] consulted her GP. The notes stated, “assault by fight…punched in the face and kicked on the floor Left with haemorrhage in the eye and black eye…now complaining of back and side pain…”. [JM] saw her GP again on 8 September 2017 and the notes included, “some pressure feelings in ears – comes and goes” and “advised re looking after mental health after something like this”.

10.

An entry in the GP notes dated 17 October 2017 included, “…was seen by max fax and had X ray after assault happened – no facial bone #...adv likely post concussion syndrome. likely would gradually self resolve…”. On 7 November 2017 the notes included, “assaulted in early sept. since then been unwell…getting headaches and facial pain attack too”. On 14 December 2017, [JM] consulted her GP about headaches which were “ongoing since reported assault”. An entry for 18 December 2017 stated, “…assaulted in park in sept…ongoing facial pain so ref for review. initially headaches marked but are improving to 1-2 a week. main issues are occasional dizziness, bad dreams with interrupted sleep, emotionally labile, short tempered and inc sound sensitivity, no flashbacks as such but dreams of fighting a lot which is distressing…warrants ref to counselling re ongoing sx, neuro and ct brain”.

11.

On 2 January 2018, [JM’s] GP referred her for counselling: “…she suffered an assault in September and has been markedly affected by this emotionally…having a lot of anxiety and she is short tempered, related to the incident and I would appreciate some counselling help to enable her to move on from this”. On 6 April 2018, the GP made a separate referral for one-to-one counselling because [JM] had not ‘got on’ with group therapy.

12.

On 5 February 2018, [JM] attended A&E complaining of chest pain. On 6 February 2018, she consulted her GP about palpitations, and did so again on 8 February 2018 “feels very anxious and tearful”.

13.

[JM’s] GP records describe a consultation for “reactive depression” on 12 February 2018: “CT normal referred to neurol – suggested onward referral to head inj…most problematic is getting to sleep…admits not getting out as much after assault last yr…re sleep – advised re difficult with meds and addiction. advised psych approach to post trauma more likely to help…”.

14.

On 21 February 2018, [JM’s] GP referred her to an oral surgeon: “…ongoing problems post this assault with her face in that she is suffering quite a lot of facial pain…she is also suffering from post concussion symptoms and I have already referred her to the traumatic brain injury service…”.

15.

On 1 March 2018, [JM’s] GP referred her to a cardiologist to investigate palpitations: “she is under a lot of stress and anxiety at the moment, owing to an attack on herself…in September”. The cardiologist wrote to the GP on 17 May 2018. I am not certain about the medical terminology used in the cardiologist’s letter, but I think he reported no concerns with [JM’s] heart.

16.

[JM’s] GP notes include a consultation for “reactive depression” on 27 March 2018: “…visited by brain injury worker. offered group counselling…but on waiting list…feels would prefer face to face counselling. will ref to pmht again. headaches ongoing…also waiting for appt from max fac re ongoing odd sensation left face. some memory issues and irritable at times but is improving”. There was another consultation for “reactive depression” on 25 April 2018: “mood stable, good days and bad days…waiting for pmht…not within my area of expertise to comment on how long her concussive sx may last. more specialised medical opinion needed…”.

17.

On 26 June 2018, [JM’s] GP’s notes included a consultation for “reactive depression”. The consultation entry describes domestic difficulties.

18.

[JM’s] GP records stated that, on 14 September 2018, she was seen at a maxillofacial clinic for “zygomatic complex of bones”. The specialist’s letter to the GP stated, “she has been left with a degree of ongoing intraorbital nerve paraesthesia…there is little we can offer in terms of improving her symptoms. Fortunately, things appear to be self-resolving in this respect”.

19.

On 5 April 2019, [JM] attended A & E and was admitted to hospital. Her GP records (dated 9 April 2019) stated, “went in with severe headache – had ct scan and lumbar puncture – nad…was told occipital myofascial neuralgia…wants to try neuropathic medication for pain”. The hospital discharge summary records that no brain abnormality detected but notes “occipital myofascial trigger point positive”.

20.

On 18 June 2019, [JM’s] GP supplied CICA with her medical records “from 2014 to date”.

CICA’s decisions

21.

CICA’s initial decision of 17 September 2019 was to refuse to make any award under the 2012 Criminal Injuries Compensation Scheme because police evidence indicated that [JM’s] sister instigated the altercation and [JM] “pushed one of the alleged offenders who has then retaliated”. [JM] disputed the reported police evidence, which she had not seen, and asked CICA to review their decision.

22.

On 15 October 2019, CICA reviewed their refusal decision and informed [JM] that they were “satisfied that your own conduct did not cause or worsen the incident” and made an award. The award was £1,500 for “scar neck significant disfigurement” (A2 within the Scheme’s award tariff).

Subsequent medical evidence

23.

More recent medical evidence was obtained by the First-tier Tribunal.

24.

On 30 October 2019, [JM’s] GP referred her to an audiologist: “she had a serious assault some years ago and has complained of bilateral tinnitus since…feels that this is worsening over recent months in her right ear. It is now affecting her sleep. She has no objective tinnitus”.

25.

On 30 October 2019, [JM’s] GP sought to expedite neurological investigations following a recent headache episode of “quite marked pain”.

26.

On 6 December 2019, a pain consultant asked for a clinical psychologist’s opinion on whether [JM] had “some mild PTSD symptoms”. On 12 February 2020, the clinical psychologist wrote to [JM’s] GP: “…she explained that she has had chronic pain, which has been diagnosed as occipital myofascial neuralgia, since being assaulted in September 2017…not currently working but is trying to remain active. She goes to college once a week in the evening. She is a parent governor at her daughter’s school and she regularly walks her dogs…she described feeling low and has had suicidal thoughts…We completed a Post-Traumatic Stress Disorder Checklist [see p.C143] and she does have significant symptoms of PTSD…it would be helpful to address her ongoing symptoms of PTSD…she had a preference for EMDR…”.

27.

On 6 December 2019, a pain consultant wrote to [JM’s] GP, “…since [the assault] she has had pain in her neck and shoulder bilaterally…headache is present nearly every day…discussed…whether she is getting flashbacks from the assault. She is having dreams where she is waking up feeling quite panicky...”.

28.

On 10 December 2019, a senior audiologist wrote to [JM’s] GP: “…Tinnitus afterwards [September 2017 incident]. Thought it would get better but still there…Pulsing, buzzing and humming…Tinnitus – yes. Bilateral. Onset: Sept 17…”. The letter was accompanied by various graphs showing the results of tests of [JM’s] hearing.

29.

On 7 August 2020, [JM’s] GP sought pain clinic advice on whether further scans were required to investigate her headaches, as she had requested, but informed [JM] that further neurological scans or investigations were unlikely to be called for.

30.

The medical evidence also records delays in beginning EMDR therapy for PTSD symptoms due to pandemic-related restrictions.

Proceedings before the First-tier Tribunal

31.

[JM] appealed to the First-tier Tribunal against CICA’s decision of 15 October 2019. Her notice of appeal, dated 11 November 2019, argued that:

- CICA had failed to take into account ongoing neck pain and headaches;

- after many tests she had been diagnosed with “occipital myofascial”;

she had been referred to a pain clinic and had an appointment on 6 December 2019;

- she was taking medication for anxiety and sleep difficulties;

- she continued to suffer from tinnitus caused by the attack and had consulted her doctor and been referred to audiologist;

- her low mood and depression had been exacerbated by the attack;

- the mental effects of the attack had affected her ability to look after her disabled daughter.

32.

On 30 July 2020, the Tribunal directed production of medical reports, one from a consultant clinical psychologist or psychiatrist and another from a pain consultant. At the same time, The Tribunal directed disclosure of [JM’s] medical records “from 1 May 2019 to date”.

Medical reports produced for the First-tier Tribunal

33.

A consultant psychiatrist, Dr Cardoza, produced a report dated 2 December 2020. It was preceded by a video-link consultation with [JM] on 25 November 2020. The report included the following:

As is conventional, and appropriate, the First-tier Tribunal takes a neutral stance in these proceedings and makes no comment on JM’s grounds for judicial review.

CICA support these judicial review proceedings and concede that the First-tier Tribunal’s decision should be quashed.

In relation to ground 1, CICA submit that JM’s medical records contained no clinical opinion that JM had mild PTSD and, in finding otherwise, the First-tier Tribunal either made a finding for which there was no supporting evidence or overlooked relevant evidence.

In relation to ground 2, CICA accept that the First-tier Tribunal erred in law as described in the Upper Tribunal’s permission determination.

In relation to ground 3, CICA submit that the First-tier Tribunal erred in law by overlooking medical evidence regarding JM’s tinnitus diagnosis or by disregarding such evidence without explanation.

In relation to the issue whether, under the 2012 Criminal Injuries Compensation Scheme, the role of a clinical psychologist or psychiatrist is confined to diagnosing disabling mental injury, CICA’s view is that the role is so confined. While a psychologist or psychiatrist might express an opinion as to the period of disabling injury, neither CICA nor the First-tier Tribunal is bound by such an opinion. A clinical opinion as to prognosis may often be persuasive, but in an appropriate case it would be open to a CICA claim officer or tribunal to reach “a different conclusion on the balance of probabilities using other adminicles of available evidence, if there was good reason to do so”.

CICA’s submissions use the word ‘adminicle’, a Scots law term which, according to the Judiciary of Scotland website, means “any piece of evidence supporting a particular argument”. CICA’s offices may be located in Scotland but that does not render Scots law applicable to criminal injuries appeals in England and Wales. Scots law terms should be avoided in submissions for a case decided under the law of England and Wales. Their use runs counter to the need to make tribunal proceedings as accessible as possible. I trust I do JM no disservice, but I doubt whether, before this case, she had ever come across the word ‘adminicle’. The present case is decided under the law of England and Wales, and I shall therefore take ‘adminicles of available evidence’, as used in CICA’s submissions, to mean ‘available, relevant evidence’.

I also record CICA’s view that a fresh medical report is likely to be required before JM’s claim for compensation under the 2012 Scheme is finally determined.

CICA invite the Upper Tribunal to remit JM’s case to the First-tier Tribunal or, if considered appropriate, to CICA itself.

Neither party requests a hearing before the Upper Tribunal decides this claim for judicial review. A hearing is unnecessary because the claim is supported, and the parties’ written arguments allow me to decide the claim fairly without holding a hearing.

This claim for judicial review succeeds. The First-tier Tribunal’s decision involved the following errors on points of law:

the finding that JM’s PTSD was reported to be mild “several times” in her medical records had no supporting evidence. Mild PTSD was referred to once in JM’s medical record but not diagnostically. It was mentioned when one clinician sought a specialist’s opinion whether JM had mild PTSD symptoms, but the specialist did not subsequently diagnose mild PTSD;

Dr Cardoza’s opinion that JM’s PTSD was likely to have been disabling for only 8 to 12 months was unreasoned. The Tribunal accepted that opinion on the basis, it seems, of evidence of JM’s lifestyle. However, the lifestyle evidence could not, without some explanation, properly have supported a finding that JM’s PTSD ceased to be disabling 8 to 12 months after her assault. The Tribunal therefore gave inadequate reasons for its decision;

in finding that JM had never been formally diagnosed with tinnitus and that there was no evidence linking tinnitus with JM’s assault, the Tribunal failed to take into account relevant evidence in particular a senior audiologist’s December 2019 diagnosis of bilateral tinnitus with an onset date of September 2017.

I quash the First-tier Tribunal’s decision and, in accordance with the directions given above, remit to that Tribunal for re-determination JM’s appeal against CICA’s decision on her claim for compensation under the 2012 Criminal Injuries Compensation Scheme.

There remains the issue which I directed CICA to address in their written submissions namely the role of a psychiatrist or clinical psychologist under the 2012 Scheme in determining a claim for compensation for disabling mental injury. It is clear that, under the 2012 Scheme, the existence of a disabling mental injury must be confirmed by a psychiatrist or clinical psychologist. Otherwise, the words “disabling mental injury, confirmed by diagnosis or prognosis of psychiatrist or clinical psychologist” would be meaningless. It is less clear whether the period of disabling injury must also be confirmed by a psychiatrist or psychologist. While the relevant tariff entry does not unambiguously provide that the period of disabling mental injury must be so confirmed one would normally expect a prognosis, which is mentioned, to address the duration of a medical condition. That said, the tariff entry anticipates a clinician providing either a diagnosis or a prognosis and, if only the former is provided, someone else obviously has to address the likely period of disabling injury. This suggests that Parliament, in approving the 2012 Scheme (see section 11(2), Criminal Injuries Compensation Act 1995), considered that non-clinicians were capable, in some cases at least, of making determinations as to the likely period of a disabling mental injury.

Since Parliament had no principled objection to a scheme under which non-clinicians (i.e. CICA officials in the first instance) make at least some determinations as to the likely period of disabling mental injury, and the desirability of strictly construing provisions under which functions are sub-delegated to entities that fall outside normal governmental accountability mechanisms, I am inclined to agree with CICA that the formal role of a psychiatrist or psychologist under the 2012 Scheme is confined to confirming the existence of a disabling mental injury. I am unable to express myself in more definitive terms than this because the point has not been fully argued and, moreover, is not a point which needs to be resolved in order to decide these judicial review proceedings.