Re‑opening Criminal Injuries Compensation Awards for Psychiatric Harm: “Medical Condition” Does Not Include a Mere Change in Understanding – Commentary on LXR v First‑tier Tribunal (SEC) [2025] EWCA Civ 1608

Re‑opening Criminal Injuries Compensation Awards for Psychiatric Harm: “Medical Condition” Does Not Include a Mere Change in Understanding – Commentary on LXR, R (on the application of) v First‑tier Tribunal (Social Entitlement Chamber) [2025] EWCA Civ 1608

Court: Court of Appeal (Civil Division), England and Wales
Judgment date: 12 December 2025
Neutral citation: [2025] EWCA Civ 1608
Anonymity: Victim anonymised as “LXR” under s 1(1) Sexual Offences (Amendment) Act 1992

1. Introduction

This commentary examines the Court of Appeal’s decision in LXR v First‑tier Tribunal (SEC), a significant judgment on the re‑opening provisions of the Criminal Injuries Compensation Scheme 2012 (“the 2012 Scheme”). The case addresses whether a later change in a victim’s understanding of the cause of their psychiatric injury – and a corresponding shift in medical opinion – can amount to “so material a change in the medical condition” of an applicant within paragraph 115(b) of the Scheme, thus entitling the applicant to have a previously accepted award re‑opened.

The Court of Appeal (Sir Keith Lindblom SPT giving the leading judgment, with Holgate and Lewison LJJ agreeing) restores the decision of the First‑tier Tribunal (“FTT”), overturning the Upper Tribunal’s (“UT”) more expansive interpretation of “medical condition”. In doing so, the Court:

  • Clarifies the narrow scope of the power to re‑open accepted awards under paras 114–116 of the 2012 Scheme;
  • Rejects the contention that a change in understanding or attribution of causation, even if clinically significant, is itself a “change in … medical condition” for para 115(b);
  • Reaffirms earlier case law that misdiagnosis or late diagnosis is not enough by itself to justify re‑opening;
  • Addresses the respective roles of the FTT and UT under the “excluded decision” regime; and
  • Rejects an indirect discrimination challenge under Article 14 ECHR read with A1P1, both on evidential and proportionality grounds.

Because the case arises from historic childhood sexual abuse and long‑term psychiatric injury, it is also an important authority on how the Scheme deals with delayed insight and evolving psychiatric understanding, especially in child sexual abuse (“CSA”) cases.

2. Background and Parties

2.1 The parties

  • LXR – the first respondent before the Court of Appeal, a male survivor of childhood rape and serious sexual abuse, anonymised under the Sexual Offences (Amendment) Act 1992. He also suffered non‑physical sexual harassment by an RAF vicar as an adult.
  • Criminal Injuries Compensation Authority (CICA) – the appellant, the body administering the 2012 Scheme.
  • First‑tier Tribunal (Social Entitlement Chamber) – the second respondent, whose decision was quashed by the UT but restored by the Court of Appeal.
  • Secretary of State for Justice – an interested party, aligned with CICA’s submissions.

2.2 Factual context

The material facts are stark:

  • As a child, LXR was raped and sexually abused over a prolonged period (“the Childhood Sexual Abuse” or “CSA”).
  • In 1998, as an adult in the RAF, he experienced non‑physical sexual harassment from an RAF vicar (“the Adult Abuse”), who sought gratification from hearing about his childhood abuse.
  • On 28 February 2019, he made two CICA applications: one in respect of the CSA, and one in respect of the Adult Abuse.

CICA:

  • Rejected the Adult Abuse claim as not amounting to a “crime of violence” under the Scheme. The FTT upheld that conclusion in January 2021. That finding was not challenged further.
  • Accepted the CSA claim and, by decision of 15 August 2019, awarded £11,000 – the highest tariff award for sexual assault – which LXR accepted on 19 August 2019. However, CICA declined to make a separate award for psychological injury, stating that the medical evidence then available attributed his extensive psychiatric problems primarily to other factors (essentially, the Adult Abuse and subsequent events).

Subsequently, new psychiatric evidence (particularly the report of Dr Jacqueline Pereira‑Scott and a letter from Dr Carolyn Law) concluded that the CSA was in fact the primary trauma underpinning LXR’s psychiatric condition. On this basis, he applied in June 2021 to have his award re‑opened under the Scheme’s re‑opening provisions, arguing that there had been a “material change” in his medical condition.

3. The Criminal Injuries Compensation Scheme 2012

3.1 Basic eligibility

Paragraph 4 of the 2012 Scheme sets the basic eligibility test:

“A person may be eligible for an award under this Scheme if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence committed in a relevant place.”

The concept of a “crime of violence” is elaborated in Annex B. This was central to the Adult Abuse claim (ultimately rejected), but less contentious in relation to the CSA, which was plainly a crime of violence.

3.2 Re‑opening of accepted awards

The focus of this case is the re‑opening regime in paras 114–116. The critical provision is para 115(b), which permits re‑opening if:

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

An applicant may seek a review of a refusal to re‑open (para 117), and then appeal to the FTT (para 125). But, crucially, decisions of the FTT in such appeals are designated “excluded decisions” under s 11 Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”). Thus:

  • There is no statutory appeal from the FTT to the UT on such matters; and
  • The only route to the UT is by way of judicial review under s 15 TCEA 2007 – a public law supervisory jurisdiction, not a full merits appeal.

This structural feature is fundamental to the Court of Appeal’s insistence that the UT had to identify a genuine error of law by the FTT before intervening.

4. Procedural History

4.1 Events leading to the re‑opening application

At the time of the original award (August 2019), CICA had seen:

  • A psychiatric report from Dr Boris Iankov, diagnosing PTSD and noting prior mental health problems and the possible interaction of CSA and the Adult Abuse;
  • A psychotherapy report from Joanna Rubbi.

CICA’s decision letter stated that both experts attributed the mental injuries “almost wholly” to a separate incident (i.e. the Adult Abuse and its aftermath), concluding that the CSA was not the primary cause of these psychiatric injuries. Hence, no separate award was made for psychological trauma.

In June 2021, armed with new medical evidence:

  • Dr Pereira‑Scott opined that the primary trauma was in fact the CSA, and that the Adult Abuse episode exacerbated an already vulnerable mental state rather than causing a separate PTSD presentation.
  • Dr Law, a counselling psychologist, later emphasised two aspects of “material change”: (i) a change in LXR’s own understanding of the cause of his psychiatric condition (now recognising the central role of CSA); and (ii) a deterioration in symptomatology linked to this therapeutic work.

CICA refused to re‑open the case in July 2021 and again, on review, on 25 January 2022. It explicitly accepted that the new evidence “overwhelmingly contradicts” the earlier view of causation, but held there was:

  • No material change in medical condition since August 2019; and
  • No power under the Scheme simply to “correct an inadequate decision” in the absence of such change.

4.2 FTT appeal

LXR appealed to the FTT on three grounds:

  1. Ground 1 – Material change in medical condition: There had been a “material change” in: (i) diagnosis; (ii) his clinically significant understanding of causation; and (iii) symptomatic deterioration.
  2. Ground 2 – Direct attribution: Any material change was directly attributable to the CSA (the relevant crime of violence).
  3. Ground 3 – Article 14 ECHR: The operation of paras 114–116 disproportionately disadvantaged those with psychiatric as opposed to physical injuries, amounting to unlawful discrimination.

The FTT (Judge Gandhi, Judge Elias, Dr Al‑Hillawi) dismissed the appeal on 9 May 2023, giving detailed written reasons on 4 July 2023. In essence, it held that:

  • There had been no material change in medical condition between August 2019 and June 2021, on a proper comparison of the medical evidence;
  • A change in understanding of causation, brought about by therapy, was not itself a “medical condition” for the purposes of para 115(b); and
  • The Scheme’s provisions did not breach Article 14 ECHR and, if there were any differential impact, it was justified.

4.3 UT judicial review

Because the FTT decision was an “excluded decision”, the challenge to it proceeded via judicial review to the UT (UTJ Jacobs). The judicial review grounds were framed, critically, on the footing that:

  • The relevant “medical condition” should be understood as the reasonably ascertainable condition; and
  • The key change was that it had only become reasonably ascertainable, after the original award, that the psychiatric injuries were attributable to the CSA.

The UT:

  • Rejected the “reasonably ascertainable” gloss on para 115(b); but
  • Accepted that a change in a person’s understanding of their symptoms and their causes could itself constitute a change in medical condition, if the tribunal accepted expert evidence that such understanding was “fundamental to the nature and treatment of his condition”.

On that basis, the UT quashed the FTT’s decision and remitted the matter, offering extensive (and, the Court of Appeal thought, somewhat abstract) guidance on the interpretation of the Scheme, and criticising the FTT’s use of dictionary definitions.

4.4 Appeal to the Court of Appeal

CICA appealed on three grounds:

  1. Ground 1 – Procedural/fairness: The UT erred in deciding the case on a legal basis not advanced by LXR (change in understanding as medical condition), contrary to his pleaded grounds, and without proper notice.
  2. Ground 2 – No public law error by FTT: The FTT made a factual finding – no material change in medical condition – which disclosed no error of law, so the UT exceeded its judicial review jurisdiction in interfering.
  3. Ground 3 – Wrong construction of para 115(b): The UT’s broad reading of “medical condition” to include change in understanding was legally wrong, contrary to earlier authority, and inconsistent with the Scheme’s structure and purpose.

LXR also sought, belatedly, to amend his judicial review grounds to align with the UT’s interpretation of “medical condition”; the Court of Appeal refused this application as far too late. He further relied on a Respondent’s Notice to uphold the UT’s order on an alternative ground: that the FTT’s interpretation of paras 114–116 was incompatible with Article 14 ECHR (indirect discrimination), requiring a Convention‑compliant reinterpretation or disapplication under the Human Rights Act 1998.

5. Summary of the Judgment

5.1 Outcome

The Court of Appeal:

  • Dismissed CICA’s Ground 1 (procedural unfairness) but
  • Allowed CICA’s Grounds 2 and 3, holding that:
    • The FTT had not erred in law; and
    • The UT had misinterpreted para 115(b) and improperly interfered with a factual assessment.
  • Rejected the Article 14 ECHR challenge in the Respondent’s Notice, both because:
    • There was no adequate evidence of disproportionate impact on victims with psychiatric injuries; and
    • Even if there were such impact, the re‑opening rules pursued legitimate aims (finality, legal certainty, administrative workability in a social welfare scheme) by proportionate means.

The Court therefore:

  • Set aside the UT’s order; and
  • Restored the FTT’s decision refusing to re‑open the award.

5.2 Core holding on para 115(b)

The central legal conclusion is that under para 115(b) of the 2012 Scheme:

  • There must be a material change in the applicant’s actual medical condition between the date of the original award and the date of the re‑opening application;
  • A change in medical opinionchange in the applicant’s understandingnot of itself
  • Misdiagnosis or late diagnosis may be unfortunate, but does not, by itself, bring a case within para 115(b); and
  • The decision whether there has been a material change is essentially a factual exercise of “pure comparison” between the condition at the original award date and the condition at the re‑opening date.

On the evidence, the FTT was entitled to find that there had been no material change in LXR’s psychiatric condition between August 2019 and June 2021.

6. Precedents and Authorities Considered

6.1 Earlier schemes and re‑opening provisions

(a) R v Criminal Injuries Compensation Board, Ex p Williams (CA, 27 June 2000)

This case considered an earlier version of the Scheme with a similar re‑opening clause. Ward LJ held that the provision had three elements:

1. There must be a change in the applicant’s medical condition;
2. The change must be serious; and
3. The change must be directly attributable to the original crime.

Crucially, Ward LJ stated (para 35) that:

“Mis-diagnosis, or even mis-prognosis, in the original report is not of itself a justification for coming back for reconsideration. The test is of a serious change directly attributable to the original injury.”

Laws LJ expressly agreed with this analysis. The Court of Appeal in LXR relies heavily on this proposition and treats it as foundational: re‑opening is about change in condition, not about correcting earlier diagnostic errors.

(b) Jones v First‑tier Tribunal (SEC) [2018] EWCA Civ 2367; [2019] 1 WLR 1391

Considering the 1996 Scheme, Jackson LJ offered a structured way of putting the re‑opening questions:

“The correct questions for the decision-maker are: ‘Would there be injustice if the earlier decision remained in place and would that injustice be the result of a change in the applicant's medical condition?’”

If both are answered “yes”, the case can be re‑opened. Jackson LJ suggested that if, even assuming a change in condition, there would be no injustice in leaving the decision in place, the re‑opening power could not be engaged.

The Court of Appeal in LXR accepts this two‑stage structure but emphasises that the gateway is still a genuine change in medical condition.

(c) SS v CICA and FTT (SEC) [2010] UKUT 410 (AAC)

UTJ Mesher elaborated on Williams, stressing the need for a “pure comparison” of the applicant’s actual condition at the date of the original decision (as now known) with the current condition. He underscored that:

“That is how a mis-diagnosis is excluded.”

This line of authority is endorsed in LXR: the fact that a condition was mis‑diagnosed, or causally mis‑attributed, is not itself a “change”.

(d) R (Colefax) v FTT (SEC) [2014] EWCA Civ 945; [2015] 1 WLR 35

Briggs LJ, obiter, doubted that the re‑opening provision would accommodate a late diagnosis of causal link where the condition itself had not changed, though he left the point open in light of Arden LJ’s tentative view that it might, in some cases.

LXR goes further and, in effect, aligns the law with Briggs LJ’s more restrictive view, anchored in Williams and SS: re‑opening is not available simply because the causal link has only become recognised later through better or more complete medical analysis.

6.2 The role of the UT and FTT: Jones (SC) and Hutton

In R (Jones) v FTT (SEC) [2013] UKSC 19; [2013] 2 AC 48, Lord Carnwath emphasised that:

  • The UT has an important role in providing structured guidance on specialist schemes; but
  • Appeals are confined to points of law, and the FTT remains the primary fact‑finder.

In CICA v Hutton [2016] EWCA Civ 1305, Gross LJ distilled the approach:

  • Courts should exercise caution before disturbing specialist tribunal decisions;
  • The UT can only interfere if there is a public law error – it is not a second‑tier fact‑finder; and
  • FTT decisions should not be microscopically analysed for errors where, read fairly as a whole, none exists.

The LXR judgment applies this framework, reiterating that:

  • It is the FTT, not the UT, that hears witnesses and evaluates medical evidence;
  • The UT’s jurisdiction (here via judicial review) is strictly limited; and
  • This case did not call for broad UT “guidance” on the Scheme; the key question was whether the FTT erred in law on the facts before it.

6.3 Fairness and unpleaded points of law

On Ground 1, the Court considered the scope for a tribunal to decide a case on a legal basis not squarely argued by the parties. Authorities included:

  • Ali v Dinc [2022] EWCA Civ 42 (Green LJ citing the Supreme Court in Sainsbury’s v Mastercard [2020] UKSC 24) – emphasising the adversarial nature of English litigation;
  • Hussain v General Pharmaceutical Council [2018] EWCA Civ 22 – holding that reference to unargued authorities is not necessarily a breach of natural justice so long as the issues themselves have been ventilated;
  • Dill v SSCLG [2017] EWHC 2378 (Admin) – confirming that fairness, not a rigid rule about arguments, is the touchstone.

The Court concluded that while it would have been preferable for the UT judge to articulate more clearly his intended line of reasoning, he did in substance raise the idea that “understanding is part of the condition” during the hearing. On the facts, no procedural unfairness warranting appellate intervention was found.

6.4 Article 14 ECHR and justification: SC and R (A) v CICA

Two recent Supreme Court cases were central to the Article 14 analysis:

  1. R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223 – setting out the framework for:
    • Proving indirect discrimination (a “neutrally formulated measure” having disproportionate adverse impact on a protected group); and
    • Justification (legitimate aim; proportionate means; intensity of review varying with context and whether a “suspect” ground is at stake).
  2. R (A) v CICA [2021] UKSC 27; [2021] 1 WLR 3746 – examining Article 14 in the context of the 2012 Scheme’s exclusion of applicants with certain unspent convictions. Lord Lloyd‑Jones JSC emphasised:
    • The social welfare nature of the Scheme;
    • The wide margin of appreciation and institutional deference owed where Parliament has approved the Scheme; and
    • The acceptability, in that context, of a bright‑line rule over case‑by‑case discretion, especially where finite public resources are being allocated.

The Court of Appeal in LXR applies those principles to uphold the compatibility of paras 114–116 with Article 14, even assuming some differential impact on people with psychiatric injuries.

7. The Court’s Legal Reasoning

7.1 Ground 1 – Did the UT decide the case on an unargued basis?

CICA argued that the UT had proceeded on a basis not pleaded by, or argued on behalf of, LXR – namely that a change in understanding could itself constitute a change in medical condition. In the judicial review claim, LXR had in fact contended that:

  • The Scheme should be read as referring to the “reasonably ascertainable medical condition”, not to a change in understanding per se.

The Court:

  • Accepted the general principle that tribunals must act fairly and should not ordinarily decide cases on wholly unheralded bases;
  • But held that fairness is the key test, and there is no absolute bar to a tribunal adopting a different legal analysis if the issue has, in substance, been ventilated;
  • Noted that the UT judge did raise in oral argument the idea that understanding might be “part of the condition” and invited submissions; and
  • Found that no injustice resulted, particularly given that the issues have now been fully argued before the Court of Appeal.

Accordingly, Ground 1 failed. However, the Court’s primary criticisms of the UT lie in Grounds 2 and 3 – the substance of its legal approach and its overreach into factual territory.

7.2 Grounds 2 & 3 – Correct interpretation and application of para 115(b)

7.2.1 How was the case put before the FTT?

A central theme in the Court’s reasoning is that one must look closely at:

  • How the case was actually advanced before the FTT; and
  • What evidence and legal submissions were before it.

The FTT’s summary of the appellant’s case (para 14 of its reasons) was that:

“[His] case is that there has been a serious/material change in his medical condition since he accepted the original award. This is because there has been a change in [his] understanding of the cause of his mental health difficulties and this in turn has led to an increase in his symptomology and a significant deterioration in his mental health.”

The Court of Appeal agrees that this accurately captures counsel’s skeleton argument: the change in understanding was being relied on, primarily because of its symptomatic consequences – i.e. because it was said to have produced deterioration in symptoms, and not as a freestanding change in condition divorced from symptoms.

In other words, the FTT was not confronted with, or required to decide, an abstract question whether a change in understanding, without any symptomatic change, could amount to a change in medical condition under para 115(b).

7.2.2 FTT’s factual findings

The FTT:

  • Consulted dictionary definitions and concluded: “a person’s change in understanding of their condition and ability to engage with treatment … is not a ‘medical condition’.”
  • Engaged in a detailed review of the medical evidence, comparing:
    • Earlier reports (particularly from Dr Iankov) with
    • Newer evidence (Dr Pereira‑Scott’s report and Dr Law’s letters).
  • Concluded that, although there had been fluctuations in mental health, there had been no material change in medical condition between August 2019 and June 2021.
  • Further held, in the alternative, that any change was not directly attributable to the CSA but to therapy‑induced changes in understanding.

The Court of Appeal emphasises that:

  • This is quintessential fact‑finding;
  • The FTT panel included a medical member, enhancing its expertise in evaluating psychiatric evidence;
  • The FTT directed itself in law only so far as necessary to decide whether the kind of change alleged fell within para 115(b), given the way the case was pleaded; and
  • Viewed fairly and as a whole, there was no legal error in the FTT’s approach.

7.2.3 The Court’s construction of “medical condition”

The Court reaffirms the approach in Williams, SS and Jones (CA):

  • The re‑opening power requires a comparison of the applicant’s medical condition at the date of the original award and at the re‑opening application; and
  • “Medical condition” refers to the actual state of health, symptoms, diagnosis and functional impairment, rather than the state of medical knowledge or the applicant’s understanding at those times.

Consequently:

  • A later shift in expert opinion about causation is not itself a change in condition;
  • A therapy‑induced change in insight or self‑understanding is not itself the condition, although it may affect the condition (e.g. through symptomatic deterioration);
  • Changes in understanding may be medically relevant when they lead to changes in symptoms, behaviour, or functional impairment, but the operative question is whether the underlying condition has changed.

On the facts, Dr Law’s evidence was that:

  • It was the change in understanding that had led to a deterioration in symptoms;
  • However, the FTT, after reviewing all evidence, did not accept that there had in fact been such a material deterioration in the relevant period.

That finding was one of fact which the UT was not entitled to disturb absent legal error.

7.2.4 UT’s error in law

The Court concludes that the UT erred in two principal respects:

  1. Mischaracterising a factual issue as one of law: The FTT’s conclusion that there had been no material change in condition was a factual finding. There was no misdirection in law. The UT impermissibly treated that factual assessment as a legal misinterpretation of “medical condition”.
  2. Adopting a legally unsound construction of para 115(b): In suggesting that a change in understanding could itself, without more, constitute a change in condition if experts said it was “fundamental”, the UT contradicted the line of authority in Williams and SS, and distorted the function of the re‑opening provision.

Thus Grounds 2 and 3 succeeded and the UT’s decision was set aside.

7.3 Late attempt to re‑plead “medical condition”

LXR sought to amend his judicial review grounds (para 43) to argue, in effect, that:

  • “Medical condition” must bear a broad, purposive meaning, covering aetiology, diagnosis, symptoms, disablement, treatment and medication; and/or
  • The words “so material a change in the medical condition” should be read as including a change in the “reasonably ascertainable” medical condition.

The Court refused the application:

  • It was made very late, after permission to appeal had been granted, and sought to retro‑fit pleadings to an argument that had not been run below;
  • It would be wrong to re‑frame the case at the appellate stage, particularly in judicial review; and
  • The appeal should proceed on the basis of the pleadings before the UT.

This reflects a recurrent theme in public law: parties are generally held to the case they advanced at first instance.

7.4 Article 14 ECHR challenge

7.4.1 The claim

In his Respondent’s Notice, LXR argued that:

  • The FTT’s interpretation of paras 114–116 (excluding re‑opening where there is only a change in understanding as to causation) had a disproportionate adverse effect on those with psychiatric injuries, especially CSA‑related PTSD, as compared with those suffering physical injuries;
  • This amounted to indirect discrimination contrary to Article 14 ECHR read with A1P1 (the right to peaceful enjoyment of possessions, including statutory compensation entitlements);
  • Article 14 therefore required the Scheme to be read down (s 3 HRA) or disapplied (s 6(1) HRA) so as to permit re‑opening in such psychiatric cases.

A separate “Thlimmenos” discrimination argument (failure to treat differently persons whose situation is different) was abandoned before the Court of Appeal. Only indirect discrimination was pursued.

7.4.2 Evidence of disproportionate impact

The Court held that LXR had not discharged the burden of proving that the re‑opening provisions disproportionately affected victims with psychiatric injuries. The evidence relied on was:

  • Two clinical reports (Dr Green and Dr Law) explaining, in general:
    • The particular difficulties of diagnosing psychiatric injury and causation;
    • The fact that psychiatric causation often depends heavily on the patient’s subjective understanding and self‑reporting; and
    • That insight into causation may develop only after prolonged therapy.
  • Reference to academic and Law Commission material on psychiatric injury and diagnosis.

The Court considered this plainly insufficient as evidence of disproportionate impact in the sense required by Article 14 as explained in SC:

  • It was largely anecdotal or case‑specific, centred on LXR himself;
  • There was no statistical or demographic evidence that the re‑opening rules impact a group (e.g. all applicants with psychiatric injuries, or all CSA survivors) more harshly than others;
  • Neither Dr Green nor Dr Law purported to give expert evidence on population‑level patterns of discrimination, and their remit did not extend to that.

In the absence of such evidence, the claim of indirect discrimination failed at the threshold stage.

7.4.3 Justification and proportionality

In any event, the Court went on to address justification, assuming (without deciding) that some differential impact might exist. Applying SC and R (A) v CICA, the Court emphasised:

  • The 2012 Scheme is a form of social welfare and public policy, distributing finite public funds as an expression of public sympathy; courts must show a high degree of restraint;
  • The Scheme has been repeatedly approved by Parliament by affirmative resolution, following consultation and equality analysis;
  • States have a wide margin of appreciation in designing such schemes, including the setting of bright‑line rules to promote clarity, consistency and administrative workability.

The re‑opening rules serve legitimate aims:

  • Finality and legal certainty once awards have been accepted;
  • Administrative efficiency in managing a high‑volume compensation scheme; and
  • Fair and predictable allocation of finite public funds.

Requiring a genuine material change in medical condition (as opposed to re‑opening for new diagnoses or interpretations) is a proportionate mechanism for balancing:

  • The interests of applicants; and
  • The systemic need for stability and manageable workload.

The Court also observed that any alleged disadvantage in relation to PTSD victims must be seen in light of:

  • Provisions such as para 89(a) and CICA guidance encouraging generous extension of time limits in CSA and sexual abuse cases, recognising delayed reporting and psychological harm;
  • The risk that bending re‑opening rules in favour of one subset of disabled persons (e.g. PTSD sufferers) could in turn produce relative disadvantage for others, undermining equal treatment within the disabled population.

Accordingly, even if indirect discrimination had been established, the Court would have held that any differential impact was objectively justified and proportionate. There was no need, therefore, to deploy s 3 or s 6 HRA to reinterpret or disapply paras 114–116.

8. Complex Concepts Explained in Plain Terms

8.1 “Material change in medical condition” v “change in understanding”

Under para 115(b), you must show that:

  1. Your actual health condition (symptoms, functional impairment, diagnosis) is materially different now than it was when the original award was made; and
  2. This change is such that allowing the old award to stand would be unjust.

A “change in understanding” means:

  • You and/or your clinicians now understand the cause of your condition differently (for example, you now recognise that childhood abuse, not a later incident, is the main cause).

The Court holds that:

  • A change in understanding may lead to a change in condition (e.g. worsening of symptoms as memories are processed in therapy);
  • But unless there is such an actual change in symptoms and functioning, a change in understanding alone does not qualify as a “change in medical condition”.

8.2 Misdiagnosis and late diagnosis

“Misdiagnosis” means the earlier medical assessment got the diagnosis or causation wrong. “Late diagnosis” means the correct diagnosis or causal link between crime and injury emerges only later.

The Court confirms:

  • These are not enough on their own to justify re‑opening an accepted award;
  • Re‑opening is not a mechanism for correcting every past diagnostic error; it is reserved for situations where the condition itself has changed (for better or worse) after the award.

8.3 “Excluded decision” and judicial review

An “excluded decision” under s 11 TCEA 2007 is one where:

  • No appeal lies from the FTT to the UT, even on a point of law.

Instead, any challenge must be by judicial review under s 15 TCEA 2007, which:

  • Does not permit a re‑run of the factual assessment;
  • Is limited to checking whether the FTT:
    • Misdirected itself in law;
    • Acted irrationally; or
    • Committed a procedural unfairness or other public law error.

In LXR, this distinction is crucial: the UT overstepped by effectively reassessing the medical evidence and recasting a factual finding as a legal error.

8.4 Article 14 ECHR and indirect discrimination

Article 14 prohibits discrimination in the enjoyment of other Convention rights (here A1P1 – possessions). Indirect discrimination arises where:

  • A rule is neutral on its face; but
  • In practice, it hits a particular group (e.g. people with psychiatric injuries) harder than others.

To succeed, a claimant must:

  1. Identify a relevant “status” (e.g. disability, mental illness);
  2. Show that the allegedly neutral rule affects that group disproportionately (usually requiring statistical or comparative evidence); and
  3. Overcome any justification argument (showing that the difference in impact is not a proportionate means of pursuing a legitimate aim).

In this case, the evidence was too limited and individualised to show group‑level disproportionate impact, and in any event the re‑opening rules were justified.

8.5 “Bright‑line rules” in social welfare schemes

A “bright‑line rule” is a clear, hard‑edged rule which:

  • Applies without case‑by‑case discretion; and
  • Promotes consistency and predictability.

In social welfare schemes like the 2012 Scheme, the courts accept that Parliament may legitimately adopt bright‑line rules (for example on eligibility, conviction exclusions, or re‑opening criteria) to manage resources and ensure administrative feasibility, even if that occasionally produces hard cases.

9. Impact and Implications

9.1 For victims of crime, especially CSA survivors

This decision has sobering practical implications:

  • Victims who have already accepted an award will face a high bar to re‑opening; they must prove a subsequent change in their condition, not just new insights or better medical evidence.
  • Those with complex, evolving psychiatric injuries – particularly CSA survivors, for whom delayed insight is common – must be advised to:
    • Gather as complete medical and psychological evidence as possible before accepting any award; and
    • Consider carefully whether to accept an award if there is significant uncertainty about the full causal picture.
  • The judgment underscores the importance of limitation extensions and late applications in CSA cases (para 89(a) and CICA guidance), rather than reliance on re‑opening as a safety net for diagnostic evolution.

9.2 For CICA and the administration of the Scheme

CICA obtains strong appellate endorsement of its long‑standing approach:

  • Re‑opening remains a narrow exception, focused on genuine post‑award changes in health status;
  • CICA is not obliged to correct every earlier misdiagnosis or causal misattribution through the re‑opening mechanism;
  • The judgment will assist in resisting future attempts to expand re‑opening based on late psychiatric insights or new expert opinions.

The Court also implicitly validates CICA’s guidance operating in tandem with the Scheme, especially around time‑limits in CSA and sexual abuse cases, as an appropriate vehicle for accommodating the special features of such claims.

9.3 For the UT / FTT relationship

The case re‑asserts the structural hierarchy:

  • The FTT is the primary fact‑finder, particularly on medical and psychiatric evidence;
  • The UT’s role (here in JR mode) is supervisory, confined to genuine legal or public law error;
  • Even where the UT is a specialist appellate tribunal, it must avoid:
    • Re‑determining factual findings under the guise of “interpretation of the Scheme”; or
    • Issuing unnecessary, abstract guidance not required to resolve the concrete case.

The Court’s criticism that the UT’s judgment was “wide‑ranging” and “at times … expressed at an abstract level” serves as a reminder that guidance should be tightly anchored to the facts and issues actually before the tribunal.

9.4 For discrimination and human rights challenges to the Scheme

The rejection of the Article 14 challenge has at least three implications:

  • Claimants alleging indirect discrimination must be prepared to produce robust, group‑level evidence (statistical or otherwise) of disproportionate impact; individual case anecdotes will rarely suffice.
  • Even where disabled or psychiatric‑injury victims are concerned – groups for whom heightened scrutiny may be appropriate – courts will still accord a wide margin of appreciation to Parliament in designing social welfare schemes.
  • The judgment reinforces the Supreme Court’s approval of bright‑line rules in the CICS context (R (A) v CICA), suggesting that ECHR‑based attacks on the Scheme’s structure face a high justificatory hurdle.

10. Conclusion

LXR v FTT (SEC) is an important clarification of the re‑opening regime in the Criminal Injuries Compensation Scheme 2012. The central messages are:

  • Re‑opening is tightly constrained. Para 115(b) requires a genuine, material change in the applicant’s medical condition between the original award and the re‑opening application. A change in medical opinion, or in the applicant’s understanding of causation, even when clinically significant, is not itself a change in condition.
  • Misdiagnosis or late diagnosis does not in itself justify re‑opening. The Court reaffirms the principle from Williams and SS that re‑opening is not a mechanism for rectifying earlier diagnostic errors where the underlying condition has not changed.
  • The FTT’s factual primacy is reinforced. The UT cannot recast factual findings as legal misinterpretations to justify intervention, particularly where its jurisdiction arises through judicial review of an “excluded decision”.
  • Article 14 ECHR does not compel a broader reading of “medical condition”. There was insufficient evidence of group‑level disproportionate impact on psychiatric injury victims, and, in any event, the Scheme’s bright‑line re‑opening rules are justified and proportionate in a social welfare context.

For practitioners, the case is a clear warning that:

  • The acceptance of an award is a critical, largely final step; and
  • Where psychiatric injuries and complex causation are in play, careful, comprehensive evidence‑gathering and legal advice are essential before acceptance, because re‑opening routes are narrow and will rarely permit a second bite at the cherry merely because understanding has evolved.

From a broader legal perspective, the decision consolidates a consistent line of authority on re‑opening provisions across successive CICS versions and underscores the judiciary’s deference to Parliament’s design of compensation schemes, while still insisting on a clear and principled reading of the statutory text.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Civil Division)

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