Factual and Procedural Background
This appeal concerns the interpretation of paragraph 18 of the Criminal Injuries Compensation Scheme (2008), which imposes a two-year time limit for making a written application for compensation following a violent crime. The appellant, Plaintiff, was assaulted in May 2007, sustaining immediate physical injuries and later developing post-traumatic epilepsy diagnosed in September 2009. Plaintiff applied for compensation in November 2009, beyond the two-year limit, citing the late diagnosis of epilepsy as the reason for delay but provided no explanation for failure to claim for the earlier physical injuries within time.
The Compensation Authority rejected the application and subsequent review, concluding that a claim could and should have been made earlier for the physical injuries. The First-tier Tribunal (FTT) dismissed Plaintiff's appeal, finding no adequate explanation for the delay regarding the physical injuries. Plaintiff sought judicial review and then appealed to the Upper Tribunal (UT), where the key issue of interpreting the time limit waiver provision was first analyzed. Both tribunals held that the waiver condition requires the applicant to show it was not reasonable to expect an application within time for any injury caused by the crime, not just the injury for which compensation is sought late.
Legal Issues Presented
- Whether the waiver of the two-year time limit under paragraph 18(b) of the Scheme can be granted if the late application concerns an injury diagnosed after the time limit, even if the applicant could have made an earlier claim for a different injury known within the time limit.
- Whether a claims officer may waive the time limit in respect of some, but not all, injuries sustained.
- Whether the tribunal erred in law in treating multiple injuries as a single package for the purposes of exercising discretion under paragraph 18.
Arguments of the Parties
Appellant's Arguments
- The appellant argued that it was unreasonable to require a timely claim for a relatively minor, immediately apparent injury (injury A) in order to claim late for a serious, life-changing injury (injury B) that manifested or was diagnosed after the two-year period.
- The appellant contended that the interpretation adopted by the tribunals unfairly prevents deserving victims from obtaining compensation for serious injuries diagnosed late.
- The appellant also argued that the FTT failed to consider whether there was a reasonable explanation for not making timely claims for each individual injury.
Respondent's Arguments
- The Compensation Authority and tribunals maintained that the waiver condition requires the applicant to show it was not reasonable to expect an application within time for any injury caused by the crime.
- They relied on the ordinary meaning of the Scheme's language, its definitions, and the underlying principles of finality and economy in compensation claims.
- The respondent argued that the appellant failed to provide any significant reason for not claiming in time for the physical injuries, which justified refusal of the waiver.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| S v First Tier Tribunal [2014] 1 WLR 1313 |
Interpretation of statutory scheme provisions by ordinary meaning without forcing analogy to common law or Limitation Acts. |
Supported the approach of interpreting the Scheme's time limit provisions by their ordinary meaning. |
| Rust-Andrews v First Tier Tribunal [2011] EWCA Civ 1548 |
Clarification that the Scheme should not be constrained by common law models and can consider high-level authority principles where appropriate. |
Reinforced that the Scheme’s interpretation should focus on its own terms and purpose. |
| R v CICB ex parte Williams [2000] PIQR Q339 |
Discussion on whether late diagnosis of causal link can justify reopening a case after final decision. |
Referenced in relation to limitations on reopening cases for late diagnosis under the Scheme. |
| Re MJ (No 3) [2014] UKUT 0076 |
Waiver of time limit under paragraph 18 is discretionary and subject to conditions. |
Confirmed that compensation availability depends on satisfying paragraph 18 conditions and discretion of claims officer. |
| Johnson v Gore Wood [2002] 2 AC 1 |
Concept of abuse of process by bringing claims that could and should have been brought earlier. |
Used as an analogy for understanding the 'reasonable to expect' standard in paragraph 18(b). |
| Hutton v First Tier Tribunal [2013] 1 WLR 124 |
Interpretation of statutory language does not require exceptional circumstances to satisfy waiver conditions. |
Supported that 'particular circumstances' in paragraph 18(b) does not impose a requirement of exceptional circumstances. |
Court's Reasoning and Analysis
The court began by examining the ordinary meaning of the words used in paragraph 18 of the Scheme, emphasizing that "an application" refers to an application for compensation in respect of one or more personal injuries, not a specific injury alone. The court noted that the Scheme is designed for a victim to make a single application covering all injuries rather than multiple separate claims.
The court rejected the appellant's submission that a waiver could be granted solely based on the late diagnosis of a serious injury B if the applicant had no reasonable excuse for failing to claim for an earlier injury A within the time limit. Instead, the court held that the waiver condition requires the applicant to prove that it was not reasonable to expect them to make any application for compensation within the two-year period, considering all injuries as a whole.
The court acknowledged concerns that this interpretation might produce harsh results in some cases but found that the wording of the Scheme, supported by its underlying principles of finality and economy, justified this approach. The court emphasized that "reasonable to expect" incorporates a notion of duty on the applicant to pursue claims with reasonable diligence, not merely the ability to do so.
The court also reviewed related provisions in the Scheme allowing for reconsideration and reopening of cases but concluded that these do not extend to late diagnosis of causal links beyond the two-year limit unless an application was made in time for other injuries.
In applying this reasoning to the facts, the court found that the appellant had failed to provide any reasonable explanation for not making a timely claim for the physical injuries and thus failed to satisfy the waiver condition.
Holding and Implications
The court DISMISSED the appeal.
The direct effect of this decision is that an applicant seeking a waiver of the two-year time limit under paragraph 18 of the Criminal Injuries Compensation Scheme must show it was not reasonable to expect them to have made any application for compensation within time, covering all injuries sustained, not merely the injury for which compensation is sought late. This interpretation reinforces the principles of finality and economy in the Scheme and places a burden on applicants to pursue their claims diligently. No new precedent was created beyond clarifying the interpretation of paragraph 18(b) in these circumstances.