Anonymised Summary of Legal Opinion
Factual and Procedural Background
The First Respondent applied to the Appellant (Company A) under the Criminal Injuries Compensation Scheme 2012 ("the Scheme") in respect of two periods of sexual abuse: (1) extensive childhood sexual abuse (CSA) and (2) a later episode of non‑physical sexual harassment by an adult associated with the Service (the "Adult Abuse"). The Appellant awarded compensation in August 2019 in respect of the CSA which the First Respondent accepted. The Appellant refused compensation in respect of the Adult Abuse; that refusal was upheld by the First-tier Tribunal (Company B).
In June 2021 the First Respondent asked Company A to re-open the accepted award in light of a new medical report which attributed the primary cause of psychiatric injuries to the CSA. Company A refused to re-open the award on the ground that there had been no material change in medical condition since acceptance of the award. The First Respondent sought review and then appealed to the First-tier Tribunal (Company B), which dismissed the appeal, finding that the change was principally in the First Respondent's understanding of causation rather than a material change in medical condition.
The First Respondent sought judicial review of the First-tier Tribunal decision in the Upper Tribunal (Company C). The Upper Tribunal quashed the First-tier Tribunal decision and remitted the case. Company A appealed that Upper Tribunal order to this Court. The Secretary of State was joined as an Interested Party (The State).
Legal Issues Presented
- Whether, for the purposes of paragraph 115(b) of the Scheme, a change in a claimant's understanding of the cause (aetiology) of a psychiatric condition can itself amount to "so material a change in the medical condition of the applicant" as to justify re-opening an accepted award.
- Whether the Upper Tribunal erred in law in quashing the First-tier Tribunal's factual/conclusive finding that there had been no material change in medical condition and in substituting an interpretation of the Scheme not advanced by the First Respondent before the Upper Tribunal.
- Whether the Scheme and the First-tier Tribunal's interpretation of paragraphs 114–116 are compatible with Article 14 ECHR (prohibition of discrimination) read with Article 1 of Protocol 1, in particular whether the re-opening rules disproportionately disadvantage victims of psychiatric injuries vis‑à‑vis victims of physical injuries (indirect discrimination).
Arguments of the Parties
Appellant's Arguments (Company A)
- The First-tier Tribunal's conclusion that there was no material change in medical condition was a factual finding open to it on the evidence; the Upper Tribunal had no basis to quash that finding by judicial review absent an error of law.
- The case as presented to the First-tier Tribunal emphasised that any change in the First Respondent's understanding had produced symptomatic deterioration; it was not argued that a change in understanding alone (independent of symptomatic deterioration) constituted a material change.
- If the Scheme were to be read as allowing re-opening on the basis of mere late diagnosis or changed medical opinion about causation, that would undermine the Scheme's objectives of finality and certainty in awards and would improperly broaden the limited re-opening remedy Parliament created.
- On Article 14, no adequate evidence of disproportionate impact on people with psychiatric injuries was produced; any differential treatment is justified and proportionate given finality, administrative ease and parliamentary approval of the Scheme.
First Respondent's Arguments
- The First Respondent relied on new medical evidence asserting that the CSA was the primary cause of psychiatric injuries and that, since accepting the award, the First Respondent's understanding of causation had changed in a clinically significant way which had symptomatic consequences.
- Before the Upper Tribunal the First Respondent also argued more broadly (a formulation later not pursued before this Court) that "medical condition" should be read as the reasonably ascertainable medical condition and that a change in ascertainability or in understanding could justify re-opening.
- By way of the Respondent's Notice before this Court, the First Respondent alternatively argued that excluding re-opening where a change of understanding is decisive would amount to indirect discrimination contrary to Article 14 ECHR because it disproportionately disadvantages claimants with psychiatric injuries.
Interested Party (The State) and Counsel Submissions
- The Interested Party and Company A made joint submissions defending the Scheme's interpretation adopted by the First-tier Tribunal and argued for deference to the Scheme given its approval by Parliament and its social‑welfare context.
- Counsel for the First Respondent (Attorney Buttler) emphasised the clinical realities of delayed presentation and changing insight in trauma‑related psychiatric conditions; counsel for the Appellant (Attorney Moretto) emphasised adversarial limits and fairness where a tribunal advances a point of law not argued by a party.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Jones v First‑tier Tribunal (SEC) [2018] EWCA Civ 2367 |
How to construe re‑opening provisions: ask whether injustice would occur if earlier decision remained and whether that injustice results from a change in medical condition. |
Cited to explain statutory approach to re‑opening and to support comparing injustice and material change; used as background on appropriate questions for decision‑makers. |
| R v Criminal Injuries Compensation Board, Ex p Williams (2000) |
Three elements for re‑opening: change in medical condition, seriousness of change, and direct attribution to the original crime; mis‑diagnosis alone is not a ground for re‑opening. |
Relied on to emphasise that mis‑diagnosis does not of itself justify re‑opening and that change must be directly attributable to the index crime. |
| SS v CICA and FTT (SEC) [2010] UKUT 410 (AAC) |
Elaboration on Williams: 'pure comparison' between condition at original award and condition at reconsideration; mis‑diagnosis excluded unless accompanied by later genuine change. |
Used to underline that re‑opening requires actual change in condition, not merely later‑found diagnostic error. |
| R (Colefax) v First‑tier Tribunal (SEC) [2014] EWCA Civ 945 |
Obiter on whether late diagnosis of causal link would be accommodated by re‑opening provisions (left open). |
Cited to show that the question whether late diagnosis can justify re‑opening has been considered but not definitively resolved previously. |
| Ali v Dinc [2022] EWCA Civ 42 |
Principle that courts operate in an adversarial system and should not act as inquisitors; fairness requires that parties have opportunity to address points not raised by them. |
Applied to assess whether the Upper Tribunal unfairly decided a point of law not advanced by the First Respondent and to frame the fairness inquiry. |
| Sainsbury's Supermarkets Ltd v MasterCard Inc [2020] UKSC 24 |
Support for adversarial principle quoted in Ali v Dinc regarding the role of courts in adversarial litigation. |
Referenced through Ali v Dinc to support the proposition that courts should do justice between parties as framed by their cases. |
| Air Canada v Secretary of Trade [1983] 2 AC 394 |
Authority previously cited on adversarial limits (referenced in Ali v Dinc passage). |
Referenced indirectly in discussion of adversarial system; used as authority for limits on courts raising new points without giving parties opportunity to respond. |
| Hussain v General Pharmaceutical Council [2018] EWCA Civ 22 |
Decision‑maker's reference to authorities not raised by parties does not necessarily breach natural justice if parties had opportunity to address the issue. |
Relied on to support the proposition that fairness, not absolute prohibition, governs whether a tribunal may decide on points not advanced by a party. |
| Dill v Secretary of State for Communities and Local Government [2017] EWHC 2378 (Admin) |
Authority on when reference to an un‑pleaded authority constitutes unfairness. |
Cited approvingly to show that a tribunal may rely on material not raised by parties if fairness is preserved. |
| Criminal Injuries Compensation Authority v Hutton and Others [2016] EWCA Civ 1305 |
Guidance on appellate restraint and respect for specialist tribunal fact‑finding; when UT may interfere with FTT decisions. |
Applied to frame the appellate stance: restraint, correction only for error of law, and respect for tribunal of fact. |
| AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 |
Principles on specialist tribunals and appellate review (quoted in related authorities). |
Used as part of the jurisprudential background on deference to specialist tribunals. |
| R (Jones) v First‑tier Tribunal (SEC) [2013] UKSC 19 |
Role of Upper Tribunal in developing guidance for First‑tier Tribunal and promoting consistency. |
Cited by the First Respondent to urge deference to the Upper Tribunal; considered in balancing UT guidance role against FTT fact‑finding. |
| R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 |
Approach to indirect discrimination under Article 14: burden and evidential framework for proving disproportionate impact and state justification. |
Applied to set the legal test for the Article 14/indirect discrimination challenge and to frame analysis of proportionality. |
| Glor v Switzerland (Reports 2009‑III) |
Principle that a narrower margin of appreciation applies where measures affect particularly vulnerable groups and where historical discrimination/stigmatisation exists. |
Cited in discussion of intensity of review in discrimination claims concerning vulnerable groups. |
| Guberina (66 EHRR 11) |
Illustration of narrower margin when measures affect vulnerable groups; need for weighty reasons to justify differences in treatment. |
Relied on to explain heightened scrutiny in discrimination cases affecting vulnerable cohorts. |
| Kiyutin v Russia (2011) 53 EHRR 26 |
Application of similar approach to treatment based on mental faculties; evolution of ECtHR jurisprudence. |
Referenced to show that ECtHR jurisprudence supports careful scrutiny where mental‑capacity‑related distinctions are made. |
| R (A) v Criminal Injuries Compensation Authority [2021] UKSC 27 |
Permissibility of bright‑line rules in the Scheme and justifications tied to policy, parliamentary approval and allocation of public resources. |
Applied to support the view that clear rules in the Scheme can be proportionate and justified in light of parliamentary process and resource allocation. |
| Thlimmenos v Greece (2001) 31 EHRR 15 |
Principle on discrimination (used as authority for "Thlimmenos" style arguments). |
Cited by the First Respondent as the legal basis for certain discrimination arguments (some such arguments were later abandoned before this Court). |
| Additional ECtHR authorities (Schalk, Eweida, Tomás; Stec, Runkee; British Gurkha) |
Examples illustrating variable intensity of review and treatment of transitional or suspect‑ground cases under Article 14 jurisprudence. |
Referenced in discussing how intensity of review can vary with context and the nature of the protected characteristic. |
Court's Reasoning and Analysis
The Court addressed three principal strands: (a) procedural fairness and whether the Upper Tribunal decided a point outside the parties' case; (b) whether the First‑tier Tribunal erred in law or on the facts in finding no material change in medical condition; and (c) the Article 14 indirect discrimination challenge.
Procedural fairness and the UT's reasoning
The Court accepted the adversarial principle but held that a tribunal may, in appropriate circumstances, decide a point of law not squarely argued by a party provided it fairly raises that point in the hearing and gives parties the opportunity to address it. The transcript of the Upper Tribunal hearing showed that the judge had raised, during the hearing, the possibility that a change in understanding could amount to a change in condition. On that basis the Court concluded that the Appellant's complaint (that the UT decided on an un‑argued point) did not establish unfairness or procedural impropriety sufficient to quash the UT judgment on that ground alone.
Deference to First‑tier Tribunal fact‑finding and interpretation of the Scheme
The Court emphasised the FTT (Company B) as tribunal of fact, noting its adjudicative role and medical expertise on the panel. The Court analysed how the First Respondent had presented the case to the FTT: the change in understanding was advanced as significant because it produced symptomatic deterioration (i.e. a causal chain from change in understanding to worsening symptoms). The FTT expressly found that the change was in understanding rather than a serious change in medical condition and that the evidence did not show a material change between August 2019 and June 2021.
Applying authorities such as Williams and SS, the Court reiterated that re‑opening requires an actual material change in the applicant's medical condition directly attributable to the index crime; mis‑diagnosis or later change in medical opinion does not of itself suffice. Read as a whole, the material before the FTT supported its factual conclusion that the relevant change was primarily one of understanding and that any symptomatic deterioration attributed to that change did not establish the material change required by the Scheme. The Court found no error of law in the FTT's approach and concluded the UT had erred in quashing on the basis taken.
Article 14 (indirect discrimination) analysis
The Court applied the legal framework from R (SC) and related authorities. It held that the First Respondent bore the burden to show a disproportionate impact on the relevant group and that the evidence required was statistical or broad‑based, not limited to individual clinicians' opinions. The materials produced (reports from two clinicians and other academic/consultation documents) did not supply the necessary evidence of disproportionate impact at the population level. Accordingly no prima facie case of indirect discrimination was established.
Even if a prima facie case had been made, the Court found the Scheme's bright‑line approach to re‑opening could be objectively justified and proportionate. The Scheme deals with allocation of finite public resources and has been approved by Parliament; finality, certainty and administrability are legitimate aims capable of justifying the difference in treatment. The Court therefore concluded there was no incompatibility with Article 14 that required reading‑down or disapplication of the Scheme.
Holding and Implications
Holding: The Court allowed the Appellant's appeal on the key grounds and set aside the order of the Upper Tribunal. The Court restored the decision of the First‑tier Tribunal. The core ruling is:
DISPOSED OF: The Upper Tribunal's order quashing the First‑tier Tribunal decision is set aside; the First‑tier Tribunal's decision refusing to re‑open the accepted award is restored.
Implications:
- The immediate effect is that the First Respondent's application to re‑open the accepted award remains refused and the FTT's factual finding (that no material change in medical condition justifying re‑opening was shown) stands.
- The Court rejected the broader proposition that a change in a claimant's understanding, of itself and absent symptomatic change amounting to a material medical deterioration directly attributable to the index crime, falls within paragraph 115(b) of the Scheme. The Court also rejected the Article 14 indirect discrimination challenge for lack of evidential foundation and on proportionality grounds.
- No new legal rule widening the scope of re‑opening under the Scheme was established; the decision affirms the established principles that re‑opening requires a material, attributable change in medical condition and that mis‑diagnosis or late change in medical opinion does not of itself suffice.
Administrative Anonymisation Note
All personal names, institutional names and identifying details have been replaced in this summary with anonymised placeholders in accordance with the instruction accompanying the task. References in this summary correspond to the anonymised roles and entities as follows in the source opinion: the victim is the "First Respondent"; the authority handling compensation is the "Appellant (Company A)"; the First‑tier Tribunal is "Company B"; the Upper Tribunal is "Company C"; the Secretary of State is identified as the Interested Party ("The State"); judicial officers and counsel are anonymised as "Judge [Last Name]" and "Attorney [Last Name]" respectively; medical witnesses are identified by professional title and surname only.