Criminal Injuries Compensation Authority v First-tier Tribunal and KM (CIC): [2016] UKUT 338 (AAC); [2017] AACR 4; [2018] AACR 22
Upper Tribunal Administrative Appeals Chamber decision by Judge Levenson on 12 July 2016.
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Judicial Summary
Reported as [2018] AACR 22
Judicial review - Criminal Injuries Compensation Authority- emergency workers- error of law -exceptional and justified risk.
These appeals raised the extent to which it was open to the Upper Tribunal (‘UT’) in judicial review proceedings, to make a finding that the First-tier Tribunal (‘Ft-T’) had made a material error of law and then to uphold that original decision without quashing it or remitting it back to the Ft-T. The two interested parties, M and H were respectively a fireman and a police officer who had been injured in the course of their work. The appellant Criminal Injuries Compensation Authority (‘CICA’) rejected their claims for compensation under the Criminal Injuries Compensation Scheme 2012 (the ‘2012 Scheme’) on the basis that they had been injured because of action which “would normally be expected of them in the course of their work” and that they had not taken an “exceptional and justified risk”. The Ft-T allowed the appeals of the interested parties against those decisions finding that the risk they each took was exceptional and justified and consequently warranted compensation under the 2012 Scheme. The appellant applied for judicial review of those decisions on grounds that the Ft-T had erred in law by deciding that the nature of the risk could be assessed, not just by reference to what the interested parties knew or believed at the time the risk was taken, but in light of subsequently discovered facts. The UT found that the FtT had made an error of law in both cases by not determining the issue of risk solely by reference to what the interested parties believed to be the position at the time the risk was taken. In each case the UT decided neither to quash the decisions nor remit the cases to the Ft-T and instead upheld the Ft-T’s decisions.
Held, allowing M’s appeal and dismissing that of H, that:
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in M’s case, the Ft-T had focused entirely on the risk M faced when he entered the building on fire; there was no consideration of, or evidence about, the changing nature of any risk as he remained in the building, and neither party had made any case based on the situation after entry. However, the UT found that everyone had been wrong to focus on the question of entry, and that although M entering the building was not an exceptional risk, his remaining there was so that the Ft-T had rightly awarded him compensation. The UT had carried out a new inquiry into an aspect of the case which no-one had considered before. Fine distinctions between the precise time when a risk was justified and exceptional and when and how that risk might no longer be justified and exceptional were far removed from the reality faced by M and firefighters like him. However, it was important that a proper and fair process was maintained. The UT’s answer to the new issue raised was not necessarily the only one open to the Ft-T. The UT therefore ought to have remitted the case back to the Ft-T.
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in H’s case, the Ft-T’s error of law had knocked out two of the reasons supporting the Ft-T’s decision that the risk had been exceptional leaving the third unscathed. These three factors had each been expressly described by the FTT as distinct reasons and, on that basis, the UT was entitled to decide that even without the first two reasons, the third reason was sufficient to uphold the Ft-T’s decision. The UT had correctly decided that no different decision would have been open to the Ft-T if the matter had been remitted. Accordingly, the UT was justified in upholding the original FTT decision.
Last updated 31 December 2019 + show all updates
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Court of Appeal decision selected for reporting as [2018] AACR 22
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Decision selected for reporting as [2017] AACR 4
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First published.