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Headnote |
Summary of decision
The failure of the Criminal Injuries Compensation Board to advise the applicant of their intention to adopt a particular approach in calculating the cost of future care and their failure to allow the applicant’s representative to make submissions on the issue was a procedural irregularity and a breach of natural justice. The impact of the irregularity was such that it warranted the striking down of the decision made by the Board. Board members have a right to use their own experience as a yardstick against which to test the material received however this does not absolve them of the duty to take all proper steps in securing fairness first.
Facts
The applicant (‘C’), an infant and his mother as his next friend, applied for compensation under the 1990 Criminal Injuries Compensation Scheme (‘the 1990 Scheme’). At the hearing before the Board some unsworn evidence was heard from C’s mother, other than that evidence all material before the Board was in written form. The evidence included a report which dealt with the future care needs of C. At the conclusion of the hearing the Board took the view that for the six years after the hearing C’s parents would continue to provide care to her under the “existing regime”. No allowance was made during this period for any costs to be legitimately incurred and no opportunity was afforded to C’s representative to address that issue either in submissions or by asking questions of C’s mother. Furthermore, the Board did not take into account the fact that C’s parents were providing care to other members of the family. On C’s application for judicial review it was argued on his behalf that this approach was wrong in law. It was also argued that the Board had wrongly assessed the multiplicand, reducing it substantially. C’s mother was at Court and could have dealt with this issue if required however no indication was given by the Board at the hearing that they intended to reduce the multiplicand nor did they give counsel on behalf of C any opportunity to address them on the issue. Finally, it was submitted on behalf of C that the Board attached significance to a number of other matters about which it was arguable that they had misdirected themselves as to either the facts or the law and in relation to which no opportunity was given to C’s representative to make submissions.
Held, allowing the application and remitting the case back to the Board
(1) Before adopting the approach that they did, it was incumbent upon the Board to advise C (through his representatives) of their intention to do so, and to invite the matter to be addressed by counsel in whatever fashion he saw fit. To fail so to do was an irregularity of such dimension in its practical impact on the decision as to warrant that decision being struck down. In the circumstances there had been no “proper determination” of this particular application.
(2) In the absence of any true adversarial structure to the conduct of hearings before the Board, the Board should take all proper steps to secure fairness in their particular proceedings before testing the material thus received by the yardstick of their own experience. The right of the Board members to use their own experience could not absolve them from their prior duty to do that.
(3) It was fair to observe that the Board was entitled to take a different view from that presented by expert witnesses on behalf of the Applicant, but only after all proper steps had been taken by them to arrive at that view on a fully informed basis.
(4) Mr Justice Ognall declined to lay down guidance to be used by the Board in regulating their hearings in every case. The concept of procedural fairness is not set in stone; it must remain for each tribunal to determine in each case the extent to which they must go in order to satisfy it.
Parts of scheme and other legislation referred to in judgment
1990 Criminal Injuries Compensation Scheme, paragraph 25
Representation
Mr MM Kent QC (instructed by Betesh Fox & Co) for B
Mr S Grime Q (instructed by the Treasury Solicitor) for the respondent
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