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Headnote |
Summary of decision
The Court held that the conduct of this claim for compensation on behalf of a brain-damaged child by the Criminal Injuries Compensation Authority had been the subject of unreasonable and irrational delay caused or contributed, in part, by the Authority seeking to obtain extraneous or irrelevant further information that, on the facts of the case, would not advance the determination of the application at all. The Authority was ordered to determine the application within 28 days.
Facts
The Applicant (‘M’) suffered severe brain damage as a result of non-accidental shaking by one of his natural parents. He had subsequently been adopted and his adoptive mother was responsible for his extensive care needs, whilst also caring for two other special needs children. She had never sought nor refused local authority assistance for M’s care, but considered that her care best met M’s needs. On 30 December 1998, an application for compensation was made on M's behalf by the local authority in whose care M then was. The conduct of the claim was assumed by his adoptive mother following the
adoption. The Criminal Injuries Compensation Authority had, by a letter of 27 February 2001, defined the parameters of the conduct of the claim in accordance with paragraph 19 of the Criminal Injuries Compensation Scheme 1996 and had requested a schedule of care costs. No suggestion was made in that letter that a calculation under paragraph 35(d) of the 1996 Scheme on a “carer’s loss of earnings” basis was relevant to the assessment. The information envisaged in that letter was provided by September 2001 and did not include provision for future local authority care as none was foreseen. M’s solicitor was given no indication that the information was deficient or that some other basis for assessment of the care claim would be appropriate until telephone calls in February 2002. The Authority then sought information relating to the care of the mother’s two other children and any benefits paid for them or M. The care claim submitted in September 2001 had never been assessed by the Authority.
An application for Judicial Review was brought by M’s adoptive mother against the Authority on the basis that the conduct of the claim by the Authority had been the subject of unreasonable and irrational delay caused or contributed to by the Authority seeking to obtain extraneous or irrelevant further information which, on the facts of the case, would not advance the determination of the application. M sought a mandatory order that the Authority determine the application within 28 days.
Held, granting the mandatory order sought
(1) The 1996 Scheme’s provisions were not to be construed with all the strictness of a statute or statutory instrument but “sensibly and according to the natural meaning of the language employed”, applying R v Immigration Appeal Tribunal ex parte Alexander [1982] 1 WLR 1077.
(2) The Guide to the 1996 Scheme published by the Authority, which indicated that in the generality of cases it aimed to reach a decision within 4 weeks once a response to all enquiries had been received, was instructive.
(3) The Court was satisfied that from about the end of 2001, the Authority’s delays had been unreasonable and irrational in the Wednesbury sense: Associated Provisional Picture Houses v Wednesbury Corporation [1948] 1 KB 223 applied. It was unreasonable for the Authority to try to assess the claim on an entirely different basis after the passage of a year. The information sought by the Authority from February 2002 onwards in respect of benefits or allowances in relation to the mother’s loss of earnings were not relevant to the claim in respect of paragraph 35, although they may have been relevant to paragraph 45. M’s schedule had showed them to be arithmetically irrelevant to his claim when properly assessed.
(4) In the circumstances it was unnecessary to consider the arguments based on Article 6 of the European Convention of Human Rights and it was accepted that any claim for damages by way of interest lost on the anticipated award was premature.
(5) The Authority was ordered to determine M’s application within 28 days.
Parts of scheme and other legislation referred to in judgment:
Criminal Injuries Compensation Act 1995
Criminal Injuries Compensation Scheme 1996, Paragraphs 1, 13, 18, 19, 23, 25, 35, 45
Children Act 1989 section 17 and Schedule 2
Cases referred to in judgment:
Associated Provisional Picture Houses v Wednesbury Corporation [1948] 1 KB 223
R v Immigration Appeal Tribunal ex parte Alexander [1982] 1 WLR 1077
Representation:
Mr T O Trotman, instructed by Graham Leigh Pfeffer & Co, Bury BL9 0AR for M.
Mr S Kovats, instructed by The Treasury Solicitor, London,, SW1H 9JS for the Authority.
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