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Headnote |
Summary of decision
The Authority and the Panel will not re-open a final tariff award to reconsider ongoing disability. There is no provision in the Scheme empowering the Panel to re-open a previous decision where the applicant over-estimates his recovery or underestimates any continuing disability, if a final decision has already been made.
Facts
The applicant (‘M’) was seriously assaulted during an attack in 1996 as a consequence of which he suffered a dislocation of his shoulder and various other minor injuries. His claim for compensation was initially rejected; however the Criminal Injuries Compensation Appeals Panel (‘the Panel’) awarded him compensation of £1,850 in April 1998. The award was on the basis of a tariff description of “full recovery” for the dislocated shoulder, and an award for his multiple minor injuries. His loss of earnings claim was adjourned for him to file details with the Panel. There was no complaint that, on the evidence available to the Panel in April 1998, it was wrong for it to assess compensation on the basis that there had been full recovery. M, however, suffered continuing problems including pain and numbness in his arm which he found very debilitating.
In July 2001 when the Panel convened to determine M’s adjourned claim for loss of earnings M asked that the Panel revisit the tariff award in the light of his ongoing problems. He contended that fresh medical evidence showed that the earlier decision to award compensation on the basis that he had made a full recovery within about 6 months was wrong. M alleged that he had been told by the chairman at the hearing in April that the Panel would be willing subsequently to consider any further medical evidence obtained by him.
The Panel refused to re-open the matter on the basis that the decision made by the earlier Panel was final. The Panel found that they did not accept that M had been told that further medical evidence would be considered by the previous Chairman, but in any event they stated that the 1996 Criminal Injuries Compensation Scheme (‘the 1996 Scheme’) gave them no power to reconsider the award. In the course of the hearing before them the Panel advised M that once they had dealt with his loss of earnings he could then either make an application to the Criminal Injuries Compensation Authority (‘the Authority’) under paragraph 56 of the Scheme if his case was that there had been a material change in his medical condition since April 1998, for his case to be re-opened. Alternatively he could write to the Chairman of the Panel, explain that he had obtained further medical evidence since the hearing in 1998 and that his case was that he had a continuing disability which meant that he had a continuing loss of earnings and ask for a rehearing.
M applied for judicial review of the decision of the Panel not to re-open the earlier decision as to the extent and duration of the physical injuries caused by the assault. Moses J considered his application for permission. He concluded that the decision of the Panel was wholly correct within the terms of the 1996 Scheme. All that remained in 2001 for the Panel to determine was loss of earnings. That they did. There was therefore no arguable case that the Panel’s approach to the attempt to produce fresh evidence was wrong in law. M’s application was accordingly refused. M renewed his application before the Court of Appeal.
Held, refusing the application,
(1) There was no documentary support for M’s assertion that the Chairman of the first Panel had indicated that M would be permitted to produce further medical evidence to the Panel. On the material available, it was not credible that the chairman would have made such a statement.
(2) The Panel was absolutely right in refusing to re-open the earlier decision as it was quite plain that the issue of the extent and duration of the injuries was determined finally and conclusively in its decision in April 1998. That was a final decision and the 1996 Scheme did not permit the Panel to re-open that issue. There was no provision in the Scheme empowering the Panel to re-open a previous decision in the circumstances that arose in this case.
(3) No view was expressed as to whether M might be able successfully to bring the question of his continuing disability to the Board under paragraph 56 or 57 as this was not a relevant issue before the court.
(4) The application made by M had no merit and was accordingly dismissed.
Parts of scheme and other legislation referred to in judgment
1996 Criminal Injuries Compensation Scheme, paragraphs 56 & 57
Representation
M appeared in person before the High Court and the Court of Appeal
The respondents were not represented in either Court
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