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Headnote |
Summary of decision
The applicant was allegedly sexually assaulted as a child and applied for compensation more than 15 years later. His application was refused and a subsequent appeal was dismissed by an adjudicator of the Criminal Injuries Compensation Appeals Panel. The fact that 170 previous sexual abuse cases had not been refused because of delay did not establish inconsistency on the part of the adjudicator, unless there was some error of principle or approach. Although the expert psychologist had accepted the applicant’s credibility, it could not be said that the adjudicator had failed to take account of that evidence, as the adjudicator’s role, namely to consider whether it was reasonable and in the interests of justice to waive the time limit, was wholly different to that of the expert.
Facts
The applicant (‘M’) alleged that, as a child in the care of Social Services between 1973 and 1974, he was sexually assaulted on a number of occasions. In 2001, he made an application for compensation to the Criminal Injuries Compensation Authority (‘the Authority’) and to waive the 2-year time limit. The Authority refused his application on paper on the basis that they were unable to obtain sufficient information to show that M was injured as a result of a crime of violence. M sought a review of that decision, which was refused on the grounds that there was no independent corroboration of the alleged incidents so that, even if the time limit were set aside, there was no proper basis on which an award from public funds could be considered. M then appealed that decision to the Chairman of the Criminal Injuries Compensation Appeals Panel. The nominated adjudicator dismissed the appeal on the grounds that, given the considerable delay in seeking compensation, it was neither reasonable nor in the interests of justice to make an award. M sought judicial review of the adjudicator’s decision on the basis that (i) the decision was inconsistent with the 170 cases of sexual abuse to which M’s solicitor had referred where late claims had not been refused on the grounds of delay; (ii) the adjudicator failed to have regard to the cogent evidence from an expert psychologist; and (iii) the adjudicator’s decision was Wednesbury unreasonable.
Held, dismissing the application
(1) In order to demonstrate inconsistency on the part of the adjudicator, M must establish some error in principle or approach; that the adjudicator was applying an approach which was unjustifiably different from that which was shown in the other cases where the application was not refused on the grounds of delay. M could not demonstrate from the mere fact that all those other cases succeeded, so far as time limits were concerned, an inconsistent approach, still less was there any available evidence of other cases where a claim was refused on the grounds of delay.
(2) Where a judge differed from an expert in a particular field on questions of fact, he should make clear his reasons for doing so: Re B (A minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 and Re B v Criminal Injuries Compensation Appeals Panel [2001] EWHC Admin 1147 considered. However, this was not a case where the adjudicator was differing from an expert without a cogent explanation. The issue before the adjudicator was whether it was reasonable and in the interests of justice to waive the time limit. That issued turns primarily on whether there was good reason for the failure to bring a claim with greater expedition. The question for the expert was not whether the explanation for the delay was reasonable. It was impossible to suggest the adjudicator did not take into account expert’s report, but the adjudicator’s role was wholly different from that of the expert and quite different from the considerations that a panel would have to take into account on a substantive hearing.
(3) It was open to the adjudicator to reach the conclusion that it was no longer possible for reliable investigation to take place despite the acceptance by the expert psychologist of M’s credibility.
Parts of scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1996, paragraphs 13, 17, 58, 60, 66 & 67
Criminal Injuries Compensation Act 1995
Limitation Act 1980, section 33(b)
Cases referred to in judgment
Re B (A minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790
Re B v Criminal Injuries Compensation Appeals Panel [2001] EWHC Admin 1147
Representation
Mr C Barnes instructed by Jackson & Canter for the Applicant
Mr J Johnson instructed by the Treasury Solicitor for the Respondent
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