Upper Tribunal (Administrative Appeals Chamber), August 09, 2013,  UKUT 396 (AAC)
|Resolution Date:||August 09, 2013|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
|Actores:||DN), R (on the application of) v First-tier Tribunal (CIC)|
R.(DN) v First-tier Tribunal (CIC)  UKUT 0396 (AAC)
IN THE UPPER TRIBUNAL Case No. JR/3767/2012
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Decision: I grant the Applicant's application for judicial review. I make a quashing order in respect of the decision of the First-tier Tribunal dated 14 May 2012 and I remit the Applicant's claim for compensation in respect of loss of earnings or earning capacity for reconsideration by a differently-constituted panel of the First-tier Tribunal.
REASONS FOR DECISION
This is an application, brought with my permission, for judicial review of a decision of the First-tier Tribunal given on 14 May 2012, whereby it dismissed that part of the Applicant's appeal against a decision of the Criminal Injuries Compensation Authority (``the Authority'') not to reopen a claim for compensation under the Criminal Injuries Compensation Scheme 1996 that related to compensation for loss of earnings.
The Applicant has asked for an oral hearing but the Authority is content for the application to be determined without such a hearing. The First-tier Tribunal has, quite properly, not taken any part in the proceedings. The case has been very fully argued in writing, by Ms Maya Sikand of counsel, instructed by Deighton Pierce Glynnn, solicitors, for the Applicant and by Mr Gordon Newall, solicitor, for the Authority. I am satisfied that I can properly determine the Application in the Applicant's favour without an oral hearing.
The Applicant was born in 1970. He came to the United Kingdom as a refugee from Iran in February 2000 and was given indefinite leave to remain in 2002. He had been subject to persecution and torture by the Iranian authorities.
On 18 July 2000, not long after he first arrived in the United Kingdom, he was assaulted. He claimed criminal injuries compensation under the 1996 Scheme but he was initially refused an award and the refusal was upheld on a different ground on review. He appealed and was eventually awarded, in April 2004, £3,950 in respect of mental disorder, the loss of one front tooth and slackening of teeth requiring dental treatment, the award in respect of mental disorder being reduced by 50% on the basis that there was merely an exacerbation of a pre-existing condition. He does not appear to have made a claim in respect of loss of earnings or earning capacity at that time.
In May 2009, the Applicant applied for the reopening of his case on the ground that there had been a material change in his medical condition in the sense that it was now clear that his mental disorder was permanent. The Authority refused to reopen the case and maintained the refusal on review but, on 5 March 2012, the First-tier Tribunal allowed the Applicant's appeal. It accepted that the claimant had suffered a permanent mental disorder but again reduced the award by 50% so that a further tariff award of £6,750 was made. It adjourned consideration of a claim that had been made in respect of loss of earnings.
The basis of the claim in respect of loss of earnings had first been set out in a written submission from the Applicant's solicitors (Doc T423), made in November 2011.
``The Applicant was not working when he was assaulted. However, he had extensive experience of work as a supermarket manager in Iran. The Applicant came to the UK in February 2000 and immediately began studying English. He was assaulted in July 2000 and has not been able to work since.
It is the Applicant's submission that, had it not been for the assault, and given his experience in Iran, he would have obtained a post as a supermarket manager once he had had sufficient command of the English language. It is submitted that, at the latest, this would have been in April 2001.
Dr Gibbon's view is that the Applicant has been unfit for work since the assault. She expects him to be fit for work in 3-5 years time (see paragraphs E3.3-E3.4 of her report).
The Claimant therefore claims past loss of earnings from April 2001 to date on the basis that, were it not for the assault, he would have been working as a supermarket manager since that date. ...''
The amount claimed was £216,449.02 past loss of earnings and £119,554.36 future loss of earnings, making a total of £336,003.38.
Against that, the Authority argued that the claimant would never have earned more than the minimum wage and was not entitled to any compensation because his social security benefits exceeded the loss. In the ``hearing summary'' it prepared in March 2011, it commented -
`` ... the Authority submits that no grounds in support of any claim for loss of earnings have been established. In relation to the submission by the appellant the Authority would make the following observations:-
1) There is no documentary evidence to substantiate the claim that the appellant attempted to learn, or could have learned, English within the timescales indicated and also it is extremely unlikely that he would be offered any managerial position without knowledge of the relevant legislation and laws pertaining to the industry in this country.
2) There is no documentary evidence of the appellant's `extensive experience' of work as a supermarket manager. The description of his life at T76 would actually seem at odds with this assertion where it refers to the appellant being ``ostracised and discriminated against when applying for jobs and further education. Life became more and more intolerable for him and he was forced to live in hiding, going from one safe house to another.''
3) It appears that the claim is being made from a period a year before the appellant was allowed to work in this country. Doc A40 confirms that the appellant was free to take a job in this country from 10/07/2002, when he was granted asylum.
4) It is clear that the appellant's inability to work is also attributable to factors other than the index incident. Docs T52, T55 and T60 refer. In Doc T413, Dr R Gibbons states that ``The most important life event contributing to this illness is the previous torture in Iran.''
For the reasons outlined above, the Authority would also submit that any award under Paragraph 33 is inappropriate.''
The reference to ``T76'' was to the second and third paragraphs of the ``personal history'' recorded in a report dated 27 August 2003 written by a trauma specialist and the Head of Unit at the Traumatic Stress Service at the Maudsley Hospital for solicitors assisting the Applicant in relation to the housing problems he was having at that time. It is useful also to set out the first paragraph of the personal history, from the previous page.
``[The Applicant] was born into a professional family in Shiraz in South East Iran. His early years coincided with the Islamic revolution and the change of regime in Iran, during which one of his cousins was killed. He witnessed an attack on his father, who subsequently lost an eye. Throughout his teenage years, many of his cousins were killed. He described them as members of the intelligentsia, doctors and teachers. He began to read widely and questioned the strict regime of the time. From the ages of 16 to 19 he was regularly interrogated about his beliefs by the Islamic Association at his school. He was often removed from the classroom, and on several occasions beaten in front of his classmates. Although he was academically gifted, he was refused a university place, which he believes was because of his beliefs.
[The Applicant] entered into compulsory military service and continued to speak out against the current political regime. Within weeks he was arrested and was kept in solitary confinement in a cell with no light, for a period of three months. During this time he was systematically interrogated and tortured. He recalls being blindfolded and beaten by three or four guards at any one time. He was suspended from the ceiling for prolonged periods and subjected to electric shocks. After three months, he was moved to a psychiatric hospital, suffering from the effects of the torture. He experienced psychosis and hallucinations, was heavily medicated and given a series of ECT treatments.
[The Applicant] was returned to the army and, as was customary for dissidents, he was exiled to a particularly dangerous outpost, near the Afghan border. He was allowed to return to his town after 20 months. Like many political dissidents, even when released, [the Applicant] was ostracised and discriminated against when applying for jobs and further education. Life became more and more intolerable for him and he was forced to live in hiding, going from one safe house to another. He managed to flee the country and arrived in England in February 2000, and [was] subsequently granted full refugee status.''
The Authority's hearing summary largely repeated what had been said in earlier versions and had not been fully updated to take account of what had happened at the hearing on 5 March 2012 and of further evidence supplied by the Applicant's solicitors on that date, including a document apparently showing that the Applicant had had permission to take employment since 22 August 2000. The evidence had also included a statement from the Applicant's father, in Farsi with an English translation, to the effect that the Applicant had worked as a supermarket manager in his shop from 1990 to 2000 and a certificate showing that, in June 2000, the Applicant had passed a ``basic'' examination in English for Speakers of Other Languages.
At the hearing on 14 May 2012, the Applicant produced an employment consultant's report and a new submission including more detailed calculations of loss of earnings. After deducting benefits and reducing the award by 50%, the claim as at the final hearing was for £46,155.47 past loss of earnings and £86,108.73 future loss of earnings, amounting to £132,264.19 in all. This was a much lower figure than that claimed...
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