R(MJ) v FTT and CICA (No.3) (Criminal Injuries Compensation : claims) [2014] UKUT 279 (AAC) (17 June 2014)

IN THE UPPER TRIBUNAL Appeal No. JR/553/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Mr Justice Charles CP

Upper Tribunal Judge Levenson

Upper Tribunal Judge Wikeley

Attendances:

For the Appellant: Mr Adam Clemens, instructed by Switalskis

For the Respondent: No attendance or representation

For the Interested Party: Mr Owain Thomas, instructed by the Treasury Solicitor

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The differently constituted First-tier Tribunal which is convened to determine the question of whether the Applicant’s claim should be admitted, in whole or in part, pursuant to paragraph 18 of the Criminal Injuries Compensation Scheme 2008, following the decision of Upper Tribunal Judge Ward in R(MJ) v FtT and CICA (CIC) [2014] UKUT 0076 (AAC), must determine that question in accordance with the following Directions:

A the claims officer, and on appeal the First-tier Tribunal, has a power to waive the time limit under paragraph 18 provided that the two specified conditions in (a) and (b) are satisfied;

B accordingly conditions (a) and (b) are conditions precedent to the exercise of the power. They are not conditions precedent to a duty to waive the time limit;

C it is for the applicant to make out his or her case including, where appropriate, making out the case for a waiver of the time limit in paragraph 18 (see paragraph 19);

D if a claims officer (or tribunal) accept that conditions (a) and (b) are both satisfied, then there would have to be good reasons to justify not exercising the discretion in the applicant’s favour;

E as a general principle, the longer the period of delay in making the claim, the stronger the reasons for waiver will need to be;

F however, the simple fact that there has been a lengthy delay in making an application does not of itself mean that a case for waiver cannot be made out, especially in cases of historic sexual abuse;

G in exercising the residual discretion under paragraph 18, all the relevant circumstances must be taken into account and the reasoning for the decision must be appropriately explained.

REASONS FOR DECISION

Introduction

1. This is an application for judicial review of a decision by a First-tier Tribunal made under the Criminal Injuries Compensation Scheme 2008. For present purposes the case turns on the proper meaning and application of the two-year time limit under paragraph 18 of the Scheme and the possibility of its waiver where a claim is made late. The present case arises in the context of allegations of historic sexual abuse in respect of a young boy. The outcome is therefore important both for the individual concerned and more generally.

2. In this decision we first set out the legal issue we have to resolve and summarise our conclusion. We then, secondly, set the scene by reference to the circumstances of, and litigation in, this particular case. Third, we refer to the conflicting approaches in the case law to date. Fourthly, we set out the parties’ submissions. Finally, we explain the analysis and reasoning that supports our conclusion.

The legal issue about the time limit under the 2008 Scheme

3. The Criminal Injuries Compensation Scheme has been through various versions. Current claims are being dealt with under the 2012 Scheme. We are concerned with its immediate predecessor, the 2008 Scheme. All the Schemes have included a requirement that the victim of any criminal injury make a timely application for compensation. The content of that requirement has been expressed differently over the years in the various versions of the Scheme. Paragraphs 18 and 19(1)(a) of the Criminal Injuries Compensation Scheme 2008 provide as follows:

‘18. An application for compensation under this Scheme in respect of a criminal injury (‘injury’ hereafter in this Scheme) must be made in writing on a form obtainable from the Authority. It should be made as soon as possible after the incident giving rise to the injury and must be received by the Authority within two years of the date of the incident. A claims officer may waive this time limit only where he or she considers that:

(a) it is practicable for the application to be considered; and

(b) in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period.

19(1) It will be for the applicant to make out his or her case including, where appropriate:

(a) making out the case for a waiver of the time limit in paragraph 18; …’

4. The rule in paragraph 18 has been the subject of three conflicting interpretations by different Judges of the Upper Tribunal, which is why a three-judge panel has been convened to hear this case. Taking the relevant decisions chronologically, Judge Ward has expressed the view that if conditions (a) and (b) in paragraph 18 are both met, then the time limit must be waived, and there are no other circumstances in which waiver is permitted (R(MJ) v First-tier Tribunal and CICA [2011] UKUT 402 (AAC)). Judge Rowland, on the other hand, has ruled that, if conditions (a) and (b) are answered in the applicant’s favour, then a third question arises, namely whether the application was submitted as soon as possible after the end of the two-year period (R(AM) v First-tier Tribunal (CIC) [2012] UKUT 55 (AAC)). Finally, Judge Jacobs has held that even where conditions (a) and (b) are both satisfied, there remains a residual discretion to be exercised, which may result in the claim being ruled to be out of time (R(MM) v First-tier Tribunal and CICA [2013] UKUT 0402 (AAC)). For convenience we refer to these three decisions as MJ (No.1), AM and MM in the analysis that follows.

5. For the reasons that follow, we agree with Judge Jacobs.

The circumstances of, and litigation in, the present case

6. The applicant in the present case is now aged 37. We can summarise the circumstances fairly shortly. In doing so, we do not seek to downplay the traumatic experiences which he had as a child. However, a more detailed account is already to be found in the two Upper Tribunal decisions by Judge Ward which have considered his claim so far (MJ (No. 1) and R(MJ) v First-tier Tribunal and CICA [2014] UKUT 0076 (AAC), or MJ (No.2)). The present decision, although technically some unfinished business from MJ (No.2) is, in effect, MJ (No.3). We are indebted to Judge Ward for much of the summary that follows.

7. In summary, the applicant (“MJ”), who was born in 1977, was sent to an independent boarding school at the age of about 6. It is his case that between 1983 and 1990 he was sexually abused by Mr W, the school’s head teacher, and Mr T, a housemaster. In about 1990 police and social services investigated allegations relating to MJ and other children. In August 1990 social services placed MJ on the child protection register “in respect of the sexual abuse he had experienced” (letter from local authority, 22 August 1990, evidence at T36). Mr W and Mr T were each charged with a number of offences of indecent assault and gross indecency. Mr W committed suicide before trial, while Mr T was convicted and sentenced to a substantial period of imprisonment. The school was closed down.

8. The applicant’s parents were separated and his father lived abroad at all relevant times. MJ’s relationship with his mother appears to have been difficult. It also seems that his teenage years were marked by continuing difficulties between him and his mother, ongoing social services involvement and several unsuccessful attempts to engage him with counselling or mental health services. In October 2010 CICA received an application form for compensation from the applicant, who was by then aged 33. His stated reason for not having claimed before was that he had been unable to deal with the trauma of the abuse.

9. In 21 May 2010 the CICA issued its first decision rejecting the claim as being out of time. This was confirmed by a review decision, against which the applicant appealed to the First-tier Tribunal (“the tribunal”). In July 2011 the tribunal dismissed MJ’s appeal, deciding both (a) that it was not practicable for the application to be considered; and (b) that it was reasonable to expect the application to be made within the two-year time limit (or rather, as the tribunal judge (wrongly) interpreted it, within two years of attaining the age of 18, i.e. by April 1995).

10. In September 2011 Judge Ward allowed the applicant’s application for judicial review and quashed the tribunal’s decision of July 2011, remitting the matter to be decided by a differently constituted tribunal (MJ (No.1)). We think that Judge Ward was entirely right to do so. We also agree with his reasoning for doing so, subject to the issue over the interpretation of paragraph 18, to which we return below.

11. In January 2012 a new tribunal re-heard the applicant’s appeal against the original CICA decision. The new tribunal also dismissed MJ’s appeal, concluding that “it would not be practicable for the Application to be considered due to the effect which the extreme delay has had upon the reliability of the evidence and in particular its veracity and integrity” (paragraph 76 of the tribunal’s decision, cited at paragraph 39 of MJ (No.2)). In other words, the tribunal found that condition (a) in paragraph 18 was not met, so there was no need to consider condition (b) or the issue which arises in the present proceedings as to the existence of any residual discretion.

12. In February 2014 Judge Ward allowed the applicant’s application for judicial review and quashed the tribunal’s decision of January 2012, again remitting the matter to be decided by a differently constituted tribunal (MJ (No.2)). Again, we wholeheartedly agree with his reasons for doing so. We also share his concern, and indeed would express it in stronger terms, that CICA sought to re-argue the construction of paragraph 18 before the second tribunal when it had made no attempt to appeal to the Court of Appeal against Judge Ward’s decision, including his ruling on that very point, in MJ (No.1). However, in the event that issue played no part in the second tribunal’s reasoning given (i) its finding on condition (a) in paragraph 18 and (ii) CICA’s concession on condition (b) that in any event it had not been reasonable to expect the applicant to begin a claim within two years of the incident(s).

13. In the course of his decision in MJ (No.2), Judge Ward noted the divergence of authority at Upper Tribunal level on the correct construction of paragraph 18 (at paragraph 43). He also noted the Chamber President’s intention to convene a three-judge panel to resolve that conflict of authority (Decision, paragraph 2(d)) as the final outstanding matter in the MJ (No.2) litigation. Charles J duly directed that this issue be determined by a three-judge panel in his case management directions of 14 March 2014.

14. The three-judge panel held an oral hearing at the Royal Courts of Justice on 16 May 2014. MJ attended and was represented by Mr Adam Clemens of Counsel, instructed by Switalskis, Solicitors. Mr Owain Thomas of Counsel, instructed by the Treasury Solicitor, appeared for CICA. We are grateful to both counsel for their careful and concise submissions on the point of construction that arises. We now put that debate in the context of the previous conflicting authorities in the case law.

The previous authorities

15. There is no binding decision of the Supreme Court (previously the House of Lords) or the Court of Appeal on the proper approach to be taken to the interpretation of paragraph 18 of the 2008 Scheme. As noted above, three different approaches have been taken in the Upper Tribunal case law to date.

Judge Ward’s analysis

16. In MJ (No.1), Judge Ward, having referred to paragraphs 18 and 19 of the 2008 Scheme (see paragraph 3 above), held as follows:

‘3. I interpret this not as saying that where (a) and (b) are satisfied, a general discretion arises, to be exercised by the claims officer on unspecified grounds. If a discretion were intended to arise, I consider that the basis for its exercise would have been specified, as in the various predecessor schemes from 1990 to 2001. Rather, paragraph 18’s natural reading is that where (a) and (b) are satisfied, the conditions for waiving the time limit are met, but that there are no other circumstances in which waiver is permitted. In this respect, it differs from the predecessor schemes which contained a widely phrased discretionary power and I derive little assistance from case law on those predecessor schemes.’

17. In the circumstances as set out above, Judge Ward did not need to revisit the question of the proper construction of paragraph 18 of the 2008 Scheme in MJ (No.2), although there was nothing to suggest that his view on that matter had changed. Judge Ward has since reviewed the conflicting authorities in R (PG and GC) v First-tier Tribunal and CICA (JR/3193/2011 and JR/3194/2011), joined cases involving allegations of historical sexual abuse of children in a familial (rather than residential school) setting. Judge Ward quashed the tribunal decisions in question and remitted the appeals for re-hearing. Although he carefully set out the competing submissions on paragraph 18 by both counsel in those cases he understandably declined to rule on the point, staying those proceedings until the decision of this three-judge panel in MJ (No.3). We simply note, however, Judge Ward’s comment that his decision in MJ (No.1) “was given with minimal input from the interested party” (i.e. from CICA; see paragraph 25).

Judge Rowland’s analysis

18. AM was not a case involving historic sex abuse. The applicant, an elderly disabled man with poor English, had been the victim of a serious assault and (initially at least) had been relying on his victim liaison officer to make an application to CICA under the 2008 Scheme. In the event his application was made some 18 months outside the two-year time limit. Judge Rowland, dismissing the application for judicial review, held as follows:

‘12. As to the language in the present context, the words “as soon as possible” in the opening part of paragraph 18 seem to be a mere exhortation where the application is submitted within the two-year time limit. However, they become important if the two-year time limit is waived. Sub-paragraph (b), which is concerned with waiver of the two-year time limit, on the face of it provides for a simple test of reasonableness which is a bit more liberal that the employment tribunal test which is whether “it was not reasonably practicable” for the complaint to be submitted before the time limit expired (see Palmer at 384H). However, even here a non-literal approach may be required in some instances. Suppose a person intended to put a claim in a few days before the time limit expired but, a week earlier, either was hospitalised by a serious car accident or gave the form to a friend to post who then forgot about it, so that it then became reasonable for the would-be applicant to do nothing further until shortly after the time limit expired. In one sense, it would “have been reasonable to expect the applicant to have made the application within the two-year period” because it would have ceased to be so only during the last week or two. Nonetheless, I do not think that the 2008 Scheme is to be construed so as to prevent waiver in those sorts of circumstances. It seems to me that paragraph 18(b) is not very different in its effect from paragraph 17 of the 2001 Scheme which provided that a claims officer could waive the two-year time limit “where he considers that, by reason of the particular circumstances of the case, it is reasonable and in the interests of justice to do so”. What is new is paragraph 18(a), which emphasises one element of the “interests of justice”.

13. In any event, if there is waiver of the two-year period, presumably it is not to be considered “possible” to make the claim for such further period during which it would not have been reasonable to expect the Applicant to make the application. However, an application must be made “as soon as possible” thereafter. It cannot be right that a person who could not be expected to submit an application within two years has an unlimited time thereafter in which to do so.

14. Thus three questions arise where a claim is made after the two-year period, rather than just the one that arose under the 2001 Scheme. The first is whether it is practicable to consider the application. The second is whether the two-year time limit should be waived. The third, which arises only if the answer to each of the others is “yes”, is whether the application has been submitted as soon as possible after the end of the two-year period. However, even though the third question arises only if the answer to the other two is “yes”, if the answer to the third question would plainly be “no”, it is not necessary to reach a firm conclusion on either of the other questions.’

Judge Jacobs’s analysis

19. MM concerned a very serious allegation of child sex abuse on an 8 year old that was said to have occurred in 1970. The application under the 2008 Scheme was made 41 years later in 2011. CICA refused to waive the time limit for claiming on the basis that it was not practicable to consider the application. The tribunal dismissed the applicant’s appeal. Judge Jacobs allowed the application for judicial review, identifying several errors of law in, and so quashing, the tribunal’s decision. Judge Jacobs further considered the approaches to paragraph 18 adopted in MJ (No.1) and AM. His own analysis of paragraph 18 was as follows:

‘29. Paragraph 18 applies if and only if an application is not made within two years of the incident. This takes account of the contrasting language of should and must. It also takes account of the reference to waiving this time limit. That naturally refers to the two year period. It would not be a normal use of language to refer to an obligation to apply as soon as possible as a time limit; the language indicates something more precise.

30. If the application is received outside the time limit, the claims officer has a power to waive the time limit provided that the two specified conditions are satisfied. They are conditions precedent to the exercise of the power. They are not conditions precedent to a duty to waive the time limit. A duty is not consistent with the contrasting language of paragraph 18. The paragraph provides that an applicant must apply within two years. If it then created a duty, it would be more natural to use the same word rather than may, which usually indicates a power. Moreover, there would be no point in providing for the claims officer to waive the limit. It would be sufficient simply to provide that once the conditions were satisfied the time limit was waived. Giving the power to the officer indicates that the officer has a judgment to make.

31. It may be that in practice the conditions dictate the outcome. But there may be circumstances in which it is nevertheless not appropriate to waive the time limit. It might, for example, be obvious that no award could or would be made. Just to take a few examples: the incident might have occurred before 1 August 1964; or the application might allege no crime of violence; or the applicant’s criminal record or character might obviously preclude an award. There is a role for discretion in these, and other, cases.

32. I further consider the discretion arises once the claims officer decides that it was not reasonable to expect the applicant to make the claim within two years. It seems that, if this is not reasonable in view of the applicant’s age, CICA allows a further two years from the date when the applicant attains 18. That is a permissible use of discretion, but it is not how I read paragraph 18. I see no justification for that approach in the language. The issue is whether it was reasonable to expect the applicant to claim within two years of the date of the incident. If it was not, there is nothing that allows a further period of two years to be imposed from a later date. This is a further reason for disagreeing with Judge Ward’s analysis. If that analysis is correct, subparagraph (b) would have no application to anyone injured as a child. There would be no time limit so long as it was practicable to consider the application. On my reading, once subparagraphs (a) and (b) are satisfied, the officer has a discretion. It is permissible to use that discretion to allow a further two years from the age of 18. But that is not the same thing as being obliged to do so and it does not preclude an officer from refusing to waive the time limit even if the claim was made within that period, whether in the circumstances I set out in the previous paragraph or otherwise.’

The parties’ submissions

20. The primary submission of Mr Clemens, for MJ, was that, on a proper and purposive construction of paragraph 18 in the context of the Scheme as a whole, the CICA decision maker is bound to waive the time limit where both conditions (a) and (b) are satisfied. Although as a matter of ordinary language “may” typically connotes the existence of a discretion, this was not the case here. Rather, in the context of paragraph 18, “may” was to be equated with “will” or “shall”. The decision maker (whether the CICA officer or on appeal the tribunal) has no residual discretion to exercise where both (a) and (b) are made out. In support of his principal argument, Mr Clemens advanced a number of subsidiary submissions which we can conveniently group into two themes.

21. First, Mr Clemens argued that it was virtually inconceivable that the architects of the 2008 Scheme envisaged that, if the applicant satisfied both of the pre-conditions (a) and (b), then the decision maker still enjoyed a residual discretion not to waive the time limit. Such a construction was inconsistent with the purpose of the Scheme, which was to ensure that victims of crimes of violence obtained proper compensation for the injuries they suffered. Furthermore, there was no indication of the ambit or parameters of any such residual discretion. Moreover, assuming the applicant had made out (a) and (b), it was difficult to see what other factors could then inform the exercise of a discretion so as to disallow an otherwise viable claim. As a result, there was a real risk of inconsistent and arbitrary outcomes as a result of decisions by different decision makers where an applicant satisfied both (a) and (b). We call these his “purposive arguments”.

22. Second, Mr Clemens argued that paragraph 18 is not formulated in terms of a true discretion but rather is phrased in terms of a rule, requiring the decision maker to waive the time limit where both (a) and (b) are satisfied but not otherwise - hence the insertion of the word “only” in the phrase “A claims officer may waive this time limit only where he or she considers that” conditions (a) and (b) are met. In addition, Mr Clemens drew attention to the width of the equivalent rule in the predecessor 2001 Scheme (paragraph 17), which provided that a claims officer “may waive this time limit where he considers that, by reason of the particular circumstances of the case, it is reasonable and in the interest of justice to do so”. The reason for the change in language from the 2001 Scheme was unclear, but if anything the formulation used in the 2008 Scheme was indicative of a shift away from discretion to a tighter and more regulated approach. We call these his “linguistic arguments”.

23. Mr Clemens accordingly supported the construction of paragraph 18 adopted by Judge Ward in MJ (No.1).

24. Mr Thomas, for CICA, argued that both as a matter of the construction of paragraph 18, and as a matter of ordinary language, the claims officer has a discretion to exercise in deciding whether to waive the time limit in a case where both conditions (a) and (b) are satisfied. CICA’s position was accordingly that (i) under paragraph 18 an application must be made within the mandatory two-year time limit; (ii) that time limit is absolute unless subject to a power to waive compliance; (iii) that power is conferred by the final clause in paragraph 18; (iv) the use of the word “may” rather than “shall” demonstrates that a power has been conferred to waive the time limit; (v) if the final clause had read simply “A claims officer may waive this time limit”, and no more, then the natural construction was that there was a general discretion to waive the time limit; (vi) the qualification imposed by conditions (a) and (b) was that these were necessary conditions precedent for the exercise of the power of waiver, rather than necessary and sufficient conditions; and (vii) the purpose of the clause is thus to cut down the scope for allowing late claims and not to cut down the circumstances in which CICA can refuse an application.

25. Mr Thomas accordingly supported the construction of paragraph 18 adopted by Judge Jacobs in MM. In addition, insofar as Judge Rowland’s analysis was inconsistent with that of Judge Jacobs in MM, CICA respectfully disagreed with AM.

Our analysis and reasoning

26. We address Mr Clemens’s linguistic arguments first. We start from the position that the word “may” usually connotes the conferring of a discretion. We do not regard the addition of the word “only” as having the effect of turning what would otherwise be a discretion to waive the time limit into a duty to waive that time limit (where both (a) and (b) are met). It is important to bear in mind that the phrase now in dispute acts as an exception to what is otherwise a categorical rule, namely that the application “must be received by the Authority within two years of the date of the incident”. Thus it is only if the applicant can show (and the burden is on him or her - see paragraph 19) that both (a) and (b) are satisfied that the claims officer can begin to think about making an exception to the general rule. Accordingly the qualifying word “only” does not abolish a discretion, but rather limits the situations in which that discretion can be exercised. Thus (a) and (b) are not exceptions to the time limit, but conditions precedent for the exercise of a discretion to waive the time limit.

27. There are a number of other reasons why we prefer Mr Thomas’s submissions on the linguistic arguments. First, paragraph 18 uses the word “must” in the immediately preceding sentence, so it is reasonable to assume that “may” in the sentence in question is being used in its normal discretionary sense, so vesting the claims officer with a power to waive the time limit. Secondly, the phrase in question begins “A claims officer may waive this time limit ...”, indicating that he or she has a decision to make, If Mr Clemens’s submissions were right, then the claims officer does not have a further decision to make after the consideration of the matters set out in (a) and (b). In those circumstances paragraph 18 could simply have concluded with the statement that “The time limit must be waived ...” where conditions (a) and (b) are both satisfied. Thirdly, an overall comparison of the wording of paragraph 17 of the 2001 Scheme with paragraph 18 of the 2008 Scheme supports the conclusion that the effect was to narrow the circumstances in which the discretion could be exercised but not to eliminate it altogether.

28. We then turned to consider Mr Clemens’s purposive arguments. Notwithstanding the attractive way in which they were put, we were not persuaded by them. Obviously the primary aim of the Scheme is to ensure that victims of crimes of violence obtain proper compensation for the injuries they have suffered. However, this is not an absolute or open-ended goal, but rather an objective mediated through a series of political and policy choices over the scope of the Scheme (as evidenced by the many changes to the Scheme over the years). The goal of protecting victims’ rights must also be traded off against other considerations, one such being that the making of timely applications is a legitimate objective of the scheme, as stale claims are more likely to consume scarce administrative resources. Time limits thus serve the purposes of good public administration.

29. Nor were we persuaded by Mr Clemens’s argument that the absence of any indications of the factors to be taken into account by the claims officer in exercising the discretion under paragraph 18 to waive the time limit raised the spectre of arbitrary and inconsistent decisions. First, these cases are necessarily fact-specific, and there is a right of appeal to the First-tier Tribunal, which exercises a full merits review function. Second, insofar as the tribunal stands in the shoes of the claims officer in deciding whether to exercise the discretion, the tribunal’s decision is subject to review by the Upper Tribunal on standard public law principles. Third, as Charles J. observed in the course of oral argument, it is not at all uncommon for civil servants of varying grades to be given discretionary decision making powers over issues which may have much more far-reaching ramifications for individuals than whether or not a late claim to CICA is admitted (e.g. over immigration and asylum decisions).

30. There is a further reason why we were not convinced by Mr Clemens’s purposive arguments. There was, obviously, consensus that it would have been wholly unreasonable and unrealistic for a child or other young person in MJ’s position to have made a claim for criminal injuries compensation “within two years of the date of the incident”. We also noted that Mr Thomas did not seriously dissent from Judge Ward’s conclusion that CICA’s alternative submission that a claim by a child had to be made within two years of attaining adulthood could not be sustained (see MJ (No.1) at paragraphs 10-13). It follows logically that in cases involving victims who were children or young persons at the material time it will very often be the case, and in cases involving child sexual abuse most probably will nearly always be the case, that condition (b) simply has no purchase. Accordingly, the only pre-condition that then has to be satisfied is condition (a), namely whether “it is practicable for the application to be considered”.

31. It was against this background that the following hypothetical was put in the course of oral argument. Assume that a child, say aged 10, is the victim of sexual abuse by a celebrity. When in their 30s, the victim learns of other individuals who were abused by the same individual and who have made successful CICA claims. There is, by this stage, ample evidence as a result of criminal proceedings that the celebrity in question was a serial abuser of children. The victim takes legal advice but decides not to pursue the matter by making an application to CICA. Ten years later, in their 40s, and for no apparent good reason, the victim has a change of heart, and decides to bring a CICA claim. The logic of Mr Clemens’s submissions, as he readily acknowledged, was that the victim had a valid claim that cleared the late claims hurdle of paragraph 18 and had to be accepted for consideration on its merits. Given the evidential base now available, and indeed available for the past decade, it was plainly practicable for the application to be considered and it was equally obviously unreasonable to expect the claim to have been made within the two-year period. There was no further requirement that a child’s claim of historic sexual abuse had to be made e.g. “within a reasonable time”.

32. We agree with Mr Thomas that this outcome cannot have been the intention of those who framed the Scheme. Paragraph 18 stipulates that as a general rule the claim “should be made as soon as possible and must be received by the Authority within two years of the date of the incident”. The timeliness of the claim (by reference to a period which is shorter than that applying to civil personal injuries claims) is prioritised. The logic of Mr Clemens’ argument was that in a case where it was unreasonable to expect the victim to make a claim within two years, then no account whatsoever is taken of delay, notwithstanding the general rule in paragraph 18. As Mr Thomas argued, no purpose had been identified which would be served by excluding unwarranted delay in making a claim under the Scheme. We therefore agree with Judge Rowland’s observation in AM that it “cannot be right that a person who could not be expected to submit an application within two years has an unlimited time thereafter in which to do so” (at paragraph 13). However, we disagree with Judge Rowland’s conclusion that paragraph 18 imposes a third test in cases where both conditions (a) and (b) are satisfied, namely “whether the application has been submitted as soon as possible after the end of the two-year period”. In our view the possibility or practicability of submitting the claim earlier is simply one consideration that may be relevant to the exercise of the residual discretion under paragraph 18.

33. We accordingly agree with the conclusion of Judge Jacobs in MM (at paragraph 30) that

‘If the application is received outside the time limit, the claims officer has a power to waive the time limit provided that the two specified conditions are satisfied. They are conditions precedent to the exercise of the power. They are not conditions precedent to a duty to waive the time limit.’

34. If both conditions (a) and (b) are satisfied, then the claims officer (and, on appeal) the tribunal) must consider whether to exercise the discretion to admit the late claim. In our judgment, if a claims officer (or tribunal) accept that (a) and (b) are both satisfied, then there would have to be good reasons to justify not exercising the discretion in the applicant’s favour. These cases are so fact specific that it would be wrong of us to seek to lay down an exhaustive list of such circumstances. It is undoubtedly the case that some of the examples canvassed in the case law (e.g. where the claim does not actually involve a crime of violence, or the applicant’s criminal record may obviously preclude an award) might equally justify a refusal of the claim on one of the substantive eligibility grounds. It may, however, be administratively disproportionate to admit a very late claim which is bound in any event to be rejected on one of those criteria. There may, however, be other situations in which it would not be appropriate to waive the time limit even though both (a) and (b) have been met. One example might be where a claim has been made very late with no good reason for the delay. The decision maker should set out the reasons for the exercise of the discretion.

35. In that context it seems to us that where, as here, a claim for criminal injuries compensation has been made in respect of historic sexual abuse of a child, it is not enough simply to rule the application as being irredeemably out of time because it was made 20 years after the last of the incidents in question. To take such a stance would ignore the very real reasons such an individual will have for not disclosing either the abuse itself or the full extent of such abuse in the first place and the time that it takes to begin to come to terms with such traumatic experiences. The present case is not a case which is patently hopeless nor is it one where there has obviously been inexcusable delay in making the application. In this context we draw to the tribunal’s attention the observations of Lord Boyd of Duncansby in JM v Advocate General for Scotland [2013] CSOH 169; 2014 SLT 475, holding that a tribunal had erred in law by expecting a victim of child sexual abuse to have made an application for criminal injuries compensation within two years of attaining the age of majority:

“[20] Other than eighteen being the age of majority there is no reason to select that age to make a disclosure any more than 16 or 20 or 30. There was no evidence before the Tribunal judge which entitled her to reach that conclusion. On the contrary; those who have presided over trials of historic sex abuse of children are only too aware of the deep psychological and emotional trauma that surrounds such criminal activity. In order to carry off such abuse the victim has to be cowed or otherwise subdued into remaining silent. That is a continuing effect of the crime. Disclosure may be made years or even decades after the abuse has ended. As Sedley J remarked in R v Criminal Injuries Compensation Board at 702, one of the fruits of crimes of sexual violence is the silence of the victim. That is a direct consequence of the crime and is widely recognised as such in the criminal justice system. To suggest that this effect disappears once the child has reached adulthood is to misunderstand the pervasive nature of the trauma which victims of childhood sexual abuse invariably suffer.”

Conclusion

36. The new First-tier Tribunal should apply paragraph 18 of the 2008 Scheme in accordance with the Directions and guidance set out above.

Mr Justice Charles CP

Upper Tribunal Judge Levenson

Upper Tribunal Judge Wikeley

Signed on the original

on 17 June 2014

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