A woman who had a son after being raped as a 20 year old in 1965 is to have her claim for criminal injuries compensation reconsidered, after a judge held that a tribunal had erred in its consideration of whether she should be allowed to make a late claim.
Lord Glennie in the Court of Session held that the First-tier Tribunal (Criminal Injuries Compensation) had failed to have regard to the whole picture in deciding that the claimant, MM, had failed to show "exceptional circumstances" justifying an application outside the normal two year time limit under the Criminal Injuries Compensation Scheme 2012.
MM had first reported the incident to the police in 2013, and applied under the scheme in 2014. Her application was rejected as out of time and this was affirmed after a review and again on appeal to the tribunal.
For exceptional circumstances MM pointed to the prevailing social standards in 1965, in particular the unsympathetic reaction to victims of rape. She lived in a small religious community where becoming pregnant outside marriage made her further stigmatised and made to feel ashamed and an outcast. She was afraid of her attacker and of not being believed, and her parents offered little support. She was allowed to remain at home but felt cut off socially for two to three years. She did not know she might be eligible for compensation until she spoke to Rape Crisis after finally reporting the rape. She had also suffered deep psychological and emotional trauma as a result of the incident.
MM had subsequently married and had two further children. After going to night classes she had gone to college and then obtained a university degree and a postgraduate course, after which she became a college lecturer for a time.
The review officer found no evidence which confirmed any psychological impact which would have prevented a claim being made sooner; and that being unaware of the scheme was not an exceptional circumstance. The tribunal considered that from approximately 1985 onwards, given her age, life experience, educational attainment and type of employment, it would have been reasonable to expect MM to have made a claim under the scheme prior to 2014. Further, although she had depression, she did not have “mental health problems leading to treatment”, and there were therefore no exceptional circumstances preventing her making a claim before November 2014.
Lord Glennie first of all rejected an argument for the Compensation Authority that the current scheme required it to be established that the applicant had been literally unable to make the application earlier – it was not enough that she could not reasonably have been expected to have made it earlier, which he said would effectively annul its power to extend the time for applying. He said there was force in a submission for MM "that there was no evidential basis upon which the FTT could have concluded that the effect on the petitioner of the family and societal pressures deterring her from reporting the incident diminished over time or as a result of her educational achievements, employment and independence".
But in addition, "In her evidence to the FTT it is clear that she described the distress caused by the rape and her perceived inability to speak out in a way which was not confined to the societal constraints of her early years. Her ability to come forward was in part a consequence of news and publicity being given of late to historic sexual assault cases and the fact that it appeared that these were now being taken seriously... Yet there is not a word about any of this in the reasons given by the FTT."
He continued: "If the tribunal accepted the petitioner’s evidence in its entirety [as it did], then it must have accepted her evidence that she was held back from applying earlier by the psychological and emotional trauma resulting from the rape (using 'psychological and emotional trauma' as a composite shorthand for the many and varied reasons why a victim of rape or sexual assault might not tell anyone about the crime or report it to the authorities). It should have made a finding to that effect. It should have gone on to consider whether such circumstances were exceptional; it is difficult to conceive that any tribunal could regard them as other than exceptional. If, consistently with the above, it had found that due to such exceptional circumstances the petitioner could not have applied earlier than she did, the FTT ought to have gone on to consider how it would exercise the discretion conferred by paragraph 89(a) of the scheme."
In the result, the tribunal had made no finding of fact on a crucial part of MM's case, or else a funding that was perverse and unsupported by evidence, and its decision could not stand.
As regards ignorance of the scheme, this was "part and parcel of the package of circumstances which resulted in the petitioner not applying for compensation earlier". That it was a factor common to many victims making late claims in such circumstances did not mean that it could not be an exceptional circumstance: "the question of exceptionality must be considered in relation to the whole package of circumstances relied on".
The judge reduced the tribunal's decision and remitted the matter to be decided by a differently constituted tribunal.