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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> JM v Advocate General for Scotland [2013] ScotCS CSOH_169 (29 October 2013)
URL: http://www.bailii.org/scot/cases/ScotCS/2013/2013CSOH169.html
Cite as: 2013 GWD 36-702, 2014 SLT 475, [2013] ScotCS CSOH_169, [2013] CSOH 169

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OUTER HOUSE, COURT OF SESSION


[2013] CSOH 169

P1298/12

OPINION OF LORD BOYD OF DUNCANSBY

in the Petition of

J M

Petitioner;

against

ADVOCATE GENERAL FOR SCOTLAND

Respondent:

________________

Petitioner: R Sutherland; Drummond Miller LLP

Respondent: Duthie; Solicitor to the Advocate General

29 October 2013


[1] The petitioner was born on 13 March 1974. She was the victim of sexual abuse between September 1982 and August 1986, i.e. between the ages of 8 and 12 years of age. Her abuser was her next door neighbour. On 28 May 2008 she reported the abuse to the police. On 18 January 2010 a man was convicted of a number of offences of sexual abuse including rape of two young girls, one of whom was the petitioner. He was sentenced to 17years in prison.


[2] On about 5 December 2008 the petitioner made an application to the Criminal Injuries Compensation Authority ("the CICA") for criminal injuries compensation. The application fell to be dealt with under the Criminal Injuries Compensation Scheme (2008) ("the Scheme") which applies to applications received on or after 3 November 2008. Paragraph 18 provides that an application must be received within two years of the incident. However this time limit may be waived by a claims officer where he or she considers that it is practicable for the application to be considered and that, 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. On 2 April 2010 the CICA decided not to waive the two year time limit and refused to make an award. The petitioner sought an internal review of the decision. That was refused on 20 April 2010. The petitioner appealed to the First-tier Tribunal (Social Entitlement Chamber) ("the Tribunal"). On 27 July 2010 the appeal was refused. The appeal was decided on the basis of written material alone. There was no oral hearing.


[3] Paragraph 3 of the petition seeks a number of orders. The petitioner averred that there was a policy of not holding oral hearings in respect of appeals against decisions of the CICA where it had refused a claim for compensation on the basis that it was not made within the two year time limit. The petition sought a declarator that such a policy was operated and an order for its reduction. Mr Sutherland, for the petitioner, informed me that, having seen an affidavit from a Tribunal judge which explained that there was no such policy, he no longer insisted on these orders. He also made no submission in respect of an order for reduction of a purported decision of HM Courts and Tribunals Service of 6 May 2011 that the decision of the Tribunal judge was a final decision and could not be reconsidered at an oral hearing. As Mr Duthie, for the respondent, explained there was no such decision. Accordingly the judicial review was confined to the decision of the Tribunal judge of 27 June 2010.


[4] Mr Sutherland advanced two arguments. The first concerned the interpretation of rule 27(4) and (5) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 (SI 2008/2685) ("the Rules"). In essence he argued that on a proper interpretation of these Rules, the Tribunal was not precluded from holding a hearing and must do so if there is a written application for its decision to be reconsidered at a hearing. His second argument was that on the merits the Tribunal judge had erred in law in refusing the appeal.


[5] Mr Duthie appeared for the Advocate General for Scotland representing the Lord Chancellor and Secretary of State for Justice as the person having responsibility for the Rules. He explained that his concern was only in relation to the interpretation of the Rules. He had no interest in the decision of the Tribunal judge. That was not to suggest that the respondent had any adverse view of the decision; merely that he did not consider that it was for him to defend the individual decisions of Tribunal judges. There was no formal intimation of the petition on the CICA but Mr Duthie informed me that those instructing him had had extensive discussions with the CICA and he could inform me that they did not wish to enter the process. Accordingly the discussion proceeded in two parts. Mr Sutherland presented his first argument in the presence of Mr Duthie, to which he responded. Mr Duthie then withdrew and Mr Sutherland then presented his second argument without a contradictor.

Background


[6] Where an application for compensation is made outwith the two year period the applicant must give reasons why the application had not been made before. The petitioner's explanation was, "Didn't say anything because fear that neighbour would kill my parents and I would have to live with him forever". She further explained that she had been abused and raped by the neighbour over a four year period and that she had lived in fear of him during that period as she believed that he would kill her parents if she said anything. In section 7 of the application the petitioner narrated the injuries which it is said she suffered. In respect of current symptoms the petitioner had put down "depression, flash backs, anxiety, low esteem, loss of confidence". She indicated that she was still receiving treatment and that the injuries had left permanent scarring. Mr Sutherland submitted that these answers should have alerted the CICA and the Tribunal judge that there were continuing issues. He submitted that these were classic signs of post-traumatic stress disorder, something not unknown in victims of abuse. The application form in section 7 states "We will get medical reports from your doctor and, if we need to, the hospital which treated your injury." The petitioner had filled in the name and address of her general practitioner and signed an authorisation permitting the CICA to request personal information about her from amongst others, medical authorities. Contrary to the expectation the statement might engender, no reports were obtained. The petitioner also stated in a section headed "Your remarks" that the abuse had affected all aspects of her life. She said that she felt she wanted to end her life as a result of what he had done to her. He had scarred her for life. She feared that he may have done it to others. She continued, "I feel guilty I couldn't come forward before, as it was too hard to talk about it."


[7] While the CICA did not obtain medical reports it appears that they did obtain a number of statements including some given by the petitioner to the police. One of the issues dealt with in the statements is whether she had made any disclosure before speaking to the police and if so to whom. In a statement dated 8 September 2008 taken by a Strathclyde police officer the petitioner is recorded as saying, "I told M (her sister) about 2 years ago when I first started suffering from depression." This was in a telephone conversation and she told her, in the context of a conversation generally about abuse that it happened to her and she mentioned C, the former next door neighbour. The sister then hung up. About two weeks later M told the petitioner that C had tried it on with her but she had got away. The petitioner went on to state, "I was in total shock and was trying to deal with all my emotions and feelings so I never questioned her then." Later she says, "Although over the years I have told people about the abuse I have never went into details. I just find it too difficult to do." She continued, "I have been dealing with the abuse every day since it happened but I'd say it all came to a head about 2 years ago." She then narrates an incident concerning a member of the family who had been imprisoned for a sexual offence coming to her door. "It kicked something off and I started having flash backs". She then goes on to say that it was at that point she told her doctor of the abuse. She was put on anti-depressants and signed off sick from work. She had not been back since. She then says, "I got sent to a psychologist but I stopped going because they wanted to go in depth and I was (not) ready to do that with anyone yet. About 6 months ago I decided I was ready to tell my dad. After I told him I realised I had nothing to hide now and made the decision to report it to the police." She continued, "I told my husband at the very beginning of our relationship but again I have never discussed it in any detail with him because I can't."


[8] The application for compensation was rejected on 2 March 2010. The reasons that were given were that it was not practicable to waive the time limit and that she was claiming for abuse that had happened over twenty years ago and no convictions were obtained regarding the disclosure. The petitioner requested a review. In an accompanying letter she repeated the reason for her fear and added that even as a teenager she could not rationalise the threats to kill her parents. She said that the first time she spoke about the abuse was when she was having a conversation with her parents and she finally revealed to them what had happened and with whom. Her father had told her she should report it to the police and she finally screwed up the courage to speak to them. She had thought she might be able to speak to a family doctor on one occasion but her mother was with her and the opportunity was lost. She said that her first husband knew that she had a problem of some kind from childhood but she could not discuss it with him - nor with her second husband until it all came out in the open.


[9] The application for a review was rejected. The reviewer accepted that as the petitioner was a child at the time it would not have been reasonable to expect that she submit an application within two years. However the reviewer continued that in a case such as this it would be considered reasonable to expect her to submit an application within 2 years of disclosure of abuse or within 2 years of turning 18. The reviewer then points to the part of the statement where she said that she had told M about 2 years previously and other people over the years. The reviewer states that the criteria which would have allowed the case to be considered as exceptional had not been met and the two year time limit could not be waived.

The petitioner then appealed to the Tribunal under paragraph 61 of the Scheme. Through this process she had the help and assistance of Victim Support. I was informed that before the papers are put to the Tribunal judge the appellant is given an opportunity to consider the papers that are to be submitted and is given an opportunity to place any papers that she wishes before the judge. At this point it should have been obvious to those advising the petitioner that, contrary to what might have been expected from the terms of the application, no medical reports had been obtained. It is unfortunate that the opportunity was not taken then by her advisers to obtain such reports and submit them to the Tribunal judge for her consideration. After the appeal was refused the petitioner got legal advice. On 17 March 2011 solicitors acting for the petitioner wrote to Tribunal Service enclosing GP records which they said showed long term mental health difficulties. Clearly these came too late. I should add that Mr Sutherland was scrupulous in not taking me to the reports themselves as these were not before the Tribunal judge. Accordingly, although they were lodged as productions, I have not read them. Mr Sutherland confined his remarks to saying that had the CICA sought these records they would have supported the petitioner.


[10] The Tribunal judge's decision so far as relevant is in the following terms:

"Rule 27(4)(a) Decision which disposes of the proceedings without a hearing

10. I consider that, taking into account:-

(a) the 'overriding objective' of the Rules which is to enable the Tribunal to deal with cases fairly and justly (Rule 2);

(b) the Tribunal's case management powers (Rule 5);

(c) the need for discretion to be exercised judicially;

(d) the underlying presumption that statutory time limits can ensure certainty and finality and are to be complied with;

(e) oral hearings to deal with time limit appeals can cause or contribute to an inefficient tribunal system;

(f) the documents in the appeal bundle, a copy of which has been sent to the Appellant, in particular the Respondent's review decision letter, the Appellant's Notice of Appeal, the Respondent's Reply to the Notice of Appeal and the appellant's response to that reply deal sufficiently fully with the issues in this appeal,

it is appropriate to make a decision in this appeal without an oral hearing.

The issues

10. In summary, the Appellant's case is that she was terrified as a child that her abuser would kill her parents and since then has not felt strong enough to report the abuse.

11. The Respondents' case, set out in the review decision letter and its response, is that in her statement to the police the Appellant says that she told various people about the abuse over the years and if she was able to do that she could have reported the matter to the police and applied for compensation long before she did.

12. It is evident that the application was not made within two years of the incident. The questions I have to decide are:-

a. is it practicable for the application to be considered?

b. in the particular circumstances of this case, would it have been reasonable to expect the applicant (the Appellant in this case) to have made the application for compensation within the two-year time limit?

13. For this appeal to succeed, the answer to the first question in the last paragraph must be YES and the answer to the second question must be NO.

The decision

14. With regard to the first question, I do not need to make a decision because my decision in answer to the second question is YES.

15. My reasons for deciding that it would have been reasonable to expect the Appellant to have made the application within the two year period are:-

(a) the Appellant was a child at the time of the abuse which occurred during four years while her abuser lived next door. She says that he threatened to kill her parents if she told anyone about the abuse and for four years she lived in fear. Thereafter he moved away and her application to the CICA suggests that thereafter she no longer lived in fear;

(b) according to the evidence from the Appellant and her brother D she told him about the abuse when they were children and according to her own evidence she told her brother Robert when she was about 24, that is in about 1998. It was therefore quite incorrect to say, as she did in her application for a review, that the first time she spoke about her abuse was to her parents immediately before she reported it to the police;

(c) as the Appellant was a child when she was abused I would not necessarily expect her to have reported the abuse or to have applied for compensation within two years of the abuse happening but I would expect her to have both reported it and applied for compensation within about two years of reaching the age of eighteen, that is by about 1994;

(d) this Appellant makes it clear that she was telling other people about her abuse over the years, including telling her brother when she was a child and accordingly I do not accept that she was unable to report the matter to the police or make a claim for compensation by 1994;

(e) while I recognise that it is not easy to report abuse, the Appellant seems to have been able to talk about her abuse to various people over the years and there is no medical evidence to suggest that she had any psychological problems that would have prevented her either from reporting the abuse to the police or applying for compensation;

(f) the Appellant claims that she was afraid that her abuser would kill her parents but it is clear that fear subsided when he moved away and by the time she was an adult I am unable to accept that she had any real far that reporting the abuse would result in any harm to anyone.

(g) it follows that no explanation acceptable to me has been advanced by the Appellant in the Notice of Appeal and subsequent submission in support of this issue.

16. In respect of this appeal, and in accordance with Rules 27(4)(b) and 27(5)(c) of the Rules, this is a final decision and the Tribunal has no power to reconsider it at an oral hearing".

Rule 27 is in the following terms:

"27.- Decision with or without a hearing

(1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless -

(a) each party has consented to, or has not objected to, the matter being decided without a hearing; and

(b) the Tribunal considers that it is able to decide the matter without a hearing.

(2) This rule does not apply to decisions under Part 4.

(3) The Tribunal may in any event dispose of proceedings without a hearing under rule 8 (striking out a party's case).

(4) In a criminal injuries compensation case -

(a) the Tribunal may make a decision which disposes of proceedings without a hearing; and

(b) subject to paragraph (5), if the Tribunal makes a decision which disposes of proceedings without a hearing, any party may make a written application to the Tribunal for the decision to be reconsidered at a hearing.

(5) An application under paragraph (4)(b) may not be made in relation to a decision -

(a) not to extend a time limit;

(b) not to set aside a previous decision;

(c) not to allow an appeal against a decision not to extend a time limit; or

(d) not to allow an appeal against a decision not to reopen a case.

(6) An application under paragraph (4)(b) must be received within 1 month after the date on which the Tribunal sent notice of the decision to the party making the application".

Interpretation of rule 27

Petitioner's submissions


[11] Mr Sutherland submitted that the Tribunal judge's finding that her decision was final and the Tribunal has no power to reconsider it at an oral hearing was an error of law. There is a distinction to be drawn between a time limit which is in effect a limitation on making an application and a procedural time limit. The limitation may be waived in the circumstances provided for in paragraph 18. Procedural time limits may be extended. Rule 27(5)(c) only applies to appeals against a decision to refuse to extend procedural time limits. It does not apply to an appeal against a decision to refuse to waive the time limit for making an application. This distinction is clear from a proper reading of the Scheme. Paragraph 19 provides that it is for the applicant to make out his or her case for the waiver (my emphasis) of the time limit in paragraph 18. Paragraph 58 provides that an applicant may seek a review of any decision not to waive or extend (my emphasis) the time limit in paragraph 19 or paragraph 59. Paragraph 59 provides that an application for review must be made within 90 days of the date of the decision but that an extension of the time limit may be granted. Paragraph 63 deals with what happens when a Tribunal allows an appeal against a decision taken on review. Paragraph 63(2) provides that where the appeal is against a decision not to waive the time limit in paragraph 18 then the Tribunal will direct that the application be dealt with as if the time limit had been waived. The language there can be contrasted with the language in the next sub-paragraph which provides that where the appeal is against a decision not to extend the time limit in paragraph 59 the Tribunal will direct that a review be conducted. Accordingly "waive" and "extend" were separate processes in terms of the Scheme. Turning to rule 27(5) Mr Sutherland submitted that each of the headings could be related back to specific provisions in the Scheme and that omitted any waiver of a time limit. Had the drafters of the Rules wished to include waiver in rule 27(5) they could have done so without any difficulty. The use of the word "extension" in the Rules should have the same meaning as in the Scheme. Both were made on the same day and came into force at the same time. He referred me to Craies on Legislation, 10th edition, at paragraph 20.1.38 for the proposition that where the same expression is used in two separate contexts, a statutory definition in one context may be persuasive in another. Applying this principle in the present case it was clear that rule 27(5) did not include an appeal against a refusal to waive a time limit. Accordingly the petitioner had a right to request and be granted an oral hearing under rule 27(4)(b).

Respondent's submissions


[12] Mr Duthie submitted that rule 27(5)(c) covered waiver of a time limit under paragraph 18. He described the difference between waiver and extension as being one without content. The attempt to tie in the individual provisions of rule 27(5) with provisions in the Scheme was not warranted. While both the Rules and the Scheme came into force on the same day, the Rules applied beyond the narrow confines of the 2008 scheme. They had to be generic. If he was wrong in that interpretation the application was nevertheless caught by rule 27(5)(b) which states that an application under paragraph 4(b) cannot be made in relation to a decision not to set aside a previous decision. This was a previous decision. Rule 27(2) specifically excluded decisions under Part 4 which is headed "Correcting, setting aside, reviewing and appealing Tribunal decisions". That indicated that paragraph 4(b) must apply to other decisions. The only decisions that it could apply to were decisions such as the one complained of not to hold a hearing. If he was wrong in that submission in any event rule 27(6) provides that an application for a hearing had to be made within 1 month and no application had been made. Accordingly the petitioner was either barred or simply too late in bringing this petition. In support of his interpretation he referred me to Criminal Injuries Compensation Claims 2008, A Guide to the New Scheme by Begley, Downey and Padley, published by the Law Society at section 10.8 where the authors state in reference to an appeal against a refusal to waive the time limit for submission of an application that the "Tribunal Procedure Rules suggest that the Tribunal has a discretion to deal with the matter on paper". Mr Duthie accepted that this was simply their interpretation of the rule and was in no way binding on me.

The decision of 27 July 2010 - the petitioner's submissions


[13] Mr Sutherland submitted that the Tribunal judge had erred in law in her decision to reject the appeal by the petitioner. The critical issue for the Tribunal judge was whether it was reasonable to expect the petitioner to have made the application within the two year time limit. Of importance to this issue is the reason that was given for not disclosing the abuse earlier. The Tribunal judge considered that there was no medical evidence to suggest that she had any psychological problems that would have prevented her from reporting the abuse to the police or applying for compensation.


[14] Mr Sutherland accepted that no medical evidence as such had been placed before the Tribunal judge but he argued that there was sufficient within the papers before her to indicate that there was a reasonable explanation as to why there had not been earlier disclosure. The approach of the Tribunal judge had to be to consider all the relevant factors and apply then to the particular circumstances of this; Hutton v First-tier Tribunal [2013] 1 WLR 124 per Aikens LJ, paragraphs 41 and 42. He took me through the application for compensation and other papers before the Tribunal judge. In relation to the judge's finding that the petitioner could have made an application within two years of attaining the age of 18 years, he submitted that while that may be true in other contexts it did not acknowledge the emotional and psychological effects of sexual abuse. He referred me to R v Criminal Injuries Compensation Board ex parte S [1995] ALR 693 where the court found that Criminal Injuries Compensation Board had failed to take into account the mental trauma of the violent sexual assault to which the applicant had been subjected in considering whether it was fair to reduce an award; per Sedley J at pp 703, 704. In his submission there was plenty of material before the Tribunal judge which gave a strong indication of severe trauma. There was reference to her inability to speak in detail until she spoke to her father. There was reference to her being referred to a psychologist but not continuing with this as she was unable to go into the abuse in the detail that was required. The impact of the abuse on her clearly continued into adulthood. Any effort that she made to discuss it was limited until she was able to make the full disclosure.


[15] Mr Sutherland took me through the detail of the Tribunal judge's reasoning in paragraph 15 of the decision letter. In heading (a) he submitted that the Tribunal judge had wrongly inferred that the petitioner no longer lived in fear once her abuser had moved away. He referred me to a letter that the petitioner had written in support of her appeal dated 19 May 2010 and which was before the Tribunal judge in which she said that she was still scared that he would come and hurt or even kill her family. The statement did not acknowledge any psychological stress on the petitioner. In sub-paragraph (b) he submitted that the judge had failed to draw any distinction between telling a close friend or family member and making a disclosure to police or other authority. He further submitted that she had failed to take into account what it was that was said on these occasions. In sub-paragraph (c) there was no explanation given as to why she would expect the petitioner to make an application within two years of the petitioner reaching her eighteenth birthday. That, he submitted, was a plain error of law. In sub-paragraph (d) he submitted that the only disclosure made by 1994 was to her brother D when they were both children. His statement made it clear that the threat to kill his parents was as real to him as it had been to his sister. The conclusion which the judge reached, that in some way this disclosure supported the proposition in sub-paragraph (c) was irrational. So far as sub-paragraph (e) was concerned he accepted that there was no medical evidence as such but submitted that this conclusion did not bear scrutiny given the statements that he had referred me to. If the Tribunal judge was dissatisfied with the material before her she could either have requested further information under rule 5(3)(2) or have held an oral hearing. Sub-paragraph 15(f) was merely a repeat of (a) and paragraph (g) was not a reason but a conclusion.


[16] He also referred me to the first paragraph 10 and submitted that the judge's reasoning took no account of the particular circumstances of the petitioner. While (d) and (e) were appropriate so far as they went they did not acknowledge that hearings can also assist the tribunal.

Decision - The Determination of the Tribunal Judge


[17] It is always difficult to consider submissions without the assistance of a contradictor. However I am in no doubt that the submissions of Mr Sutherland in relation to the reasoning of the Tribunal judge must be upheld.


[18] In R v Criminal Injuries Compensation Board, Sedley J said in relation to the trauma suffered by victims of sexual crime, "It is not a question of simply having regard to the fact and circumstances of the trauma but of reasoning out whether a woman, who on the face of the evidence, has been emotionally and mentally frozen by a terrifying and degrading experience should have the consequent delay in reporting it held against her." (p. 704).


[19] In paragraph 15 the Tribunal judge starts by stating "her reasons for deciding that it would have been reasonable to expect the appellant to have made the application within the two year period." That of course was not what she decided. At sub paragraph (c) she states that as she was a child she would not necessarily have expected her to have reported the abuse within two years or to have made a claim for compensation. She goes on however to say that she would have expected her to have both reported it and applied for compensation within about two years of reaching the age of eighteen; that is by about 1994 (when she would have been twenty). So contrary to what she says in the preamble to paragraph 15, the judge accepted that the petitioner could not be expected to have made a claim within the two year period.


[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.


[21] Moreover, the Tribunal judge has failed to consider whether there is any distinction to be drawn between disclosure to police or other authorities and what might be said over the years to close confidants. Disclosure to authority inevitably puts the complainer into a formal process of investigation and possibly prosecution of the defender. That may involve renewed trauma for the victim reliving the abuse and possibly having to confront her abuser in an adversarial process. While the justice system has made great efforts to try and allay victims' fears of the judicial process it remains a psychological barrier which someone complaining of sexual abuse has to overcome before making a complaint to police. On the other hand a victim who shares a confidence with a close friend or family member faces none of these challenges. Such "disclosures" to friends or family may be made to ease the burden or even to test whether, if they do make a complaint to police, they would be believed. In considering whether or not it would have been reasonable to expect a victim of historic sex abuse to make an earlier disclosure it is important to consider the context in which disclosures are made.


[22] The issue for the Tribunal judge was whether, in the particular circumstances of this case, it would not be reasonable to expect the applicant to have made an application within the two year period. Having conceded that it was not reasonable, as she was a child at the time of the abuse, it was then necessary to determine at what point it would have been reasonable to make an application. In support of her finding that an application could have been made within two years of reaching eighteen i.e. before 1994, the Tribunal judge cites the fact that "she was telling other people over the years including telling her brother when she was a child". It should be noted that the only disclosure of any sort before 1994 was to her brother when they were both children. His statement makes it clear that he believed that if he told anyone both of their parents would be killed and that both of them would have to live with the petitioner's abuser. Although it is not entirely clear it appears that this disclosure to her brother was made during the time that the abuse was happening and they were both children. In my opinion it is quite irrational to hold that that disclosure while she was a child to a sibling who was also a child at the time and was in turn in fear of the abuser should point to a conclusion that it was reasonable to expect the petitioner to make an application within two years of her eighteenth birthday.


[23] It is accepted that there was no direct medical evidence before the Tribunal judge. I have to say that I find that mildly astonishing in a case such as this where there were clear indications of psychological trauma. In my judgement the Tribunal judge should have been put on notice by the statements within the papers that the petitioner had psychological problems. Indeed it seems to me that this is one of the first things to look for in a case of historical sexual abuse where there is delayed disclosure. If the Tribunal judge considered that she required further information then she had the power to seek it. Alternatively, or in addition, she could have set down an oral hearing where this could have been explored. Indeed in my opinion this case almost cried out for the holding of such a hearing.


[24] For these reasons I consider that the Tribunal judge erred in law and that the decision falls to be reduced.


[25] While Mr Sutherland did not press any point in relation to the exercise of the judge's discretion in not holding a hearing I consider that there are problems with her reasoning on this issue. In (the first) paragraph 10 of her decision the Tribunal judge considers the factors which she takes into account in determining that she could make a decision without an oral hearing. These include "(d) the underlying presumption that statutory time limits can ensure finality and are to be complied with". As a general proposition it is correct so far as it goes. However as stated it admits of no exception; it simply states that time limits are to be complied with. More fundamentally, however, it is difficult to see what a presumption about compliance with a time limit has to do with a decision as to whether or not to have an oral hearing. It may be a factor in the decision itself, though it does not re-appear in paragraph 15, but it is irrelevant in considering whether or not to hold an oral hearing. At "(e)" the Tribunal judge states that "oral hearings to deal with time limit appeals can cause or contribute to an inefficient tribunal system". It may well be that they cause further work but such a statement fails to acknowledge that the aggrieved party has a right to request such a hearing and that an oral hearing can both contribute to a party being able to participate fully in the proceedings (see rule 5(2)(c) and help elucidate issues more fully than is possible on paper.

Interpretation of Rule 27


[26] While that is sufficient to dispose of the matter in deference to counsel and their submissions I should give my views on the proper interpretation of rule 27. I consider that the submissions of Mr Sutherland on this point are to be preferred. It is clear from looking at the Scheme as a whole that "waiver" and "extend" are used in two different and distinct ways. Paragraph 18 of the Scheme provides that "[An application] 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...." Thus waiver is used in relation to the exercise by the claims officer to admit an application after the expiry of the two year limit. "Extend" where it appears in the Scheme on the whole relate to issues of case management. While Mr Duthie contended that the two year rule was a procedural rule in my opinion it is more fundamental than one designed to ensure the effective case management of an application once accepted. There is in my opinion a qualitative difference between the two. Moreover, while the effect of the words in question may be similar there is a conceptual difference between waiver, which has as its underlying theme the giving up of a right or the decision not to enforce a rule, and the extension of a time limit.


[27] Rule 27(4)(b) gives a right to a party to make a written application for a decision which disposes of proceedings to be reconsidered at a hearing. That right is however limited by the provisions of 27(5). I consider that where a provision excludes a right it should be done in clear and unambiguous language. The failure to include an appeal against a decision not to waive the two year time limit in rule 27(5) clearly points to an applicant who is aggrieved by a decision not to waive the time limit having the right to request that the decision be reconsidered at a hearing.


[28] Mr Duthie had two esto arguments. Neither was pressed hard. Neither Mr Duthie nor Mr Sutherland were able to elucidate on the meaning of rule 27(5)(b). In any event as there are clear rules about appealing decisions to the Tribunal I cannot see that it has any application in this case. So far as rule 27(6) is concerned it is true that no application was made within the time limit. That is because the Tribunal judge held, erroneously in my view, that there was no right to a hearing.


[29] Accordingly I shall repel the pleas in law for the respondent and grant the prayer of the petition to the extent of reducing the decision of the First-tier Tribunal judge dated 27 July 2010. The matter should be re-considered by the First-tier Tribunal. I shall reserve the question of expenses.


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