R (M) v FTT and CICA [2017] UKUT 95 (AAC), [2017] MHLO 12

"Mr M sought permission to bring judicial review proceedings in respect of three decisions of the First-tier Tribunal (the Tribunal takes a neutral stance in these proceedings). The Upper Tribunal granted Mr M permission to bring judicial review proceedings in respect of two of these decision. In both, the Tribunal had struck out Mr M’s appeals against decisions of the Criminal Injuries Compensation Authority (CICA) not to extend time for applying for review of a decision to refuse to award him compensation. ... In both decisions, the First-tier Tribunal erred in law by failing to consider how to apply the overriding objective of its procedural rules in the light of Mr M’s mental health condition. ... The overriding objective, set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, is to deal with cases fairly and justly. This includes ensuring “so far as practicable, that the parties are able to participate fully in the proceedings”. ... Accordingly, the overriding objective extends to taking such steps as are practicable to enable a party to present his case. This does not mean the First-tier Tribunal has to construct a case for an applicant. But it does call for a Tribunal to consider whether an applicant’s circumstances mean that he faces obstacles in presenting his case that the Tribunal should seek to remove or mitigate to ensure a case is dealt with fairly and justly. The appropriate step or steps to take will be informed by the circumstances of the case but could include: ensuring that an applicant’s liability to detention in a mental health institution does not prevent him attending a hearing; inviting an applicant to consent to the Tribunal obtaining medical records rather than insisting that the applicant supplies them; acting more inquisitorially than it would in the case of a represented applicant or one without a mental health condition. ... Section 5(7) [Rehabilitation of Offenders Act 1974] provided that, where a hospital order under Part III of the Mental Health Act 1983 was imposed on conviction, the rehabilitation period for the conviction (at the end of which it was ‘spent’) was the longer of the following dates: (a) the period of five years from the date of conviction; or (b) the period beginning with the date of conviction and ending two years after the date on which the order ceases to have effect. ... I note that section 5 of the 1974 Act was amended, from 10 March 2014, by section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As amended, section 5 refers to a range of “relevant orders” which include a hospital order under Part III of the Mental Health Act 1983. The rehabilitation period for the conviction that led to a relevant order is “the day provided for by or under the order as the last day on which the order is to have effect”. I suspect the new version of section 5 of the 1974 Act will apply if the First-tier Tribunal considers it necessary to determine whether Mr M’s conviction, for which he was made subject to a hospital order, was spent when he made his original application for compensation. That is because section 141 of the 1974 Act generally gives retrospective effect to the amendments made to section 5 by the 1974 Act (see G v First-tier Tribunal (interested party: CICA) [2016] UKUT 196 (AAC))."

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