Criminal Injuries Compensation Authority

Transcription

1 Criminal Injuries Compensation Authority 293 CHAPTER 19 Criminal Injuries Compensation Authority 19.1 Introduction Eligibility Procedure Compensation calculation Withholding or reduction of award Example Conclusion Further reading and relevant websites 300 LEARNING OUTCOMES After reading this chapter you will be able to: set out the criteria for eligibility to make a claim under the Criminal Injuries Compensation Scheme 2013, and the relevant procedure explain how compensation is calculated explain when compensation may be withheld or reduced INTRODUCTION Those who have suffered injury as a result of acts of violence may be unable to take civil proceedings to recover damages, because those responsible are either unknown or have insufficient means to pay compensation. However, blameless victims of crimes of violence in Great Britain who have suffered injuries and associated loss can apply for compensation from a government-funded scheme known as the Criminal injuries Compensation Scheme 2012 (the Scheme ), which is administered by the Criminal Injuries Compensation Authority (CICA). The Scheme is relevant for applications received on or after 27 November The types of payment which may be available under the Scheme are: injury payments, which are calculated by reference to a tariff (see ); loss of earnings payments (see ); (c) special expenses payments in respect of injury-related requirements which are not available free of charge from any other source (see ); and (d) various payments relating to fatal injuries, which are beyond the scope of this book. The maximum award payable in relation to one incident, before any reduction (see 19.5), is 500,000, which may fall short of the actual losses suffered by the applicant. However, the Scheme is not designed to provide full financial recompense, but rather to provide some compensation, where there would not otherwise be any, out of the public purse and in recognition of public sympathy for the victim. It is for this reason that the victim must be blameless (see 19.5 below).

2 294 Personal Injury and Clinical Negligence Litigation The Scheme is both comprehensive and complex and consequently only the basics are dealt with here. For more information, you can find the Scheme, the 2008 Scheme (relevant for applications received prior to 27 November 2012), the application forms and the Guide to the 2012 Compensation Scheme (the Guide ) on the CICA website at < It should be noted that CICA will not cover the costs of making an application under the Scheme and therefore the client will need to fund the matter himself should he want a solicitor to deal with the application on his behalf. The client should be advised that free independent advice and help to make the application may be available from Victim Support, Citizens Advice, law centres or welfare rights organisations ELIGIBILITY In order to be eligible for compensation under the Scheme, an applicant must show that he has sustained a criminal injury which is directly attributable to his being a direct victim of a crime of violence committed in a relevant place (para 4). In the vast majority of cases, and for the purposes of this book, relevant place means Great Britain (para 8), but it also covers, for example, British-controlled aircraft and Her Majesty s ships (see Annex C of the Schedule). Compensation may also be paid to those who have sustained an injury while taking an exceptional and justified risk in order to remedy or prevent a crime (para 5), to those who have sustained a mental injury as a result of witnessing or being involved in the immediate aftermath of an incident in which a loved one is injured (para 6), or to a qualifying relative of a victim who died as a result of a crime of violence (para 7), but these matters are beyond the scope of this book What is a crime of violence? There is no legal definition of what amounts to a crime of violence, but types of crimes of violence which may lead to a payment are set out in Annex B of the Scheme. The following are included, provided the perpetrator acts intentionally or recklessly: (c) (d) (e) a physical attack; any other act or omission of a violent nature which causes physical injury to a person, eg withholding something that another person needs to stay alive; a threat against a person, causing fear of immediate violence in circumstances which would cause a person of reasonable firmness to be put in such fear; a sexual assault to which a person did not in fact consent; or arson or fire-raising. However, a crime of violence will not be considered to have been committed for the purposes of the Scheme if an injury: (c) (d) (e) resulted from suicide or attempted suicide, unless the suicidal person acted with intent to cause injury to another person; resulted from the use of a vehicle, unless the vehicle was used with intent to cause injury to a person (see Alexander Smith v Criminal Injuries Compensation Authority (2015), where a man struck by a cyclist on a zebra crossing succeeded in his claim, as the cyclist had ridden his bicycle at him with the intent to injure him); resulted from an animal attack, unless the animal was used with intent to cause injury to a person; was sustained in the usual course of sporting or other activity to which a person consented by taking part in the activity; or was sustained in utero as a result of harmful substances willingly ingested by the mother during pregnancy, with intent to cause, or being reckless as to, injury to the foetus.

3 Criminal Injuries Compensation Authority Residency and nationality The applicant must meet one of the following residency requirements (paras 10 13): ordinarily resident in the UK on the date of the incident; a British citizen; (c) a close relative of a British citizen; (d) a national of a Member State of the European Union (EU) or the European Economic Area (EEA); (e) a family member of an EU/EEA national who has the right to be in the UK; (f ) a national of a State party to the Council of Europe Convention on the Compensation of Victims of Violent Crimes (CETS No 116, 1983); (g) a member of Her Majesty s armed forces, or an accompanying close relative of an armed forces member; (h) someone identified as a potential victim of human trafficking on or before the date of the application; or (i) someone who made an application for asylum to remain in the UK on or before the date of the application for an award Matters which may prevent eligibility It is not necessary for the assailant to have been convicted of an offence in connection with the injury (para 9), and in some cases, the applicant will not know the identity of the offender. However, the following matters will prevent eligibility being established (in relation to accidents happening after 1 October 1979 only): (c) the applicant has already applied for compensation for the same criminal injury under this or any other Criminal Injuries Compensation Scheme (para 18); the applicant and the person who caused the injury were adults living together as members of the same family at the time and will continue to do so (para 20); or the person who injured the applicant could benefit from the award as a result of a continuing link between that person and the applicant (para 21) Time limit Applications should be made as soon as reasonably practicable and, where the applicant was 18 or over at the date of the incident causing the injury, it must be made within two years of the date of the incident (para 87). Where the applicant was under 18 at the time of the incident, it is advisable that an application is made on his behalf as soon as possible, as it may be more difficult to provide the relevant evidence at a later stage. However, the following time limits apply: If the incident was reported to the police before the applicant turned 18, but no application was made on his behalf, the claim must be made before the applicant reaches 20. If the incident took place before the applicant reached 18 but was not reported at the time, an application may be made up to two years of the date when the incident was first reported to the police. In both of the above instances, an application will not be accepted unless the claims officer is satisfied that the evidence presented in support of the application means that it can be determined without further extensive enquiries (para 88). In relation to applicants of any age, in exceptional circumstances, ie where the circumstances of the injury meant that the application could not reasonably have been made within the time limit, CICA may extend the time limit provided it can make a decision without further

4 296 Personal Injury and Clinical Negligence Litigation extensive enquiries (para 89). It does not normally consider the applicant s lack of knowledge of the Scheme to be an exceptional reason PROCEDURE Applications must be made by filling in CICA s application form and submitting it online or by supplying the relevant details over the telephone. Initially, a regional casework team will handle the application but, once CICA has all the relevant evidence, a claims officer will be assigned to the claim and he will determine the matter on the balance of probabilities. At all times, the applicant must comply with his obligations as set out in paras 91 and 92 of the Scheme. In other words, he must comply with any direction or condition imposed by the claims officer, assist the claims officer as far as reasonably practicable, and provide all information and evidence relevant to the application. The onus is on the applicant to prove that he is eligible for a payment, and therefore evidence that the applicant meets the residency requirements and basic medical evidence of the injury suffered must be provided. The applicant must also provide signed consent for the release of all records relevant to the application to CICA. These might include: evidence the applicant gave to the police about the incident. The applicant must supply the unique police reference number in the application form. CICA will obtain confirmation from the police that the incident was reported to them and that the applicant s behaviour was not a contributory factor; criminal records; (c) medical records; and (d) where loss of earnings and/or special expenses payments are being claimed, information from the Department for Work and Pensions and/or HM Revenue and Customs. CICA may require further medical evidence, in which case the applicant will be required to meet the costs of providing initial medical evidence up to maximum of 50. If further medical evidence is required, such as where injuries are complex, the application involves a claim for mental illness, or where there may be pre-existing conditions, the applicant will be required to see his existing doctor or an expert arranged by CICA, and the costs of will be met by CICA. If the applicant wishes to provide his own medical evidence, CICA will cover the cost only if it relies on the evidence to determine the claim COMPENSATION CALCULATION Compensation is based on a tariff award for the injuries suffered and, where relevant, compensation for lost earnings and/or special expenses. The minimum award that may be made is 1,000 and the maximum award that may be made in respect of one application is 500,000, before any deductions (para 31). Where injuries are not sufficiently serious to fall under the Scheme, the Hardship Fund introduced by the Government may provide some temporary assistance to very low-paid workers suffering financial hardship as a result of being unable to work due to being a victim of violent crime The injury payment (paras 32 41) In order to determine whether compensation is payable for a certain injury and to calculate the amount due, the claims officer will consult the Tariff of Injuries set out in Annex E of the Scheme. This list sets out descriptions of approximately 400 different types of injuries and, in relation to each one, specifies both the level of seriousness by means of a figure from 1 (being the least serious) to 20 and the associated fixed amount of compensation. A Level 1 injury is valued at 1,000 and a Level 20 injury is valued at 250,000. Part A of the tariff shows

5 Criminal Injuries Compensation Authority 297 the amount payable in respect of physical and mental injuries. (Part B, which shows the amount payable in respect of fatal injuries, and injuries resulting from sexual and physical abuse, is beyond the scope of this book.) The following should be noted: Compensation is not payable under the Scheme unless the injury appears in Appendix 3, although where an injury does not appear in the list, but is of an equivalent seriousness to an injury which does appear, CICA may refer the matter to the Secretary of State for consideration for inclusion. Where an applicant is eligible for an injury payment in respect of an injury requiring an operation, no separate payment will be made in respect of scarring arising from that operation (para 35). (c) Where an applicant s injury includes the acceleration or exacerbation of an existing condition, the payment will only compensate for the degree of acceleration or exacerbation, will be calculated by reference to such tariff injuries as the claims officer considers appropriate, and will not be paid at all unless the relevant payment is 1,000 or more (para 36). In order to calculate the total tariff award where there are two or more injuries, the three most serious injuries must be identified and the associated tariffs added together as follows: 100% of the tariff for the highest rated injury; plus 30% of the tariff for the second highest injury; plus, where relevant (c) 15% of the tariff for the third highest injury. No compensation is payable in respect of any additional injuries (para 37) Compensation for lost earnings (paras 42 49) Where an applicant is entitled to a tariff payment and has been unable to work or may be prevented from working in the future as a direct result of the injury, he may also be entitled to be compensated for lost earnings provided he satisfies the following conditions (para 43): He must be unable to do any paid work or have a very limited capacity to do such work, ie he can work only a few hours of paid work per week. Where the applicant has capacity to do paid work, but the type of work he is able to do is limited as a result of his injuries, a loss of earnings payment will not be made. He must be able to demonstrate that he was in work at the time of the accident, or show that he had either an established work history, or a good reason for not having such a work history, for the three years immediately prior to the accident. A good reason may be that he was in full time education, or that he was unable to work due to his age or caring responsibilities. Payments for loss of earnings are made at a fixed weekly rate, which is the rate of Statutory Sick Pay (SSP) in force at the date when a decision is made regarding the application (currently 88.45). No such compensation is payable for the first 28 weeks following the date of the accident, and therefore the period to which a loss of earnings payment will relate begins on the first day of the 29th week (para 44). A loss of earnings payment may relate to earnings lost before an application is determined (past loss of earnings) and any losses which may continue after the determination (future loss of earnings). A loss of earnings payment in respect of past loss of earnings will be calculated by multiplying the weekly rate of SSP at the date of determination by the number of weeks from the beginning of week 29, treating part weeks as full weeks, and ending on the day the application is determined (para 47). Payment for future loss of earnings will be calculated by:

6 298 Personal Injury and Clinical Negligence Litigation multiplying the weekly rate of SSP at the date of determination by the number of weeks of the period of entitlement. That period begins on the day after the date on which the application is determined and ends when the applicant is no longer incapable of working, or he reaches retirement age or, where the criminal injury has resulted in a life expectancy below the state pension age, the expected end of the applicant s life (para 48); discounting the payment so calculated in accordance with the Tables in Annex F, which set out: (i) multipliers to be applied to account for the accelerated receipt of payments, which are found by reference to the number of years of future loss (Table A); (ii) discount factors to be applied to a lump sum in respect of loss which starts at a future date, which are also found by reference to the number of years of future loss (Table B); and (iii) assumptions in relation to life expectancy, which are calculated by reference to the applicant s age at the date of determination (or death in the case of fatality) (Table C) Compensation for special expenses (paras 50 56) Compensation may be paid for special expenses incurred as a result of the injury from the date of the injury, but only where the applicant is eligible for an injury payment and has lost earnings or earnings capacity for longer than 28 weeks. A special expenses payment will only be made in relation to expenses of the types listed in para 52, such as the applicant s own property or equipment used as a physical aid which was damaged in the incident, NHS prescriptions and dentists or optician s charges, special equipment such as wheelchairs or specially-adapted vehicles, the costs of adaptations to the applicant s home, and costs arising from the administration of the applicant s affairs due to his lack of mental capacity, provided the following conditions apply (para 51): they were/will be necessarily incurred by the applicant on or after the date of the injury as a direct result of the criminal injury giving rise to the injury payment; provision, or similar provision, is not available free of charge from another source; and (c) the cost is reasonable. Where the need for special equipment is likely to continue, a claims officer will: (c) assess the cost of replacement, taking into account the number of likely replacements; deduct the amount for which the applicant s existing equipment could be sold on each occasion; and apply an appropriate discount factor in accordance with Table B of Annex F to take account of the fact that a lump sum will be paid in respect of loss which will arise in the future. Where the need for any other special expenses of a type specified in para 52 is likely to continue, a claims officer will assess the annual cost of the expense and apply the relevant Tables in Annex F (para 53). A special expenses payment may be withheld or reduced to take account of the receipt of, or entitlement to, social security benefits or insurance payments (paras 54 56), the details of which are beyond the scope of this book WITHHOLDING OR REDUCTION OF AWARD The Scheme is funded by the Government on the basis that the public are sympathetic to innocent victims of crime and wish to see them supported. Consequently, compensation may be refused or discounted in respect of applications by those who may be seen as morally

7 Criminal Injuries Compensation Authority 299 undeserving of support. In addition, the Scheme must be protected from fraudulent claims and applicants should not be permitted to be over-compensated. Compensation may be withheld or reduced in the following circumstances: where the applicant has failed to report the incident to the police, or has thereafter failed to co-operate with the police or with the CICA (paras 22 24). Generally, the applicant must make a formal report to the police immediately following the incident, and this must be done by the applicant in person, unless his injuries prevent him from doing so. Co-operation with the police includes making a statement, attending identity procedures and giving evidence in court, if required. Co-operation with the CICA includes supplying complete and truthful information, and attending independent medical examinations, if required; where the applicant behaved inappropriately either before, or during or after the incident (para 25). This will include where the applicant s consumption of alcohol or illegal drugs caused him to act aggressively or to provoke the attack, where he voluntarily took part in a fight, where he threw the first punch, or where his use of abusive language or gestures led to the incident. However, this does not include where intoxication through alcohol or drugs made the applicant more vulnerable to becoming a victim of a crime of violence. So an applicant who was sexually assaulted whilst intoxicated may still be eligible to receive a full award; (c) where the applicant has unspent criminal convictions (para 26). Annex D sets out how CICA will determine what effect an unspent criminal conviction will have in respect of the withdrawal or reduction of an award. However, in general terms, an unspent conviction which attracted a custodial or community sentence will result in the withdrawal of the award, whilst a lesser sentence (other than endorsements, penalty points or fines resulting from motoring offences) will result in a reduction in the amount of the award; (d) where the applicant s character, other than in relation to an unspent conviction, makes it appropriate (para 27). CICA will consider evidence relating to involvement with illegal drugs or other crimes, tax evasion or benefit fraud, anti-social behaviour orders and cautions or reprimands; (e) where the applicant receives or is awarded criminal injuries compensation or a similar payment, receives an order for damages from a civil court, agrees the settlement of a damages claim, or receives a compensation order or offer made during criminal proceedings (para 85); or (f ) in relation to payments for special expenses only, where the applicant has received State benefits or insurance payments in respect of the injury (paras see ) EXAMPLE Last year, Jacob was attacked in Birmingham city centre as he made his way home from work. He was punched to the ground and kicked repeatedly by assailants who have not been identified. He suffered a depressed fracture of the skull, for which he required surgery, his jaw was dislocated and a front tooth was knocked out. The tooth has been replaced, but his other injuries are continuing to cause him significant difficulties. In addition, he has completely lost his sense of smell. Jacob was unable to work for 40 weeks, but he has now returned to his previous job as a shop assistant. His salary throughout the period when he was unable to work would have been 250 per week, but Jacob received only statutory sick pay of per week during this period. Tariff for injuries: depressed fracture of skull requiring operation = 4,600 (Level A6); dislocated jaw causing continuing significant disability = 3,500 (Level A5); loss of one front tooth = 1,500 (Level A2); total loss of smell = 11,000 (Level A8). Only the three most serious injuries may be considered.

8 300 Personal Injury and Clinical Negligence Litigation Calculation: 100% of 11,000 (loss of smell) = 11,000; 30% of 4,600 (fractured skull) = 1,380; 15% of 3,500 (dislocated jaw) = 525. Total for injury = 12,905. Lost salary: Nothing for first 28 weeks. Thereafter, 12 weeks at the SSP rate of per week = 1, The SSP he has already received is not deductible. Total payment: 12, , = 13, CONCLUSION Generally, those who have suffered injury as a result of an act of violence are unable to take civil proceedings against the perpetrator as their attacker is unlikely to have the financial means to pay damages. Where such a situation exists, and it is not possible to hold another individual or body, such as an employer, responsible for the perpetrator s actions, the Criminal Injuries Compensation Scheme may provide compensation to the victim. As the costs associated with making an application are not recoverable by the applicant, the solicitor should advise him that free assistance may be available elsewhere. However, if the client instructs the solicitor to make the application on his behalf, the solicitor should ensure that he falls within the criteria set out in the Scheme rules and that the procedure for making a claim is followed correctly. Compensation for injuries suffered is based on a tariff which sets out a comprehensive list of injuries of varying seriousness. Where such an award is made and the victim is unable to work for more than 28 weeks, past and future loss of earnings from the 29th week may also be awarded, as may items of special expense. The total claim cannot exceed 500,000. Awards may be withheld or reduced as a result of the applicant s conduct before, during or after the incident FURTHER READING AND RELEVANT WEBSITES Criminal Injuries Compensation Scheme 2012 and A Guide to the Criminal Injuries Compensation Scheme 2012 (Criminal Injuries Compensation Authority) <