The Criminal Injuries Compensation Scheme: If you are attacked by someone and sustain physical injury, you may claim for compensation.



if you are attacked by someone or by excessive force by police and sustain injury, you may claim for compensation under criminal injuries compensation scheme.

The first-ever scheme designed to compensate the victims of crimes of violence was announced in both Houses of Parliament on 24 June 1964 and in its original ex gratia form came into force on 1 August 1964. The Scheme was subsequently modified in several respects until its most drastic revision, being embodied in legislation by the Criminal Injuries Compensation Act 1995. The fundamental difference resulting from this legislation was to transform the previously discretionary Scheme administered by the Criminal Injuries Compensation Board ('CICB') on common law principles to a statutory 'tariff based' system with limits on the compensation awarded. The Scheme was last revised in November 2012.

The extent to which victims of violence should be compensated by the state inevitably raises issues of political ideology. One view is that the innocent victims of violent crime should be in no worse position than those who are injured due to the acts of negligence or deliberate acts of others in circumstances where the tortfeasor or perpetrator has sufficient means to satisfy an award of compensation. In most instances, this would be due to the tortfeasor or perpetrator being fully and properly insured or being of substantial personal means. The contrary view is that it is inappropriate for the public purse to bear responsibility for the criminal acts of individuals in circumstances where the state already has the burden of providing medical treatment under a National Health Service and financial assistance by way of the provision of benefits other publicly funded support. The approach of modern governments tends to be that compensation paid under the Scheme is only an expression of sympathy for what has happened to the victim and is not restitution in its nature. In times of financial austerity, this has become an even more difficult balance which is reflected in the constraints of the 2012 Scheme. Indeed, the Scheme is regarded by Government as being one of the last resort.

What is beyond doubt is that the principle of compensating the victims of violence in Great Britain is established. The adequacy of the schemes made according to the Criminal Injuries Compensation Act 1995 and administered by the Criminal Injuries Compensation Authority ('CICA') has brought into sharp focus, compared with the earlier typical law type schemes, whether victims are losing out.

CRIMINAL INJURIES COMPENSATION AUTHORITY (‘CICA’)

It is evident that by the nature of the injury sustained by the victims of violent crime, in particularly severe cases, there are still a minimal number of claims outstanding under the pre-1995 schemes, usually cases where the medical prognosis may remain uncertain or those involving young children that may still yet take time to resolve and on that basis it is essential to establish under which Scheme the matter is proceeding and being aware of the crucial differences both of procedure and the nature of the available awards. Also, as there have been several schemes since 1996, it is essential to establish which Scheme is applicable as the general principles are the same. Still, there are elusive differences between Schemes. It is essential to recognise the impact of the restricted awards made under the tariff-based schemes about what is known as 'loss of earnings' and 'special expenses' in purely financial terms. Generally, claims for special damage and future loss form by far the most substantial part of awards made in common law claims for compensation for personal injury. Under the schemes in effect from 1 April 1996, an award can be made for loss of earnings or earning capacity provided that the applicant has been incapacitated for more than a full 28 weeks and no compensation is payable for the first 28 weeks. No award can be made to reflect any years of employment lost due to a reduction in life expectancy. Similarly, the primary eligibility rule for a claim for certain expenses is that those expenses must be a direct result of an injury that caused the applicant to lose earnings or earn capacity or be similarly incapacitated for longer than 28 weeks. If an applicant qualifies on these grounds, then the award can actually cover the period from the date of injury, in addition to future losses. For those applicants not customarily employed, under the 2008 Scheme, the CICA will assess the extent of the incapacity from medical information. Nevertheless, it is to be noted that the total maximum amount payable in respect of the claim as a whole, including both the tariff amount, loss of earnings/earning capacity and/or special expenses, is £500,000 as it has been since 1996. Some degree of proportionality must always be kept in mind in the work that is done and the compilation of evidence to achieve that maximum award.

Budget estimates for the Scheme are prepared by the Ministry of Justice on an annual basis and controlled by the Treasury. The CICA publishes yearly reports, showing the amount of expenditure, and it can be held to budget. The annual report and accounts are open to debate in Parliament.

Claims to the CICA are determined by claims officers who are civil servants. Reviews are considered by a claims officer other than the one who made the original decision, and appeals against decisions taken on reviews are determined by adjudicators, appointed as members of the Tribunals Service-Criminal Injuries Compensation (TS-CIC). The Secretary of State appoints them.

Administration officers undertake much of the preparatory work, such as reviewing medical evidence and Department for Work and Pensions ('DWP') information but do not make decisions. Beyond that, matters are referred to higher executive officers. There is a Chief Executive Officer who exercises a management role but can make decisions in individual cases. The TS-CIC are appointed by the Secretary of State for Justice from a cross-section of the community. There will be some legally qualified members assigned, and many members are from the medical and allied professions. It is the Tribunal's responsibility to make decisions about both eligibility and tariff. 1999 and 2013 saw radical changes to the civil litigation system and rules of civil procedure, the principal aim of which was undoubtedly to achieve cost effectiveness and 'proportionality'. Nowhere can the importance of this objective be more relevant than in the pursuance of claims for compensation for criminal injury. These requirements are given more focus by the abiding principle that exists under the schemes whereby the costs of representation are not recoverable.

So far as pure legal representation is concerned, applicants should be advised that the costs in question will, as a general rule, not be recoverable and must therefore be paid for privately or borne out of any compensation that is awarded. For so long as it ever existed for pursuing any form of claim for compensation for injuries, public funding has never been available for substantive representation as such for claims under the schemes. The provision of some advice could be covered by limited forms of public funding or judicial review type proceedings should they arise. Therefore, it is imperative that a legal representative of an applicant formally establishes a clear retainer in accordance with professional rules and guidance current at the time of the acceptance of instructions. In cases involving applicants under a disability (minors or protected parties) where there is the appointment of a Deputy through the Court of Protection the claim for costs might be submitted and assessed by the Supreme Court Costs Office on behalf of the Court. Some Deputies will have the power to pay costs without a Detailed Assessment, depending on the terms of the Deputyship Order. Care should be taken to ensure that the Court of Protection makes the appropriate Deputyship Orders to permit the Deputy to deal with a Criminal Injuries Compensation Application and to deal with the costs arising from it. Interestingly, while the concept of a pure conditional fee agreement1 is not applicable to this type of claim, it seems that the legal services in question, just as with applications to many other forms of tribunal, fall within the definition of 'non contentious business'. These claims are not regarded as an action, suit or other contentious proceedings. On that basis, it would appear permissible to represent an applicant on a contingency fee basis. In recent times, professional rules and regulations governing the nature of the retainer between solicitor and client have been moving and developing rapidly. Contingency and damages based arrangements of a number of descriptions have become available. In certain circumstances costs consequences can follow in Judicial Review proceedings.

Of equal importance is the issue of disbursements. With claims under the Scheme this will normally concern the expense of obtaining medical evidence to support an application although the need may also arise to submit other types of expert evidence as with any injury compensation claim. The policy of the CICA is that it will not pay for medical examinations or reports (as to the obtaining of medical evidence under the 2012 Scheme, see post), other than those specifically requested by the Authority in the course of its enquiries, and this would tend to imply that to have any possibility of recovering a disbursement there must be prior authorisation or agreement. The safest course in either case would be to indicate in advance the intention to obtain the particular form of evidence and when the matter falls for final consideration or should it proceed to a Tribunal hearing all relevant fee vouchers should be scheduled and submitted for consideration. In cases that proceed to appeal, on the issue of an award the Tribunal has the power to direct the CICA to obtain expert evidence on joint instructions with the appellant and that the CICA shall pay for the reports.

However, this question should be looked at in the light of the decision in C (a child) v Secretary of State for the Home Department1. The case involved a child catastrophically injured by her mother's boyfriend when eleven months old. It primarily concerned the issue of the recoverability of legal costs by virtue of the provisions of the European Convention on Human Rights and the impact of the Human Rights Act 1998 and, in particular Article 6. On the primary issue, the appeal failed, and it was held that the pure cost of legal representation was not recoverable. The Court of Appeal did, however, conclude that para 20 of the relevant Scheme required the CICA to call for a medical examination whenever one is needed, and it was implicit that this would cover not just the applicant's travel, subsistence and loss of earnings, but also the applicant's reasonable legal costs where their representatives have arranged for the obtaining of the evidence as proxies for the Authority. The court found that the CICA could not refuse to pay the cost of examinations that were objectively required. Notably, the CICA paid for an occupational therapist, a nursing consultant and specialist surveyors. Sedley LJ expressed concern as to the concept of the need to present complex factual and legal argument, which, in some cases, would be impossible for the average lay applicant. Perhaps to speculate that the decision opens the way to contend that if the CICA defaults in compiling the necessary evidence to reach a fair decision, then some legal costs might be recoverable.

In any event, the degree to which expert evidence is necessary or justifiable is a matter for careful judgment. It must be borne in mind that it is for an applicant to prove his or her case on the balance of probabilities. The representative must be satisfied that sufficient evidence has been compiled by or provided to the Authority to do this. If there is doubt, then subject to the considerations referred to above, the applicant's representative should set about ensuring that the relevant evidence is compiled and submitted, while keeping an eye on the proportionate cost of obtaining that evidence. Special care and attention should be given regarding the 'non-medical issues' that arise about claims for loss of earnings or earning capacity, special expenses, and in fatal cases. Extremely useful and 'user-friendly' guides are provided to applicants and their representatives regarding these aspects by the CICA. Nevertheless, in cases of the utmost severity, representatives should keep in mind that the maximum tariff level of compensation (level 25 2008 Scheme, level A20 2012 Scheme) is £250,000 and that the total maximum amount payable in respect of the same injury will not exceed £500,000.

The obligation is on the CICA itself to prepare a calculation that the applicant will then be entitled to challenge about loss of earnings. Similar considerations will apply, for example, to evidence that might be provided regarding an applicant's accommodation requirements. The CICA is likely to discourage applicants or their representatives from the compilation of expensive evidence. Still, equally, caution ought to be exercised to guard against the possibility of the under-provision of necessary evidence resulting in an award being made that is too low.

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