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What does the CICA do?
The CICA exists to compensate blameless victims of crime. Since the first Scheme was set up in 1964, over 2.2 million applications have been processed and almost £6.25 billion has been paid out to victims in compensation. In the year 2017-18, the CICA made decisions on over 40,000 applications, making payments of over £154 million in compensation to victims of violent and sexual crime. The Victims' Commissioner's report The Office of the Victims’ Commissioner (“OVC”) has published a 125 page report “Compensation without Traumatisation”. In that report, the Commissioner, Baroness Newlove says that her office is frequently contacted by victims regarding their experience of applying for criminal injuries compensation. Victims have raised concerns about the accessibility of the Scheme, their contact with the CICA, delays in decision making, the rules of the Scheme and how they are applied by the CICA. These rules include the two-year time limit for applications, reductions in awards due to the victim’s conduct and unspent convictions and the ‘under the same roof rule’. Victims have also contacted the OVC about the lack of support and guidance available for them in making their application, difficulties in obtaining payments for funeral costs, and the relatively low levels of awards paid out under the Scheme. The report can be found at:- https://victimscommissioner.org.uk/ The report was written following engagement with over 200 victims, as well as Police and Crime Commissioners, victim support services, criminal justice agencies and lawyers. The Ministry of Justice is considering her findings, and the report could mean far reaching changes in the CICA Scheme. What does the report have to say? This is what Baroness Newlove had to say:- “I believe criminal injuries compensation is important in helping vulnerable victims cope and recover from the most brutal of crimes. Yet my Review shows that the process of making their claim, which should strengthen victims, can have the opposite effect. The process of claiming is often having a detrimental impact on their wellbeing. I worry that we are treating it as a tick box exercise, without recognising the emotional needs of those making claims.” The report also flags up low awareness of the Scheme. Only just over a third of victims taking part in a survey reported they were informed of their entitlement to claim compensation by police. Some victims were being encouraged to delay claiming until after the criminal trial, only to find that they were timed outside the two-year window for submitting their claim. The CICA Scheme has very strict time limits, which can deny people compensation if they are not properly advised early on. Lawyers’ fees and the need for representation The report also says:- “My overwhelming impression is that whilst compensation awards were well received by victims, the process of making their claim was often traumatic. Victims, lawyers and support services told us about delays, uncertainty about next steps and poor communication. To many, fairly or unfairly, the Scheme seemed calculated to frustrate and alienate. Support on offer, through locally commissioned victim services, for making an application for compensation was patchy, and in some parts of the country non-existent.” To any lawyer handling CICA claims, this will come as no surprise. The Scheme does not pay costs, which means that the lawyer has to take his/her fees out of the client’s compensation. This may be as much as 25% of the award, a figure quoted by the report. In theory, it can be more. The report received evidence from a number of law firms in this area of the injury market and it describes the different ways in which law firms charge for their work. On the subject of lawyers’ fees, the report says:- “The review identifies a lack of provision for supporting victims who wish to submit an application, with many victims feeling compelled to instruct solicitors on a no-win, no-fee basis as they feel unable to cope with the trauma and stress of making an application.” To this I would say that victims are not actually “compelled” to instruct lawyers at all, and the Scheme plainly encourages people to present their own claims, which most Applicants seem to do. However, legal aid is not available (a point acknowledged by the report), except possibly where the claim enters the realm of judicial review. As we saw with the recent challenge to the “same roof” rule, sometimes it takes a lawyer to make all the difference. The CICA have reported that something like 39% of Applicants have some form of representation, but it’s not clear whether this is provided exclusively by lawyers. In any event, it appears that most Applicants are not represented at all. The result of not instructing a lawyer can be seen in a recent case from the Scottish courts in 2017, which the report highlights. There a victim of historical childhood abuse successfully sued Victim Support Scotland for £100,000 in damages, claiming that he had missed out on tens of thousands of pounds in compensation because of the advice the charity had given him. Victim Support Scotland had supported the victim in his claim for criminal injuries compensation, and he was awarded £17,000 in 2013 in recognition of the crimes committed against him. The victim had lost his job because of the trauma of the crime. When the victims’ brothers were awarded a much larger sum, the victim realised that he could have claimed compensation for loss of earnings, which he had not been informed about by Victim Support. The Judge ruled in favour of the victim, saying that Victim Support had failed to act with “reasonable skill and care, a duty to address the loss of earnings and to help [the victim] seek to have the award reviewed.” This has had a dramatic effect on the willingness of charities such as Victim Support to help victims of crime. From February 2018, Victim Support Scotland stopped any form of support for victims in applying for criminal injuries compensation. In England and Wales, Victim Support will continue to represent victims, acting on their behalf if they accessed support before February 2018, but Victim Support will not act as victims’ representatives in any new cases. The report says that prior to these changes, around 4% of victims were represented by Victim Support. However other charities have now expressed an unwillingness to help people with CICA claims. Re-triggering of distress and trauma The report talks about the way in which the Scheme triggers distress and trauma. It is a regrettable feature of the whole legal system, found also in the criminal and civil courts that victims are re-traumatised, particularly in the more violent and sudden forms of crime. The report says that “The CICA have invested significant effort in the past 18 months in reviewing and seeking to improve their processes and communications.” For instance, since March 2018, fatal cases have been allocated a named contact in the CICA. The CICA are also currently developing a new online portal for applications. Other criticisms The report also criticises the time limit applied by the Scheme to claims, pointing out that some victims miss this time limit because they think that they not apply until after the criminal trial. There is apparently a lack of consistency in applying this rule. There are also criticisms of the way in which compensation is reduced because of an Applicant’s criminal convictions or conduct in provoking the crime, or in case of a fatality, the innocent beneficiaries are penalised because of the deceased’s convictions or conduct. Another criticism is the sheer delay (six years was quoted in one case) for resolving applications. What does the report recommend? The report says towards its end:- “If we are to place victims at the heart of the criminal injuries compensation process we believe that the system must be simplified. It should be organised in such a way that the process does not re-traumatise those it sets out to support, but instead sees itself as aiding a victim’s recovery. It also needs to provide targeted support for the most vulnerable groups of victims in helping them apply for criminal injuries compensation without having to forego a substantial proportion of their award in legal fees.” The report then comes up with some practical recommendations. The following are very rough summaries of what some of these are:- • One issue identified by the report was the delay in getting information from the police. The report recommends that In addition to identifying the case and requesting police evidence based only on the crime reference number, a further step would be for the CICA to be able to directly access police evidence. • A single, named point of contact for victims should be provided so as to give a more personalised service. • Another issue relates to the CICA rules, which dictate what victims can spend the money on. For example, parents and guardians can draw from an award in trust for a child, but only for very specific expenses. The report urges a review of these rules. • If a victim dies while their award is held in trust, the funds are returned to the CICA. Communication of this rule causes victims a great deal of stress. The report urges that this policy is re-traumatising for victims and their families and that it should be reviewed. • A review of the rules on victims’ conduct, which means that awards can be refused or reduced if the CICA deem the victims’ conduct to have been integral to the crime. This is particularly unfair to those blameless victims who lose loved ones. • Victims with unspent convictions are not eligible for compensation and their applications are declined. This is also potentially unfair to those who have suffered childhood abuse, modern slavery or those with brain injuries. This rule should be reviewed. As a general point, I would say that the CICA have long said that the public (who finance the Scheme) would not want to see public money going to those who had committed crimes themselves, but on the other hand, as the report says there are potentially deserving cases. • If there is an issue as to “conduct” or “character” then the Applicant should be told about this issue, and allowed to make representations prior to a final decision. • The Ministry of Justice should review the complex and bureaucratic nature of the Scheme as well as opportunities and procedures to challenge decisions in their forthcoming review. • There should be some support provided to help certain applicants, and that will mean financing legal costs from practitioners. Legal support should be targeted on the most vulnerable of victims, for instance those who are assessed as unable to make their own application. The cost should be borne by commissioned victim support services, which in turn would be funded by local Police and Crime Commissioners. This means that the Ministry of Justice would need to find further money. That’s isn’t unreasonable given the way in which the CICA Scheme has been scaled back in previous years. • Equally, in cases of significant complexity, where the CICA recognises that the victim needs legal assistance, it would be fair that this cost be met by the CICA and not by the victim. The First Tier and Upper Tier Tribunal should also have the power to award costs against the CICA in certain cases, for instance if the Tribunal overrules the CICA’s decision, and the decision was based on the same information as the CICA had available. There is in fact provision in existing legislation for tribunals to make costs orders, but these are very rare. Consequently I think there would need to be an amendment to the existing rules on costs. • More needs to be done across the criminal justice system to raise awareness of the Criminal Injuries Compensation Scheme. This responsibility lands with the Ministry of Justice and the CICA itself. • In relation to the time limit, the report says that this time limit should be more transparent. For example, one option might be that victims are given two years from reporting the incident to submit a claim, or alternatively, one year from the end of the trial, whichever date is later. I may have misunderstood this, but rather worryingly the report says that the CICA’s discretion to extend the time limit should be removed. That is not something with which I would agree, since the discretion is something that should still be there for meritorious cases. On 18 December 2018, the Ministry of Justice announced the terms of reference of its own review of criminal injuries compensation. The Victims Commissioner would like to see these recommendations being considered as part of this wider review. I was concerned about the recommendation to abolish discretion on the time limit. I’m not sure that the Ministry of Justice would do this, given that there has always been a discretion present in the CICA Schemes and those of its predecessor, the Criminal Injuries Compensation Board. I think it would offend against human rights principles. The provision of a form of legal aid for deserving cases is interesting, but one does wonder if it would work in practice. For instance would it be grouped together with the existing legal aid arrangements for other forms of work, which is administered by the Legal Aid Agency? As with the present limited scope of legal aid for injury based cases, the rates payable would probably be very low and law firms might well conclude that they can only run such claims under the “no win no fee” arrangement. Nonetheless, this is a very welcome report. It identifies the current issues with which all practitioners in this area will be familiar, and comes up with mostly practical solutions.
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 CN & GN v Poole Borough Council I wrote an article about this important case earlier on my Linked In page in 2018 - see link button above. To recap, the Claimants in the case of CN & GN v Poole Borough Council [2017] EWCA Civ 2185 obtained permission to appeal to the UK Supreme Court on the 15th March 2018, The appeal was heard on the 16th and 17th July 2018 by the UK Supreme Court. Last year, I recently attended an excellent seminar on child abuse compensation claims given by Paul Stagg, Saleem Khalid and Katie Ayres of 1 Chancery Lane. Paul Stagg who is the junior counsel in GN and CN to Lord Faulks QC spoke about the implications for other “failure to take into care” claims, and the competing arguments from both sides. A Claimant bringing a “failure to take into care” could argue now that :-
The answer to those points from a Defendant would be that any assumption of responsibility by a Defendant, has to be “voluntary.” A local authority acts under an Act of Parliament, and so what it does is not voluntary at all. Two cases support that argument. • HM Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181. • X and Y v the London Borough of Hounslow [2009] EWCA Civ 286 In HM Customs and Excise Commissioners, the Claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. The court held that the bank owed a duty to the court but no duty to the creditor. There was no voluntary acceptance of the bank’s involvement. Its duty was to the court to comply with the order. It would be an independent contempt of court for a third party to do an act which deliberately interfered with the course of justice by frustrating the purpose for which the order was made. Lord Bingham said: “The parties were agreed that the authorities disclose three tests which have been used in deciding whether a defendant sued as causing pure economic loss to a claimant owed him a duty of care in tort. The first is whether the defendant assumed responsibility for what he said and did vis-a-vis the claimant, or is to be treated by the law as having done so. The second is commonly known as the threefold test: whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do; whether the relationship between the parties was one of sufficient proximity; and whether in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant.” In X and Y the Claimants were aged 44 and 38 and lived in a flat owned by the Defendant with Y’s two daughters, A and B aged 11 and 8. X, Y and A all had learning difficulties and the family had involvement with social services. The family was harassed by a group of local hooligans, who ended up subjecting them to a series of horrific assaults over the course of a weekend. The Court of Appeal decided that the local authority did not assume a responsibility to the respondents at common law, and that neither it nor its employees owed them a duty of care at common law and, in any event, that neither it nor its employees was in breach of a duty to take reasonable care to remove them from the flat into emergency accommodation. The Court of Appeal referred to two recent cases from the House of Lords, Mitchell And Another v Glasgow City Council [2009] UKHL 11, and Chief Constable of Hertfordshire Police v Van Colle [2007] EWCA Civ 325 and [2008] EWCA Civ 39. On this issue of whether a statutory body is assuming responsibility, a Claimant could say that in fact, a number of statutory bodies perform functions under a statutory duty, and yet they still owe a common law duty to those affected by that statutory duty. The prime example would be an NHS Trust, which is part of the National Health Service. Another example would be a Local Education Authority school. In Phelps v London Borough of Hillingdon [2001] 2 AC 619 the House of Lords decided that an educational psychologist or a school teacher might owe a duty of care to a child with learning difficulties i.e. dyslexia. The Defendant might say that those cases are very far removed from a local authority dealing with a child potentially at risk in its geographical area, where the knowledge available to the local authority on that child may well be very fluid. This is not a hospital bed, nor a classroom. The Court of Appeal in GN and CN said that the Defendant was entitled to rely on the principles in X v Bedfordshire Council and Others [1995] 3 WLR 152. In that case, the House of Lords said that no duty of care was owed by social services to protect towards children in its area from abuse, or where they acted negligently in taking a child into care. X v Bedfordshire was in effect overruled by D v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151, but that decision has now been found to be wrong by CN and GN. Consequently we are back with the principles in X v Bedfordshire. X v Bedfordshire concerned children who were in effect outside of the care system at the time of the negligence. Likewise CN and GN were children who were not actually in care at the time of the local authority’s negligence. So, what about a child who is already in care when the local authority is negligent? Those cases should still be able to go ahead. In CN and GN, no mention was made of two cases that followed on from X v Bedfordshire and which involved mistakes made in relation to children were already in care.
There is also limited authority for a duty of care, when one foster child is abused by another - W v Essex County Council [1998] 3 WLR 534. Again local authorities may suggest these duty needs re-examination. However local authorities may begin to suggest that these cases should be revisited in light of the decision in CN and GN. Moreover, some children are now accommodated under Section 20 of the Children Act 1989. Defendant local authorities will now argue that because they do not have full parental powers under Section 20, and their “care” can be terminated by the child’s parents, therefore there should be no duty of care owed to those parents. This raises the issue of when the barrier to a common law claim should go up. A formal care order is only one of the many ways in the Children Act 1989, in which a local authority can protect a child. At what point does a local authority, inspecting and investigating over what may be a period of years, as well as putting in mechanisms to assist and support a family, voluntarily assume responsibility? There are children who successfully argue that they were “accommodated” under Section 20 of the 1989 Act, when they should have been in care. That is the basis for a number of reported human rights claims. There are also children who successfully persuade the local authority to accept that they should have been “looked after” children (and thus entitled to careleaver benefits), using the mechanism of judicial review or the complaints system. It’s impossible to make a firm prediction. However, in conclusion, if CN and GN goes the Defendant’s way in the UK Supreme Court, we can expect to see less failure to take into care claims. We may well see more claims based on human rights, as CN and GN did not deal with this type of claim at all. However human rights claims are not easy to bring, and they require a high threshold before those rights are engaged. As yet, it’s not known when we can expect a judgment from the UK Supreme Court, but on the basis of the time taken between hearings and judgments, I would expect a result by March of this year. |
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