R (CICA) V FIRST TIER TRIBUNAL AND IM [2011] UKUT 70
FACTS:-
The Applicant was the victim of a very serious assault in 2004. He made an application in 2005 which was refused entirely on the ground of his character as revealed by his criminal convictions (Paragraph 13(e) of the 2001 Scheme). On an application for review the award was reduced by 25%, but no award was made for loss of earnings or care. He appealed and before the Tribunal he secured an award for past care, together with past and future loss of earnings. He also secured an award for future care which was far in excess of the £500,000 statutory limit. The CICA applied for judicial review of that decision, in relation to the claim for care.
JUDGEMENT:-
Judge Mesher considered paragraphs 35 and 36 of the 2001 Scheme under the heading “Compensation for Special Expenses.” He also considered statements made by Baroness Blatch, a Minister responsible for what was then the Criminal Injuries Compensation Bill, which became the 1995 Act. The Baroness had said that the care element of a CICA claim was not intended to cover everything that would be so covered under the common law. The Applicant’s solicitors had provided a detailed care report, which Judge Mesher considered.
The CICA had applied for judicial review on the grounds that the Tribunal’s conclusion was erroneous in law or irrational in that it incorrectly awarded common law damages rather than the more restricted compensation available under paragraph 35 of the 2001 Scheme.
Judge Mesher said the CICA had submitted that the scope of paragraph 35(d)(iii) was restricted to care in the home, but not in a residential establishment. Judge Mesher rejected that submission. In any event, the residential establishment proposed for the Applicant was not a place where he resided, since he only visited it during the day after the first few weeks.
The CICA had submitted that CICA care under paragraph 35(d)(iii) of the Scheme excluded care that was not directed towards the injuries themselves, and which enabled the Applicant to improve his lifestyle to permit him to more independent. Judge Mesher said that the test here seemed to be directed primarily to situations in which there was some other substantial cause of the need for care, for instance a degenerative condition. In this case it was plain that the Applicant’s need for care stemmed from his injuries. Judge Mesher could not accept the CICA’s suggested restriction to care directed to the injury itself. The test should be based on what was reasonably necessary and the Tribunal had applied the right test.
The next issue was whether the Tribunal should have made a finding of fact that the future care would be provided. Judge Mesher referred to R (on the application of DB) v CICAP [2002] EWHC 698 (Admin) where the Appeal Panel had made a finding that no professional cost would be obtained for some considerable time. In his judgement the Tribunal in this case had made sufficient findings of fact on this issue.
The final point related to the interaction of the £500,000 cap with findings about implementation of the care regime. If the cost of the proposed care regime would far exceed the £500,000 cap, would it be possible for find that the regime would probably not be implemented because the Applicant would not have the funds to pay for it. Mesher J said that the CICA were not taking up this point, but in any event he found the argument deeply unattractive. Furthermore there was an argument that some of the money award could go towards toward a care regime for a few years, which would at least be beneficial.
The application for judicial review would be dismissed.
FACTS:-
The Applicant was the victim of a very serious assault in 2004. He made an application in 2005 which was refused entirely on the ground of his character as revealed by his criminal convictions (Paragraph 13(e) of the 2001 Scheme). On an application for review the award was reduced by 25%, but no award was made for loss of earnings or care. He appealed and before the Tribunal he secured an award for past care, together with past and future loss of earnings. He also secured an award for future care which was far in excess of the £500,000 statutory limit. The CICA applied for judicial review of that decision, in relation to the claim for care.
JUDGEMENT:-
Judge Mesher considered paragraphs 35 and 36 of the 2001 Scheme under the heading “Compensation for Special Expenses.” He also considered statements made by Baroness Blatch, a Minister responsible for what was then the Criminal Injuries Compensation Bill, which became the 1995 Act. The Baroness had said that the care element of a CICA claim was not intended to cover everything that would be so covered under the common law. The Applicant’s solicitors had provided a detailed care report, which Judge Mesher considered.
The CICA had applied for judicial review on the grounds that the Tribunal’s conclusion was erroneous in law or irrational in that it incorrectly awarded common law damages rather than the more restricted compensation available under paragraph 35 of the 2001 Scheme.
Judge Mesher said the CICA had submitted that the scope of paragraph 35(d)(iii) was restricted to care in the home, but not in a residential establishment. Judge Mesher rejected that submission. In any event, the residential establishment proposed for the Applicant was not a place where he resided, since he only visited it during the day after the first few weeks.
The CICA had submitted that CICA care under paragraph 35(d)(iii) of the Scheme excluded care that was not directed towards the injuries themselves, and which enabled the Applicant to improve his lifestyle to permit him to more independent. Judge Mesher said that the test here seemed to be directed primarily to situations in which there was some other substantial cause of the need for care, for instance a degenerative condition. In this case it was plain that the Applicant’s need for care stemmed from his injuries. Judge Mesher could not accept the CICA’s suggested restriction to care directed to the injury itself. The test should be based on what was reasonably necessary and the Tribunal had applied the right test.
The next issue was whether the Tribunal should have made a finding of fact that the future care would be provided. Judge Mesher referred to R (on the application of DB) v CICAP [2002] EWHC 698 (Admin) where the Appeal Panel had made a finding that no professional cost would be obtained for some considerable time. In his judgement the Tribunal in this case had made sufficient findings of fact on this issue.
The final point related to the interaction of the £500,000 cap with findings about implementation of the care regime. If the cost of the proposed care regime would far exceed the £500,000 cap, would it be possible for find that the regime would probably not be implemented because the Applicant would not have the funds to pay for it. Mesher J said that the CICA were not taking up this point, but in any event he found the argument deeply unattractive. Furthermore there was an argument that some of the money award could go towards toward a care regime for a few years, which would at least be beneficial.
The application for judicial review would be dismissed.