Criminal Injuries Compensation Scheme 2008
RESPONSE BY THOMPSONS SOLICITORS - October 2008
A new CICA scheme becomes effective from 3 November 2008. The changes contained in it mirror many of the proposals contained in the recent consultation on the First-tier Tribunal (Social Entitlement Chamber) Rules.
Thompsons Solicitors objected to proposals contained within those First-tier tribunal proposed new rules. Read our response.
However, the new First-tier tribunal rules have come into force without amendment.
This briefing analyses the key changes in the new CICA scheme.
We welcome the fact that there is no change in the scope of the scheme. The proposal contained in the Rebuilding Lives – Supporting Victims of Crime 2006 consultation to remove workers injured at work from the scheme has not been followed through.
Thompsons remains opposed to the cap which punishes the most injured, the most vulnerable and their families.
It is disappointing that the £500k cap on awards remains.
There have been no inflation increases in the tariffs.
The Judicial Studies Board Guidelines (JSB) figures, which are used for calculating civil claims, are reviewed regularly whereas tariff awards have remained the same since 2001. Every victim is, in real terms year on year, receiving less compensation under the scheme as inflation erodes the tariff values.
However, the 2006 proposal to remove the lower tariffs, which would in our experience punish and alienate victims, has also been dropped and we welcome this.
The key changes
Whereas the previous scheme allowed a time limit to be waived in particular circumstances where it was reasonable and “in the interests of justice” to do so, the new scheme removes reference to the interests of justice.
Old: 18. A claims officer may waive this time limit where he considers that, by reason of the particular circumstances of the case, it is reasonable and in the interests of justice to do so.
New: 18: A claims officer may waive this time limit only where he or she considers that
(a) it is practicable for the application to be considered, and
(b) in the particular circumstances of the case it would not have been reasonable to expect the applicant to have made an application within the two year period.
The Ministry of Justice says the new rule clarifies how long an applicant has to apply, which has been two years since the introduction of the statutory tariff-based scheme in 1996, and is intended to prevent anomalies or unfairness in the use of the CICA’s power to waive the time limit.
In Thompsons’ view, by restricting the opportunity for a late claim to where it is not practical to submit one within two years is unnecessarily harsh. Genuine mistakes are made. And not all victims of crime have the assistance of a legal representative to ensure their application is submitted in time.
Unrepresented applicants will be disproportionately affected by the new time limits rule.
Thompsons repeatedly opposed draconian proposals contained in the 3rd tier tribunal consultation as being against the interests of fairness and justice. We said that the fair and correct result should be the priority of the tribunal and not whether deadlines have been missed or evidence has been submitted in an incorrect format.
We stand by those comments in relation to the new scheme.
Extension of time for review
As with time limits, the “interests of justice” clause has been removed from the rule on extending the time for review.
Old: (a) any extension requested by the applicant and received within 90 days is based on good reasons; and
(b) it would be in the interests of justice to do so.
New: (for example at paragraph 59): where
(a) the applicant has made a written request for an extension [of the period of 90 days in which to apply for a review or appeal]; and
(b) the claims officer considers that there are exceptional circumstances which justify the granting of an extension [then an extension may be granted]
It is our view that the changes to the time limits rule including the removal of the “interests of justice” provision in this context create more scope for unfair decisions, even though the government claims they were made in order to clarify and prevent unfairness.
What constitutes an exceptional circumstance? What stops claims officers being rigid in their decisions or making arbitrary decisions?
Again, this change is against the interests of fairness and justice.
Accepting offers of award
This is a new rule which is inexplicably draconian.
New: 50: Written acceptance of an award must be received by the authority within 90 days of the date the decision was issued. If such acceptance is not received within that period, and no application for a review under paragraph 59 has been made, the Authority may withdraw the award. A claims officer may grant an extension to this time limit (whether or not it has already expired) and overturn any withdrawal if:
(a) the applicant has made a written request for an extension
(b) the claims officer considers that there are exceptional circumstances which justify the granting of an extension.
An award should not be a negotiable offer which an applicant has to respond to in writing within a time limit or risk losing. The CICA assesses a claim at a tariff level and it should be assumed that the award therefore belongs to and will be paid to the applicant unless the applicant seeks a review of it (or lodges an appeal against an award made at review stage).
Recipients of benefits such as incapacity benefit do not have to formally accept an award in order to receive it. But if they do not agree with a decision they have a period in which they can ask for an explanation of the decision and they can also appeal.
Again, to require applicants to accept a CICA award in writing or risk losing it is a harsh rule that will affect unrepresented applicants disproportionately.
At the very least, the CICA’s award notification letter will have to be extremely clear in order that applicants do not overlook the need to respond in good time.
We are concerned at the lack of clarification as to what constitutes “exceptional circumstances” in the granting of an extension. We find the right of a claims officer to “consider” an extension to the time limit or overturning a withdrawal on these grounds to be unfairly arbitrary.
Loss of earnings
A claim for net loss of earnings remains restricted while the method of calculation has changed to one and a half times gross “average earnings”. Thompsons has always opposed this restriction. It bears no relation to civil liability damages. Why should an innocent victim of crime receive less than someone who is able to make a civil claim?
Baroness Falkner pointed out in the House of Lords debate about the new scheme (16 July 2008) that the definition of “average earnings” has changed from “gross average industrial earnings” in the 2001 scheme to “median gross weekly earnings”.
She said that on the face of it, given that average earnings are skewed by the very high earnings at the top end, changing to the median represents a reduction in the amount.
On the other hand, changing from industrial earnings to earnings in general might have the opposite effect.
Responding to her comments on behalf of the Ministry of Justice, Lord Bach said that the change of the loss of earnings calculation from one type of figure, which is no longer to be produced by the Office for National Statistics, to another has the effect of changing the arrangements from mean average to median.
The MoJ says the practical effects are negligible as most victims do not earn one and a half times the median gross weekly earnings. Individuals may be affected but [ultimately] the ONS no longer produces the relevant statistics.
This is not an entirely new rule. The Appeals Panel issued a Chairman’s Direction on 4 January 2008 which was to apply to Para 34 of the 2001 scheme and stated that the maximum [net] amount which could be awarded was £685.50 per week (£35,646 per annum) following publication on 7 November 2007 of the Annual Survey of Hours and Earnings (ASHE) by ONS. This showed gross median weekly pay for full time employees as £457 per week and stated that ASHE does not give details of gross average industrial earnings.
In Thompsons’ view, applying an upper limit serves to save the government money to the detriment of those victims of crimes of violence who may earn more than approximately £50,000 gross per annum.
Baroness Falkner pointed out, in the House of Lords debate, the change from the 2001 scheme in that the new scheme restricts care costs to applicants’ core costs, such as the cost of helping them with bodily functions and meal preparations, whereas the previous scheme covered all the victim’s care costs.
The MoJ response was that the new scheme follows the wording of Section 72 of the Social Security Contributions and Benefits Act 1992. It says the intention is to make existing practice clear. Only core personal care costs are covered. These include dignity-based help that people need if they have been incapacitated, but not social care costs or peripheral costs such as arrangements for having housework or gardening done.
In Thompsons’ view, care should mean what is considered necessary for the health and welfare of the injured person. Such things as shopping, laundry, ironing and cleaning relate directly to the welfare of the person.
A new rule is introduced in relation to civil claims for personal injury in respect of the same injury.
New: 48.3 A claims officer may require an applicant to provide details of any steps taken or planned to obtain damages or compensation in respect of the same injury and may decline to process an application further until those details have been provided or until the applicant’s attempts to obtain such damages or compensation have been exhausted.
Clarification of whether this is a policy change is needed because this rule does not reflect the reality that, at present, in our experience, the CICA prefers to press on with applications regardless of any civil claim.
In fact applicants who are pursuing a civil claim must, in order to protect their potential entitlement to a CICA award should the civil claim ultimately not succeed in full or in part, continue to progress the CICA claim whilst the civil claim is ongoing.
They must continue to complete questionnaires, make decisions about whether or not to accept awards and proceed to appeal hearings even where ultimately, given that there is no double recovery, the CICA is unlikely to pay compensation if the civil claim is successful.
Where CICA awards are made before an offer on the civil claim is received inevitably the applicant then has to pay back the CICA award. Statistically it may be attractive to have CICA claims continue and for awards to be made regardless of an ongoing civil claim. But it creates more work for both the applicant and for the CICA. Continuing to process an application in these circumstances is a waste of resources.
In Thompsons’ view the MoJ should step back from an obsession with statistics that results in the continuation of both types of claim. If the new rule is intended to reflect a policy change that CICA claims will not continue to be processed if there is also a civil claim, then this should be mirrored in the way claims are actually dealt with.
CICA applicants should not have to continue to progress their CICA claim if they are pursuing civil damages in order to protect their right to a CICA award should the civil claim be unsuccessful. The CICA should allow the CICA claim to be "stayed" whilst the civil claim is resolved so that that right is protected.
Review of decisions
We have strong concerns about the new rule on reviewing decisions, which removes the requirement for the reviewing officer to be more senior than the one who made the decision.
Old 59: a claims officer more senior than the one who made the original decision
60: all applications for review will be considered by a claims officer more senior than any claims officer who has previously dealt with the case
New: 59: a claims officer other than the one who made the original decision
60: All applications for review will be considered by a claims officer other than the one who made the original decision
Given the complexity of claims, there is a clear need for a senior officer to review decisions which applicants have asked to be reviewed. It cannot be right that the review is simply passed to an officer of the same level as the one who made the original decision.
A more senior officer will have the experience and the authority to spot mistakes or information that has been overlooked and to overturn the original decision.
In local authority housing benefit appeals, for example, a senior housing benefits officer will consider written appeals.
The removal of the seniority provision is a dumbing down of the review process which we believe will result in unfair decisions.
Various changes have been made to the tariffs. Some have been increased, others, inexplicably, reduced. There is no increase for inflation.
Reduced tariffs include:
- The award for the loss of a kidney has been reduced from £22k to £11k.
- Awards for the loss of limbs have changed. More is awarded for the loss of a dominant arm or hand and less for the non-dominant arm or hand. But, under the new scheme the award for the loss of a dominant hand or arm is £55k and £33k for the loss of a non-dominant arm or hand. Under the 2001 scheme the tariff award was £44k for the loss of either arm or hand.
Increased tariffs include:
- Where an arm, hand or leg is lost and there is no remaining arm, hand or leg with any useful function the award is £82k.
- Awards for brain injuries are more detailed and may result in larger awards in general.
- Awards for dental injuries increase by about 60% (eg from £1,250 to £2,000 for damage requiring root canal treatment).
We welcome the increase for dental injuries since the tariff scheme has never allowed for the cost of treatment to be paid, unless the applicant has been unable to work for 28 weeks or more and therefore qualifies for compensation for special expenses. It is also significant due to rising cost of dental treatment.
While the removal of the flat £44k tariff for the loss of any arm is welcome, £33k is far too low for the loss of an arm. The lowest JSB recommended award for the loss of an arm (below arm amputation) is £61,500 and for an award for an amputation at shoulder level the JSB indicates that the award should not be less than £87,500.
The reduction in the award for the loss of a kidney is inexplicable, given that the JSB recommendation is from £19,750 to £27,500.
In Thompsons’ view, the CICA should, at the very least, offer an explanation of these changes and why they are often so far from the JSB guidelines, including whether they are based on any medical assessment.