Criminal injuries compensation – the new pitfalls

There have been a number of changes to claiming compensation through the Criminal Injuries Compensation Authority (“CICA”), including the introduction of a new Scheme and changes to eligibility criteria. This has, in some areas, resulted in far-reaching changes and practitioners should be aware of the revised position when advising clients, as a claim may be destined to fail prior to submission to the CICA. It is the aim of this short article to highlight some of these areas, to increase awareness of the role of the CICA, and to explore making claims on behalf of vulnerable people.

On 30 January 2012, as part of a wider consultation exercise called "Getting it Right for Victims and Witnesses", the UK Government canvassed views on proposed changes to the Criminal Injuries Compensation Scheme. The Government’s response was published in July 2012, together with the revised draft Scheme. The draft Scheme received approval from a Delegated Legislation Committee on 1 November 2012 and came into force on 27 November 2012. At the same time, a new hardship fund of £500,000 was announced, to which victims of crime in England & Wales who suffered from immediate financial hardship and whose injury was now excluded from the Scheme tariff of injuries, could apply.

The 2012 Scheme made a number of radical departures from the previous and indeed earlier tariff-based schemes. These affected both the eligibility criteria to qualify for an award, and the amount of the award itself. It is important to highlight some of these key changes, making practitioners and representatives aware of them with a view to preventing applications being made which are bound to fail or are unlikely to be cost effective.

Essential conditions

The Scheme introduced, for the first time, a residence qualification, by virtue of paras 10 and 11. The result is a situation where lawful visitors to the UK who would previously have qualified for an award will no longer do so; for example, many Commonwealth and North American visitors will be excluded. Eligible categories primarily include British citizens or close relatives of British citizens, EU or EEC nationals, certain family members, and certain armed forces personnel or their accompanying close relatives.

The emphasis of the circumstances in which an award can be refused or reduced was also changed (paras 22 to 28). Notably, the Scheme provides that an award will now be withheld in the absence of the incident being reported to the police. Under the previous Scheme, reports could be made to another appropriate body as designed by the CICA. There is an additional proviso that the age and capacity of the victim at the date of the incident can be taken into account, along with whether the effect of it was such that they could not reasonably have been expected to report earlier.

Similarly, failure to co-operate in bringing the assailant to justice will result in a withholding; there was previously a discretion available to a claims officer in such instances. There are remaining provisions entitling a claims officer to withhold or reduce awards for failure by applicants to assist in relation to the consideration of the application, where the applicant’s conduct before, during or after the incident makes it inappropriate to make an award or where the applicant’s character makes it inappropriate.

A more fundamental change has arisen in connection with any convictions of the applicant. In particular, Annex D to the Scheme deals with convictions, and outlines the circumstances in which an unspent conviction will result in no award being made (see panel). Thus, many applicants who may previously have qualified for an award now simply cannot do so. The CICA will endeavour to notify a refusal as soon as it is in possession of the relevant information, although it is reliant on this information being provided by the police. Clearly, in taking instructions it is imperative that a representative spells out carefully the terms of the Scheme in so far as it relates to convictions and emphasises the importance of a potential applicant providing accurate information.

Another key revisal is in relation to the definition of a crime of violence. Complex and controversial issues have arisen in the past around this aspect of the various schemes and given rise to a number of challenges by way of judicial review. The definition is now self-contained at Annex B of the Scheme. “Crime of violence” is described as involving a physical attack, any act or omission of a violent nature which causes physical injury to a person, a threat against a person causing fear of immediate violence in circumstances in which a person of reasonable firmness would be put in such fear, a sexual assault to which a person did not in fact consent, and arson and fire raising. At para 2(2) of Annex B it is stated that an act or omission will not constitute a crime of violence unless it is done intentionally or recklessly.

Injury limitations

There are also, however, specific exclusions. Paragraph 4 at Annex B states that an injury resulting from suicide or attempted suicide is not a crime of violence unless carried out with intent to injure. The historic provision excluding injuries caused by a vehicle unless used with intent to injure remains, but injuries from animal attacks are entirely excluded unless the animal was used with intent to cause that injury.

Furthermore, injuries sustained in the course of sporting or other activity to which the applicant has consented to take part are excluded, and finally there is an exclusion for an injury 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.

The other key reason why an application that might previously have been successful might fail under the current Scheme relates to the removal of the first five tariff bands of injury that existed under the previous scheme. That will include, for example, injuries such as scarring to the face resulting in minor disfigurement, corneal abrasions, deviated nasal septum and certain nasal fractures, rib fractures and many more. The CICA has indicated that on initial analysis since the inception of the Scheme, this is the most common reason for applications to be refused.

There are many other changes brought about by the Scheme that will have an effect on both the eligibility and compensation aspects of applications. However, in the interests of injured victims, their representatives and the CICA it is necessary to be familiar with the important changes, particularly those surrounding applicant eligibility, so that expectations are managed, accurate advice is given and claims are not brought that are bound to fail.

It is important for those practitioners not familiar with using the Scheme to be aware that the CICA are available to receive applications for awards for victims of crimes of violence under both the Scheme and the hardship fund, where there is no alternative compensatory source. The Scheme is one of last resort, and so should there be an alternative source of funds available, that is where the primary claim should be addressed.

Problems looking after money?

When representing an individual who is very vulnerable due to a particular set of circumstances, or who has reduced or limited capacity whether or not resulting from the crime of violence, there can be a real concern over how to manage an award on making a successful application. This can be perceived as a reason not to submit a claim to the CICA, as it could lead to more complex issues for the individual, leading to increased vulnerability following receipt of a sum of money. The good news is that the CICA has arrangements in place should these circumstances arise. An award, where appropriate due to reasons of capacity or vulnerability, can be placed in a discretionary trust for the benefit of the applicant, with nominated individuals or organisations appointed to manage the funds. The trust can specifically exclude certain people, such as offending parties, from benefiting from the award, whilst ensuring the funds are used appropriately in the best interest of the applicant.

Previous and unspent convictions

An award may be refused or reduced if the applicant has a criminal record, even though the applicant may have been a blameless victim of violent crime. Annex D to the Scheme provides extensive detail on circumstances in which an award may be withheld or reduced due to the applicant having unspent convictions. When considering unspent convictions, the CICA must take into account the severity of the sentence received as well as how recently the sentence was given.

More particularly, before submitting an application on behalf of a client, it is worthwhile noting that an award will not be made if the applicant has a conviction for an offence resulting in:

• a sentence excluded from rehabilitation;
• a custodial sentence;
• a sentence of service detention;
• removal from Her Majesty’s service;
• a community order;
• a youth rehabilitation order; or
• a sentence equivalent to a sentence above imposed under the law of Northern Ireland or a member state of the European Union, or such a sentence properly imposed in a country outside the European Union.

It is crucial that clients are encouraged to disclose all information about previous or unspent convictions at as early a stage as possible to avoid applications being submitted that are bound to fail.