MOJ Publishes Review of Criminal Injuries Compensation Scheme
Carin Hunt outlines the MOJ’s proposed reforms to the Criminal Injuries Compensation Scheme. The proposals seek to better support victims of violent crime, particularly those who suffer historic or current child abuse.
The Criminal Injuries Compensation Scheme (“the Scheme”) is a statutory scheme that compensates victims of violent crime in England, Scotland and Wales. On 16 July 2020, the MOJ published its first review of the Scheme since 2012, setting out a number of proposals for reform (“the Review”).
The Scheme is a tariff-based system for determining injury awards for victims of violent crime. A violent crime is defined in Annex B to the Scheme as one of the following acts, if done either intentionally or recklessly:
(a) a physical attack;
(b) any other act or omission of a violent nature which causes physical injury to a person;
(c) a threat against a person, causing fear of immediate violence in circumstances which would cause a person of reasonable firmness to be put in such fear;
(d) a sexual assault to which a person did not in fact consent; or
(e) arson or fire-raising.
The tariff covers physical and mental injuries and injuries resulting from sexual offences. It is currently divided into 35 bands and the awards range from £1,000 to £250,000. Further compensation for loss of earnings and special damages is available up to a maximum total award of £500,000.
The Scheme extends to those who have witnessed a loved one fall victim to a violent crime, and those who have been bereaved as a result of such a crime.
The Scheme is intended as a last resort for those who are unable to obtain compensation elsewhere. Awards will be reduced by any amount of compensation received in respect of the same injury through civil litigation or settlement.
The Scheme is administered by the Criminal Injuries Compensation Authority (“CICA”). CICA deals with over 30,000 applications a year and during 2018-2019 paid out over £130m in compensation. As CICA is an independent executive agency, its performance is outside the scope of the MOJ’s Review.
Applications to CICA must be made within a two-year time limit. This limit is extended if the victim was a child at the time of the crime and also by the operation of CICA’s discretion in exceptional circumstances.
Awards may be withheld or reduced for a number of reasons including the victim’s failure to report the crime to the police, unspent convictions, or conduct which “makes it inappropriate to make an award or a full award”.
Calls for Reform
Victims of Historic and Current Sexual Abuse
In July 2017, a coalition of charities wrote a letter to then Justice Secretary, David Lidington, reporting that CICA was turning down applications for compensation on the grounds that child victims had “consented” to their abuse. Pressed on the issue in the House of Commons by Sarah Champion MP, Mr Lidington noted that CICA had recently mounted:
“an urgent re-examination of its own internal guidelines – in particular, to make sure that there is no risk that a child could be disqualified from compensation because they had given consent when that consent had, in effect, been forced from them by a subtle process of grooming”.
Following this, in October 2017, the Guardian reported that CICA had issued new internal guidance to staff which states inter alia:
“Even if it appears that the minor expressed consent to the acts in question, it cannot be assumed that this was given because the child wanted to engage in sexual activity as this may actually be a symptom of coercive control.”
The guidelines were not published for general circulation.
Published in April 2018, the Interim Report of the Independent Inquiry into Child Sexual Abuse raised concerns about the rule set out in Annex D of the Scheme that provides that if a victim has an unspent conviction which resulted in a community order, a custodial sentence, or a youth rehabilitation order, they are not eligible for the Scheme. The Inquiry recommended that this rule be revised so that awards are not automatically rejected in circumstances where an applicant’s criminal conviction is likely to be linked to their experience of child sexual abuse.
In July 2018, the High Court found one of the Scheme’s “same roof” rules unlawful. The rule made those who had been injured by someone they lived with before 1979 ineligible for an award. The rule had previously been abolished for cases injuries arising after 1979 but had not been given retrospective effect. Following the High Court decision, the rule was abolished on 13 June 2019, and those who had been previously deprived of compensation were entitled to reapply.
Concerns about the Scheme’s two-year time limit have also been expressed by those advocating for victims of historic sexual abuse.
In January 2019, the Victim’s Commissioner published a review of the Scheme and called for “wide-ranging reforms to the compensation process”. Over two-hundred victims of violent crime completed a survey for the review, and interviews were conducted with eighteen victims.
While 35% of victims said they found it easy to understand whether they were eligible for compensation under the Scheme, 56% said they found it difficult (p30).
The review found that 43% of those who used a lawyer to represent them when applying for compensation did so because they felt they were “too traumatised to complete the application” themselves (p23). When making their application, victims are asked to report the date and time of the incident in which they were injured, where it took place including its postcode and brief details of the incident. In her introduction to the review, the Commissioner commented that:
“Evidence from this review demonstrates that completing this part of the CICA (Criminal Injuries Compensation Authority) application form is highly traumatic as it re-triggers memories of the incident.” (p98)
The Commissioner concluded her report by calling on the Government to simplify the Scheme and organise it in such a way as to “de-traumatize” victims (pp97-98). She also identified a need to ensure that victims are aware of the Scheme in the first place (p105).
The Commissioner recently published notes of a meeting she had with Linda Brown, CEO of CICA, on 6 May 2020. Ms Brown confirmed that victims of sexual crime will no longer be required to provide an account of the crime in which they were injured on their application form. The Commissioner welcomed this as a significant step forward.
The MOJ analysed the approximately 75,000 claims received by the CICA between 1 January 2016 and 1 January 2019. The majority of cases, 65%, related to an assault with or without a weapon, sexual injuries accounted for 25% of cases, 4% were for domestic and family violence, and the remainder were other incident types (p7).
In the executive summary of the Review, the principles underlying the Scheme are characterised as follows:
“The Scheme has at its heart this purpose – to recognise, through compensation, the harm experienced by a victim injured as a result of violent crime. The Scheme is a universal one and has to work equally for all victims of violent crime. While recognising that each individual and each case will be different, it is vital that all applications are assessed against the same criteria and the same injury tariffs. This ensures against a hierarchy of victims, that the Scheme is administrable, and that taxpayers money goes to those victims most seriously injured.” (paragraph 2)
The executive summary of the Review also rebuts some of the wider criticisms of the Scheme as follows:
“The operation of the Scheme is also working well. In 2018-19, the CICA’s customer service score was high at 95%, whilst review and appeal rates are low at 21% and 6% respectively. This is in contrast to claims that the Scheme is not functioning well and that many applicants are dissatisfied.” (paragraph 14)
This 95% satisfaction figure comes from CICA’S Annual Report for 2018-2019 which does not explain how customer satisfaction is measured. It is therefore difficult to know how meaningful this statistic is. In any event, considering victims as “customers” as a starting point for assessing their interaction with CICA or the Scheme more generally is not necessarily helpful. Further, given that the operation of CICA is outside the scope of the review, it is not clear that invoking these statistics is appropriate. Additionally, a failure to request a review is not necessarily indicative of satisfaction with the outcome as it could represent a victim’s lack of understanding of their right to a review or their unwillingness to proceed with a process that they feel had failed them the first time round.
Child abuse victims
In respect of child sexual abuse victims, the Review concludes “that the Scheme is working well for the majority of victims of child sexual abuse”.
The MOJ’s analysis showed that applications arising from child sexual abuse were significantly more likely to be filed outside of the time limit: 82% of the late applications reviewed related to child sexual abuse. However, of those late applicants, 72% received an award as the time limit discretion was applied and the criteria for an award were also met (paragraphs 74-75). The MOJ’s conclusion is that the time limit rule does not need to be altered.
In response to concerns that CICA was turning down applications for compensation on the grounds that child victims had “consented” to their abuse (set out above), the Review finds this issue has been remedied and concludes that:
“the operational changes made in 2017, and the continuing efforts of the CICA to make sure that staff have appropriate guidance and support, have provided the necessary safeguards to mitigate the risk of inappropriate refusals.” (paragraph 69)
The Review also considers criticisms of the provision in the current Scheme which renders victims with certain unspent convictions ineligible for an award. The MOJ explains that the purpose of this rule is to:
“prevent individuals who have committed serious illegal acts benefitting from state-funded compensation, while ensuring that the Scheme is able to help victims most in need of financial support.” (paragraph 88)
The MOJ concludes that it:
“does not consider that it is possible to commit to making any change to this rule without undermining the core principles of the Scheme and introducing significant potential discrimination and operational challenge.” (paragraph 106)
Victims of terrorism
Currently, victims of domestic terrorism are provided for under the main Scheme, while a separate scheme exists for victims of overseas terrorism, which is also administered by CICA. The MOJ proposes to create a standalone scheme for victims of terrorism, both domestic and overseas. It is noted that in such a scheme, “specific provision could be made for these highly traumatised victims” (paragraph 81).
Victims of homicides abroad
The Scheme does not currently cover crimes that occur outside Britain. However, the MOJ seeks views on establishing provision for compensation for families bereaved by homicide abroad. It is noted that after the end of the Brexit transition period “there will be fewer European compensation schemes for which UK victims of violent crime abroad will be eligible” (paragraph 85). Specifically, UK residents will no longer benefit from Article 1 of Council Directive EC 2004/30, which provides as follows:
“Member States shall ensure that where a violent intentional crime has been committed in a Member State other than the Member State where the applicant for compensation is habitually resident, the applicant shall have the right to submit the application to an authority or any other body in the latter Member State”
The MOJ considers that the current time limit for applications should not change. It advises that “action is being taken to include further explicit information on time limits within the Victims’ Code”. The Victim’s Code is a statutory Government document which sets out the information, support and services that victims of crime are entitled to receive from criminal justice agencies in England and Wales.
The revised Victims’ Code will also advise victims not to delay making applications under the Scheme. This is intended to combat anecdotal reports of victims being told by police not to pursue CICA claims until after the relevant crime has been prosecuted, so as to avoid being accused of making allegations for profit. This practice can result in claims falling out of time, an issue that was raised in the Victim’s Commissioner’s Review (discussed above).
The same roof rule
The Review proposes the abolishment of the Scheme’s remaining “same roof” rule, which provides that if the applicant and assailant were adults living together as members of the same family when the crime occurred, and they continue to do so, the applicant is not eligible for an award under the Scheme (paragraph 110).
The MOJ acknowledges that victims and their representatives have said that the Scheme and the tariff of injuries are difficult to understand and use, and that difficulty in estimating potential awards risks falsely raising the expectations of applicants (paragraph 146). As a result, a number of changes to the tariff are proposed in order to make it easier to use. Simplicity, transparency, ease of navigation, and consistency are cited as key themes of the proposed reorganisation of the tariff (paragraph 149).
For physical and mental injuries, five opportunities for reform are identified: simplification of language; changing the language for injury severity; reducing the number of bands; grouping some injuries together where appropriate; and overhauling the way brain injury is represented (paragraphs 150-162).
Proposals for reform of the tariff section on injuries arising from sexual and physical abuse include simplifying injury descriptions and increasing awards for mental injuries (paragraphs 163-173).
There are no proposals to increase the £500,000 damages cap (paragraph 127).
Bereavement awards and funeral costs
A single rate of payment for bereavement awards set at £8,000 for all qualifying relatives is proposed (paragraph 185). It is also proposed that support for funeral costs be increased to a single payment £4,500 (paragraph 190).
Call for Views
The Consultation is open until 9 October 2020; views can be submitted here.
Find Out More
Carin acts on behalf of victims appealing the level of their CICA awards to the First Tier Tribunal as part of her personal injury practice. She has experience of acting for those who have witnessed a violent attack on a loved one, suffering psychiatric injury as a result, and those who have been bereaved by a violent crime.
Barristers: Carin Hunt
Categories: Legal Blog & Publications | Personal Injury