If you, or someone you know, has sustained a brain injury as a result of a violent crime by a third party, it is possible to claim compensation via the Criminal Injuries Compensation Scheme.
These claims are dealt with in a different way to if, for example, a brain injury was sustained as a result of a road traffic accident, where the claim would be against the third party’s insurance company.
This article, by Neil Sugarman of Brain Injury Group members GLP Solicitors, explains about the Criminal Injuries Compensation Scheme.
Background to criminal injury compensation
Schemes to compensate injured victims of violent crime have been in existence in Great Britain since 1964. Until 1996 compensation was awarded on what was known as a “common law” basis in the same way as a court would make an award to an accident victim. This would be tailored to the exact individual circumstances and needs of each victim and there was no upper limit to the compensation.
In 1996 the scheme changed. The current version came into force in November 2012. Now a pre-designated “tariff” amount is awarded in respect of physical or psychological injuries, or both from a list contained within the Scheme.
What can be claimed through the Criminal Injuries Compensation Scheme?
Psychological and psychiatric damage tends to be a common feature for many victims of violent crime and often accompanies brain injury. Awards can be made for up to three different injuries, but no more than that, with 100% of the amount listed in the tariff for the most serious injury, 30% for the next most serious injury and 15% for a third injury. For brain injury, depending on the severity, the awards range from £1,500 up to £250,000.
Furthermore, awards can be made to victims of sexual offences and abuse, and also in cases where the assault results in death.
In addition, compensation can be granted for loss of earnings or earning capacity, but only if an applicant can demonstrate a work history or a good reason for not having one, and has been absent from work for more than 28 weeks and is virtually unable to work. Since 2012, in comparison with all earlier schemes, the sum recoverable has been restricted to the equivalent of state statutory sick pay so it is far from generous.
A further award can be made for what are called “Special Expenses”. These may include loss of or damage to property, costs associated with NHS treatment, special equipment and adaptations to accommodation. Of great importance, the cost of care and supervision can be awarded where it is not available from other publicly funded agencies, and in the case of serious injury this is often the largest part of the claim for which substantial sums are recoverable. Finally, for victims who are not able to manage their own affairs, administration costs including trust administration and the costs of the Court of Protection are recoverable.
The maximum amount recoverable for all aspects is £500,000. This limit has existed since 1996 and has never been increased even to take account of inflation. It may be adequate for injuries and losses of less severity, but can be wholly inadequate for victims who are catastrophically injured.
Who can claim for criminal injury compensation?
To qualify, a victim must be able to show that they have suffered a qualifying personal injury as a result of a crime of violence. There is a very strict time limit of two years in which to make an application, although this can be extended if circumstances prevented the claim being made in time, such as lack of mental capacity. Awards can be refused or reduced in a number of situations, such as where the victim might have provoked the assault, where they have failed to co-operate with the police and authorities, or where they have convictions themselves. The rules on this were tightened greatly in the 2012 Scheme and are rigidly enforced by the Criminal Injuries Compensation Authority (CICA) which refuses many claims, and knowledge, skill and persistence are needed to challenge refusals.
There is a major misconception that the offender must have been caught or even convicted. That is not the case. It is sufficient if the CICA is satisfied on the facts that on the balance of probability an injury or injuries have been sustained as a result of a criminal act, even if nobody has been caught.
The Scheme has a worryingly low profile and there is widespread ignorance and numerous misconceptions about its terms. Indeed, anecdotal evidence suggests that there is a lack of awareness amongst some police officers, social services departments and medical professionals.
As a result of a case in 2016, unless someone had created a pre-existing binding legal Power of Attorney, if they lose mental capacity through injury sustained in the assault, only a Deputy appointed by the Court of Protection on their behalf has the legal status to make an application under the Scheme.
How to make a claim for criminal injury compensation
There are a number of Crime Surveys in Great Britain, but recent results show that there are annually in the order of 1,200,000 instances of recorded crimes of violence and nearly 29,000 hospital admissions as a result of violent crime, but only 32,415 applications were made to the CICA in 2015/2016.
There are a variety of complex procedural and legal aspects of the Scheme. The difficulty for lay victims of crime in trying to cope with these issues whilst unrepresented has been commented upon by the High Court. In 2015/2016, 16,772 applications were initially refused. Approximately twenty-six per cent of refused cases continued through the various appeal procedures. Some victims undoubtedly decide not to proceed, possibly out of fear or a lack of confidence. However, many cases are ultimately successful as a consequence of appealing.
Skill is required in many aspects of the presentation of a claim. These will include the preparation of the application form and ensuring that full and adequate evidence, including expert medical and other evidence is obtained by the CICA or presented to it in relation to both the eligibility of the claim for an award, and the amount of the award itself. This might include verification of police information and medical reports from neurologists and many associated professionals.
The ultimate appeal process is to an independent panel sitting within HM Tribunal Service. Again, compliance with designated Tribunal procedures and thorough preparation of evidence can be crucial, because at this point it mirrors the court litigation process.
Finally, if an award is made, great care is required because in many cases the CICA will seek to insist that some or all of it is placed in a form of trust the terms of which it will seek to dictate, even if there is a Court of Protection Deputy in place. That means that the CICA is effectively dictating to the injured person how they can spend their award. It is also likely to contain a provision that requires any unused part of the award to be returned to the CICA if the injured person were to die earlier than expected. This can be deeply upsetting for many people who apply and the terms of such a trust can be challenged by an experienced legal professional.
The government portrays this state funded scheme as being an expression of public sympathy for victims of violent crime. Whilst adequate successful compensation awards are undoubtedly to be welcomed, they are not always easy to achieve, possibly even more so in the case of brain injury than in any other type of injury scenario.
Neil Sugarman is Managing Partner at Brain Injury Group member law firm, GLP Solicitors, who are based in Bury but handle cases for clients nationwide. Neil has over 35 years’ experience dealing with personal injury claims and has a particular expertise in claims under the Criminal Injuries Compensation Scheme. For more information about Neil and GLP Solicitors see the Brain Injury Group profile for GLP Solicitors’ Bury office.