Criminal Injuries Compensation Scheme (Hansard, 8 December 1989)

§ Mr. Waddington

The Criminal Injuries Compensation Board's annual report, for the year ended 31 March 1989 (Cm. 900, published on 6 December) shows that it received 43,385 applications—a record number—during the year. This year's intake is expected to show a further unprecedented rise to over 50,000 applications. The board has a backlog of some 96,000 cases, with consequent delays to all claims.

My right hon. and learned Friend the Secretary of State for Scotland and I have taken steps to meet these problems. We have increased staff from 220 in 1987 to 320. We have appointed more board members. Two thirds of the work is now dealt with by locally-recruited staff in a new office in Glasgow. A major computerisation programme will begin early next year. Despite the substantial increase in applications and the disruption 411W caused by relocation of work to Scotland, the board resolved 38,830 cases last year, compared with 29,965 in the best previous year. On past performance we can expect far more cases to be resolved when the changes in staffing, location, and procedures have been fully absorbed. Meanwhile we have discussed with the chairman of the board the need for further improvements.

The Criminal Justice Act 1988 provides for the scheme to be placed on a statutory footing. The board says in its report that to make the scheme statutory now would disrupt work and add to arrears. We accept that judgment. In view of the urgent need to tackle the backlog and improve the board's service to present and future claimants I have decided, with the agreement of my right hon. and learned Friend the Secretary of State for Scotland, and the board, not to make the scheme statutory yet but to make changes in the present non-statutory scheme to streamline it.

The revised scheme will come into effect on 1 February 1990. The principal changes to which I should call attention are the discretion given to the board to delegate decision-making in the first instance to staff, and revised provisions for oral hearings. Delegation will allow more flexibility and efficiency. Under revised hearings provisions all applicants will retain a right to have their cases reviewed by at least two members of the board, but applications for a hearing may be considered by two members of the board on the papers and a hearing will be held only if the case warrants.

I should also draw attention to an increase in the lower limit for compensation awards. This was last increased on 7 November 1986 to £550. The purpose of the limit is to exclude relatively minor injuries from the scope of the scheme and to concentrate resources on cases most deserving of compensation. With the passage of time it is right to raise the limit to £750. The new limit will apply to new applications.

While not bringing the scheme set down in the Criminal Justice Act 1988 into effect, I am taking this opportunity to incorporate Parliament's wishes on several points. The revised scheme will cover claims arising from offences of trespass on a railway; payment of compensation in fatal injury cases to the cohabitee of the deceased person; payment to victims of a set sum for a child born as a consequence of rape; a limit on compensation for loss of earnings of one and a half times gross average earnings and removal of compensation for damage or loss of clothing.

The Government are determined that victims should receive proper recognition under the criminal justice system, including the timely payment of compensation for personal injuries resulting from crime. The revised scheme will allow for better use of resources to achieve that end and contribute towards an improvement in the quality of service to claimants.

The revised scheme is as follows:

Criminal Injuries Compensation Scheme Administration

1. The Compensation Scheme will be administered by the Criminal Injuries Compensation Board, which will be assisted by appropriate staff. Appointments to the Board will be made by the Secretary of State, after consultation with the Lord Chancellor and, where appropriate, the Lord Advocate. A person may only be appointed to be a member of the Board if he is a barrister practising in England and Wales, an advocate practising in Scotland, a solicitor practising in England and Wales or Scotland or a person who holds or has 412W held judicial office in England and Wales or Scotland. The Chairman and other members of the Board will be appointed to serve for up to five years in the first instance, and their appointments will be renewable for such periods as the Secretary of State considers appropriate. The Chairman and other members will not serve on the Board beyond the age of 72, or after ceasing to be qualified for appointment, whichever is the earlier except that, where the Secretary of State considers it to be in the interests of the Scheme to extend a particular appointment beyond the age of 72 or after retirement from legal practice, he may do so. The Secretary of State may, if he thinks fit terminate a member's appointment on the ground of incapacity or misbehaviour.

2. The Board will be provided with money through a Grant-in-Aid out of which payments for compensation awarded in accordance with the principles set out below will be made. Their net expenditure will fall on the Votes of the Home Office and the Scottish Home and Health Department.

3. The Board, or such members of the Board's staff as the Board may designate, will be entirely responsible for deciding what compensation should be paid in individual cases and their decisions will not be subject to appeal or to Ministerial review. The general working of the Scheme will, however, be kept under review by the Government, and the Board will submit annually to the Home Secretary and the Secretary of State for Scotland a full report on the operation of the Scheme, together with their accounts. The report and accounts will he open to debate in Parliament.

Scope of the Scheme

4. The board will entertain applications for ex gratin payments of compensation in any case where the applicant or, in the case of an application by a spouse or dependant (see paragraphs 15 and 16 below), the deceased, sustained in Great Britain, or on a British vessel, aircraft or hovercraft or on, under or above an installation in a designated area within the meaning of section I subsection (7) of the Continental Shelf Act 1964 or any waters within 500 metres of such an installation, or in a lighthouse off the coast of the United Kingdom, personal injury directly attributable—

(a) to a crime of violence (including arson or poisoning); or
(b) to the apprehension or attempted apprehension of an offender or a suspected offender or to the prevention or attempted prevention of an offence or to the giving of help to any constable who is engaged in any such activity; or
(c) to an offence of trespass on a railway.

Applications for compensation will be entertained only if made within three years of the incident giving rise to the injury, except that the Board may in exceptional cases waive this requirement. A decision by the Chairman not to waive the time limit will be final. In considering for the purposes of this paragraph whether any act is a criminal act a person's conduct will be treated as constituting an offence notwithstanding that he may not be convicted of the offence by reason of age, insanity or diplomatic immunity.

5. Compensation will not be payable unless the Board are satisfied that the injury was one for which the total amount of compensation payable after deduction of social security benefits, but before any other deductions under the Scheme, would not be less than the minimum amount of compensation. This shall be £750. The application of the minimum level shall not, however, affect the payment of funeral expenses under paragraph 15 below or, where the victim has died otherwise than in consequence of an injury for which compensation would have been payable to him under the terms of the Scheme, any sum payable to a dependant or relative of his under paragraph 16.

6. The Board may withold or reduce compensation if they consider that—

(a) the applicant has not taken, without delay, all reasonable steps to inform the police, or any other authority considered by the Board to be appropriate for the purpose, of the circumstances of the injury and to co-operate with the police or other authority in bringing the offender to justice; or
(b) the applicant has failed to give all reasonable assistance to the Board or other authority in connection with the application; or
(c) having regard to the conduct of the applicant before, during or after the events giving rise to the claim or to his character as shown by his criminal convictions or unlawful conduct—and, in applications under paragraphs 15 and 16 below, to the conduct, or character as shown by the criminal convictions or unlawful conduct, of the deceased and of the applicant—it is inappropriate that a full award, or any award at all, be granted.

Further, compensation will not be payable—

(d) in the case of an application under paragraph 4(b) above where the injury was sustained accidentally, unless the Board are satisfied that the applicant was at the time taking an exceptional risk which was justified in all the circumstances.

7. Compensation will not be payable unless the Board are satisfied that there is no possibility that a person responsible for causing the injury will benefit from an award.

8. Where the victim and any person responsible for the injuries which are the subject of the application (whether that person actually inflicted them or not) were living in the same household at the time of the injuries as members of the same family, compensation will be paid only where—

(a) the person responsible has been prosecuted in connection with the offence, except where the Board consider that there are practical, technical or other good reasons why a prosecution has not been brought; and
(b) in the case of violence between adults in the family, the Board are satisfied that the person responsible and the applicant stopped living in the same household before the application was made and seem unlikely to live together again; and
(c) in the case of an application under this paragraph by or on behalf of a minor, ie a person under 18 years of age, the Board are satisfied that it would not be against the minor's interests to make a full or reduced award.

For the purposes of this paragraph, a man and a woman living together as husband and wife shall be treated as members of the same family.

9. If in the opinion of the Board it is in the interests of the applicant (whether or not a minor or a person under an incapacity) so to do, the Board may pay the amount of any award to any trustee or trustees to hold on such trusts for the benefit of all or any of the following persons, namely the applicant and any spouse, widow or widower, relatives and dependants of the applicant and with such provisions for their respective maintenance, education and benefit and with such powers and provisions for the investment and management of the fund and for the remuneration of the trustee or trustees as the Board shall think fit. Subject to this the Board will have a general discretion in any case in which they have awarded compensation to make special arrangements for its administration. In this paragraph "relatives" means all persons claiming descent from the applicant's grandparents and "dependants" means all persons who in the opinion of the Board are dependent on him wholly or partially for the provision of the ordinary necessities of life.

10. The Board will consider applications for compensation arising out of acts of rape and other sexual offences both in respect of pain, suffering and shock and in respect of loss of earnings due to consequent pregnancy, and, where the victim is ineligible for a maternity grant under the National Insurance Scheme, in respect of the expenses of childbirth. Compensation will not be payable for the maintenance of any child born as a result of a sexual offence, except that where a woman is awarded compensation for rape the Board shall award the additional sum of £5,000 in respect of each child born alive having been conceived as a result of the rape which the applicant intends to keep.

11. Applications for compensation for personal injury attributable to traffic offences will be excluded from the Scheme, except where such injury is due to a deliberate attempt to run the victim down.

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Basis of compensation

12. Subject to the other provisions of this Scheme, compensation will be assessed on the basis of common law damages and will normally take the form of a lump sum payment, although the Board may make alternative arrangements in accordance with paragraph 9 above. More than one payment may be made where an applicant's eligibility for compensation has been established but a final award cannot be calculated in the first instance—for example where only a provisional medical assessment can be given. In a case in which an interim award has been made, the Board may decide to make a reduced award, increase any reduction already made or refuse to make any further payment at any stage before receiving notification of acceptance of a final award.

13. Although the Board's decisions in a case will normally be final, they will have discretion to reconsider a case after a final award of compensation has been accepted where there has been such a serious change in the applicant's medical condition that injustice would occur if the original assessment of compensation were allowed to stand, or where the victim has since died as a result of his injuries. A case will not be re-opened more than three years after the date of the final award unless the Board are satisfied, on the basis of evidence presented with the application for re-opening the case, that the renewed application can be considered without a need for extensive enquiries. A decision by the Chairman that a case may not be re-opened will be final.

14. Compensation will be limited as follows—

(a) the rate of net loss of earnings or earning capacity to be taken into account shall not exceed one and a half times the gross average industrial earnings at the date of assessment (as published in the Department of Employment Gazette and adjusted as considered appropriate by the Board);
(b) there shall be no element comparable to exemplary or punitive damages.

Where an applicant has lost earnings or earning capacity as a result of the injury, he may be required by the Board to produce evidence thereof in such manner and form as the Board may specify.

15. Where the victim has died in consequence of the injury, no compensation other than funeral expenses will be payable for the benefit of his estate, but the Board will be able to entertain applications from any person who is a dependant of the victim within the meaning of section 1(3) of the Fatal Accidents Act 1976 or who is a relative of the victim within the meaning of the Schedule 1 to the Damages (Scotland) Act 1976. Compensation will be payable in accordance with the other provisions of this Scheme to any such dependant or relative. Funeral expenses to an amount considered reasonable by the Board will be paid in appropriate cases, even where the person bearing the cost of the funeral is otherwise ineligible to claim under this Scheme. Applications may be made under this paragraph where the victim has died from his injuries even if an award has been made to the victim in his lifetime. Such cases will be subject to conditions set out in paragraph 13 for the re-opening of cases and compensation payable to the applicant will be reduced by the amount paid to the victim.

16. Where the victim has died otherwise than in consequence of the injury, the Board may make an award to such dependant or relative as is mentioned in paragraph 15 in respect of loss of wages, expenses and liabilities incurred by the victim before death as a result of the injury whether or not the application for compensation in respect of the injury has been made before the death.

17. Compensation will not be payable for the loss of or damage to clothing or any property whatsoever arising from the injury unless the Board are satisfied that the property was relied upon by the victim as a physical aid.

18. The cost of private medical treatment will be payable by the Board only if the Board consider that, in all the circumstances, both the private treatment and the cost of it are reasonable.

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19. Compensation will be reduced by the full value of any present or future entitlement to—

(a) United Kingdom social security benefits;
(b) any criminal injury compensation awards made under or pursuant to statutory arrangements in force at the relevant time in Northern Ireland;
(c) social security benefits, compensation awards or similar payments whatsoever from the funds of other countries; or
(d) payments under insurance arrangements except as excluded below which may accrue, as a result of the injury or death, to the benefit of the person to whom the award is made.

In assessing this entitlement, account will be taken of any income tax liability likely to reduce the value of such benefits and, in the case of an application under paragraph 15, the value of such benefits will not be reduced to take account of prospects of remarriage. If, in the opinion of the Board, an applicant may be eligible for any such benefits the Board may refuse to make an award until the applicant has taken such steps as the Board consider reasonable to claim them. Subject to paragraph 18 above, the Board will disregard monies paid or payable to the victim or his dependants as a result of or in consequence of insurance personally effected, paid for an maintained by the personal income of the victim or, in the case of a person under the age of 18, by his parent.

20. Where the victim is alive compensation will be reduced to take account of any pension accruing as a result of the injury. Where the victim has died in consequence of the injury, and any pension is payable for the benefit of the person to whom the award is made as a result of the death of the victim, the compensation will similarly be reduced to take account of the value of that pension. Where such pensions are taxable, one-half of their value will be deducted; where they are not taxable, eg where a lump sum payment not subject to income tax is made, they will be deducted in full. For the purposes of this paragraph, "pension" means any payment payable as a result of the injury or death, in pursuance of pension or other rights whatsoever connected with the victim's employment, and includes any gratuity of that kind and similar benefits payable under insurance policies paid for by employers. Pension rights accruing solely as a result of payments by the victim or a dependant will be disregarded.

21. When a civil court has given judgment providing for payment of damages or a claim for damages has been settled on terms providing for payment of money, or when payment of compensation has been ordered by a criminal court, in respect of personal injuries, compensation by the Board in respect of the same injuries will be reduced by the amount of any payment received under such an order or settlement. When a civil court has assessed damages, as opposed to giving judgment for damages agreed by the parties, but the person entitled to such damages has not yet received the full sum awarded, he will not be precluded from applying to the Board, but the Board's assessment of compensation will not exceed the sum assessed by the court. Furthermore, a person who is compensated by the Board will be required to undertake to repay them from any damages, settlement or compensation he may subsequently obtain in respect of his injuries. In arriving at their assessment of compensation the Board will not be bound by any finding of contributory negligence by any court, but will be entirely bound by the terms of the Scheme.

Procedure for determining applications

22. Every application will be made to the Board in writing as soon as possible after the event on a form obtainable from the Board's offices. The initial decision on an application will be taken by a single member of the Board, or by any member of the Board's staff to whom the Board has given authority to determine applications on the Board's behalf. Where an award is made the applicant will be given a breakdown of the assessment of compensation, exept where the Board consider this inappropriate, and where an award is refused or reduced, reasons for the decision will be given. If the applicant is not satisfied with the decision he may apply for an oral hearing which, if granted, will be held before at least two members of the Board excluding any member who made the original decision. The application for a hearing must be made within three months of notification of the initial decision; however the Board may waive this time limit where an extension is 416W requested with good reason within the three month period, or where it is otherwise in the interests of justice to do so. A decision by the Chairman not to waive the time limit will be final. It will also be open to a member of the Board, or a designated member of the Board's staff, where he considers that he cannot make a just and proper decision himself to refer the application for a hearing before at least two members of the Board, one of whom may be the member who, in such a case, decided to refer the application to a hearing. An applicant will have no title to an award offered until the Board have received notification in writing that he accepts it.

23. Applications for hearings must be made in writing on a form supplied by the Board and should be supported by reasons together with any additional evidence which may assist the Board to decide whether a hearing should be granted. If the reasons in support of the application suggest that the initial decision was based on information obtained by or submitted to the Board which was incomplete or erroneous, the application may be remitted for reconsideration by the member of the Board who made the initial decision or, where this is not practicable or where the initial decision was made by a member of the Board's staff, by any member of the Board. In such cases it will still be open for the applicant to apply in writing for a hearing if he remains dissatisfied after his case has been reconsidered and the three-month limitation period in paragraph 22 will start from the date of notification of the reconsidered decision.

24. An applicant will be entitled to an oral hearing only if—

(a) no award was made on the ground that any award would be less than the sum specified in paragraph 5 of the Scheme and it appears that applying the principles set out in paragraph 26 below, the Board might make an award; or
(b) an award was made and it appears that, applying the principles set out in paragraph 26 below, the Board might make a larger award; or
(c) no award or a reduced award was made and there is a dispute as to the material facts or conclusions upon which the initial or reconsidered decision was based or it appears that the decision may have been wrong in law or principle.

An application for a hearing which appears likely to fail the foregoing criteria may be reviewed by not less than two members of the Board other than any member who made the initial or reconsidered decision. If it is considered on review that if any facts or conclusions which are disputed were resolved in the applicant's favour it would have made no difference to the initial or reconsidered decision, or that for any other reason an oral hearing would serve no useful purpose, the application for a hearing will be refused. A decision to refuse an application for a hearing will be final.

25. It will be for the applicant to make out his case at the hearing, and where appropriate this will extend to satisfying the Board that compensation should not be withheld or reduced under the terms of paragraph 6 or paragraph 8. The applicant and a member of the Board's staff will be able to call, examine and cross-examine witnesses. The Board will be entitled to take into account any relevant hearsay, opinion or written evidence, whether or not the author gives oral evidence at the hearing. The Board will reach their decision solely in the light of evidence brought out at the hearing, and all the information and evidence made available to the Board members at the hearing will be made available to the applicant at, if not before, the hearing. The Board may adjourn a hearing for a reason, and where the only issue remaining is the assessment of compensation may remit the application to a Single Member of the Board for determination in the absence of the applicant but subject to the applicant's right to apply under paragraph 22 above for a further hearing if he is not satisfied with the final assessment of compensation. While it will be open to the applicant to bring a friend or legal adviser to assist him in putting his case, the Board will not pay the: cost of legal representation. They will, however, have discretion to pay the expenses of the applicant and witnesses at a hearing. If an applicant fails to attend a hearing and has offered no reasonable excuse for his non attendance the Board at the hearing may dismiss his application. A person whose application has been dismissed by the Board for failure to attend a hearing may apply in writing to the Chairman of the 417W Board for his application to be reinstated. A decision by the Chairman that an application should not be reinstated will be final.

26. At the hearing the amount of compensation assessed by a single member of the Board or a designated member of the Board's staff will not be altered except upon the same principles as the Court of Appeal in England or the Court of Session in Scotland would alter an assessment of damages made by a trial judge.

27. Procedure at hearings will be as informal as is consistent with the proper determination of applications, and hearings will in general be in private. The Board will have discretion to permit observers, such as representatives of the press, radio and television, to attend hearings provided that written undertakings are given that the anonymity of the applicant and other parties will not in any way be infringed by subsequent reporting. The Board will have power to publish information about its decisions in individual cases; this power will be limited only by the need to preserve the anonymity of applicants and other parties.

Implementation

28. The provisions of this Scheme will take effect from 1 February 1990. All applications for compensation received by the Board on or after 1 February 1990 will be dealt with under the terms of this Scheme except that in relation to applications in respect of injuries incurred before that date the following provisions of the 1990 scheme shall apply:

(a) Paragraph 4(c);
(b) Paragraph 8, but only in respect of injuries incurred before 1 October 1979 where paragraph 7 of the 1969 Scheme will continue to apply;
(c) Paragraph 10 but only insofar as it requires the Board to award an additional sum of £5,000 in the circumstances therein prescribed;
(d) Paragraphs 15 and 16 but only insofar as they enable the Board to entertain applications from a person who is a dependant within the meaning of section 1(3)(b) of the Fatal Accidents Act 1976 or who is a relative within the meaning of paragraph 1(aa) of Schedule 1 to the Damages (Scotland) Act 1976 other than such a person who is applying only for funeral expenses.

29. Applications for compensation received by the Board before 1 February 1990 will continue to be dealt with in accordance with paragraph 25 of the Scheme which came into operation on 1 October 1979 ("the 1979 Scheme") or the Scheme which came into operation on 21 May 1969 ("the 1969 Scheme") except that the following paragraphs of this Scheme will apply in addition to or in substitution for provisions of these schemes as specified below:

(a) Paragraph 3 of this Scheme will apply in substitution for paragraph 4 of the 1969 Scheme and paragraph 3 of the 1979 Scheme;
(b) Paragraph 6(c) of this Scheme will apply in substitution for paragraph 17 of the 1969 Scheme and paragraph 6(c) of the 1979 Scheme;
(c) Paragraph 14 of this Scheme will apply additionally to applications otherwise falling to be considered under the 1969 or 1979 Schemes but only insofar as it allows the Board to require an applicant to produce evidence of loss of earnings or earning capacity;
(d) Paragraphs 22, 23 and 25 of this Scheme will apply in substitution for paragraphs 21 and 22 of the 1969 Scheme and paragraphs 22 and 23 of the 1979 Scheme;
(e) Paragraph 26 of this Scheme will apply additionally to applications otherwise falling to be considered under the 1969 or 1979 Schemes:
(f) Paragraph 27 of this Scheme will apply in substitution for paragraph 23 of the 1969 Scheme and paragraph 24 of the 1979 Scheme;

30. Applications to re-open cases received before 1 February 1990 will continue to be dealt with under the terms of paragraph 25 of the 1979 Scheme. Applications to re-open cases received on or after 1 February 1990 will be considered and determined under the terms of this Scheme.