Released On 8th Oct 2019
How to make a CICA claim?
Injury specialist solicitor Samantha Robson talks about eligibility under the 2012 CICA Scheme
The Criminal Injuries Compensation Authority (or CICA) is a Government run scheme designed to compensate blameless victims of crimes of violence. Therefore accidental injuries caused, say by tripping over a raised paving slab are not covered by the Scheme. Many victims do not realise they are entitled to compensation. Often unless Victim Support, or the Police advise you a claim is possible, many eligible victims simply fail to apply for an award.
Normally only physical injuries that arise from a crime of violence are eligible for compensation. Typically these injuries follow a physical attack. So those injuries arising from an assault, wounding or a sexual offence are generally eligible for compensation. In some cases the threat of violence can be a violent crime.
If there was a deliberate attempt to poison you, a claim can be made. Or say, an animal was set on you with the intent of harming you; or if someone intentionally ran you over with their motor vehicle, this is classed as a deliberate crime.
Acts of violence normally require the perpetrator to take positive steps to commit violence. However, non-violent acts can also give rise to a claim.
An example might be if an arsonist sets fire to a building. Although the victim is not attacked he suffers burns and other physical injuries as a result of the fire. Likewise an omission can give rise to a claim if it was violent in nature. Say if someone deliberately and knowingly withholds something necessary to keep you alive and this causes physical injury, the Scheme will apply.
Is it a crime of violence?
This definition of a crime of violence has often been tested under the Scheme. In the case of Jones v First Tier Tribunal (FTT) and CICA, the issue of a crime of violence was considered in full. This tragic case involved an accident in 2005. Mr Hughes apparently suicidal, ran into a dual carriageway in front of an articulated lorry driven by a Mr Nash. The driver braked but was unsuccessful and Mr Hughes was killed instantly. The heavy braking also caused the back corner of the lorry to swing into the path of a gritter lorry driven by Mr Jones. Sadly Mr Jones sustained very severe injuries and required care for the rest of his life. The matter came before the CICA on the question of whether Mr Jones’ injuries were caused by a crime of violence. The FTT was not satisfied that Mr Hughes was reckless as to whether harm was caused by his actions and thus the claim to the FTT failed. Mr Jones’ representatives appealed to the Upper Tribunal and Court of Appeal. The Court of Appeal took a different view. They applied a broader test and said that Mr Hughes recklessness was sufficient. However, this decision was subsequently overturned by the Supreme Court and the decision of the FTT was restored. Under the 2012 Scheme, cases such as Mr Jones which result from suicides or attempted suicides where the suicidal person does not act with the intent to cause injury, are explicitly excluded from the Scheme.
A crime of violence has also been considered in a case where a dangerous dog escaped from his owner’s garden causing a 14 year old cyclist to swerve and collide with an oncoming car, sustaining serious injury. The car driver was not at fault and a claim to the CICA was made on the basis the injuries were sustained due to a crime of violence. The case failed. The Court of Appeal accepted that a crime had been committed under the Dangerous Dogs Act for allowing the dog to escape. However, the court found that offence committed by the dog owner was not violent, because, “It is difficult to accept that negligently to allow a dog to escape, even a dog known to be aggressive, constitutes a crime of violence.”
The scheme is also available if somebody suffers mental injury rather than physical injury.
This might arise because the victim has been the subject of threatened violence, or is the reluctant and coerced victim of sexual abuse. Although sexual abuse may not cause physical injury, there is often long-term psychiatric damage. This is compensable under the Scheme.
The would be hero
The scheme is also available to the would-be hero if they take an exceptional and justified risk in trying to prevent a crime or apprehending a perpetrator.
The immediate aftermath
The scheme will also compensate those who suffer mental injury if you witnessed and were present at the scene of an incident, or arrived in the immediate aftermath, of an incident in which a loved one sustaining physical injury.
Therefore the parent who sees their child sustain a criminal injury, such as a serious knife attack and the parent suffers mental injury, they may also receive compensation.
The definition of a loved one is not necessarily a family member, although it frequently will be, but simply somebody who at the time of the incident had a close relationship of love and affection with the victim.
Factors that might reduce a payout
Failing to report to the police
One of the reasons why some victims who may otherwise be eligible for a CICA payment, either receive no payment or a much reduced payment is because they failed to immediately report incident to the police.
If a victim has been attacked in the street and goes home, or attended hospital and was discharged shortly afterward, the CICA would expect the victim to report the incident to the police as soon as reasonably practical. An award may be withheld entirely if this criterial is not met.
Obviously the age of the applicant and his mental capacity are relevant so that a young child who was attacked would be given more latitude if the crime was not reported straightaway. Similarly an old lady who was confused and disorientated by the incident may be allowed more time to report the crime.
Reporting to the matter to the police usually involves an initial phone call so that the applicant can be given a crime reference number.
Failing to co-operate in bringing an assailant to justice
An award may be withheld, notwithstanding that the applicant has reported the incident to the police, if the applicant then fails to cooperate with the police and their investigation.
So the victim of a street assault who makes a prompt report to the police but then is not terribly interested in assisting with the investigation may not be compensated.
The applicant must also co-operate with the Authority and respond promptly to correspondence; notify the Authority of significant changes, such as a new address, receipt of benefits, or the fact that the applicant may also have a civil claim relating to the same matter. An applicant must therefore co-operate with both the police and the Authority as far as reasonably practical.
Making a claim if there is no conviction
Although the Scheme requires an applicant to assist the police with their criminal investigation, the Scheme will still payout even though a perpetrator is not charged with a criminal offence and/or convicted. Thus the victim of an alleged sexual assault who assists the police will be eligible for payment notwithstanding that the police consider there is insufficient evidence to charge the assailant, or if the assailant is charged the jury acquit him at trial. The standard of proof remains `on the balance of probabilities’. In other words, can the CICA be satisfied, on the balance of probabilities, that a crime occurred? The onus of proof remains with the applicant to prove their entitlement to an award.
The applicant’s conduct and character
The CICA scheme was set up to compensate deserving victims of crimes of violence. Therefore the applicant’s conduct and character immediately before the incident and generally are important factors in determining the amount, if any, of compensation. The CICA may withhold or reduce the award in the following circumstances.
The applicant’s conduct during the incident
The CICA may withhold or reduce an award if the applicant’s conduct before, during or after the incident contributed to the crime. So if an applicant has deliberately provoked an assailant who then goes on to assault him may result in a reduced award.
The applicant’s general character
The CICA determine the applicant’s general character by considering the number, if any, of convictions the applicant has received. The applicant with convictions will have his award withheld or reduced depending on the nature to and type of the conviction.
Generally spent convictions do not count against the applicant. However if a conviction is unspent and has resulted in either:-
- a custodial sentence;
- a community order;
- a youth rehabilitation order;
then no award will be made. The applicant who has an unspent conviction that resulted in an alternative sentence will have his CICA award reduced, unless there are exceptional circumstances.
Mental injury as a result of sexual assault
Some sexual assaults result in significant and obvious physical injury. In this scenario the applicant will be entitled to make a claim based upon their physical injuries.
If the victim has also sustained mental injuries as a result of a sexual assault they will also be entitled to compensation for whichever of the sexual assault or mental injury gives rise to the highest award.
However only certain psychological injuries will result in compensation.
Short-term mental anxiety or worry does not constitute mental injury. A mental injury is classed as disabling if it has a substantial adverse effect on the victim’s ability to carry out normal day-to-day activities.
Thus the victim of a sexual assault who may be prone to depression and anxiety which prevents them from getting or keeping a job; having a fulfilling relationship; or fulfilling their academic potential, will be entitled to claim compensation for their psychological injury.
An application must be made within two years of the date of the incident. In the case of a childhood victim, the claim must be brought by their 20th birthday. For injured children, the Authority prefer an adult to make the claim on behalf of a child as soon as possible, particularly if it is a violent crime. If a child was affected by childhood abuse and that abuse was not reported to the police at that time, the two year time limit should run from the date the matter was reported to the police. For anyone over 20, the Authority may consider a claim brought beyond the two year time limit in certain exceptional circumstances. For example, for victims of sexual abuse, if there is supportive medical evidence to account for their delay, the Authority have discretion to dis-apply the strict two year time limit.
Calculating the amount of compensation
Compensation paid by the CICA scheme is fundamentally different to the amount of compensation that might be recovered from a defendant in a personal injury claim.
The CICA operate a tariff based system and the applicant has to fulfil certain criteria in order to bring them within the categories under the Scheme. One of the major changes to the 2012 Scheme was to remove compensation entirely for multiple minor injuries, such as a broken nose or minor burns and scarring.
Special expenses, such as loss of earnings can still be claimed provided the injury has rendered the applicant incapable of work in any capacity for more than 28 weeks. The 2012 Scheme has changed the way in which loss of earnings is paid and the new Scheme is far less generous. Loss of earnings is now capped at a flat rate of Statutory Sick Pay (SSP) and is only payable to those unable to work or with a very limited capacity to work. There is also new requirement which means that an applicant must have been in work for at least three years prior to the incident causing injury and the exceptions to this rule are very limited.
Claims for care were previously possible under old Schemes, but the new Scheme has also cut down this provision. Care can only now be claimed if it is not available free of charge from another source and private healthcare is now specifically excluded.
Do I need legal advice?
Under the new Scheme, legal advice to ensure your potential CICA claim is maximised is arguably more important now than under previous more generous Schemes. In cases involving any degree of psychological injury, legal advice should be sought to make sure an appropriate award is made. When the 2012 Scheme was introduced, one Law Lord commented that the cuts to the new Scheme were `another example of the most vulnerable people in our society being expected to make the greatest sacrifices.’ The complete removal of the lower award shows a failure to understand how a small amount of compensation may be a significant help a victim on a low income.
Sadly legal fees are not recoverable under the CICA Scheme and victims are expected to fund legal advice through a contingency fee arrangement. This means the solicitor will take a percentage of the award for the work done in gaining an award. At Robsonshaw, we take the view that this percentage should be as fair to the victim as reasonably possible. We will offer you a contingency fee agreement if we believe we can help you with your claim.
The points covered here are some of the main criteria that must be complied with to make a successful CICA claim, however, there are numerous other eligibility requirements depending on individual circumstances. For expert advice about the CICA Scheme, please contact us on a free, no obligation basis on 01392 345333 or email us at firstname.lastname@example.org