Personal Injury, Serious Injury & Clinical Negligence

Changes to the Criminal Injuries Compensation Scheme

In 2012, the government invited feedback on proposed changes to the Criminal Injuries Compensation Scheme.  The government’s response was published in July 2012 and a new draft Scheme followed in September that year, but following opposition was withdrawn.   However, the draft Scheme was brought back unamended and laid before a differently constituted committee in November 2012, and was approved, coming into force on 27 November 2012.

The 2012 Scheme made a number of radical changes from the previous tariff based schemes, affecting:

  • the eligibility criteria to qualify for an award, and
  • the amount of the award itself.

Eligibility

For the first time ever, a residence qualification was introduced, resulting in a situation where lawful visitors who would previously have qualified for an award will no longer do so.

Eligible categories now primarily include:

  • British citizens or close relatives of British citizens
  • EU or EEC nationals
  • certain family members
  • certain armed forces personnel or their accompanying close relatives.

Circumstances for refusing or reducing an award

The emphasis of the circumstances in which an award can be refused or reduced was also changed. The Scheme provides that an award will be withheld or an award can be reduced where:

  • the incident has not been reported to the police (however here is a proviso that the age and capacity of the victim at the date of the incident, and also whether the effect of it was such that they could not reasonably have been expected to report earlier, can be taken into account)
  • there has been a failure to co-operate in bringing the assailant to justice (there was previously a discretion available to a claims officer)
  • the applicant fails to assist in relation to the consideration of the application
  • the applicant’s conduct before, during or after the incident makes it inappropriate to make an award
  • the applicant’s character makes it inappropriate
  • the applicant has a previous conviction (effectively, there can be no award to an applicant who, at the date of their application, had a conviction for an offence which resulted in a sentence excluded from rehabilitation, a custodial sentence, a sentence of service detention, removal from Her Majesty’s Service, a community order, or a youth rehabilitation order. For other unspent convictions, there will be a withholding of an award or a reduction unless there are exceptional reasons not to do so).

Crime of violence

Subject to the eligibility criteria, an innocent victim of a crime of violence will be entitled to an award where he or she had suffered a sufficient severe injury as a consequence of a crime of violence.

A ‘crime of violence’ is now described as involving:

  • a physical attack
  • any act or omission of a violent nature which causes physical injury to a person (if done intentionally or recklessly)
  • 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
  • arson and fire raising.

There are specific exclusions, including any injury:

  • resulting from suicide or attempted suicide which is not a crime of violence unless carried out with intent to injure
  • from animal attacks unless the animal was used with intent to cause that injury
  • sustained in the course of sporting or other activity to which the applicant has consented to take part
  • 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.

Removal of tariff bands

A primary reason why an application that might previously have been successful might fail under the Scheme relates to the removal of the first five tariff bands of injury that existed under the previous scheme. This includes, 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 Criminal Injuries Compensation Authority (which operates the new Scheme) has indicated that since its inception, this is the most common reason for applications to be refused.

Advice

There are many changes brought about by the Scheme that will have an effect on both the eligibility for compensation and the level of awards made.  It is important that if you have a potential claim, you are confident that your representative is familiar with the changes so that you can be provided with accurate advice.

If you have any questions in relation to a claim for compensation, please contact Lee Hart.