by Jonathan Houghton, Abney Garsden McDonald solicitors
For physical or sexual abuse occurring fully or in part after 30th July 1964 it is usually the case that there will be a Criminal Injuries Compensation Authority (CICA) Claim that will run along side the civil claim.
Most such claims are financed initially under the Legal Help and Help at Court form, and then on either a contingency fee basis or private fee paying basis.
The CICA claim has, certainly pre Lister, in some cases represented the best opportunity to obtain damages for a client. However CICA claims are rarely straightforward and obtaining an award is by no means a formality. Indeed in recent years the number claims turned down seems to have increased substantially and those who have received awards have generally received rewards lower than they could previously expected. This in part is due to the change from the CICB to the CICA. The situation has reached such an extent that many firms will have considered the economic viability of dealing with such claims.
There appears to be little or no consistency in the decisions made by the CICA. The most common ground for refusal is on the basis of the Applicants criminal record. Often such a refusal is unfair, for example where there is medical evidence to the effect the Applicant is a drug addict who uses heroin simply to block out the sexual abuse and has to turn to crime to finance his addiction. It is similarly unfair where the abuse has such a catastrophic effect that a previously law abiding citizens goes ‘off the rails’ as a result of the abuse. The CICA have frequently been unreceptive to such arguments both on Review and Appeal, often choosing to simply ignore the evidence of a medical expert, even though they have no expert evidence of their own.
Other grounds for refusal have been even more illogical for example failure to make an award because in their opinion the sexual abuse of the Applicant (who was a minor at the time) was consensual or because sexual abuse is in their opinion not a crime of violence. In a recent case the writer has dealt with the CICA refused to make an award (which was upheld on Review) on the grounds of non-co-operation with the police, not withstanding the fact that we had provided a detailed letter from the Police Officer dealing with the matter confirming that he had co-operated fully and as best as he was able. This decision was only overturned on Appeal.
Some of the decisions are difficult to reconcile and one wonders whether budgetary pressures influence decisions at all. Certainly if the CICA were to look at claims where they could find a reason under the Scheme not to make an award then child abuse claims would be top of the list. If the CICA are under pressure toreduce expenditure then this may explain why some strong claims have weak, often bizarre decisions for the failure to make an award. Reviews rarely overturn the initial decisions and there is an increasing tendency for Appeals not to overturn earlier decisions.
The CICA system is imperfect with many faults and to be fair to the CICA they have a very difficult job to do, and if one looks at the duration before they can start dealing with Reviews, one assumes that they are understaffed and overworked. Hope was given to those wanting changes in February of this year when there was public outrage at the level of the award made to Lisa Potts, the nursery nurse who was attacked at a Midlands nursery. The then Home Secretarypromised a review and change in the system, but the chance of such action is considerably diminished following the election and the cabinet reshuffle.
The only way for us to try and improve the system for our clients by obtaining more awards at higher levels is to Judicially Review the decisions made on Appeal in appropriate cases. It cannot be pleasant to have your work and decisions scrutinised and criticised by a High Court Judge and therefore it is likely that after a few successful Judicial Reviews the CICA would review and change their policies and attitudes to these serious claims.
Frank Barnshaw of the Legal Services Commission is aware of the current situation and is equally disappointed with the stance of the CICA. He would welcome Public Funding applications for Judicial Review in appropriate cases. This would therefore appear the best way forward for both solicitors and their clients.
The author of this article is Jonathan Houghton a solicitor with Abney Garsden McDonald specialising in individual child abuse claims.
