Response by Thompsons Solicitors on the consultation to amend the Criminal Injuries Compensation Scheme - February 2006
Introduction
Removing the Lower Tariff Bands
Removing the Cap
Court Ordered Compensation
Appropriate Tariff Levels
Judicial Studies Board Guidelines
Date of Change to Scheme
Interim Payments
Sliding Scale for "Unspent" Convictions
Course of Employment Injury
Exceptional Risk
Employer Responsibility
Categories of Workers
Railway Workers
Thompsons is the UK's most experienced trade union and personal injury law firm. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.
Thompsons only acts for the victims of injury, never for employers or insurance companies. The firm participates regularly in government consultations on legislation.
We act for the majority of trade unions whose members may be injured at work through criminal acts. We represented 1,219 such members in 2005-2006. Over half of the successful claimants were awarded £2,500 and below, with the majority of the rest receiving awards of £5,500 and below.
Introduction
Thompsons supports the principle that victims of crime should be given a wider range of support. However, the firm believes that the proposals to abolish the lower levels of compensation under the Criminal Injuries Compensation Scheme (CICS) will punish and alienate victims.
Emotional and practical support is important. But practical support, if it does not extend to financial support for, say, loss of earnings due to the injuries caused by the criminal act, runs the risk that victims are financially punished. If someone is injured at work due to employer negligence, they can claim compensation for loss of earnings and other losses on their employer's insurance.
Under the proposals as they stand, someone who is assaulted at work and left with exactly the same injuries as their colleague with a civil claim will be unable to claim a penny.
Whilst Thompsons of course accepts that this issue is about more than simply providing financial assistance to the victim of crime (the sums payable for injury in the lower brackets of the scheme are not realistic or comparable to civil awards in any case), they do represent an acknowledgement by society of what has happened to them and they can assist with resulting loss and expenses.
It is unacceptable to exclude workers from the scheme. By doing so the government risks alienating the very people who it claims it wants to engage with the political system - low paid workers such as NHS employees and shop workers who are the innocent victims of assaults in the course of work that society recognises is vital.
Exclusion of workers means society is asked to accept an inherently unjust system. Employers are not likely to insure their employees against assault. Equally, it can not be right to restrict compensation to injuries that are very severe and thus disregard other injuries that society would judge as worthy of compensation. The future exclusion of some significant injuries so as to free up funds for compensating the very severely injured is a bad policy and will bring the whole system into disrepute.
Our response to this latest consultation returns to many of the points about removing workers from the scheme that we have made in our response to the Home Office consultation paper in 2004.
Removing the lower tariff bands
The scheme already excludes victims with minor injuries by the imposition of the £1,000 threshold. It would not be appropriate to increase that threshold further to exclude so called “lesser” injuries.
For someone on the minimum wage, who loses income as a result of their injury, £1,000 is not a small sum.
Thompsons is in any case concerned about the options put forward in the consultation paper for defining “seriousness”. Injuries above the existing £1,000 threshold are by their nature unpleasant and traumatic injuries and merit compensation. Any attempt at defining seriousness merely to avoid payment of compensation to a significant number of innocent victims will be seen as retrograde and indefensible.
To remove compensation for victims who would normally be awarded between £1,000 and £2,000 would exclude 57% of all victims. To remove victims who would normally be awarded between £2,000 and £3,000 would exclude another 7%. By the simple but devastating artifice of raising the payment threshold to £3,000 or more would mean that 64% e.g almost two thirds of all victims claiming compensation would be deprived of a recognition from society of their injury. Taking this to £5,500 would exclude 89% of victims. Society must decide whether removing these victims from the scheme demonstrates consideration for them, their injuries and the experience that resulted in the injury.
Attempting to “redistribute” money from those who qualify in the lower tariff bands to those whose injuries are in the higher bands is simply an exercise in robbing Peter to pay Paul. Punishing further one set of victims to make more appropriate provision for another set of more serious victims, Thompsons considers is an unacceptable approach.
Victims with more serious injuries should be compensated properly without financial detriment being imposed upon other victims. A bad proposal does not make up for the injustice of low awards for more serious injury.
Removing the cap
The maximum award of compensation of £500,000 was originally set too low and has already been eroded by 5 years of inflation. We have always argued that imposing a maximum sum means that there is insufficient provision in a number of cases to properly compensate the innocent victim and carers where serious injury has been suffered.
We regret that it has taken 7/7 for the government to acknowledge the inherent unfairness of the cap.
By having a cap, the scheme punishes (and has already punished) the more vulnerable, the most injured and their families. There should be no upper limit. Society has to decide if it is prepared to adequately compensate these victims. It would seem that, from the reaction to 7/7 and the criticisms of the cap made then, that society has already decided that it is.
There should also be within the scheme a procedure for retrospective review in the interests of justice to ensure past applicants are lifted out of the financial predicament and hardship that they find themselves in due to the imposition of the maximum cap.
Court ordered compensation
Thompsons agrees that it would indeed be desirable for offenders to be brought before the Courts, made accountable for their criminal wrongdoing and made to financially compensate their victims.
The reality though is that many such offenders are unidentified or alternatively lack the means to pay and any such compensation award ordered by the courts is likely to be significantly lower than any award made under the present scheme.
The suggestion that ‘Court Ordered Compensation’ should be deductible from the state benefits received by offenders is immediately and obviously problematic. In many instances, those benefits may be for the support of not only the offender but also their family and therefore financial hardship could be imposed upon innocent people, including children. Furthermore, an offender deprived of the financial means to exist from the State is much more likely to resort to further crime to raise funds. No-one wishes to condone, excuse or let off the offender but it is the reality that many will not or can not pay without other adverse consequences.
If a compensation order is made, the CICA should only take into account the actual sums received by the victim after 12 months, (as opposed to the sum that the assailant has been ordered to pay by the Court) and, if there is a shortfall, step in and pay the shortfall.
Appropriate tariff levels
It is suggested that tariff payments for pain and suffering are “broadly in line” with amounts awarded by the Civil Courts, as set out in the Judicial Studies Board “Guidelines for the Assessment of General Damages in personal injuries cases”. They are not.
The JSB guideline figures are reviewed regularly whereas tariff awards have remained the same since 2001. In real terms, each and every victim, year on year, is receiving less compensation in under the Scheme as inflation erodes the tariff values.
It would be inappropriate to refocus the scheme around the concept of “seriousness” of the injury. Minor injuries, unless there are multiple minor injuries, are already excluded by the threshold payment. What are the measures that the government is proposing to use to define “seriousness” and how would this be reviewed once it is set? Again, it is for society to decide if the definition is acceptable, or should be made at all.
It is acknowledged that the tariff scheme has limited bandings and broadening the descriptions and bandings might be helpful. This should not however be the vehicle for the removal of even more so called “lesser injuries” given the existing exclusion already of minor injuries by the threshold approach.
Judicial Studies Board Guidelines
The approach adopted in the Judicial Studies Board Guidelines referred to above has a wider range of classification of injuries and provides an example of a generic format which can be applied more readily and fairly.
In fatal cases, whilst it is true that it is impossible to place a value on the loss of anyone’s life, this is not a justification for paying too little.
The fixed statutory award for bereavement in a civil case is just £10,000. The CICS award for bereavement is marginally less mean at £11,000 for one claimant, but it does at least provide for £5,500 each for multiple claimants.
Nevertheless, these CICS awards for fatal injuries are set far too low. For example, the CICS tariff award for the loss of an ear is set at the same level of 13 and has a value of £11,000. There is no comparison between the loss of an ear and the loss of a life. A sensible and realistic comparison has to be made. This starkly illustrates the difficulty with setting arbitrary compensation levels, fiddling about with concepts of ‘seriousness’ to save money but without taking proper and realistic account of the gravity of the injury .
The appropriate figure for any fatality for a single claimant should be set at a minimum of at least £25,000 to one Claimant and at least £10,000 each for multiple Claimants for the grief caused by losing a close relative.
This is still below the level 18 tariff award of £27,000 for the loss of an eye.
Date of change to scheme
Any changes to the scheme should apply from the date of the incident for reasons of fairness and certainty. It would be undesirable that applicants should even have to consider the timing of the application and the effect that it may have upon the value of the award.
Interim payments
Interim payments should be paid routinely and promptly and this should certainly be the normal practice. There are lengthy delays and the part payment of compensation can alleviate financial hardship and are again a tangible expression of sympathy and consolation. It will also operate to slightly offset the harmful erosion of the award by inflation of fixed tariff figures that remain static for many years.
Consideration of structured settlements and periodic payments in more serious and appropriate cases should be looked at too but provision must be made to include in the award additional funds for the costs of setting up and administering any such arrangement. For example, the Public Trust Office could have a role to play.
Sliding scale for “unspent” convictions
The sliding scale already used to determine the level of compensation for a person who has “unspent” convictions should be abandoned. Where victims with a past criminal record have already been punished by the Court, this is a further punishment inflicted upon an offender who becomes a victim. This further financial punishment is imposed simply because he has been convicted of earlier unconnected offences.
The difficulty here also is that any compensation could be crucial not only to the victim’s upkeep but also to their family, particularly in relation to loss of earnings and care for more seriously injured victims. The State would have to meet those needs so in real terms, the financial burden is simply being moved elsewhere.
The only area that needs consideration is previously convicted drug gang members or convicted terrorists who get killed or injured during their drug dealing/terrorist activities by their colleagues or other gangs.
Course of employment injury
Thompsons is opposed to removing people injured during the course of their employment from the CICS. People injured at work by crime are no less eligible for compensation that any other victim. Where the attack happened is immaterial.
There are scant savings to be made by removing people injured at work from the scheme. Just 6.5% of the total compensation paid out under the scheme was paid to people injured at work, according the CICA’s own statistics. To remove workers for such small savings can only be regarded by society as mean spirited.
Imagine the public outrage if Lisa Potts, the nursery nurse savagely attacked with a machete at a teddy bears’ picnic a few years ago had not been compensated just because she was in employment.
Indeed, there was public anger at the low sum that she received from the scheme. She suffered additional multiple wounds in protecting the children under her care. For her to have been ineligible would be unthinkable and inexcusable. The same applies, for example, to train station staff, healthcare workers and the emergency services, all of whom helped members of the public injured and killed in the London Bombings.
These brave individuals have been heralded as heroes by government ministers. They witnessed horrific scenes and suffered psychological injury. Thompsons has represented a number of them to recover compensation from the CICA. Is the Home Office seriously suggesting that they are somehow less worthy of compensation because they were caught up in, and injured by, the bombings while on duty, rather than on their way to work, as many of the people injured and killed were?
And what of the off duty tube workers recently honoured by the Queen, who came to the aid of victims? Under these proposals, they would be able to claim compensation from the CICA, while on-duty colleagues would not.
This illustrates the confused thinking around who picks up the bill when employees are injured and killed as a result of criminal actions that were foreseeable. Is it the employer, or the police for failing to prevent the crime, for example?
More is said on employer responsibility, below.
Exceptional risk
The exceptional risk exclusion for victims injured during the course of their employment whilst involved in crime prevention should be abolished. A victim is a victim.
The Government is engaged in a programme of tackling and breaking down ‘anti social and yob culture’. The people who are on the front line dealing with this are already excluded from the scheme unless they are forced to take exceptional risks. This needs to be corrected. If such people are injured trying to maintain a crime free society, they are as entitled to compensation as anyone else injured through violent crime.
Employer responsibility
It is suggested in the consultation paper that the scheme was never intended to be a substitute for employers’ insurance or to pay compensation for anything other than violent crime.
Workers who are assaulted during the course of their employment are as much victims of violent crime as someone injured in the same manner away from work.
Putting responsibility to compensate victims of crime during the course of employment on employees will turn the system into a lottery.
Employers rarely carry insurance to cover the cost of injury for employees assaulted whilst performing their duties. Where such insurance existed, any payment would be offset under the existing scheme and if such insurance was common place, there would be no need to exclude workers at all.
Employers are not compelled to have such insurance for their employees and it is unrealistic to believe that the exclusion of workers from the scheme will result in a change of attitude on the part of cost conscious employers.
While Thompsons has been vocal in criticising employers for the risks that they all too often take with their employees’ health and safety, this firm recognises that it is simply not going to be possible for employers to always prevent workers becoming the victims of crime at work. Where the employers are negligent under the existing system or there is a no fault assault insurance policy, the CICA offset the compensation received. It is highly unlikely that the CICA is being inundated by abandoned applications due to employers footing the bill in one way or another. If that was the case, then these proposals would be largely pointless.
Categories of workers
Some workers are more vulnerable than others. Health Service workers at all levels are at risk. Frontline local authority and civil service employees are extremely vulnerable. And the transport industry experiences a high level of attacks on workers.
Safety screens in benefit offices and on buses, alarms for social workers, radios in cabs, CCTV. These are all measures that can be taken by employers to protect workers. That they often are not is a serious health and safety issue, and an attack on a worker where no protection is afforded may be a serious breach of health and safety regulations, for which it may be possible to take civil proceedings against the employer.
However, it was decided in a recent civil case that there is no legal obligation on bus companies to provide safety screens for their drivers. It is voluntary therefore.
Even where screens do exist, drivers often feel compelled to emerge from behind them to protect other passengers who may be under attack.
In the majority of the CICA claims pursued by Thompsons, no civil claim against the employer is possible. The criminal act was not the result of employer negligence. Wherever it is possible to take civil proceedings for a breach of health and safety regulations, we will, as it results in more money for the victim. Yet, of the 585 successful claims last year by Thompsons on behalf of people injured through crime at work, just 171 were brought as civil claims.
A recent High Court award of £1.5 million for a prison instructor at a young offender’s prison who was severely brain damaged in a hammer attack by inmates is an example. In this case it was possible to show negligence by the Home Office in not affording the victim better protection. Had we been unable to pursue the civil claim, the victim, whose career was ended in the attack, and who will need care for the rest of his life, would have received just £500,000 from the CICA.
But in general, when an on duty employee becomes the victim of a fight on a bus, on a train station or in an Accident and Emergency waiting room, there is little that the employer could have done to protect them. Many assaults on workers are even more unpredictable than the potential ‘flashpoint’ of a public transport or a hospital.
The attack on shop workers and the public in the Rackhams department store in Birmingham a few years ago by an assailant wielding a knife illustrates the difficulty in an open society of affording protection. It highlights the injustice of allowing a member of the public to recover compensation, when an employee at the site of the attack would not have been entitled to claim under these proposals. Society will not, we believe, accept such a situation.
Given the practical limitations on suing for criminal injury, the only realistic option would be for employers to take out personal accident insurance for all their employees or extend existing insurance cover, which, if compulsory would require another layer of bureaucracy for government and the insurance industry to manage and regulate, increased costs and raised insurance premiums. Employers and the insurance industry complain that premiums are already high enough due to a so-called compensation culture. It is difficult to imagine them accepting an obligation to take out further insurance.
A significant number and variety of judicial challenges are also bound to arise as all employers try to gain the type of experience that has been gained by the CICA and CICAP in the administration of such Schemes over decades.
The cost of external commercial insurance, in addition to employers’ liability compulsory insurance, will be prohibitive for many employers. Unless the government makes it compulsory for employers to have insurance cover for criminal injury, it is unlikely that it will be taken out. In those sectors and industries, where employees do not come into contact with the public, the risk may be worth taking. Indeed, private sector employer organisations have already made clear that they will not be held responsible for compensating employees.
It is unrealistic to expect cash strapped health authorities and other frontline public sectors, where the majority of assaults occur, to buy commercial insurance or to otherwise self-fund compensation claims made against them by employees injured by crime at work.
The cost of each and every employer administering the equivalent of a scheme would be prohibitive, and could lead to injustices due to lack of expertise. Underpayments, overpayments, withholding of compensation and indeed the payment of monies when inappropriate are bound to arise.
Employers would have to have an appeal mechanism. But how can this work and how can an employer’s internal appeal system enshrine fairness? The CICAP is at least an independent and experienced appeal body. An employer’s system would not be, and will inevitably result in injustices.
Not all victims of crime at work will be trade union members or have access to legal or other representation. If an employer has commercial insurance, there will be an imbalance in representation, with the employer’s insurer having the benefit of a large legal budget to contest claims. The victim, with little or no legal expertise, will be unable to assess what is the correct amount of compensation for their injury and whether they are being offered the right amount.
The Fire Service has such a scheme, for assault. This is provided for in the national terms and conditions, the Grey Book. The Home Office, when it was responsible for the Fire Service, agreed to place it on a statutory basis but have never made good that promise.
The scheme provides for a scale of payments for death or permanent incapacity subject to abatement in respect of pension payments. The scheme is extremely limited applying to very few cases and falls considerably short of even the present CICA scheme. Its current status is uncertain in light of the Government’s failure to honour the undertaking given to place this on a statutory footing.
Railway workers
Railway workers are uniquely vulnerable to criminal acts. Sadly, committing suicide or trespassing on the railways is impossible to stop. Vandals throw stones at trains and leave objects on tracks with the intention of causing derailment and potentially catastrophic disasters to both workers and the public. This highlights again the injustice of excluding workers in this situation but compensating members of the public.
Railway workers also have to confront potentially hostile and aggressive individuals or others intent on causing harm. To allow such victims to go uncompensated will inevitably lead to railway workers questioning the sense and prudence of placing themselves at risk for the safety of others.
Train drivers witness and have to deal with the consequences of suicides. Drivers are obliged to check if medical assistance is needed. They are confronted with horrifying scenes of dead, dying and grievously injured people. They will see body parts on the track and the underside of the train which they have to deal with. It leaves a devastating lasting impression.
Drivers have to relive the scene time and again, through formal reports to employers and the police and by attending Coroners’ Courts. Many struggle to return to driving, usually having to drive on the same section of track as the incident occurred. Others, perhaps after the cumulative impact of several incidents, cannot return.
In the 1980's the train drivers’ union ASLEF and Thompsons went to court to establish that those killing themselves in front of a train were committing a crime of violence. Even though the House of Lords were not convinced that suicide was within the Criminal Injuries Compensation Scheme, the Government was persuaded that railway workers should be able to claim compensation for the trauma of seeing someone commit suicide by jumping in front of a train or from having to deal with the aftermath of the suicide.
It was accepted in 1990 that the best way to compensate those who suffered was to allow payments to be made under the CICS.
In 2004 the government again accepted, after proposing to remove train drivers from the scheme, that their inclusion was not an anomaly and should remain. What has changed since then?
The cost of compensation to affected railway workers is about £560,000 a year. Removing them from the scheme will not solve the scheme’s funding issues, unless the Home Office proposes to introduce strict liability against Railtrack, the employers or some other interested railway company, or is seriously contemplating or encouraging affected railway workers to sue the family of the deceased or the suicide themselves in the event that they survive the suicide attempt ?
For further information contact:
Jennie Walsh
Head of Media
Thompsons Solicitors
Congress House
Great Russell Street
London
WC1B 3LW
020 7290 0025
jenniewalsh@thompsons.law.co.uk