News and ViewsCICA and future care claims
Forum: Criminal Injuries Compensation Authority Panel (“CICAP”)
Date of hearing: 17 March 2009
Date of judgment: 7 April 2009
In this case the applicant, born on 10 October 1986, sustained severe injuries (including severe brain damage) as a result of at least one assault by his mother on 19 January 1987 when aged 3 months. The case came before the CICAP for assessment under the “old” Criminal Injuries Compensation Scheme 1990. Unlike the present day “tariff-based” system, assessment of loss under the 1990 scheme is “on the basis of common law damages”.
Eligibility to receive compensation was not in issue.
The principal head of claim made by the applicant was for future care. At the time of assessment the applicant was living in residential accommodation at the cost of about £2,400 per week. The cost of that care was being met by the local authority.
It was argued on behalf of the applicant that the effect of the Court of Appeal decision in Peters v East Midlands Strategic Health Authority [2009] EWCA Civ 145 was to give the Claimant in a common law action the absolute right to elect whether care should be paid for by the tortfeasor or the local authority under its statutory duties (s.21 National Assistance Act 1948).
The CICA advocate submitted that while the Scheme broadly followed common law principles it did depart from it on occasion. It was argued that Peters only applied to the tortfeasor who was not able to avoid the payment of damage. It did not apply to the CICA jurisdiction where the state was providing the compensation.
The CICAP held that Peters did apply to the CICA jurisdiction. Relying on the principle enunciated in R (on the application of B by his litigation friend) v CICAP [2007] EWHC 180 (Admin), the Panel noted that there was no provision in the Scheme requiring a departure from the common law basis. Accordingly the applicant, on the basis of Peters, was entitled to elect to choose to fund his care and accommodation privately rather than rely on the local authority.
For good measure the Panel held that they could not be satisfied that the applicant’s reasonable care needs would continue to be met, and that it would be reasonable for the applicant to elect to fund his care regime privately. This was reinforced by the fact that the local authority could give no guarantee of future funding.
As in Peters an assurance was given on behalf of the applicant that no application would be made to the local authority for funding without the permission of the Court of Protection in order to prevent double recovery.
The CICAP therefore made a full lifetime award in relation to future care.
Frank Burton QC and Joel Kendall appeared on behalf of the successful applicant
See our Blog post for more information on Criminal Injuries Compensation Claims
