31st Mar 2015
Judicial Review of the 2008 CICA Scheme timelimits should help childhood sexual abuse victims
The Criminal Injury Compensation Authority (“CICA”) administers the payment of compensation to innocent victims of violent crimes.
There have been a number of schemes over the years and the latest `2012' Scheme came into force on 27th November 2012. The CICA has introduced a new online portal for all new applications for compensation. However, since CICA claims can take many years to process, cases are still being Appealed or Reviewed under the previous 2001 and 2008 schemes.
Practioners involved in this area of legal work are only too conscious of the strict time limits that apply to claims. One of the more frustrating aspects of the CICA is the rigid adherence to the rules and the almost complete lack of discretion in the acceptance of an “out of time” claim. That may be considered right and proper for adult claimants, but in the past child applicants have suffered.
Under the 2008 Scheme, the Rules provided that all applicants, regardless of age, must make an application within 2 years of the incident that gave rise to the injury for which compensation was sought. However, paragraph 18 of the 2008 Scheme stated that a CICA claims officer could waive the two-year time limit where:-
(a) It is practicable for the application to be considered, and;
(b) In the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made the application within the two-year period.
Paragraph 19 of the Rules reminded applicants that it is for them to make out their case if they want to waive the time limit.
It is now accepted that victims of sexual abuse often repress their experiences – sometimes for years – and many are simply unable to comply with a rigid two year limitation period within which to make a claim. This is more common with young children for whom silence may be the only way to live with the torment and upset of abuse.
The 2008 Scheme Rules do not specifically refer to the age of a victim and so in the past, the CICA has often refused to exercise the discretion to extend time to a child in the same way that it would refuse to exercise discretion in the case of an adult victim. Anecdotally it was said that claims officers seldom waived the limit, even in the worst cases of abuse and irrespective of the medical and other explanations put forward for a `late' or `out of time' application. The CICA gained support of its approach by an apparently similar treatment of late claims by the First-tier Tribunal whose function it is to review failed applications and other Appeals from Claims Officers at the CICA.
However, two cases have transformed the way in which the Courts now consider the CICA should apply the discretion to extend the two year time limit.
Judge Roger Goodier heard an Appeal about the late application for compensation made by Jake Kirk. Jake was 8 months old when he suffered debilitating burns as a result of a deliberately started house fire. The arson was investigated by police and fire officers and, although no-one was ever charged, it was a matter of record that the fire had been started deliberately by an unknown individual. Further, Jake’s parents were initially and wrongly advised that they could not make a claim under the CICA scheme.
Jake would have qualified for a CICA award but the CICA ruled it could only entertain Applications within two years. Jake’s application was twice rejected by the CICA on the same `out of time' grounds.
The Judge noted in Jake's case that, “As a child of just eight months old, it was not reasonable that Jake could have made an application. Jake was only 10 at the time his parents eventually made the application.”
Allowing the Appeal the Judge ordered the CICA to re assess the application and, gave a damning verdict of its earlier stance. Judge Goodier said the CICA had, “Misapplied the terms of the scheme by applying a test based on its own mistaken and unlawful ‘policy’.”
The CICA had adopted an, “incorrect, erroneous, and, certainly in respect of documents issued after 30th September 2011, inexcusably misleading approach.” The CICA’s response had manifestly failed to deal with the grounds for appealing and the documents (Accident Report, Fire Officers and Senior Police Officers Report) enclosed with the Appeal. The Judge held the CICA had wrongly applied the `out of time' test applicable to the earlier 2001 scheme and not the 2008 scheme. It is hard to think of a more obvious example when paragraph 18 of the 2008 Scheme will have been met. Indeed the Judge stated the evidence, “Is overwhelmingly in favour of the appellant and is clear evidence that, on the balance of probabilities (the burden of proof required), the appellant’s severe burns were caused by a house fire started by persons unknown, and thus the appellant is the victim of a crime of violence.”
The Judge then considered whether it would have been reasonable to make an application within two years. Not unnaturally the Judge was firm in his views:
“It was not reasonable for the applicant to have made the application within two years. Clearly a child of two years and eight months cannot be expected to make an application.”
Dealing with the point made by the CICA that Jake’s parents could have made an application the Judge said, “It is Jake himself who is the applicant and his father is acting merely as a representative. A person making a claim on behalf of a child victim is acting in a representative capacity.”
In conclusion the Judge held the CICA had failed to exercise its discretion and had acted, “erroneously, outside the terms of the scheme and inconsistent with legal precedent.”
In a similar case R(MJ) v FTT and CICA (No. 3), [2014] 0279 (AAC) Appeal No. JR/553/2012, the Administrative Appeals Chamber heard an Appeal that the Applicant's `out of time' claim should be allowed pursuant to paragraph 18 of the Criminal Injuries Compensation Scheme 2008. A Judicial Review was sought under paragraph 18 of the Scheme following abuse of a young boy who had not made a claim within two years of the incident complained of. Indeed the claim was only made when the Applicant was in his 30’s and arguably 20 years too late. The Applicant faced the same hurdles as Jake Kirk under paragraph 18 of the 2008 Scheme as he had failed make his application within two years of childhood sexual abuse.
The Tribunal considered the two conditions under paragraph 18 were met and accordingly, the CICA must extend time. The Tribunal noted that if the CICA routinely disapply its discretion, it "would ignore the very real reasons an individual will have for not disclosing either the abuse itself, or the full extent of such abuse in the first place and the time that it takes to come to terms with such traumatic experiences. The fact that there has been a lengthy delay in making an application does not of itself mean that a case for waiver cannot be made out, especially in cases of historic child abuse.”
The Tribunal held that:-
1. Even where the conditions are satisfied the CICA retains a residual discretion which may result in the claim being ruled to be out of time;
2. However, if a claims officer (or tribunal) accepts that the conditions are both satisfied, then there would have to be good reasons to justify not exercising the discretion in the applicant's favour;
3. As a general principle, the longer the period of delay in making the claim, the stronger the reasons for waiver will need to be;
4. However, the simple fact that there has been a lengthy delay in making an application does not of itself mean that a case for waiver cannot be made out, especially in cases of historic sexual abuse;
5. In exercising the residual discretion under paragraph 18, all the relevant circumstances must be taken into account and the reasoning for the decision must be appropriately explained.
Whilst these decisions were made under the 2008 Scheme, they do send a firm message to the CICA in relation to its approach to historic sex abuse claims and in particular that the CICA may not rigidly adhere their rules without regard to the exercise of its discretion. These rulings represent a positive step for victims of historic childhood abuse and should help those who apply to the Authority for compensation out of time.
It is fortunate that the new 2012 Scheme has relaxed the rules in relation to the application of the 2 year rule. Whilst applicants must still apply as soon as it is reasonably practicable to do so, for victims who were adults at the time of the incident, the CICA can only extend the time limit where:
- due to exceptional circumstances an application could not have been made earlier; and
- the evidence provided in support of the application means that it can be determined without further extensive enquiries by a claims officer.
The decision to extend the time limit will be made on the ‘balance of probabilities’. The CICA do not need to wait for the outcome of a criminal trial if there is already enough information to make a decision on the case. This is a potential trap as the CICA consider an Applicant should never delay making an Application pending the outcome of a criminal trial. It is much better to lodge the Application and then agree with the CICA to stay, (or put on hold) the Claim pending the outcome of the criminal trial.
Any application made more than two years from the date of the incident will need to be accompanied by evidence that shows why the application could not have been made earlier. The Applicant will also have to provide supporting evidence for the claim so a claims officer can make a proper decision without further extensive enquiries.
For victims who were under the age of 18 years at the date of the incident, now special provisions apply under the 2012 Scheme. If the incident or period of abuse took place before the Applicant turned 18:-
1. and was reported to the police, a claim can be made up to their 20th birthday;
2. if the crime was not reported to the police at the time, an Applicant can apply to the CICA within two years from the date of reporting the incident or abuse to the police.
However, in either case the CICA expect the Applicant to provide supporting evidence to enable a Claims Officer to make a decision without further extensive enquiries. If an Applicant wishes to extend these periods, they will also need to provide the CICA with evidence to show why the application could not have been made earlier.
If you or a family member need help on a confidential, no obligation basis with a CICA claim, please contact us at enquiries@robsonshaw.uk, or call us on your local rate number at any time. We operate a 24/7 legal service and if we are unavailable, leave us a message we will return your call. We specialise in CICA claims, Reviews and Appeals and offer a competitive contingency fee arrangement for your claim.
Category: CICA Claims