The Faults Of The Criminal Injury Compensation Scheme As Revealed By The Independent Inquiry Into Child Sexual Abuse

The Independent Inquiry into Child Sexual Abuse (‘IICSA’) revealed several faults within the Criminal Injuries Compensation Scheme (‘CICS’), and on 18 July the UK government published a consultation, seeking to gather views on potential changes to the scope and time limits of the scheme.

Review and reform of the CICS has been long needed and awaited and we will therefore be responding to the consultation. We urge others to do so too as reform of the scheme is urgently needed.

What is the Scheme?

The Criminal Injuries Compensation Scheme (CICS) is a means by which those who have been physically or mentally injured as the result of violent (including sexual) crimes can claim compensation.

How does it work?

A person can claim through the CICS if they have suffered injury as a result of violent crime and there is not necessarily a particular defendant for them to sue, or at least not one who may have the funds to pay them compensation.

The CICS exists to help individuals claim for physical and / or mental injuries arising from violent crime. Such individuals can make a claim to the Criminal Injuries Compensation Authority (‘CICA’) which administers the scheme, decides if applicants are eligible, and makes compensatory awards.

If the CICA makes an offer of compensation to an applicant or refuses their application, the applicant has 56 days in which to accept the award or to challenge the decision to refuse the application or the amount offered. If a review is sought, a fresh decision maker will then review the case and make a decision. There is a further right of appeal to the First Tier tribunal for an applicant who remains unhappy with the decision reached on review; such an appeal must be made within 90 days of the review decision.

Claims to CICA

Examples of the types of compensation that individuals can claim for include the following:

• mental or physical injury following a crime of violence;

• sexual or physical abuse;

• past and/or future loss of earnings – where an individual’s capacity has been reduced such that they have either no or limited capacity to work as the direct result of the criminal injury;

• special expenses payments – e.g. certain costs an individual may have incurred as a direct result of the incident such as past and future treatment costs, or other relevant costs provided that they are necessary as a direct result of the criminal injury, the provision or similar provision is not available for free from another source, and the they are reasonable;

• a fatality caused by a crime of violence including bereavement payments, payments for loss of parental services and financial dependency; and funeral payments.

The above is subject to the individual applying for compensation under the scheme satisfying certain eligibility criteria, namely that:

(1) the incident must have been reported to the police as soon as reasonably practicable;

(2) the applicant must have cooperated as far as reasonably practicable in bringing the assailant to justice;

(3) the applicant must take all reasonable steps to assist the claims officer in relation to their application;

(4) the claimant cannot have caused or contributed to the incident,

(5) the claim must be brought within 2 years of the incident (except in the case of a child where the claimant has any time before their 20th birthday to make a claim, if the crime was reported to the police whilst the person was still a child, or where exceptional circumstances exist for an extension); and

(6) the claimant must not have an unspent conviction which resulted in certain sentences or orders being passed, as this will lead to the CICA either refusing or reducing an award under the scheme. A detailed explanation of relevant unspent convictions which would impact an award under the scheme can be found under the ‘Taking account of your criminal record’ section of the gov.uk guidance.

The Comments of the Independent Inquiry into Child Sexual Abuse

The Independent Inquiry into Child Sexual Abuse (‘IICSA’) has conducted lengthy investigations into a wide range of state and non-state institutions and their relevant failures to protect children from sexual abuse and exploitation. This included looking into the redress available to victims and survivors of Child Sexual Abuse (‘CSA’) as provided by State and non-State institutions, and whether the redress as currently available in the UK succeeded in providing appropriate and meaningful reparation and address to help alleviate some of the impact on survivors. The CICS, as an example of one way in which victims and survivors may seek financial address, was therefore considered in the Inquiry, to provide an insight into how the system of criminal compensation operates. In order to investigate the operation of the CICS, a large number of victims and survivors of CSA were spoken to about their experience with the CICA.

In relation to this, the report (published in October 2022) found that:

1. The CICS’ “continued focus on ‘crime of violence’ fails to take into account that child sexual abuse, particularly online sexual abuse, may occur without physical contact.”

2. “Under the 2012 Scheme, no award is made to applicants who have unspent criminal convictions for offences that resulted in certain sentences or orders. This fails to recognise the impact of child sexual abuse and, specifically, that abuse may have directly contributed to instances of offending; there is often, for example, a close link between sexual exploitation, grooming and criminal behaviour.”

3. The two-year time limit for making a claim, which although may be extended where there are ‘exceptional circumstances’, is “inadequate for victims and survivors of child sexual abuse.”

The IICSA report also highlighted that there appears to be a lack of public awareness of the scheme and the availability for financial address, due in part to a lack of signposting to the scheme by police until after the conclusion of criminal proceedings, e.g. because of concerns that the issue of compensation may be used to undermine a victim’s credibility at any criminal trial, and also due to a lack of awareness of the Victim’s Code, which makes clear that victims and survivors are entitled to apply for awards from CICA. Whilst the College of Policing’s Guidance makes clear that police officers are required to provide victims and survivors with information on their rights under the Victim’s Code, but there are concerns about compliance with this.

Other Limitations of the CICS

Emma Hall of Hodge Jones & Allen previously commented in 2017 on the shortcomings of the CICS in relation to the potential compensation that can be awarded. The £500,000 cap on potential awards, and often the actual awards given, seems an undervalue in comparison to the way in which civil claims are assessed. Whilst it must be recognised that the awards paid by CICA are made from public funds, which are of course not limitless, our earlier blog highlighted the fact that the £500,000 cap was in place when the 2012 Scheme was introduced and has not been increased on account of inflation. The above issues remain to date.

There is also no protection for individuals regarding offers of compensation made by CICA. If an individual is offered a payment and fails to send acceptance of this back to CICA within 56 days, and has not asked for a review in writing or applied for an extension of a further 56 days, CICA may withdraw their offer for an award entirely. Even more concerning is the fact that if an individual requests a review, there is a risk that following a review the CICA may choose to offer (1) less money than their initial offer, or (2) no money at all. It seems unfair than an individual who has suffered injury as a result of crime could be at detriment for appealing an award which they truly believe does not properly compensate them for their injuries.

Need for Reform

It is clear that reform of the CICS is needed to ensure those vulnerable claimants, with no other recourse to monetary recognition for injuries sustained from crime which is no fault of their own, are able to access adequate compensation. The IICSA has recommended (Recommendation 18) that the UK government amends the Criminal Injuries Compensation Scheme to:

1. include other forms of child sexual abuse, including online-facilitated sexual abuse;

2. amend the rule on unspent convictions so that applicants with unspent convictions are not automatically excluded where offences are likely to be linked to the circumstances of their sexual abuse as a child; and

3. increase the time limit for child sexual abuse applications so that applicants have seven years to apply from (a) the date the offence was reported to the police or (b) the age of 18, where the offence was reported whilst the victim was a child. In either circumstance, the claims officer’s discretion to extend the time limit remains.

Both internally within the CICS, and externally within organisations related to the scheme and who are supposed to direct potential claimants to the scheme, it is clear that work is needed to increase public awareness of the scheme and to ensure that individuals who may have a claim are being provided with the correct and necessary information by relevant bodies.

Government Consultation on Reform

Considering the above, it is therefore welcome news that the government have acknowledged the IICSA’s recommendations and now launched a consultation on potential reform.

It is clear that the CICS requires amending beyond the recommendations made by the IICSA, and it is therefore positive that the consultation is considering broader reform, including:

• Reforms to extend the scope of the scheme beyond crimes of violence to include serious non contact offences which have increased in prevalence, such as grooming, online exploitation, coercive control, stalking, and modern slavery;

• Reforms to the scheme’s time limits, not only for survivors of child sexual abuse but potentially for all applicants;

• Reform and action necessary to raise awareness of the scheme and its time limits; and

• Reforms which may be necessary to advance equality of opportunity for applicants with certain protected characteristics under the Equality Act 2010.

However, as our previous blog highlighted, there are other inherent issues with the scheme which also need to be addressed. For example the cap on recovery, the way compensation payments are calculated and the failure of tariff awards to increase over time and in line with inflation meaning that victims will inevitably be undercompensated. More fundamental reforms are needed to ensure that blameless victims of serious crime are meaningfully compensated.

If you would like to find out more, contact our leading Civil Liberties & Human Rights team now on 0330 822 3451 or request a call back.