Criminal Injuries Compensation Authority (CICA) Appeal Allowed
The First-tier Tribunal (Social Entitlement Chamber) has allowed the appeal of a woman “A” against CICA’s decision that she was not entitled to compensation for a serious sexual assault committed against her by a police officer.
The case concerned the interpretation of paragraph 85 of the Criminal Injuries Compensation Scheme 2012 (the Scheme), which permits CICA to reduce or withhold an award for a criminal injury where an applicant has received damages or agreed the settlement of a damages claim in respect of that criminal injury. It followed the Court of Appeal’s recent decision in R (AXO) v FTT (Social Entitlement Chamber) & CICA [2024] EWCA Civ 22.
A instructed Olivia Coffey of Hodge Jones & Allen Solicitors Ltd to represent her on appeal with Hannah Smith appointed to make submissions on her behalf.
One working day prior to the hearing, CICA accepted the submissions of Ms Smith that damages for a failure to investigate sexual assault are not damages awarded “in respect of” the sexual assault itself, and therefore that para.85 of the Scheme did not apply. As such, the Tribunal allowed A’s appeal and ordered that she be paid the relevant tariff award in full.
Background
It was agreed between the parties that A had been the victim of a criminal injury, namely a serious sexual assault, and that she would be entitled to £11,000 (Tariff Level B9) on the basis of this injury.
Separately, A had agreed the settlement of a damages claim for breach of the investigative duty under Article 3 ECHR after the police conducted a seriously defective investigation into this sexual assault (the HRA damages).
CICA argued that it was entitled to deduct the HRA damages from A’s award on the basis that the claim related to the “same injury” under paragraph 85 and that HRA damages would not have arisen “but for” the sexual assault. A was, therefore, entitled to £0 in compensation.
A’s Appeal
A submitted that she had suffered two distinct “injuries” (the serious sexual assault and the failure to investigate the sexual assault) and two distinct forms of harm as a result.
A’s solicitor helpfully obtained written confirmation that the police accepted no vicarious liability for the sexual assault meaning their settlement offer was made solely in respect of the breach of their investigative duty. Medical evidence was also obtained to demonstrate A suffered: (i) the underlying trauma and symptoms directly attributable to the sexual assault; and (ii) the exacerbation and intensification of that trauma and those symptoms due to the failure to investigate.
Outcome
CICA eventually accepted that paragraph 85 did not apply in A’s case. However, the appeal was ongoing for over 9 months, during which time CICA submitted two further sets of submissions insisting that paragraph 85 did apply and failing to engage at all with the argument that two separate injuries arose from a failure to investigate an act compared to the commission of the act itself.
The case is a reminder of the value in pursuing an appeal in the face of such insistence by CICA. In particular, taking account of the finding in AXO that, where there remains any doubt regarding whether there is overlap between a CICA award and HRA damages, the default must be that CICA cannot make a deduction, because double recovery is not made out (see AXO para 122).
It also provides a stark reminder that whilst the Scheme purports to be one that applicants may navigate without legal representation; it is in practice often necessary to seek legal advice to obtain the compensation an applicant is entitled to under the Scheme.
Hannah Smith was instructed pro bono by Olivia Coffey at Hodge Jones & Allen.
