Justice 2 Committee, 14 Mar 2001

Meeting date: Wednesday, March 14, 2001

Official Report 160KB pdf

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Criminal Injuries Compensation Authority

Item 7 is about the Criminal Injuries Compensation Authority. I welcome Howard Webber, the chief executive of the CICA, and Edward McKeown. Thank you for coming to the committee this morning. I know that you have travelled a long way to get here. I am sorry that we have kept you waiting, but we have had a busy agenda this morning.

For some time we have wanted to have you along, because we are interested in what you do. We have lots of questions to ask you. We have a time limit of around 12.30, but I think that we will get through them. I invite you to make some preliminary points, then we can get down to business.

I am happy to make an opening statement, which may dispose of some of your more basic questions. I will try to keep it to not much more than five minutes.

The criminal injuries compensation scheme was set up in 1964 and is pretty much the oldest in the world. There is competition between Britain and New Zealand for the title of the oldest criminal injuries compensation scheme in the world. It was part of a move at the time to put victims higher up the criminal justice system agenda than they had been. That has continued ever since, with the growth of Victim Support and other measures to support victims.

For the first three decades of the scheme, awards were based entirely on what applicants could expect to receive if they were successful in suing the offender in the courts and collecting money. For 30 years, it was a common-law based system. That was replaced in 1996 with the current tariff system of around 400 injury descriptions, each of which has a set sum of money, to give applicants reasonable knowledge of what they will receive if they are successful.

We still have the remains of the old, common-law scheme—we are dealing with about 3,000 such cases. In 1996, we had a backlog of 110,000 cases under the old scheme. We have been operating the two schemes in parallel since then. We hope to dispose of the 3,000 cases in the coming year.

We receive more than 75,000 applications a year and make annual payments totalling about £200 million. That makes the scheme by far the largest in the world and larger than all the other programmes in the European Union put together. It covers the whole of Great Britain—I am sure that we will have more to say about that in a while—and is therefore funded jointly by the Scottish Executive and the Home Office. We have nearly 500 staff, two thirds of whom are based in Glasgow and one third in London. The Glasgow staff deal with all cases that arise in Scotland and Wales and the majority of England. The London staff deal with cases that arise in London, the south-east and other parts of southern England.

Any innocent victim of a crime of violence is eligible to apply to us. We do not make awards for what we consider to be minor injuries, although no injury is minor to the person who has suffered it. The tariff that we apply has a minimum award level of £1,000, so we cannot make awards to people whose injuries would not qualify for that level of compensation. The upper level of the tariff is £250,000, but the vast majority of the awards we make are at the lower end; more than 60 per cent of awards are £2,000 or lower and 90 per cent of awards are £5,000 or lower. If the victim is incapacitated for more than 28 weeks, we can pay for loss of earnings and medical care costs. The total award that we can make is capped at £500,000, which takes account of the pain and suffering award and any loss of earnings and medical care costs.

I mentioned that funding is shared between the Scottish Executive and the Home Office. The Scottish Executive pays a proportion. There is a complicated formula, but the average percentage of our total spend that has gone to victims in Scotland over the previous three years determines the percentage of our annual budget that is paid by the Scottish Executive. For example, this year the Scottish Executive is paying a percentage that reflects the average amount paid to Scottish victims over the previous three years. In general, that amounts to between 11 and 13 per cent of our total budget. The number of awards to Scottish victims is between 11 and 13 per cent of the total number of awards made.

All applications are received in the Glasgow office, which takes the initial action on them. It registers the cases and sends out to the police and the medical authorities identified on the application form for the basic reports. As appropriate, the applications are allocated to a specific, named case worker in a London or Glasgow case work section. From then on, that case worker is the named contact for the applicant and the person who will do all the detailed work on the case. Our system is such that we require at least two people to be involved in any decision. The preparation of cases and recommendations for decision are separate from the actual taking of the decision, partly to ensure high quality and partly to reduce the risk of fraud.

If an applicant is unhappy with our decision, they can ask for the application to be reviewed. That is done in a separate part of the organisation by a more senior officer. If, after the review, the applicant is still unhappy, they can apply for an oral hearing before the Criminal Injuries Compensation Appeals Panel. Authority staff present the cases to the panel, but the panel is independent of us and makes its own decisions. Just over 25 per cent of applicants ask for their case to be reviewed and about 9 per cent of applicants go to appeal. That figure is falling—we might touch on the reasons for that in a moment.

We aim to reach a decision in 90 per cent of cases within 12 months—we have not quite met that target so far. About 80 per cent of cases are settled within 12 months; the average time for settling applications is around nine months. We are taking measures to try to improve on that.

We are in the process of introducing three major customer service improvements. First, we are setting up a freephone helpline, which we hope will be operational from next Monday. Secondly, we have produced for the first time a brief guide to the scheme—I shall leave a few copies behind. It has the number of the helpline on it, and it will be published next week to coincide with the launch of the helpline. It is the first time that we have expressed ourselves in print in such simple terms, and we have a Plain English Campaign award for it—I am very pleased about that. Thirdly, we are undertaking a major information technology upgrade at the moment—that is rather longer term. The first fruits of that will be clear by this summer; the later fruits will not be clear for another 18 months or so.

We have been subject to a fair amount of scrutiny recently. The National Audit Office and the Public Accounts Committee of the House of Commons have given us a once over. The National Audit Office reported on us last April and the Public Accounts Committee examined me in May last year. They identified a number of areas for improvement. A number of the changes that we have made are the result of their work. However, as National Audit Office and PAC reports go, they gave us a relatively clean bill of health. For example, they benchmarked us against three private sector insurance companies that do personal injury work and we were found to be quicker and cheaper than all three. That was very pleasing, although I expect that the National Audit Office did not expect that conclusion when it began the exercise.

Your visit is timely if you are about to announce your freephone advice line. I had been going to ask you about structure, but my question has more or less been answered. Do members have any other points on which they feel they have not had answers?

We did not know about the helpline. Who will man it? Will it be a 24-hour helpline? Will it be charged at local rates? Is the information in the booklet?

The helpline will be free. I have most of the details in my head, but Edward McKeown has been masterminding the exercise, so he is probably better able to answer the question.

Our partner—an experienced call centre operator—will start the pilot. In due course we will decide whether to continue to do it jointly, to take it in-house or to leave it outside. In any case, we will probably leave the evenings bit outside. Initially, we are talking about 9 am until 8 pm on weekdays and 10 am to 6 pm on Saturdays. The Cabinet Office has produced work that suggests that the kind of service that we are offering—an information service—is not especially useful on a Sunday or late at night. However, we will monitor calls outwith the opening times and if there is a demand for the service later in the evening, we will offer it.

Who is responsible for informing victims of their eligibility for the scheme? Do they self-refer, or does someone suggest to them that they ought to apply?

As we understand it, no central requirement is placed on the police in Scotland to inform victims of their right to apply for compensation. In many respects, that is a pity; we would welcome such an obligation being placed on the police. I have no doubt that Victim Support Scotland would refer victims to us.

One of the reasons for producing the guide is to increase our visibility. We are printing 500,000 copies of it and we intend to make it available in every doctor's surgery and every accident and emergency department, as those are places where victims go. We also want to make the guide available in public libraries and post offices, so that the message will be spread widely. We would welcome an obligation on the police in Scotland, as there is on the police in England and Wales, to inform victims of their recourse to us.

We take note of that.

Can you please explain the factors that are taken into account in determining whether someone is eligible to apply to the scheme? Can you also briefly explain to us the mechanism and process? Does one person receive an application and decide whether it is eligible or are applications referred to a managerial group that decides? What do you do and how do you do it?

Are you asking how we make decisions at our end?

Yes.

The main factors that influence eligibility are the severity of the injury and the way in which the injury was incurred. We must be satisfied that there was a crime of violence, that the applicant was the victim of that crime of violence and that their injury is sufficiently serious to meet the minimum compensation threshold. We are also required to take into account issues such as whether the applicant reported the crime promptly and co-operated with the police during the investigation or whether they were at all responsible for the incident in which they were injured. Whether the applicant provoked a fight or landed the first blow are relevant facts in reducing or withholding an award.

We are required to take into account the extent of the applicant's co-operation with us. If they fail to provide us with basic information after repeated requests, the scheme requires us to take account of that. A feature of every scheme since 1964 has been that an applicant's criminal record is a relevant factor in our consideration, even if it had no impact on the incident in which they were injured.

So, a sinner that hath repented would still be placed in a different category from other people?

It depends on how far they have repented. If their offences are spent, under the Rehabilitation of Offenders Act 1974, we totally disregard them. If they are still live under that act, they are taken into account in a graduated way. In our main guide to the scheme, which is a fairly technical document, we explain how we take account of people's unspent convictions. Someone with no serious criminal record could expect their award not to be affected much According to the scheme that we operate, if someone had a serious criminal record, that would have a major impact on their award.

I want to press you on that issue. Let us imagine that someone who served time two decades ago for a very serious crime, perhaps even murder, was the victim of a criminal assault and you judged the recompense for that assault to be above the £1,000 level—the first eligibility barrier. Would that person then be excluded from the scheme?

Probably yes, in general. However, we have discretion in all cases. If someone has served a prison term of more than 30 months, but more than 10 years have elapsed since the end of that sentence, that would count as five penalty points in our system, leading to no more than a 25 per cent reduction in compensation. I am not saying that the system is good or bad; it simply requires us to take account of people's criminal records. However, that is not an absolute rule. If someone were injured in the course of apprehending an offender, we would have the discretion to say that, despite their criminal record, they should receive a full award.

Five penalty points, but a gold star?

Yes, something like that.

That has been a point of controversy for some members, who will follow this debate with interest. Let us clarify the point about criminal records. If someone had a criminal record for a breach of the peace or a fairly minor offence, would they still incur penalty points if they sought criminal injuries compensation?

No. It depends not on the nature of the offence, but on the nature of the sentence. We make no judgments at all on the nature of the offence; we rely on the nature of the sentence. It would have to be a significant sentence to have any real effect on the award. For instance, nothing less than imprisonment would result in a reduction in the award, except a build-up of several fines, community service orders or similar community penalties. If an offence did not result in imprisonment, it would have no effect on the award.

Thank you.

Will you explain the interaction between the authority and other agencies in establishing the criteria? Have the criteria been met? What reports do you seek? Whom do you approach?

The people from whom it is crucial that we receive information are the police and medical authorities: those reports are the building blocks of just about every application. We send out a basic report form to the police, which may raise further questions that need to be followed up. The form asks about the circumstances of the incident, whether the applicant co-operated fully, whether anyone has been apprehended for the offence and whether a court case is pending. We will generally await the outcome of any court proceedings before reaching our decisions. The fact that we wait for the verdict of a trial is one of the main reasons for delay. The evidence that we receive from the medical authorities—usually a mixture of GPs, accident and emergency departments and specialists, if someone suffered the sort of injury that required specialist treatment—is also vital. Without the reports, we cannot reach our decisions.

In cases of sexual assault, there could be a delay in reporting the offences for a variety of reasons. I assume that discretion is exercised in such cases. From my previous employment in child and family social work, I know that there is an issue surrounding the evaluation of the sexual abuse of children and the determination of the long-term effects of such abuse. The scheme has often been criticised for not being responsive or detailed enough regarding abuse, although improvements have been made. I hope that those factors are taken fully into account and that, although you have a checklist of factors, an element of discretion is allowed.

We have relatively few absolute bars. However, in the case of the sexual abuse of children, if the offender and child were living under the same roof and the offence happened before 1979, we are unable to compensate for it. Beyond that, we have a lot of discretion. As you say, the time limit rules would not generally apply to cases in which the offence is sexual abuse of children. We would expect the victim to report the matter and apply for compensation within a reasonable period of their reaching adulthood—which could be up to 10 years, in certain cases.

Do you anticipate that, following the launch of your helpline and leaflet, there will be an increase in applications to the CICA? What provision will be made for that increase?

Such an increase is quite likely but not definite, so we will respond to it when the time comes. We will have to approach our sponsors, the Scottish Executive and the Home Office, for more staff if there is an increase.

We hope that the increased publicity will result not only in more applications being made—and if they are made by anyone who should apply but would not have done so previously, that is all to the good—but in a reduction of ineligible applications. A high proportion of the applications that we receive do not result in an award. Not far short of 50 per cent of applicants do not receive an award; only about 52 or 53 per cent do. I would like that figure to rise. I believe that my colleagues make the right decisions; we are just not getting our message concerning eligibility across enough. For instance, we receive a lot of applications from people whose awards do not reach the minimum threshold.

We are hoping to make clear, by means of the helpline and the leaflet, the things for which we are likely to be able to compensate and, in effect, to discourage people from making applications that will only take up their time and our time unnecessarily.

Do you monitor or track where the people who apply to you but who have their applications rejected received their advice, if any? Does it come from voluntary groups, for example?

We have done some of that, but I confess that I have not broken down the information between Scotland and the rest of Great Britain.

I just wanted to know what the trend was.

People who are represented by solicitors—or by lawyers of any sort—are no more likely to receive an award than anyone else. The pattern of success among them is no greater than for other people. Applicants who are represented and supported by Victim Support are more likely to receive an award. I believe that that is largely because Victim Support—although it is not for it to tell people, "You shouldn't apply"—can gently advise people that their case is not likely to receive compensation.

I want to ask about regional variations. Have you noticed whether more claims tend to come from specific areas? Are some areas more litigious than others?

Not as such. However, we noticed—and the National Audit Office, when it reported on us, pointed out graphically—that the number of applications as a proportion of recorded incidents of violent crime varies greatly among different parts of Great Britain. Many of the police force areas in Scotland produce the lowest percentage. For example, for every 100 violent crimes reported in Grampian region, we received only 10 applications—although that figure is now a couple of years old. The figure might be 30, 40 or 50 for other police force areas.

We have done some investigation into that. It appears that the big difference is due to a variation in reporting practices among police forces, rather than in application rates as such. That is not within our control. There may well still be an effect on application rates and we hope that the publicity and the helpline will help to even that out.

The figures suggest—although I am probably speaking out of turn, beyond my responsibility and perhaps beyond my knowledge in saying this—that Scottish police forces are more inclined to report crimes in instances in which their English and Welsh counterparts might not. That is one of the reasons why the percentage of recorded crimes that result in applications tends to be lower in Scotland than in England and Wales.

That is interesting.

Much of what I was going to ask about has already been covered, including the profile of the CICA and the steps that it is taking to increase publicity. It has been mentioned that police forces in Scotland do not always let people know about the authority and the scheme. Would that affect the statistics, particularly the number of applications per reported crime?

It could do. I did not mean to say that the police do not tell victims about the authority; however there is no victims charter obligation on them in Scotland, as there is in England and Wales. That may have an effect on police practice, which might have a knock-on effect on applications to us.

Where did the initiative to publicise the scheme come from? Was it a direct result of the NAO report that was commissioned last year?

It was partly a result of that report. It is also something that my colleagues and I have been thinking of. We have been thinking that we would like to reach all people who are eligible to apply to us and feeling that we might be missing sections of the community.

Because of the time bar that applies in most cases—we have touched on exemptions—it is important that people know about the scheme.

Absolutely.

There have been occasions when people have fallen foul of the three-year rule, as I believe it to be.

That is now a two-year rule.

Those people may have met every other criterion, but did not know about the scheme.

Does one of the eligibility criteria depend on a successful prosecution?

No. Only a minority of applications are linked with the offender's being apprehended, let alone being tried, let alone being convicted. Apart from anything else, we operate on a different standard of proof. We do not need to establish anything beyond reasonable doubt; we just need to establish that it is more likely than not that the victim was indeed the innocent victim of a crime of violence.

So you operate on the basis of the burden of probability?

On the balance of probability, yes.

Before I ask about the tariff scheme, I want to know on whose initiative the time bar was dropped from three years to two.

I believe that that was in a Government white paper in 1993-94. I do not know whether Edward McKeown will be able to answer that. I do not know the reasoning for it. I have that white paper with me, so I could look up that information if you wish.

Yes—I am interested in that.

I am not sure about the reason but, in any case, it is not an absolute bar. If there is a good reason why the application comes in later than two years after the incident, we will exercise our discretion accordingly.

It can take a long time for people suffering from trauma to gather themselves together to go through such a process.

Absolutely.

If we had medical evidence to confirm that someone had been badly affected over that long period, we would certainly take that into account in deciding whether to waive the time limit.

How were the tariffs set? Who was consulted when the list with the types of injury, the levels of award and so on was compiled? Is there the same breakdown and analysis of mental health problems that may result from criminal injury as there is for other health problems? I looked at the tariffs and could not see any such analysis.

The original tariff, which was set out in draft form, I think at the end of 1993, was based on a fairly major exercise. That was well before my time but, as far as I know, a random third of the 60,000 cases that were settled in 1991-92, under the old scheme, were analysed for the award levels. From those 20,000 cases, the averages were calculated—the number of different types of injury and the average award level were identified. The tariff was derived from that exercise.

The tariff was then uprated and various further checks were carried out to ensure that that was a reasonable way to proceed. The white paper embodying that came jointly from the Scottish Office home and health department and the Home Office. I am not sure what consultation there was in advance of it, but I presume that it was as considerable in Scotland as it was in England. I cannot, however, say specifically how consultation was carried out.

The tariff as it is now is clearly a descendant of that first attempt. However, as members may know, there are plans to increase some elements of the tariff. I know that Jim Wallace has written to you, convener, to set out some of the basics of that. The idea is to improve on the tariff and to increase it, effective from 1 April. I can discuss what that includes, if that would be helpful.

We are really trying to get at the principles just now.

I should have added that mental injuries were considered in the same way as physical injuries in that exercise—following the 1991-92 awards. We have had a range of awards for mental injury, from a basic shock award of £1,000 to an award for permanent post-traumatic stress disorder of £20,000. Those are the current tariff levels.

I am particularly interested in that area. If you lose a limb and cannot work because of it you are likely to be compensated more than you would be if you were suffering from what is described as post-traumatic shock.

If someone cannot work long term because of an injury, whether it is physical or mental, they would, generally speaking, receive the same amount of compensation for loss of earnings and for care costs if they were incapacitated to the same degree. The only difference would be in the tariff awards. Someone who lost a leg would get an award for that and someone who had a permanently disabling mental illness would get a £20,000 award. There might be some difference in the tariff level, but not for other things.

This is an interesting area, because it can often be difficult to evaluate mental health problems. Mental health problems can come and go, whereas if you lose a limb you lose a limb.

Yes.

I should say that there is scope to reopen a case. If someone's condition turns out to be a lot worse than it appeared when their case was originally settled, they can ask for the case to be medically reopened. We receive a fair few applications for that each year. If there is good evidence that their condition is worse than they thought and we thought at the time of settlement, we will consider it again and see whether a further award is justified.

I welcome that flexibility. However, there is an accusation that there is inflexibility in the tariff scheme in relation to victims of child abuse. The setting of tariffs means that such victims can receive less compensation under the tariff system than they might have received under the old Criminal Injuries Compensation Board. Do you agree?

It is possible. Any tariff system is, I guess, inherently less flexible than a common-law system, but it is also more transparent, so that people know what they can expect to receive, and more explicable. The awards were originally set by reference to what people would have received on average under the common-law system. Things may have come slightly adrift since then, because the tariff has not been increased in the way that civil law damages have increased. That is the only way in which there would be any difference between the two.

The last set of questions that I have follow on from Margo MacDonald's questions. They concern proposed changes to the tariff scheme, which has been mentioned. You will be familiar with the case of Lisa Potts, the nursery teacher who shielded children. She had 11 serious wounds but, under the system, received compensation for only three of them. How might the new scheme assist someone in that type of situation? Will it change?

There is no change that will allow us to compensate for more than three injuries. At the moment we are able to compensate for the three most serious injuries by paying 100 per cent of the tariff award for the most serious, 10 per cent of the tariff award for the second most serious and 5 per cent for the third. Those last two figures are going to be increased. We will continue to pay 100 per cent for the most serious award, but the intention is that the 10 per cent will be increased to 30 per cent and the 5 per cent will be increased to 15 per cent. Under the proposed increases, Lisa Potts would have received 30 per cent rather than 10 per cent for her second most serious injury, which was physical scarring, and 15 per cent rather than 5 per cent for her third most serious injury.

In addition, there will be a general uprating of most of the tariff bands. Most of the tariff bands—those that lie between £3,000 and £100,000—will increase by 10 per cent. Every award between £3,000 and £100,000 will therefore increase by 10 per cent in any case. Lisa Potts would also have benefited from that. The other increases would not have benefited her directly, as the other major changes concern the victims of sexual crime. Those awards are going up much more than the rest. For instance, the award for rape is being increased from £7,500 to £11,000, which is nearly a 50 per cent increase. We are also introducing new tariff descriptions of rape involving internal injury and rape involving particularly severe post-traumatic stress, both of which will receive much higher awards than are presently available.

Having said that, would it be fair to say that, overall, the scheme is still quite inflexible?

Inflexible is one way of looking at it, but it is not the word that I would use. There are limits on what we can do: we cannot compensate for more than three injuries and there is nothing we can do to enable us to compensate for more than three injuries. Having said that, there will be some exceptions to that under the revised tariff. Some awards will be in addition to the three injuries. For instance, if a victim is infected with HIV-AIDS, they will receive a significant award for that in addition to any awards for other injuries. In general, however, we are limited to compensating for three injuries. To that extent, the system is inflexible, but it is also clear and certain. As I said at the outset, it remains the best funded scheme of its type in the world. That does not mean that it satisfies every applicant, but it is an important point.

The upper limit has been addressed in part. I am not sure of the logic behind having an upper limit, other than perhaps public expenditure reasons. If you went to the civil courts for a solution to a medical negligence claim, there would be no upper limit. As long as the upper limit remains, do you think that it will encourage people to seek redress in the courts under civil remedies?

Quite possibly, and I am not sure that I see anything wrong with that. When people apply to us they are applying to an organisation that is not remotely at fault and which uses taxpayers' money to express public sympathy for them. If they are pursuing the remedy through the courts, they are seeking remedy from the people who are responsible for whatever happened to them. In most cases, the individual who has injured them is a man or woman of straw and unable to provide much in the way of money. However, if such a person were able to pay out more than £500,000 as compensation for the injury that they inflicted, that is the person the victim should be going after.

Thank you. This has been a very interesting session. My deputy convener has suggested that, as you said that you have some literature with you, it might be useful for members to have copies. Do you have enough copies?

Yes.

She has also made the good suggestion that, given that you will have a higher profile and that your helpline is starting on Monday, you might want to give us enough literature so that other MSPs can provide that literature at their surgeries. Would that be possible?

Thank you for that suggestion. I shall ensure that we send copies to every MSP and MP. We had not thought about doing so, but we shall certainly do so now.

We shall have to digest the information that you have given us this morning and there are one or two points on which we may want to come back to you. How should we do that? You have come a long way today.

I am in Glasgow every couple of weeks, so it is very easy for me to come to Edinburgh.

So you would be able to come back if we so wished?

Certainly. I would be happy to.

That is helpful. Thank you to both of you for your evidence.

Now that we are off the record, who is doing your helpline?

Essentia.

I gather that you have some connection with that.

Oh, no.

I remind members that we are still meeting in public and that what we say is on the record. You can chat when I have closed the meeting.

I remind members that we will be going back to our normal start time of 10 o'clock for the next meeting, on Wednesday 28 March. It would be great to have a full attendance and for everybody to be on time, because our agenda is getting busier and busier. Thank you for your questions and input this morning and I shall see you all on 28 March.

Meeting closed at 12:38.