Under the Criminal Injuries Compensation Scheme 2008, minor multiple injuries can only qualify for compensation if they necessitate at least two visits to or by a medical practitioner within six weeks of the incident. The Court of Appeal accepted the argument of the CICA, represented by Ben Collins of Old Square Chambers, that the Scheme requires actual attendance, rather than the fact of an injury which merely warrants attendance, where that attendance does not in fact take place. This restrictive interpretation is in line with the Scheme’s general aim not to compensate all victims of violent crime, but only those who can show that they have suffered a sufficiently serious injury.
On 31 July 2011 Mr Clifford was violently assaulted by his stepbrother. At the time he described to the police how he had been repeatedly head butted, punched in the face and hit with a walking stick. The police observed that Mr Clifford had a bruise on his cheek and scratches on his neck.
On 29 December 2011 Mr Clifford applied for compensation under the Criminal Injuries Compensation Scheme 2008 because he had suffered injury as a result of a crime of violence. His injuries fell for assessment under the Minor Multiple Physical Injuries section of the tariff. To be awarded compensation under that section the applicant’s injuries must have been sufficiently serious to warrant an award of £1,000. The applicant must also have sustained at least three separate physical injuries from the types listed, with at least one having significant residual effects six weeks after the incident, and the injuries must have necessitated at least two visits to or by a medical practitioner within that six week period. It was the interpretation of the word ‘necessitated’ that was key to the case before the Court of Appeal.
Mr Clifford did not seek medical treatment in relation to his injuries. In his application to the CICA he stated that this was because he was embarrassed. (Mr Clifford had a cleft palate and speech impairment). He also suffered from diabetes and had suffered a stroke and cerebrovascular accident in 2009 resulting in atrial fibrillation and expressive dysphasia. Mr Clifford’s application was refused because the evidence was that although distressing, his injuries were not serious enough for him to have sought medical treatment.
Mr Clifford, dissatisfied with the decision, applied for a review. This again led to an adverse decision. He appealed to the First-tier Tribunal, but the appeal was struck out. Mr Clifford then issued a claim for judicial review in the Upper Tribunal and successfully obtained permission. The Upper Tribunal, in its written decision dated 15 April 2014, decided that the First-tier’s decision to strike out the appeal had been unreasonable and the case was remitted for rehearing. Two reasons were given: (1) that there was evidence that Mr Clifford’s health had deteriorated since the assault and the Tribunal should have considered whether he had suffered a brain injury attributable to the assault, and (2) that the word ‘necessitated’ did not mean that an applicant must have had actual contact with a medical practitioner on two occasions, but that the injuries must have been such that the tribunal would judge them to have necessitated two visits.
Mr Ben Collins of Old Square Chambers, on the CICA’s behalf, successfully challenged both these conclusions on appeal to the Court of Appeal. Lord Justice Davis, with whom Lord Justice Moore-Bick and Lady Justice Sharp agreed, stated that he was ‘extremely puzzled’ by the Upper Tribunal’s first point. He found that Mr Clifford had at no point before the Upper Tribunal hearing suggested that he had suffered a brain injury as a result of the assault and had never produced evidence to support such an assertion. Therefore, the First-tier Tribunal had been entitled to reach its decision because it had not left any material matter out of account because no such matter had been in evidence before them. The Upper Tribunal had been wrong to quash the First-tier Tribunal’s decision.
In relation to the second point, Mr Collins argued, and the Court agreed, that the natural meaning of the word ‘necessitates’ is ‘makes necessary’ which requires actual attendance on a doctor - not simply that such attendance is justified or warranted. This interpretation was also sensible on policy grounds to limit spurious claims and to set a threshold to enable claims to be readily verified as to whether they met the minimum level of severity required by the tariff (e.g. through contemporaneous medical records). The Court believed the Upper Tribunal’s concerns with this interpretation, which centred on the possibility that if actual attendance was required, a stoical applicant might miss out on compensation whereas a canny applicant with knowledge of the Scheme would not, were misstated. The Court believed such a stoical person’s actions would be evidence in itself that such medical visits were not in fact necessitated. As to the example of the canny applicant, the Court emphasised that attendance on the medical practitioner was not enough to satisfy the criteria. Such an individual would also have to show that their medical notes of such visits showed that the visits were warranted and that one injury had caused significant residual effects for six weeks.
This issue of interpretation would not arise under the Criminal Injuries Compensation Scheme 2012 because the band for Minor Physical Injuries has been removed from the tariff and such injuries are no longer eligible for compensation under the Scheme.
The Court sought to assure Mr Clifford that this interpretation did not mean that it had not taken his injuries sufficiently seriously or failed to acknowledge that he had been the victim of a crime. Its interpretation was simply recognition that the Scheme had certain minimum requirements which must be satisfied before compensation can be paid and which he had not met.
The Criminal Injuries Compensation Scheme has also been significantly over budget in recent years and this decision is in line with the Government’s stated aim of saving £50 million per year by narrowing its scope over time and hence ensuring its future sustainability.
Written by Sophie Beesley
To find out more about what cookies are, which cookies we use on this website and how to delete and block cookies, please see our Which cookies we use page.