Running a Shaken Baby Claim under the CICA Scheme

1. Running a Shaken Baby Claim under the CICA Scheme Neil Sugarman

2. Where do your clients come from? • Birth parents • Foster or adoptive parents • Local authorities • Estimated numbers – 300/500 per anum

3. Statistics CICA Annual Reports 2002/03 tariff award of £250K – 3 2002/03 tariff over £25K - 90 2004/05 tariff award of £250 – 6 2004/05 Tariff award over £25K - 119 Mission statement ; The CICA aims to support the victims of violent crime by providing an efficient and fair service to applicants,investigating thoroughly all claims for criminal injuries compensation and treating applicants with sensitivity and courtesy at all times

4. Anecdotal evidence Read the (correct) Scheme and the Guides

5. Basics of the Scheme and Eligibility • Criminal Injuries Compensation Scheme 2001 by the Criminal Injuries Compensation Act 1995 • Compensation payable to an applicant who has sustained a criminal injury on or after 1/08/1964 (para 6) • Criminal injury – one or more personal injuries….sustained and directly attributable to a crime of violence (para 8) • Time limit – within 2 years of the date of the incident (para 18) but note discretion

6. Types and limits of compensation • Paragraph 23 – a standard amount of compensation by reference to the nature of the injury in accordance with paras 26-29 (The Tariff – maximum £250K) • Loss of earnings or earning capacity if longer than 28 weeks calculated under paras 30-34 • Special expenses where there has been loss of earnings or earning capacity for longer than 28 weeks calculated under paras 35 and 36 • Maximum total award £500,000 - para 24

7. Tips on establishing eligibility • Complete application form and other forms fully • Special Cases Unit • Be prepared to obtain and submit your own comprehensive evidence • Push for full disclosure (Data protection issues, court permission) • Understand the processes of the CICA, the police and the local authority • Chase authorities and CICA proactively

8. How to Deal with Refusals • Review of Decisions (paragraphs 58 to 60) • In writing, with reasons within 90 days of the decision • Considered by more senior claims officer

9. Appeals • Paragraphs 61 to 82 • Time limit – to be received within 90 days of date of Review decision (para 61) • Independent CICAP • Beware the Presenting Officers Unit • Understand the format of the hearing • CICAP Chairman’s Directions

10. Amount of the Award • The Tariff - Brain Damage • Minor – category 12 - £8,200 • Moderate – category 15 - £16,500 • Serious – category 20 – £44,000 • Very serious – category 23 - £110,000 • Extremely serious (no effective control of functions) – category 25 - £250,000 • Note also Permanent mental illness – seriously disabling – category 18 - £27,000 • Separate injuries – paragraph 27

11. Evidential Issues • Standard of proof in all matters is the balance of probabilities (para 20) • What are you trying to show? M v CICA [2002] EWHC Admin 2646 – don’t fail to see the wood for the trees! • Understand the CICA’s systems and processes • Examinations can be arranged where a Claims Officer considers it is required para 20) • “Reasonable expenses” will be met (para 20) but is that an incentive to the medical expert?Do they understand the implications? n.b the danger of minimalist reports • CICA’s precedent instruction – add, amend, challenge • Cost/benefit analysis of medical evidence compilation? • Life expectancy • Care reports

12. Further medical evidential issues • Re C v Home Office and CICA [2004]EWCA Civ 234 • Per Sedley LJ – CICA was “going to Bannockburn by way of Brighton Pier” • “the provision that reasonable expenses incurred by the applicant in connection with the examination will be met by the Authority is principally intended, no doubt, to cover the claimant’s travel and subsistence and any loss of earnings in attending the examination. But it is also apt to include reasonable legal costs incurred by the claimant where, as here, her lawyers have in effect been called upon to act as proxies for the Authority” • “One can readily visualise cases in which these gateway issues require the assembly of facts and the deployment of legal argument far beyond the capacity of an average person, let alone one under a disability. .For my part I would wish to reserve such a case for a decision in relation to Article 6(1) if and when it arises”

13. Loss of Earnings • Paragraphs 30 to 34 • Life expectancy issues (again) • Note : earnings or earning capacity • Multiplier/multiplicand formula (para 32)

14. Special Expenses • Paragraphs 35 and 36 • Loss of or damage to property • Costs associated with NHS Treatment • Private health treatment (if reasonable) • Special equipment • Adaptations • Care • Cost of Court of Protection ( Re Goldsmith LTLPI 25/10/2004 • Case management costs

15. Care • Care, whether in a residential establishment or at home, which are not provided or available free of charge from the National Health Service, local authorities or any other agency, provided that a claims officer considers such an expense to be necessary as a direct consequence of the injury – paragraph 35 (d) (iii) • The expense of unpaid care provided at home by a relative or friend of the victim will be compensated by having regard to the level of care required, the cost of a carer,assessing the carer’s loss of earnings or earning capacity and/or additional personal and living expenses as calculated on such basis as a claims officer considers appropriate in all the circumstances • Multiplier / multiplicand (paragraph 36) • Note Re B v CICA [2007] EWHC 180 (Admin) Langstaff J

16. Obstacles • Sowden v Lodge • Stated policy of CICA • S 21 and S 29 National Assistance Act 1948 • Evidence gathering – judicial review of local authorities? • Care evidence obtained by the CICA but who do they use? (and note restricted approach c.f CPR)

17. Effect on Awards of Other Payments • Paragraphs 45 to 49 • United Kingdom social security benefits (or other state benefits) – Adoption allowances – check the “split”? • Power to withold until benefits claimed (para 46) • Take all steps to assist in the compilation of benefits details

18. Court of Protection • When to appoint a Deputy? • Obtain necessary directions to conduct the claim, give a receipt for the award and assessment of costs • Money transfer from CICA to Court Funds Office/Court of Protection • Past care – approval by the Court of Protection • Different investment considerations in view of “the Cap” – imposition of trusts, para 50 • Costs assessed by the SCCO – but obtain payment by the Deputy

19. CICA policy? • “ the Authority has no policy of delaying the resolution of such applications until the applicant reaches 18” per Howard Webber, Chief Executive in relation to the pre tariff scheme • M v CICA [2002] EWHC Admin 2646 – delay • Statutory duties of local authorities taking children into care – negligence or breach of duty actions

20. Funding • No costs of representation allowed (para 19) – but Re C? • Private retainer or Contingency fee? • Prior approval by Court? • Claim disbursements under paragraph 21 and Re C

21. Tips and Tactics • Rattle cages • Always be proactive – do not expect anything from the CICA and do not wait for them to do it • Understand CICA set up and evidence gathering procedures • If necessary use complaints procedures • It doesn’t need to take forever?