Kerry Underwood

CICA CLAIMS AND COURT CLAIMS

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I deal with this in my Personal Injury Reforms Course which can be booked here.

Earlier this month I completed an 8 day trek in the Sahara Desert to raise money for the Lord’s Taverners cricket charity for disadvantaged children. Please go here if you would like to make a donation.

 

In VG v CICA [2017] UKUT 0049 (AAC)

 

the Upper Tribunal (Administrative Appeals Chamber), exercising its judicial review jurisdiction ,declined to interfere with the decision of the First-tier Tribunal (Social Entitlement Chamber) confirming an award of £500.00 under the Criminal Injuries Compensation Scheme, having offset £10,000.00 received in settlement of a High Court action.

 

Here, the applicant’s son was murdered and the murderer was a resident in a care home run by an NHS Trust and when sentencing the murderer the judge said that the systems in place at the care home were wholly inadequate.

 

The murderer’s non-compliance with his medication played a very significant part in the commission of the offence according to the trial judge, and the care home had failed to monitor this or to carry out searches of the murderer’s room – he had a history of knives being found in his possession.
The applicant sued the NHS Trust in the High Court and sought damages for negligence and under the Human Rights Act and settled the whole claim in the sum of £10,000.00.

 

The applicant then applied to the CICA who assessed compensation at £10,500.00, but offset the £10,000.00 received in the civil action, leaving a balance of £500.00.

 

The applicant appealed on the basis that the High Court compensation was for breach of the duty under Article 2, to put in place an appropriate legal and administrative framework and that liability for damages did not require the loss to be the death itself and therefore the Article 2 duty existed independently of any criminal liability or responsibility for the death.

 

For example it could include an inadequate investigation. Thus the applicant argued that he had not received compensation in respect of a criminal injury.

 

The CICA argued that the scheme is one of last resort and that if the applicant succeeded it would result in double recovery.

 

It argued that the damages were paid in respect of the death and not for some abstract breach of Article 2 and without the loss – that is the death – there would have been no liability.

 

The purpose of a payment of damages in a human rights claim is to place a claimant, in so far as possible, in the same position as if their Convention rights had not been infringed.

 

The tribunal accepted that in an appropriate case damages could be awarded without the breach being linked to a death, notwithstanding the authority’s arguments to the contrary.

 

However it held that that was not the case here, where it could not be said that the settlement between the Trust and the applicant was independent of K’s death.

 

It was occasioned by K’s death and therefore there was a causal link between K’s death and the claims and allegations against the Trust.

 

The tribunal said:

 

“25. Notwithstanding how the law might be applied to the facts of any other case, in this particular case the High Court claim form of 10th January 2012 was never amended, the Trust’s offer of 15th May 2014 referred to “settlement of the whole of her claim”, the Notice of Acceptance of 5th June 2014 went into no further detail, counsel’s note of 6th April 2016 does not assist the applicant (for the reasons that I have explained) and I am in no doubt that the First-tier Tribunal was correct to decide that the agreed compensation from the Trust had been paid in respect of the criminal injury to which the award under the 2012 Scheme relates.”

 

 

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Written by kerryunderwood

April 26, 2017 at 7:33 am

Posted in Uncategorized

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