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Criminal Injuries Compensation Scheme 2012 (Amendment) Instrument 2019

Volume 797: debated on Monday 20 May 2019

Motion to Approve

Moved by

That the Instrument laid before the House on 28 March be approved.

Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)

My Lords, the purpose of the amended scheme before us today is to remove a discriminatory eligibility rule and to provide a potential remedy to victims of violent crime who have been affected by its application. It is right that we are seeking to make these changes, and to make them expeditiously. Our knowledge and understanding of domestic violence and abuse and the sexual abuse of children is far greater today than when this rule was introduced. It is not acceptable that a rule intended to stop perpetrators benefiting from causing harm to people they lived with has unfairly denied victims acknowledgement of that harm and access to compensation for their injuries.

All cases of sexual and physical abuse by family members in the family home involve a grave abuse of trust. But this rule has operated in a way that has denied eligibility to compensation on the basis of victims being in a situation over which they had no or limited control, and could not necessarily change. The circumstances giving rise to the need for this instrument are exceptional, and it is fitting that Parliament is breaking new ground in meeting that need. For the first time, Parliament is being invited to approve amendments to part of the statutory scheme.

A commitment to abolish the pre-1979 same-roof rule was announced in the Victims Strategy published on 10 September 2018. Under the rule, applicants were not entitled to compensation if they were living with their assailant as members of the same family at the time of the incident. The rule applied to cases between 1964 and 1979, and affected victims who were adults or children at the time of the incident, and claims for injuries from physical as well as sexual assault.

The amended scheme strikes out paragraph 19 in the 2012 scheme. This will enable victims of violent crime who may not have applied due to the existence of the rule, and those who may not have been aware of the scheme, to consider applying. However, we have gone further, in recognition of the unfairness that has attached to application of the rule for more than 50 years. We have made provision, in new paragraph 18A, for past claimants refused under the rule to make new applications. We have also taken steps to avoid creating a new, potentially discriminatory position whereby claimants who were adults at the time of an incident are treated more favourably if the incident happened before 1 October 1979. We have extended the post-1979 same-roof rule, at paragraph 20 of the 2012 scheme, to a start date of 1964 to provide consistency in how the rule applies to all applicants who were adults at the time of an incident. This rule will be considered in the comprehensive review of the scheme that we announced in the Victims Strategy. A public consultation on potential reforms to the scheme will take place later this year.

Requirements, eligibility rules and criteria and values of awards have changed over time. Noble Lords will recognise the importance of having a fair and proportionate approach for all applicants, whether they are making a new, first application or are reapplying following a past refusal. We have sought to enable as many of those victims affected by the rule as possible to consider and take up the opportunity to apply.

As I said earlier, this is the first time that we are making changes to parts of the scheme, and uniquely we are applying changes to past applicants. The complexity of assessing applications made so long ago is significant. Administratively, it would be very difficult for the Criminal Injuries Compensation Authority to assess and determine claims to the non-statutory or statutory scheme that was applied to previously, or to which a victim could have applied had the rule not existed. We have therefore provided that new, first applications, or reapplications following a past refusal, should be made to the 2012 scheme, and have made amendments to that effect. We believe that this ensures equality of opportunity.

We have set a time limit for new applicants and past applicants who are reapplying that is fair and consistent, in that they must submit their claim within two years beginning from the date that the amended scheme takes effect. We have retained the discretion in the 2012 scheme to extend the time limit where, in exceptional circumstances, an application could not be made in this timeframe. Placing a time limit on applications will help us manage the significant financial liability attached to the changes and to forecast the financial repercussions more effectively.

I recognise that there will be challenges in meeting the evidential thresholds required for a compensation award to be made, and a successful outcome to a claim cannot be guaranteed. The changes to the scheme are designed to level the playing field for applicants to the amended scheme. All eligibility criteria in the 2012 scheme must be met. Cases will be assessed on their merits, and an assessment will be made by the authority, on the balance of probabilities, of whether an application can be taken forward and whether an award can be made. The safeguards in the 2012 scheme will apply to decisions of the authority on an application. These include review by another officer in the authority and, if the applicant remains dissatisfied, appeal to the First-tier Tribunal.

We intend to monitor carefully the operation of the amendments we are making once they are implemented. It is important that we assess the impact of those changes in meeting our intention to offer an opportunity for redress for the unfairness of the same-roof rule. We recognise that there is a challenge in raising awareness of the scheme, and we are looking at this more generally in our wider review of the scheme.

I am grateful to my noble friend Lady Newlove for highlighting this issue in her review, as Victims’ Commissioner, into criminal injuries compensation. I take this opportunity to thank her and pay tribute to her tireless work throughout her tenure to make sure that victims of crime are supported and, crucially, that their voices are heard.

In relation to the changes we are bringing about, work has already begun to engage with external stakeholders on how to ensure that potential applicants are signposted to guidance and support in making a claim. We also recognise that making claims to the amended scheme can be difficult for applicants. The authority has made specific preparations to implement it. A small, dedicated and experienced team has been set up to support people making applications whether by phone or online, and applicants will be given a named contact to assist them through the application process.

In concluding, I maintain that the amended scheme and Government’s intent are clear. The changes we are making are necessary, fair and reasonable. I beg to move.

My Lords, I welcome this statutory instrument which makes an improvement to the current scheme, but it should be seen in context. I was a member of the Criminal Injuries Compensation Board from 1985 to 1994. In those days, there were 44 members who assessed eligibility for an award and the quantum on common law damages principles, and it was thought that a person injured by crime should receive no less than a person injured, for example, in an industrial or road accident. It was a non-statutory scheme under the prerogative of the Crown. In 1988, Mrs Thatcher’s Government introduced legislation to put that scheme on a statutory footing—in other words, to make common law damages the basis for compensation—but the statutory instrument to introduce that was never brought into force. In 1994, although legislation for the common law damages basis for compensation existed, it was decided that there should be a tariff scheme under the prerogative powers. That was challenged and, in the end, taken to the Judicial Committee of this House, which held it to be unconstitutional. At that point, I resigned from the board because I thought that this was merely a scheme to keep down compensation.

In 1994-95—the year that I resigned—compensation was awarded to the tune of £152.5 million. I was not alone. Mr Tony Blair, then the shadow Home Secretary, said that nothing so exposed the Government’s claims about law and order as the scrapping of the current system of compensation. He added that thousands of people would be worse off under the new arrangements and many would be substantially worse off. In 1995, Mr David Maclean, the Home Office Minister, said that the amount of compensation was expected to increase to £250 million. The Government changed in 1997 and ultimately the Labour Government introduced the Victims Charter. On 27 March 2001, I moved a regret Motion against a statutory instrument introducing modifications to the scheme. I said:

“What is to happen for victims? There will be better services; £4.6 million will be spent on introducing victim personal statements so that victims can tell the court what happened; £4.2 million will extend witness support services to magistrates’ courts and the Crown Prosecution Service will spend an extra £3 million on making direct contact with victims, either by letter or in face-to-face meetings to explain decisions to drop or alter charges. That is the Victims Charter. By their alterations to this scheme the Government have gone along with the tariff system which, instead of providing £460 million by 2001, as was thought five years ago, now produces £220 million. So they have saved more than half the possible cost of that and are spending £11 million on services that victims generally do not want and which are completely valueless for victims of crimes that are never solved”.—[Official Report, 27/3/01; cols. 230-31.]

The modification introduced today is to get rid of the same-roof principle, which prevented compensation being awarded to people living under the same roof. Back in the 1990s, and even when the scheme was introduced, there was not the same focus on historic sexual abuse cases that there is now. Consequently, the concern of the board was that women living with violent partners should be compensated but that the violent partners should not get anything as a result, so it was a requirement that they live apart. That was the reasoning behind the rule when it was introduced.

We have moved a long way and now live in different times, but I should like to point out that awards by the compensation board in 2017-18 totalled £154 million—in other words, £2 million more than when I resigned in 1994. Therefore, although the amendment is welcome as an improvement to the scheme, let it not be thought that victims are being properly compensated by the scheme for the injuries that they sustain. I retain the reservations that caused me to resign in 1994, including the concern that the scheme does not pay out what it should.

My Lords, it is always a pleasure to meet the noble Baroness, Lady Barran, at the Dispatch Box but her bringing this instrument today is particularly welcome, as was her careful and clear speech explaining the historic reason for the same-roof rule, which to modern eyes is very difficult to understand, as well as why it is unsustainable now. Thanks are also due to the unsung officials who will have prepared the instrument. I take this opportunity to join the well-deserved tribute to the outgoing Victims’ Commissioner, the noble Baroness, Lady Newlove, who has brought such credibility to that role. She will be a tough act to follow. I am sorry that she is not here to hear these tributes, but I am sure that she will be told of them in due course.

I will not take up your Lordships’ time as there is other important business, but this is incredibly welcome and we wholeheartedly support it on this side of the House.

My Lords, this is incredibly important business. I add my tribute to the noble Baroness, Lady Newlove, for the series of reports that she has produced in this area. Indeed, I am about to read her most recent report on anti-social behaviour.

I enter this—and any—debate on CICA’s operations with reservations. On the one hand, it is an opportunity to congratulate CICA on the work that it does on crimes of violence and the compensation that is generally payable. On the other hand, I harbour profound concerns about its treatment of sexual offences, and in particular rape. The scheme is open to abuse, both “under roof”, as dealt with in this debate, and outside in the community. I am not accusing all those who make applications of being dishonest; a great majority of people act honourably when they are a victim and make an application quite rightfully. However, there are those who abuse the system and I will concentrate my remarks today on such people.

The basis of my case was made in 2007 by the noble and learned Baroness, Lady Scotland of Asthal, who was then Minister of State in the Home Office. She challenged me on an inconsistency in the Government’s statistics to which I had drawn attention. In her letter to me of 7 March that year, she wrote:

“The difference basically arises from the fact that the word ‘rape’ is not used as an injury description in the tariff to the Criminal Injuries Compensation Scheme. Unlike most of the 440 injuries listed in the tariff, such as a broken bone or scarring, rape is not an injury as such”.

These are the noble and learned Baroness’s words. She continued:

“Rather, it is an offence and one which frequently causes little physical injury (the award being essentially for the trauma of the assault)”.

Therein—the “trauma of the assault”—lies the problem. A system based on that invites fraudulent claims. The noble Baroness, Lady Williams, a former Minister in the department, made a comment on this to the House on 22 January 2018. I had asked:

“My Lords, does the Minister accept that there may be circumstances in which an accuser may have compensation in mind in making the accusation?”.

The Minister, the noble Baroness, Lady Williams of Trafford, replied:

“My Lords, obviously I cannot comment on any individual case but it may well be that that is the motive”.—[Official Report, 22/1/18; col. 834.]

So what is the evidence? We have the case of Sarah-Jane Hilliard, in an article for the Daily Mail—I am sorry to have to quote that newspaper—on Friday 14 August 2009, with the headline:

“Girl faces jail after crying rape to claim £7,500 payout”.

The story begins:

“A woman faces jail after luring a man into having sex with her and then crying rape in a plot to claim thousands of pounds in compensation. Sarah-Jane Hilliard, 20, applied for £7,500 from the Criminal Injuries Compensation Authority days after falsely accusing Grant Bowers, 19, of raping her”.

Then we have more recent cases such as the Danny Day case and the Jemma Beale case. In those cases, compensation was paid and was followed by imprisonment. Then we have the Joshua Lines, George Owen and Bartolomeo de Lotbiniere cases—all of them were accused and charged and then, following police investigations, the CPS decided that the evidence was not there and dropped the cases. In all these cases the lives of the accused were placed on hold and, in some cases, destroyed. What we do not know in those cases is whether CICA compensation was sought or indeed paid.

CICA is totally unaccountable. It pays on the balance of probabilities and it is not required to judge “beyond reasonable doubt”, which means that there are cases that have not succeeded in the courts but where I understand compensation has been paid. The CICA organisation is hermetically sealed from public scrutiny—on which matter I draw attention to a series of freedom of information requests that I have been putting down over a number of years. In reply to my most recent one, of 30 January last year, after I had asked a series of questions on payments and what was going on in the organisation, it said:

“We hold the information requested, however, in respect of your questions A, B, C and E it is exempt from disclosure (under section 21 of the FOIA) because it is already reasonably accessible to you. The information requested for questions A, B and E can be accessed at the guide to the Criminal Injuries Compensation Scheme 2012”.

When you go to the website to look up that reference, it does not answer the questions at all. CICA is deliberately avoiding answering very sensitive questions that in my view are essential if this organisation is to be held to account.

The noble Lord, Lord Thomas of Gresford, referred to total current expenditure; he said in his contribution that it was £152 million, if I recall correctly. I understand that one-third of that goes on sexual offences alone. My understanding of the scheme is that for sexual offences it can pay out on the basis of pain and suffering, measured in terms of trauma by a psychiatrist. I believe that that is an inadequate evidential test. There is even a tariff system, which the noble Lord also referred to. It attracts fraudulent claims. We cannot comment on the “Nick” case because it is sub judice, but what we know is that he took CICA for £22,000 and bought a Ford Mustang with it. That is not exactly what the scheme was intended for.

We have other cases, the classics being those of Harvey Proctor and Greville Janner. In those cases we have criminals with lengthy criminal records making claims to CICA, and CICA not even able to admit that the claim has been received, never mind whether it has been paid. If ever there were a case for a value-for-money examination by the National Audit Office or even an appropriation accounts examination, we have it here. It would make for a very interesting Public Accounts Committee session, with CICA officials wriggling as they refused to answer questions.

So what can we do about this? We should look at the system that operates in the Republic of Germany. There is no tariff. Under a victims’ compensation Act, there is greater emphasis on, for example, curative medical treatment and job rehabilitation. If victims want compensation damages for pain and suffering, they claim in the civil courts directly from the offender. The Germans promote mediation. They have what they call an “adhesive procedure” to aid the process of compensation from the perpetrator, avoiding civil action.

The German system provides, particularly for the victim, curative and medical treatment for long-term care; prosthesis, dental prosthesis, wheelchairs and other aids; funeral allowances; other welfare benefits in the event of economic need, which are all means tested against other state support; and limited compensation for victims and surviving dependants. I understand that no compensation for pain and suffering is paid in lump-sum cash. Compensation costs to the public authorities are reclaimable from the perpetrators and offenders. The Government run a 24-hour national counselling hotline 365 days a year, anonymously advising on support and directing people to the appropriate agency or service provider. In other words, there is less emphasis on cash payouts—what I would call “Mustang money”—and more emphasis on medical treatment, mediation and rehabilitation.

Finally, I refer to the work of the Victims’ Commissioner. There is one silver lining in all this: the noble Baroness, Lady Newlove, will be succeeded by Dame Vera Baird, who is a lioness in the legal world, a hugely talented woman and an exceptionally talented lawyer. She will follow the Victims’ Commissioner’s agenda, set by the noble Baroness in a series of excellent reports and, in my view, may introduce a few amendments. She has never previously indicated any support for any of my positions on these matters, but I live in hope. Sitting next to her in a Joint Committee in this House many years ago, I felt hugely inadequate as she forensically squeezed witnesses in her ever-so-precise line of questioning. I hope CICA knows what it has inherited. She is tough and she does not suffer fools gladly. I shall observe her progress with great interest.

My Lords, I thank noble Lords for this interesting debate and the points raised. I thank in particular the noble Baroness, Lady Chakrabarti, for her kind, warm words; the feeling is mutual. I understand the concerns raised by the noble Lord, Lord Thomas. Obviously, this statutory instrument seeks fairness, albeit in a framework about which he has continuing reservations. That fairness is perhaps best exemplified by the fact that those who have previously applied under the scheme and were not successful will be eligible to apply again; I think it is the first time that that has happened.

I find it hard to imagine the noble Lord, Lord Campbell-Savours, feeling hugely inadequate—I thought that was the position of the Minister at the Dispatch Box—but I find it strangely comforting to know that it is possible. I know that he in no way questions the trauma that genuine rape victims suffer and that he will have noted the focus in my noble friend’s recent report on trauma and trying to avoid retraumatisation.

CICA relies on information from the police to help it identify fraudulent claims. If a fraudulent claim is made, it will report the offender to the police. Where an award has been made as the result of a fraudulent claim, the scheme allows CICA to ask that it is repaid and to pursue civil action if necessary. The review announced in September 2018 will examine the scheme much more widely, and will look at a number of the issues raised by the noble Lord.

I hope noble Lords will agree that the changes we are making are welcome and necessary to remedy an unfairness that has persisted for too long. I commend the instrument to the House.

Motion agreed.