This case raises an important question of whether an applicant to the Criminal Injuries Compensation Appeals Panel (CICAP) under the terms of the 1990 Criminal Injuries Compensation Scheme has the burden of proving that no local authority provision will be made available to him in respect of his needs for care and accommodation consequent upon his injuries.
The claimant (B) was shaken violently when he was 10 months old and as a consequence suffered serious head injuries, resulting in impaired vision, orthopaedic problems and a severe form of cerebral palsy. He was left with severe learning difficulties and needs total care and lifelong medical supervision. He will need to attend a special school for children with learning difficulties and require close medical supervision for the rest of his life. An application was made to the Criminal Injuries Compensation Authority (CICA) but it was not until 7 years later that a decision was made that B would be entitled to a full award. Because of the date of the injury the assessment of quantum fell under the 1990 Criminal Injuries Compensation Scheme. Interim payments were made, but the panel decided to defer assessment of the final award until B reached the age of 19 years. The panel held that by that time it would know, and be able to take into account, what the local authority would provide for B pursuant to the National Assistance Act 1948 s.21 and that it would be in a better position to make a final assessment. The claimant sought judicial review of this decision on the basis that it was unlawful and irrational in that it failed to approach the question of damages according to the common law and paid undue attention to irrelevant criteria. i.e. an unknown provision made by a local authority in the future.
The central issue between the parties was as to the burden of proof, namely which party needed to show that the cost of B’s reasonable requirements for care should not be reduced in case the local authority might meet some or all of those requirements. The court noted that the cases of Sowden v Lodge and Drury v Crookdake had made it clear that a personal injury claimant whose damages were in a personal injury trust or who was a patient, could not be required to make any contribution under s22 of the 1948 Act, so that provision to him of accommodation would be free of charge. B submitted that if compensation was to be assessed on the basis of common law, as paragraph 12 of the Scheme required, then the burden of proof was not on him and that paragraph 25 of the Scheme was procedural and did not require him to prove that he would not receive any funding from a local authority, nor did it require him to establish how much he would probably receive, Sowden and Crookdake applied. The defendants accepted that unless they could persuade the court that the principles in Sowden did not apply to the assessment of compensation, B should succeed. They submitted that paragraphs 9, 12, 19 and 25 of the Scheme, should be read together and not as though the Scheme were a statute or statutory instrument, and that such a reading conferred legality on the decision at issue. Paragraph 19 of the Scheme which provided for compensation to be “reduced by the full value of any present or future entitlement to (a) UK social security benefits….” applied to any community care services to which B might be entitled.
The court held that in any claim before the Common Law courts the claimant must show what his reasonable needs are, and propose the way in which those needs should be satisfied. It is then for the defendant to show that the claimant is making a demand which is unreasonable, either because he does not reasonable require the provision he desires or that the cost of such reasonable provision will be defrayed in whole or in part from a local authority. The judgments in Sowden clearly place upon the defendant the burden of showing that the apparent cost of the claimant’s reasonable requirements should be reduced because of the possibility that the local authority provision will meet all or some of them. It also held that Paragraph 19 did not apply to the instant case and UK social security benefits suggested payments to which there was an entitlement universally available within the jurisdiction and did not include contributory assessed, variable payments towards or for the provision of accommodation and care.
The hearing of B’s assessment of damages should therefore be remitted to a differently constituted Appeals Panel and the original decision quashed.