APPENDIX 4
Memorandum submitted by the Association
of Personal Injury Lawyers
1. The Association of Personal Injury Lawyers
(APIL) was formed in 1990 by plaintiff lawyers with a view to
representing the interests of personal injury victims. APIL has
currently over 4,800 members in the UK and abroad, of which 118
are based in Northern Ireland. Membership comprises solicitors,
barristers, legal executives, and academics whose interest in
personal injury work is predominately on behalf of injured claimants.
The aims of the association are:
— To ensure accident victims receive
fair, just and prompt compensation;
— To improve access to our legal system
by all means including education, the exchange of information
and the enhancement of law reform;
— To provide a communication network
exchanging views formally and informally.
INTRODUCTION
2. The Northern Ireland Affairs Committee
is currently conducting an enquiry into the Compensation Agency
(CA). The Compensation Agency administers the new tariff-based
criminal injuries compensation scheme, which was introduced in
May 2002. The committee is seeking views on the following:
— The efficiency and effectiveness
of the administration and expenditure of the agency, including
its performance against key indicators and targets; and
— The role of the Compensation Agency
in:
— Supporting the victims of violent
crime by providing compensation for the serious injuries and financial
loss;
— Sustaining the confidence of
the community by providing compensation for physical damage and
consequential loss arising from criminal damage to property; and
— Providing compensation to those
who suffer loss from action taken under the Terrorism Act 2000.
3. In November 2001 APIL responded to the
Northern Ireland Office's consultation document on the Criminal
Injuries Compensation (NI) Order 2001. APIL was strongly opposed
to the new measures being introduced with the new compensation
scheme. In particular, we expressed concerns about the following:
— A fixed tariff scheme for injuries
compensation
— Removal of paid legal assistance
4. Indeed, with reference to these items,
APIL has been able to gain feedback about their operation within
the structure of the Compensation Agency.
The Fixed Tariff Scheme—General
5. APIL strongly objects to the use of a
fixed tariff scheme. As stated in our November 2001 response to
Criminal Injuries Compensation (NI) order 2001, "a fixed
tariff scheme would be unfair and inflexible". Injuries are
listed against specific and inflexible figures and no distinction
is made between individuals—each victim of crime with the
same injury is treated in the same way as another. This inevitably
leads to anomalies and unfairness. For example, a broken hand
is worth more to a pianist than an 80 year old woman.
6. APIL is concerned that the award for
multiple injuries appears very low, leaving plaintiffs seriously
under compensated. The current tariff scheme, operated by the
Compensation Agency, is that where there is more than one injury,
and the injuries are separate from one another, 100% of the tariff
is awarded for the most serious injury, 30% of the tariff is awarded
for the second most serious injury, 15% of the tariff is awarded
for the third most serious injury and 10% of the tariff for all
remaining injuries. In the previous scheme each injury was compensated
on its own merits; if a person had his arm and leg broken during
a crime, it was possible for him to get 100% compensation for
both injuries. APIL feels the level of tariff awards does not
match the previous schemes and does not match the needs of the
victims of crime.
7. As detailed in our November 2001 response,
APIL propose the following tariff structure for multiple injuries:
— 100% of the tariff amount for the
highest-rated, or most serious, description of injury; plus
— 50% of the tariff amount for the
second highest, or serious, description of injury; plus where
there are three or more injuries,
— 25% of the tariff amount for the
third highest-rated, or most serious, description of injury and
all remaining injuries.
APIL is also alarmed that the only way in which
tariff amounts can be altered to accommodate personal circumstances
is via either a review of the original decision or an appeal to
the Criminal Injuries Compensation Appeals Panel for Northern
Ireland (CICAPNI); both of which would further delay much needed
compensation monies.
8. As already mentioned the new criminal
injuries compensation scheme lacks discretion in relation to awards.
For example, similar scars on two different people can have a
very different affect to their appearance depending on other aspects
of their physical appearance. While the tariff system does distinguish
between different types of scars, it does not provide sufficient
discretion to ensure that the degree to which a scar presents
disfiguration takes into account a number of factors including
the age of the victim, where the scar sits in respect of the victim's
hairline, how easily disguised the scar may be or whether the
scar blends in with crease lines in the head.
The Fixed Tariff Scheme—Minor Injuries
9. APIL particularly feels that the current
tariff system is unfair to victims with minor injuries. In order
to qualify for compensation the plaintiff must have suffered at
least three separate physical injuries, and at least one of these
injuries must have significant residual effects six weeks after
the incident. The fact that the victim must also visit a medical
practitioner on two separate occasions during the aforementioned
six-week period is wholly unreasonable and may discriminate against
a number of different categories of persons. The use of these
qualifications means that the number of injured people who will
be able to gain access to the scheme will be significantly restricted.
APIL feels this restriction is inequitable as the precise specification
of an injury should not disqualify someone from compensation.
For example, if someone had received two black-eyes during a crime,
and the effects of these lasted five weeks, in which time the
person was unable to work, it would inequitable to deny him compensation
using the above qualifying factors.
Legal Representation
10. APIL is concerned that the Compensation
Agency does not allow for the recovery of any legal costs by legal
representatives aiding in either the completion of the claim forms
or indeed in any aspect of the claim. Whilst the Legal Aid Department
may pay limited fees in respect of initial advice, clients often
ask and require continuing assistance. The complex issues involved
can be extremely confusing to many people, and this will be made
more difficult if they have recently been traumatised as a result
of a crime.
11. The lack of funded legal assistance
means that if solicitors are used in the application process and
onwards, any assistance would have to be paid for by the plaintiff.
This will often involve the payment of legal fees by the plaintiff
to the solicitors out of any awarded compensation. This is the
current situation in England and Wales.
12. The extra funding provided to Victim
Support of Northern Ireland (VSNI) for the purposes of assisting
in the completion of criminal injuries applications under the
Compensation Agency is broadly welcomed by APIL. However we have
deep concerns about VSNI's capacity to provide advice and assistance
to victims in complex cases. Indeed, in its submission to the
Ad Hoc Committee on the Draft Criminal Injuries Compensation (NI)
Order 2001 (published 08/07/02), VSNI recognised that this was
a major failing of the proposed CICA scheme.
13. In consultation with APIL members it
appears that few victims are using the VSNI to help process their
claims. APIL feels that the VSNI does not have the capacity to
adequately cope with additional work load produced by the scheme.
For example, in 2001 the Compensation Agency received between
14,000-15,000 applications for criminal injury compensation, whilst
the VSNI has only eight branches across Northern Ireland each
with three core branch staff members. In contrast, however, there
are some 500 solicitors' firms all with experience of dealing
with criminal injury claims. This seems to inevitably lead to
more plaintiffs consulting their local solicitors.
14. The lack of legal aid assistance also
substantially hinders child applicants' ability to gain compensation.
Due to the fact that the plaintiff is a child, the solicitor is
unable to bill the child directly. Thus the parents are liable
for legal expenses incurred. It is inherently unfair that parents
should have to pay for access to a system when their child has
been injured as the result of a crime. We understand that this
conflict is leading some solicitors into taking a disproportionate
amount of pro-bono work in respect of criminal injuries. This
could lead to solicitors being unable to help criminal injury
victims pursue their claim and effectively gain access to justice
because of business pressures. This also means that other areas
of pro-bono work are tending to suffer as a result.
Advertising of the Criminal Injuries Compensation
Scheme
15. APIL strongly supports the need for
a more visible and prominent campaign in advertising the use of
the Criminal Injuries Compensation scheme. Whilst there was a
"flurry" of advertising around the initial roll-out
of the scheme, there appears to have been little press coverage
since. This lack of visibility means that people are unlikely
to know that their injuries are compensatable and that this is
the appropriate method in which to claim. This restricts access
to justice for people suffering injuries due to crime.
16. The lack of awareness that surrounds
the scheme means that many claimants seeking advice still contact
a legal representative first. Whilst some are advised to contact
their local Victim Support, the fact that only eight sites are
currently operating in the Northern Ireland jurisdiction (of which
two are based in Belfast) means that this may involve travelling
into their nearest population centre. This is naturally traumatic
as the plaintiff they may still be suffering from injuries, and
the option to travel may make things worse.
Completion of Forms
17. APIL feels that the claims forms are
too long and can be unclear. In addition the guidance notes which
accompany the claim forms are comprehensive in their detailing
of the scheme but offer little help in how to actually fill the
forms in. These factors combined with the fact many plaintiffs
are daunted and intimidated by the forms means that they often
seek independent legal advice in order to complete the application
form. APIL is additionally concerned that the claim forms require
detailed information that the claimant is unlikely to have, or
have easy access to. For example, the police command and control
number are only known by the police and these are rarely provided
to the victim. A possible solution would be for the police officer
who records the complaint to provide the victim with a card bearing
the name of the relevant police officer and the crime reference
number. Also a hospital number would be completely unknown by
anybody attending as a patient. The lack of this information makes
the completion of the relevant claims forms more difficult.
18. In addition, APIL suggests that the
police should supply all victims of crime with a claim form on
the recording of their complaint at the police station. This would
enable the victim to instigate a claim for compensation as soon
as possible. The current situation, however, is that claim forms
are only available from the VSNI and via the internet. If a person
doesn't have access to the internet—which many don't—they
would need to travel to the nearest VSNI office to get the appropriate
forms. As already mentioned, due to the distance and lack of easy
access, this may well be very traumatic for the person.
Medical evidence
19. APIL is concerned that the Compensation
Agency, in order to define the tariff level, may request that
the plaintiff attends a Compensation Agency nominated doctor.
This lack of independence is unfair and inequitable to plaintiffs.
In order for independence to be preserved the use of independent
medical opinion ought to be sought about the extent of the injuries,
and the appropriate compensation tariff level. In relation to
the operation of the current system, however, judging by the responses
from our members, it appears that the Compensation Agency contacts
the plaintiff's GP (or treating Accident and Emergency department)
directly requesting a copy of his medical notes. These medical
notes are supplied to the Compensation Agency at a nominal fee
(under £25) via an agreement with the British Medical Association
(BMA). The low fee and the lack of a specific medical examination
relating to the criminal injury being claimed for may indicate
a potential lack of thoroughness.
20. Whilst the independence of the plaintiff's
GP means that this medical information is more appropriate than
that of a CA nominated doctor, the lack of specialist medical
knowledge may mean that their opinion lacks a full understanding
of the long term implications of any criminally inflicted injury.
21. APIL also feels that the reluctance
of the Compensation Agency to release the acquired medical notes
of the plaintiff to his nominated legal representatives will lead
to a growing number of appeals being lodged. A solicitor would
normally use the medical notes of a plaintiff to ascertain the
validity of his claim and the quantum of damages that the plaintiff
is due. The lack of this information hinders the solicitors' ability
to advise his client appropriately, and will lead to appeals based
on the perception of under-compensation.
Compensation Agency delays
22. APIL feels the long delays in getting claims
resolved by the Compensation Agency are unacceptable. Of the eleven
different Northern Ireland legal firms contacted 82% stated that
there were long delays in getting claims determined by the CA
and of these eleven firms 45% have yet to even have a claim determined
at all. Indeed even the simplest of claims has been extensively
delayed. These delays naturally affect the claimants, who often
need the security that compensation provides in order either continue
with their lives or start rebuilding their lives.
23. In addition to long delays APIL is anxious
that neither claimants nor their solicitors are being kept up
to date on the progress of the claim. Indeed in some examples
it took four to six weeks for an acknowledgment of the application
forms to be received. After the receipt of the application pack,
there appears to be little or no further contact; neither the
claimant nor solicitor are updated about the progress of the application.
The delays in the determination of claims may be more bearable
if the claimant were kept informed about the ongoing status of
their application.
CONCLUSION
24. APIL feels that the Compensation Agency,
and the Criminal Injuries Compensation scheme that it runs, do
not appear to have made claiming compensation any easier. Indeed
Sir Kenneth Bloomfield's original comments that "many of
those victims to whom [he] spoke found the procedures complex,
baffling, frustrating and on occasion humiliating"[1]could
be equally applied to the current system.
25. APIL feels that whilst the new system
was attempting to produce a fairer, more equitable and more affordable
system, the tariff system and loss of legal funding means that
this is not happening. Indeed there is little evidence, as Amanda
Patterson (head of Compensation Policy Unit) stated concerning
the loss of funded legal advice, "that the public money that
funded legal advice under the existing compensation scheme is
now being used to widen access to cover more victims."
September 2003
1 "We will remember them" (published April
1998), paragraph 59. Back
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