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. Read the (correct) Scheme and the Guides
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 (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, 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 £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?