View Wirral LSCB Procedures Manual View Wirral LSCB Procedures Manual

5.8.2 Criminal Injuries Compensation for Children in Care

AMENDMENT

This chapter was updated in May 2014 in line with A Guide to the Criminal Injuries Compensation Scheme 2012. Applications must now be made online; paper applications are no longer accepted. There have been updates to Section 5, Accepting a Payment; Section 6, Reviewing Decisions and Section 7, Appealing Against the CICA's Decision.


Contents

1. Introduction
2. Procedure
  2.1 Conditions of CIC Application
3. Who Can Make an Application to the CICA?
  3.1 Should a CIC Application be Made?  
  3.2 Children who are Not In the Care of the Local Authority
  3.3 Children who are In the Care of the Local Authority
4. Process for the CIC Application
5. Accepting a Payment
6. Reviewing Decisions
7. Appealing Against the CICA's Decision
8. Accessing CIC Funds Before the Young Person Reaches 18 years
9. Release of Funds when the Young Person Reaches 18 years
10. Process for Releasing Funds
  Appendix 1: Useful Contacts
  Appendix 2: Mental Capacity Act 2005 Information


1. Introduction

This procedure provides guidance for considering the appropriateness of making a claim for Criminal Injuries Compensation on behalf of a child or young person, and the steps to take when making this claim.

Where the Local Authority shares Parental Responsibility for the child a claim for Criminal Injuries Compensation must be made in all circumstances.

The Criminal Injuries Compensation Authority (CICA) was first introduced in 1964 and is a scheme for compensating victims of violent crime, or the close relatives of any person who died as a result of a crime of violence. The CICA has a duty to compensate all those (including children) who suffer personal injuries directly attributable to a crime of violence.

The term ‘personal injury’ means an injury of physical or mental nature, including shock or psychological disturbance. Children who have suffered abuse may be eligible to claim compensation, depending on the severity of the injury suffered and subject to certain other conditions.

Emotional abuse and neglect are less likely to be covered by the CICA scheme as these cases do not fall into the definition of violent crime. However where the Local Authority has Parental Responsibility a claim should still be made. In circumstances, where an application is thought to be applicable for emotional abuse or neglect,advice from the Local Authority legal department may need to be obtained.


2. Procedure

2.1 Conditions of CIC Application

Any young person who has suffered physical and/or mental injury as a result of a crime of violence could have a claim for compensation from the CICA.

The applicant must have sustained the ‘injury’ in England, Scotland or Wales. The injury has got to be serious enough to qualify for the minimum award payable under the tariff (currently £1,000). A child whose parent(s) have died as a result of a criminal injury may also apply for compensation. The maximum tariff payment for a single injury is £250,000 and the maximum overall award is £500,000; this is when they have added an award for injury to an award of loss of earnings or special expenses. If the injury is not serious enough to qualify for a £1,000 payment then CICA will not be able to make an award.

The perpetrator does not need to have been convicted of the offence. However, the CICA will expect the offence to have been reported to the Police. Note: This should include a record in the minutes of police involvement in a strategy discussion. If the incident was not reported to the Police, the applicant should explain why and unless there is a reasonable explanation, the claim may be rejected.

All claims will need to be lodged with the CICA as soon as possible and within two years of the injury occurring. The CICA will in some circumstances, waive this requirement. (For example, in sexual abuse cases many victims do not make disclosures for many years).

The Scheme says CICA must reduce or refuse an award if you have a criminal record. In deciding how much of a reduction CICA will make, they will look at the length of any criminal record and the time that has passed since the last offence. However, they are likely to completely refuse an award, or make a very substantial reduction, if you have a conviction for a serious crime. See the Criminal Injuries website for further information on how they will normally decide what effect your criminal record will have on your award. CICA will ignore any convictions which can be treated as spent under the Rehabilitation of Offenders Act 1974.


3. Who Can Make an Application to the CICA?

The only people who can lodge a claim for compensation are:

  • The young person him/herself;
  • Those people holding Parental Responsibility for the young person;
  • A member of the Local Authority Legal Department or an external solicitor representing the child.

Team Managers/Social Workers can only make a claim on behalf of a young person for whom the Local Authority has Parental Responsibility.

Where the Local Authority does not hold Parental Responsibility the Social Worker should advise the carer of a child to seek legal advice in relation to making a claim on the child’s behalf, where this is deemed appropriate.

The Local Authority will not be held responsible for any costs involved in the CIC claim when a carer, parent or guardian makes a claim on a child’s behalf and the Local Authority does not hold Parental Responsibility.

3.1 Should a CIC Application be Made?  

It is the responsibility of the District Manager and the Quality Assurance Service Manager to ensure that claims are considered for all children currently in care, under whatever provision, who may be eligible for Criminal Injuries Compensation, and to advise parents or relatives of the facility or initiate claims on behalf of the child.

It is a further responsibility of the Quality Assurance Service Manager to ensure that the issue of claims under this scheme are addressed at Child Protection Case Conferences and at Statutory Reviews of children being looked after by the Local Authority.

In those cases where a child has been physically or sexually abused, the independent chairperson must consider as a standard agenda item the question of whether the child may be eligible to make a claim for compensation at the initial conference.

If the child has suffered personal injury of a physical or emotional nature as a result of physical assault or sexual abuse then the key worker should consult the Legal Department (or external Solicitors) at the time of making the claim for looked after children, and advise that the carer consult with external solicitors on behalf of the child if they are to make a claim. The need to make a claim must be considered at Review, Child Protection Conferences and LAC Reviews until a response from CICA has been acknowledged.

All Social Workers should consider whether an application should be made to the CICA on behalf of all children:-

  1. For whom the department has a duty to safeguard and promote their welfare; and
  2. With whom the Social Worker has contact - either as a child taken into care or assisted in some other way by the department.

The Social Worker must complete the application form for children under (a) but has discretion in respect of children under (b). However, the Social Worker, in these instances, should advise the person with Parental Responsibility where help and assistance can be obtained in this regard - i.e. Citizens Advice Bureau, Victim Support or an Independent Solicitor. If the Social Worker does decide to assist then the procedures listed below should be followed.

Applications should be made where the child has been the victim of a crime of violence and: -

  1. Has suffered ‘personal injury’. The definition of ‘personal injury’ includes:-
    • Physical injury (including fatal injury);
    • Mental injury (i.e. medically recognised psychiatric or psychology illness) - ‘emotional trauma’ will require a detailed account of how the child has suffered
    • Disease;
  2. The incident of abuse has occurred before the child’s 18th birthday.

    For young people under 16, applications must be made by the district Social Worker before transfer to the Pathway Team.

3.2 Children who are Not In the Care of the Local Authority

The Social Worker should advise the child’s parent, or person with Parental Responsibility, that they can make an application on behalf of their child, and if necessary, advise and support them in making a claim.

Although the CICA will normally accept applications on behalf of children and young people to be made by a person with Parental Responsibility, this may be impossible (e.g. parent declines to apply) or impractical (e.g. the parent is responsible for the injury). In these circumstances it will still be possible for a claim to be made and the Local Authority Legal Department should be consulted.

3.3 Children who are In the Care of the Local Authority

Children for Whom the Local Authority Shares Parental Responsibility

An application on behalf of a person under 18 years must be made by an adult with Parental Responsibility for the child. Where the Local Authority shares Parental Responsibility there is a clear duty to ensure that an application is made on behalf of the child or young person.

The Social Worker must:

  • Consult the Legal Department, where necessary. Following consultation the legal department will assist with the completion of the CIC application;
  • Provide as much detail as possible of the incident/injury in order to ensure that the CICA make an appropriate assessment and that compensation is awarded within the correct category;
  • Where the child is of an age and has an understanding, explain why the application is being made and what it involves;
  • Ensure that a child’s communication needs are taken into account and additional support provided where necessary (e.g. interpreter);
  • Make attempts to ascertain the child’s wishes in relation to the claim, (though the weight which can be given to the wishes will vary according to the child’s age, maturity and ability to understand);
  • Where appropriate parents will be kept informed about the CIC application at their child’s statutory review.

Children who are “Accommodated” by the Local Authority

The Social Worker should advise the parent(s) or person with Parental Responsibility of the fact that they can claim compensation on behalf of their child, and provide them with information and advice as necessary, to enable them to claim on their child’s behalf.

If having been advised, the person with Parental Responsibility is reluctant to make an application, or it would be inappropriate, e.g. because the parent has caused the injury, the Local Authority should, in carrying out their duty to promote the welfare of children, make an application on behalf of the child. The key worker/child’s Social Worker should consult the Legal Department, and follow guidance outlined in (i).


4. Process for the CIC Application

Complete the application form online at www.justice.gov.uk/victims-and-witnesses/cica/apply-online. Applicants who do not have access to a computer or you would like help to complete their application can ask a member of the CICA’s staff to complete the form over the telephone (0300 003 3601). Read A Guide to the Criminal Injuries Compensation Scheme 2012. You should also seek advice from the Legal Department at this time.

Gather any evidence that supports the claim. If appropriate, obtain reports from the following professionals:

  • Health professionals which may include a police surgeon;
  • Education professionals;
  • A member of the psychiatric profession;
  • The police officers involved in the incident;
  • Any witnesses.

Your report should contain the following information:

  • Full name and date of birth of the young person;
  • Details of the family and brief family history;
  • Details of the young person’s care history and his/her present circumstances;
  • How, when and where injury occurred;
  • Details of when and where the injury was reported and of any prosecutions or reason why prosecution did not take place;
  • Details of any examinations that were undertaken (including copy of report);
  • The young person’s views of the injury and their wishes and feelings about making a CIC application;
  • The view of the parent(s) or those with Parental Responsibility;
  • A professional view of the likely effect the injury will have on the young person in the future and on an emotional, physical, social or psychological basis;
  • Details of any special expenses incurred for medical, dental, optical treatment (enclose copies of receipts) and an estimate of any future costs that might arise as a result of injury;
  • In the completion of this report you must refer to child protection conference minutes, specialist assessments, strategy meetings or any other meeting where the extent of harm to the child has been identified;
  • Every application form will need to have a full birth certificate attached to it;
  • The Social Worker should complete the form, with the details of the Senior Manager as the ‘person filling in the form’;
  • Quality Assurance must be notified in order that progress can be monitored. A copy of the completed application should also be kept on the child’s records;
  • A record of the claim, giving details should be recorded on the ICS case file and recorded on each summary transfer.

When the CICA have made a decision, they will write to advise what decision has been made.

The Legal Department will consider whether an appropriate award of compensation has been made, whether the award should be appealed or the determination challenged. A copy of the letter to the legal department must be kept on the child’s file.

Details of any appeal must be recorded on ICS.


5. Accepting a Payment

A decision must be made as whether the award is appropriate by either the Senior Manager, Children’s Specialist Services if Wirral Council has Parental Responsibility and (if the child is over 11 years old) by the applicant; or by the parents/Adoptive Parents if the child is in their care.

The acceptance form must be completed and returned within 56 days of it being sent. If it is not returned within 56 days, and no written request has been made for a review, a payment will not be made.

If the payment is accepted, the CICA will then normally put the money in an interest-earning deposit account in the child’s name, the payment to be paid to the child (together with all interest earned) when they reach 18.

The CICA may consider requests to make payment into a Child Trust Fund/Junior ISA or another type of account where the full value of the payment is protected until the child is 18 years old.


6. Reviewing Decisions

If the award is not considered appropriate, a written request can be made within 56 days for the decision to be reviewed by another claims officer, using the review form sent with the decision.

The 56-day time limit may be extended for up to a further 56 days if there are exceptional circumstances which mean that you could not have complied with the time limit. A request for an extension can be made even if the first 56 days have passed.

Any additional supporting evidence should be enclosed.

A different claims officer will review the original decision. The review decision can be more or less favourable than the original decision, or the original decision may be unchanged.


7. Appealing Against the CICA's Decision

Appeal is through the Tribunals Service - Criminal Injuries Compensation (TS).

A review decision can be challenged by appealing, within 90 days of the date of the review decision, to the First-tier Tribunal (Criminal Injuries Compensation). An appeal form will be sent with the review decision. The form and supporting evidence should be sent to:

First-tier Tribunal (Criminal Injuries Compensation)
Wellington House
134 -136 Wellington Street
Glasgow
G2 2XL

At this stage, the Social Worker will be required to provide an up-dated report, setting out the child’s current circumstances and also an updated medical report or photo (if appropriate). If the Local Authority are of the view that an appeal should be lodged legal department they will draft the ‘grounds of appeal’.

Occasionally the CICA will review the case on paperwork alone. However, in most cases an oral hearing will be arranged at which the child may be required to give evidence. Normally a child under the age of 14 does not attend. Hearings before the CICA are in private and not as formal as ordinary Court hearings.

The appeal tribunal may make a decision that is more favourable or less favourable than the review decision, or the review decision can stay the same.


8. Accessing CIC Funds Before the Young Person Reaches 18 years

The CICA may allow advances if these are needed for the child’s sole benefit, education or welfare.

Release of funds will only be made in exceptional circumstances. Some examples that the Criminal Injuries Compensation Authority would consider releasing funds are as follows:

  • To further a young person’s education (e.g. school educational trips, assistance towards training);
  • To provide driving lessons when a young person is 17;
  • To purchase a car;
  • To purchase specialist equipment for a disabled child;
  • To provide a deposit for a young person’s own accommodation.

The child’s Social Worker, the young person, or their carer can make an application for the release of funds. All requests from a young person or their carers should be made through the child’s Social Worker.

Decisions about how the funds for any child or young person will be managed will be made by the Head of Specialist Services. The Social Worker will make recommendations to the Head of Specialist Services using a HOB form which details the reasons why they should consider the release of funds and any supporting evidence.

Applications for release of funds should detail:

  • At what age the funds would be passed over, usually at the age of 18;
  • Whether funds should be accessed before the age of 18 and under what conditions. For example the Child’s Social Worker may make recommendations about whether the release of any funds can be delegated to another person or all decisions require the decision of the Head of Specialist Services about what proportion of the funds can be released etc.;
  • When and how often the child/young person is informed about the funds;
  • Who funds can be paid to.


9. Release of Funds when the Young Person Reaches 18 years

Prior to any young person receiving their award they should be encouraged to access appropriate financial advice. For young people who are eligible for leaving care support, a referral should be made to the welfare rights advisor in leaving care. This advice should be arranged before the young person’s 18th birthday so as not to delay the handing over of the award.

When the young person reaches 17 years the following check list must be completed with the young person:

  • Do they understanding the nature of the Criminal Injuries Compensation award? Consideration may need to be given about how to inform the young person about the award where it may act as a reminder of past abuse. In such situations counselling maybe needed;
  • Have they been given an explanation of how the funds have been invested and an account of any funds released?
  • Have they received financial advice? The worker must record when it was offered.

For all the above, the Social Worker, or leaving care advisor, must record what has been explained to the young person.

If the young person is likely to lack the capacity to make decisions about managing their own finances when they are 18, then the Office of the Public Guardian and the Financial Protection Officers in the Department of Adult Specialist Services should be consulted. An application to the Court of Protection may need to be made in order to make a direction on who should look after the award on the young person’s behalf. See further details in Appendix 2 on the Mental Capacity Act and assessing people’s capacity. The Independent Mental Capacity Advocate (IMCA) service can only be involved in financial matters if there are adult protection issues.

If the CICA receive evidence that it would not be in the child’s best interests to be given the payment as a lump sum at age 18, they may consider the use of an annuity or a trust at that time.


10. Process for Releasing Funds

Finance will only release funds after they have been authorised by the Head of Specialist Services following a recommendation in the HOB. See Local Authority Management of Funds for Children in Care Procedure for details of how to obtain the funds for the young person.

Where funds are to be released for the purchase of specific items, where possible and appropriate this should go through the council procurement process. All receipts must be given to the Social Worker to be kept on the child’s file.


Appendix 1: Useful Contacts

Information

For information about the CICA you can call the free phone help line on 0300 003 3601.

The lines are open from 8.30am to 5pm on Mondays to Fridays, except Wednesdays, which are 10.00am to 5.00pm.

Or visit the website. The website includes useful guides, downloadable forms and a compensation calculator.

Application Forms

Application forms should be obtained by the Social Worker direct from the CICA using the online forms on the website.

Appeals

Tribunals Service - Criminal Injuries Compensation (TS)

Victim Support

Victim Support line: 0845 303 0900


Appendix 2: Mental Capacity Act 2005 Information

The Act generally only affects people aged 16 or over and provides a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves, for example, people with dementia, learning disabilities, mental health problems, stroke or head injuries who may lack capacity to make certain decisions.

Principles

The Mental Capacity Act is underpinned by a set of five key principles set out in Section 1 of the Act:

  • A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
  • Individuals being supported to make their own decisions - a person must be given all practicable help before anyone treats them as not being able to make their own decisions;
  • Unwise decisions - just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision;
  • Best interests - an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests; and
  • Less restrictive option - anything done for or on behalf of a person who lacks capacity should consider options that are less restrictive of their basic rights and freedoms if they are as effective as the proposed option.

Assessing Capacity

The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a “decision-specific” and time specific test. No one can be labeled ‘incapable’ simply as a result of a particular medical condition or diagnosis. Section 2 of the Act makes it clear that a lack of capacity cannot be established merely by reference to a person’s age, appearance, or any condition or aspect of a person’s behaviour that might lead others to make unjustified assumptions about capacity.

You should always start from the assumption that the person has capacity to make the decision in question (principle 1). The more serious the decision, the more formal the assessment of capacity will need to be. Whether and how such assessments are recorded may vary according to the seriousness of the decision made. You should always bear in mind that just because someone lacks capacity to make a decision on one occasion that does not mean that they will never have capacity to make a decision in the future, or about a different matter.

The Functional Test of Capacity

In order to decide whether an individual has the mental capacity to make a particular decision, you must first decide whether there is an impairment of, or disturbance in, the functioning of the person’s mind or brain (it does not matter if this is permanent or temporary). If so, the second question you must answer is does the impairment or disturbance make the person unable to make the particular decision? The person will be unable to make the particular decision if after all appropriate help and support to make the decision has been given to them (principle 2) they cannot:

  • Understand the information relevant to that decision, including understanding the likely consequences of making, or not making the decision;
  • Retain that information;
  • Use or weigh that information as part of the process of making the decision;
  • Communicate their decision (whether by talking, using sign language or any other means). Every effort should be made to find ways of communicating with someone before deciding that they lack the capacity to make a decision based solely on their inability to communicate.

Designated Decision Makers

The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity:

Lasting Powers of Attorney (LPA's) - The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA) in relation to property and affairs, but the Act also allows people to empower an attorney make health and welfare decisions. Before it can be used an LPA must be registered with the Office of the Public Guardian (see below). EPA's created before October 2007 can be registered after the implementation date but it will not be possible to create EPA's after this time.

Court appointed deputies - The Act provides for a system of Court appointed deputies to replace the current system of receivership in the existing Court of Protection. Deputies will be able to be appointed to take decisions on welfare, healthcare and financial matters as authorised by the new Court of Protection but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues. People appointed as receivers before October 2007 will retain their powers concerning property and affairs after 1st October 2007 and are now treated as deputies.

Further information can be found at the Office of the Public Guardian website.

NHS site for Managing someone’s legal affairs.

End