The appellant, AB, was subject to serious sexual abuse from a family member in the 1980s, when she was aged 11. As a result, she suffered significant and ongoing psychological injury and was unable to hold down any form of paid employment until 2014.
AB submitted a claim for injury and past loss of earnings to the Criminal Injuries Compensation Authority (‘the CICA’). The CICA initially awarded £11,000 for injury and rejected the loss of earnings payment. That award was subsequently reviewed. On review, the CICA increased the award for injury to £22,000 on the basis the abuse had caused AB to suffer a permanently disabling mental illness. However, again a loss of earnings payment was rejected.
AB accepted the award for injury was at the appropriate level, but as a result of the refusal to make an award for loss of earnings, AB appealed the CICA’s decision. That appeal came before the First-tier Tribunal on 1st March 2021, sitting in Newcastle (albeit remotely).
Paragraph 43 of the Criminal Injuries Compensation Scheme 2012 dictates the conditions an applicant must meet in order to establish a claim for loss of earnings. In particular, paragraph 43(1) states: “The first condition is that as a direct result of the injury for which the applicant is eligible for an injury payment they have no or very limited capacity for paid work.” The CICA rejected the award for loss of earnings on the basis AB had not satisfied that subsection.
There are really two limbs to paragraph 43(1), and an application must establish both: first, the applicant must demonstrate they had no or a very limited capacity for paid work, and second, that had to be as a direct result of the injury for which they are being compensated.
At the appeal hearing, there was no real dispute as to the first limb – AB had only worked for 6 months or so when she was 18 before leaving her job due to severe anxiety, and thereafter, she had been unable to obtain any form of employment until 2014, at which stage, and following encouragement from a supportive partner, she tentatively took on a job. As such, the inability for paid employment for some 23 years or so had been established.
The real question for the Tribunal was whether the second limb of paragraph 43(1) had been established – in other words, whether there was a sufficient causal link between the inability to work and the psychological injury caused by the abuse. Paragraph 43(1) states the causal link has to be “direct”, but does not offer much guidance beyond that.
A report had been obtained from a Consultant Clinical Psychologist. That report concluded that the abuse had caused significant permanent psychological sequelae, and that had impacted on AB’s ability to work. However, the report also noted that the impact on work was multifactorial, and substance misuse and family circumstances had also contributed. Importantly, the Psychologist noted it was not possible to retrospectively opine as to what the relative contribution to the adverse impact on work between those different factors was.
It was submitted on behalf of AB that previous decisions from the courts on determining whether an injury was “directly attributable” for the purposes of satisfying paragraph 4 of the Scheme were analogous and of some assistance in determining the “direct” link required for paragraph 43(1). Paragraph 4 of the Scheme sets out the eligibility criteria for an injury award in the first place, with an applicant only being eligible for an award under the Scheme if they sustain a criminal injury which is “directly attributable” to a crime of violence. R v CICB, ex parte Ince  3 All ER 808, a decision more recently referred to in BD v (1) First-tier Tribunal – Criminal Injuries Compensation (2) Criminal Injuries Compensation Authority  UKUT 0352 (AAC), found directly attributable did not mean ‘solely attributable’. Instead, it was enough if the incident was a substantial or significant cause of injury. It was contended AB met that causal criteria, despite the combination of different factors impacting on her ability to work.
Following evidence from the appellant and submissions, the Presenting Officer for the CICA conceded AB had established she had no or very limited capacity for work as a direct result of the injury. The Tribunal agreed. As such, AB was awarded circa £113,000 for her loss of earnings (calculated by multiplying the weekly rate of statutory sick pay at the date of determination by the number of weeks an applicant could not work).
Having been awarded an initial sum of £11,000, following a successful review and appeal, AB was awarded just over £135,000.
Charlie Greenwood, acting for AB, was instructed by Jordans Solicitors.