Dominic Stephenson v First-Tier Tribunal (Social Entitlement Chamber)

This appeal raises issues about the proper construction of paragraph 42(b) of the 2001 Criminal Injuries Compensation Scheme (the 2001 scheme), and the phrase “other resultant loss”. The 2001 scheme was made by the Secretary of State under the Criminal Injuries Compensation Act 1995 (the 1995 Act). The 2001 scheme was replaced by the 2008 scheme, which itself has now been replaced by the 2012 scheme.

The appellant, Dominic Stephenson (Dominic), was born in April 1997 and is now aged 29 years. He has two siblings. Dominic suffers from Kabuki syndrome, which is a congenital disability, and other medical problems. His mother provided the majority of his care when she was alive.

On 3 January 2005, when Dominic was seven years old, his father killed his mother. Dominic’s father was later convicted of the manslaughter of his mother. After their mother’s death, Dominic and his siblings lived for about two years with their maternal grandparents.

Later Dominic and his siblings moved to live with their maternal aunt, Victoria Treacey, and her family (her husband and her own two children). Mrs Treacey is Dominic’s litigation friend for these proceedings. It appears from evidence given in the proceedings that Mrs Treacey had an extension added to her house and built two extra bedrooms and a downstairs toilet so that Dominic and his siblings might be accommodated. The downstairs toilet was required because Dominic was incontinent and there was no wet room or ramp. Mrs Treacey also made a downstairs lounge for Dominic, as he had the smallest bedroom in which it was only suitable for him to sleep. It is apparent from a written review dated 11 January 2016 in these proceedings by the interested party, the Criminal Injuries Compensation Authority (CICA), that Dominic has support from a social worker and a care package funded by direct payments.

Civil proceedings were brought on Dominic’s behalf against a NHS Trust. It appears that the claim was based on the fact that the father had been released by the NHS Trust into the community at a time when the father was not well. The proceedings were compromised with a payment to Dominic of £38,710.

A claim was made on Dominic’s behalf to CICA. It was common ground that Dominic was entitled to a tariff award; child payments; and care. There was a dispute about accommodation costs and the costs of the Court of Protection.

CICA made interim payments to Dominic of £11,000. CICA also made an award of £16,710 to Dominic in respect of the costs of appointing a deputy in the Court of Protection.

The case has had a complicated procedural history, which it is not necessary to relate. So far as is material there was a decision of the First-tier Tribunal (Social Entitlement Chamber) (the FTT) dated 16 August 2022 by First-tier Tribunal Judges Beale and McGarr (the FTT judges). There was a judicial review of the FTT decision which was heard in the Upper Tribunal (Administrative Appeals Chamber) (the UT) before Upper Tribunal Judge West (the UT judge) on 27 February 2024 who gave a written decision dated 5 March 2024.

Before the FTT, CICA’s case was that the award of £16,710 in respect of the costs of appointing a deputy in the Court of Protection had been made in error, but that they did not seek to recover that sum. The FTT judges therefore stated in the decision that that award was not in issue on the appeal although, as appears below, they did address the matter.

The FTT judges made an award to Dominic calculated at £44,210. This was made up as follows: £5,500 for a fatal injury award to a qualifying claimant, under paragraphs 38 and 39 of the scheme; £22,000 for loss of parental services, under paragraph 42(a) of the scheme; and £16,710 for the costs of appointing a deputy in the Court of Protection, under paragraph 42(b) of the scheme. This made a total of £44,210. As Dominic had already received £38,710 from the civil proceedings and an interim payment of £11,000, which were to be deducted from the award under the Criminal Injuries Compensation Scheme, no further sums were paid to Dominic.

At paragraph 37 of the decision the FTT judges addressed paragraph 42(b) of the 2001 scheme and held that “other resultant losses” must mean “other resultant losses resulting from the loss of parental services”.

The FTT judges found in paragraph 39 of the written reasons that the “costs of an extension (or indeed adaptation) to Mrs Treacey’s house was not a resultant loss because it did not arise due to loss of parental services.” They went on to state that “the recovery of the cost of an extension would be significantly widening the remit of the Scheme”, noting that paragraph 35 of the 2001 listed special expenses for which compensation might be claimed where the appellant had a loss of earnings claim and referred to adaptation to accommodation but not an extension. The FTT judges acknowledged that paragraph 35 was not directly relevant, as Dominic’s claim was being determined under paragraphs 37-44 of the scheme, but noted that paragraph 35 permitted the reasonable costs of adaptation to the appellant’s accommodation, but did not include the costs of an extension.

In paragraph 40 of the written reasons, the FTT Judge stated that “trust costs are not stated as a head of recoverable loss anywhere in the scheme”. The FTT judges referred again to paragraph 35 where there was no provision for trust costs, and found that “it was not intended that they would be recoverable under paragraph 42(b)”.

Finally the FTT judges found that the Court of Protection applications arose as a direct result of Dominic’s pre-existing disability and not as a result of loss of parental services meaning that any future such costs were not a resultant loss within the meaning of paragraph 42(b) of the scheme.

The UT judge considered the wording of paragraph 42(b) of the 2001 scheme in the light of the submissions and found that “other resultant losses” must mean other resultant losses arising from the loss of parental services. This was because paragraph 42(b) had to be read as a whole, and other resultant losses appeared in a paragraph specifically concerned with the loss of parental services. The UT judge therefore agreed with the FTT decision on this point, and recorded that this conclusion accorded with the “Guide to Applicants for Compensation in Fatal Cases” (the guide).

The UT judge then turned to deal with the adaptation to accommodation and concluded, in paragraph 72, that “whether they are to be characterised as an adaptation or extension to the appointee’s property, the costs incurred cannot be characterised as a cost to replace the care of the applicant by his mother. They are part of more general living expenses of a household, but the costs of them is not within the ambit of the scheme”.

The UT judge dealt with claims for trust and Court of Protection costs more shortly in paragraphs 78 to 82, pointing out that those costs could not be characterised as costs to replace the care of the applicant by his mother, it was because civil and other claims had been made.

At paragraph 83 of the decision the UT judge addressed the terms of the 2012 scheme, which he had raised with counsel. The UT Judge noted a difference in wording between the schemes, and recorded that the result of the claim under the 2012 scheme would have been the same. The UT Judge confirmed in paragraph 91 of the decision, that he had reached his decision about the 2001 scheme without recourse to the 2012 scheme.

The UT judge concluded that there was no error of law in the decision by the FTT judges.

There were four grounds of appeal, for which permission to appeal was granted. The fourth ground identified compelling reasons why the appeal should be heard and did not form an independent ground of appeal. The three grounds of appeal were: (1) the UT erred in law by misdirecting itself in the interpretation of paragraph 42(b) of the 2001 Scheme; (2) the UT erred in law by misdirecting itself to determine that provision of accommodation is not a form of parental service and that trust costs and Court of Protection costs could not be recoverable (in the event that ground 1 is unsuccessful); and (3) the UT erred in law by misdirecting itself by concluding that the costs of an extension were not recoverable.

Section 1 of the 1995 Act provides:

“1 The Criminal Injuries Compensation Scheme.

(1)

The Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries.

(2)

Any such arrangements shall include the making of a scheme providing, in particular, for—

(a)

the circumstances in which awards may be made; and

(b)

the categories of person to whom awards may be made.

(3)

The scheme shall be known as the Criminal Injuries Compensation Scheme.

…”

The 2001 scheme was made by the Secretary of State under the Criminal Injuries Compensation Act 1995. The scheme was “for the payment of compensation to, or in respect of, persons who have sustained criminal injury …”, see paragraph 1 of the scheme. Criminal injury was defined to mean one or more personal injuries, which included fatal injury, directly attributable, among other causes, a crime of violence. It was common ground that Dominic was a qualifying claimant. The maximum award under the scheme could not exceed £500,000, see paragraph 24 of the scheme.

The types of compensation payable under the 2001 scheme were specified in paragraph 23. So far as is material to this appeal, paragraph 23 provided that “the compensation payable under an award will be: (d) where the victim has died in consequence of the injury, the amount or amounts calculated in accordance with paragraphs 37-43; …”.

Paragraphs 37 to 44 were set out under the heading “Compensation in fatal cases”. Paragraph 39 provided for standard amounts of compensation payable at various levels of the scheme. Paragraph 40 provided for additional compensation to be payable where a claimant was financially or physically dependent on the deceased. Paragraph 41 provided that the amount of compensation payable in respect of dependency would be calculated on a basis similar to paragraphs 31-34, which addressed loss of earnings, and paragraph 35, which addressed cost of care.

Paragraph 42, which is the paragraph in issue on this appeal, provided:

“42.

Where a qualifying claimant was under 18 years of age at the time of the deceased’s death and was dependent on him for parental services, the following additional compensation may also be payable:

(a)

a payment for loss of that parent’s services at an annual rate of Level 5 of the Tariff; and

(b)

such other payments as a claims officer considers reasonable to meet other resultant losses.

Each of these payments will be multiplied by an appropriate multiplier selected by a claims officer in accordance with paragraph 32 (future loss of earnings), taking account of the period remaining before the qualifying claimant reaches age 18 and of any other factors and contingencies which appear to the claims officer to be relevant.”

Level 5 of the tariff was set at £2,000 under the 2001 scheme.

The guide was produced by CICA in 2001 and updated in 2005. Although there was some rewording the material parts of the guide were similar and references are to the 2001 edition. The guide recorded that it was not a substitute for the provisions of the scheme itself. The guide stated in paragraph 1 that where a victim had died as a result of criminal injury, compensation might be payable to a qualifying claimant. Paragraphs 6 and 7 recorded that compensation as a result of the victim’s death could be claimed by a child of the deceased. Paragraph 8 stated that a fatal award could comprise one of more of the payments being: “standard amount of compensation (paragraph 39 of the scheme); dependency (paragraph 40 of the scheme); loss of parental services for a child under 18 years of age (paragraph 42 of the scheme).”

Paragraph 13 of the guide addressed parental services. It stated that a qualifying claimant under 18 years of age might be eligible for compensation for loss of parental services at an annual rate of level 5. It went on to state “compensation may also be payable to meet other resultant losses, eg any additional costs of childcare or loss of earnings suffered by an adult in looking after the child”.

“Criminal Injuries Compensation Claims” by Begley was published by the Law Society. The first edition was published in 2005 and the second edition was published in 2016. In the first edition at paragraph 12.6 it was stated that “it is more likely that this provision (42(b)) could legitimately be used to permit the Authority in less usual cases where the qualifying claimant child was for example already very disabled and required extensive care from the deceased parent which is now provided by another, to make an award reflecting this extra level of care as compared with an able-bodied or non-disabled child.” A similar passage was repeated in the second edition.

In the second edition it was noted that the 1996, 2001, and 2008 schemes made very similar provision in respect of fatal cases. Loss of parental services was addressed in paragraph 12.6 of the second edition. Comparisons were made between awards under the Fatal Accidents Act for the loss of care provided by a parent, and the tariff provided for by 2001 scheme.

Other resultant losses were addressed in paragraph 12.6.3 of the second edition of Begley which commented on the wording in the guide, set out in paragraph 28 above, about “any additional costs of childcare or loss of earnings suffered by an adult in looking after the child”. Begley suggested that this might have been intended to cover a situation where the qualifying claimant child was cared for someone who was not the spouse or partner of the deceased and who did not have a financial dependency on the deceased.

There was no dispute about the proper approach to the interpretation of paragraph 42 of the 2001 scheme. The paragraph should be considered as a whole and as part of the scheme, the starting point is the ordinary meaning of the words used, having regard to the context of the scheme and with due regard to its evident purpose, see generally Woodling v Secretary of State for Social Services [1984] 1 WLR 348 and R(Colefax) v First-tier Tribunal (Social Entitlement Chamber) and the Criminal Injuries Compensation Authority [2014] EWCA Civ 945; [2015] 1 WLR 35.

The Criminal Injuries Compensation Scheme was introduced in August 1964. It provides payment from public funds to the innocent victims of crimes of violence and those injured in attempting to apprehend criminals or prevent crime. In introducing the scheme, the then Government stated that it believed that the public felt a sense of responsibility for and sympathy with the innocent victim and that it was, therefore, right for this feeling to be given practical expression by the provision of a monetary award on behalf of the community.

It is apparent that the 2001 scheme, made pursuant to the 1995 Act, provided for a scheme to compensate victims of crime in circumstances where the criminal who had caused loss had insufficient funds to pay tortious compensation. There were relevant differences from a claim for compensation in tort. The quantum of any award was capped at £500,000 and tariffs for awards were set at levels which were below, and sometimes much below, awards in tort for compensation under the Fatal Accidents Act 1976.

The relevant words in paragraph 42(b) in the 2001 scheme were “such other payments as a claims officer considers reasonable to meet other resultant losses”. In my judgment the use of the phrase “other resultant losses” in paragraph 42(b) of the 2001 scheme, means that the “losses” must have been resulted from some act, which in this case was the manslaughter of Dominic’s mother which led to the loss of parental services for which compensation was provided by the tariff award under paragraph 42(a) of the 2001 scheme. I do not accept the submissions made on behalf of Dominic to the effect that “other resultant losses” means anything that arises, or is resultant from, from Domnic’s status as a qualifying claimant. This is because there are no losses that result from that status, it is the status which gives Dominic the right to claim. The “losses” are those which have been caused by the unlawful killing of Dominic’s mother.

I do not accept that this interpretation renders the use of the word “other” in paragraph 42(b), which appears twice in paragraph 42(b) (in “such other payments” and as “other resultant losses”) of no effect. They are losses “other” than those covered by the tariff payment provided for by paragraph 42(a) of the 2001 scheme. Paragraph 42(b) provides that payments for “other resultant losses” arising from the death of Dominic’s mother,“other” than the losses covered by the payment provided for in paragraph 42(a) of the 2001 scheme, which the claims officer considers reasonable to meet, may be made.

This interpretation is consistent both with the guide and the text set out in the first and second editions of Begley. Both the guide and Begley rightly identify that if, because of Dominic’s pre-existing medical condition, Dominic’s mother had been required to provide more than the usual parental care and attention, then the loss of that additional parental care and attention arising from Dominic’s mother’s death might have been capable of forming an award under paragraph 42(b) of the 2001 scheme. I would therefore reject the appellant’s case that the FTT and UT had erred in its interpretation of paragraph 42 of the 2001 scheme. This disposes of the first ground of appeal.

In my judgment, the important point on this appeal is that it is apparent that Dominic’s need for adapted accommodation did not arise from the unlawful killing of Dominic’s mother. The need for the adapted accommodation arose because of Dominic’s pre-existing congenital disability and other medical problems. This is not an impermissibly narrow interpretation of paragraph 42(b) of the 2001 scheme, as contended in the second ground of appeal, because it is consistent with the effect of the 2001 scheme, which is to compensate qualifying claimants for the losses that arise from the criminal act, in this case the manslaughter of Dominic’s mother.

The same applies to the Court of Protection costs. As the FTT judges found, the Court of Protection applications arose as a direct result of Dominic’s pre-existing disability. It is apparent that Dominic was always going to incur Court of Protection costs, given his pre-existing medical conditions.

In these circumstances the FTT and UT were right not to make any award in respect of the costs of the extension. This was because the need for the extension was not caused by the death of Dominic’s mother and the loss of her care for Dominic.

This, however, does leave the point about whether the FTT was right to suggest that the costs of an extension might never be recovered, because it “would be significantly widening the scheme”. This is the point addressed in the third ground of appeal. Although the point does not arise for decision, because the need for the extension was not caused by the unlawful killing of Dominic’s mother, I have addressed it briefly below. This is because: we heard argument from both sides on the point; the statement made by the FTT judges in paragraph 39 of the decision (see paragraph 12 above) is too general; and we were told that it might assist other cases as the wording of the 2001 scheme has been taken forward in later schemes.

It is correct to record that in paragraph 35 of the 2001 scheme, which addresses losses by a claimant who has suffered personal injuries as a result of a criminal act, under the heading “compensation for special expenses” there is reference to “adaptations to the applicant’s accommodation” in paragraph 35(d)(ii), but there is no express reference to “an extension”. It was common ground that, in appropriate circumstances, a claimant under the 2001 scheme who suffered injuries and needed adaptations to be made to their home so that they could continue to live in the home, might be able to recover compensation for such adaptations, as provided for by paragraph 35(d)(ii) of the 2001 scheme.

If such an injured claimant required a downstairs lavatory to be extended in order to make it a wet room then, in my judgment, that would amount to “adaptations to the applicant’s accommodation”, even if it might involve a minor extension of the size of the property because the lavatory was enlarged. This would not amount to a “significant widening of the scheme” as suggested by the FTT judges.

This is a long way from importing the difficulties in assessing damages in personal injury claims where different accommodation is needed, exemplified by Roberts v Johnstone [1989] QB 878 and Swift v Carpenter [2020] EWCA Civ 1295; [2021] QB 339. Everything will depend on the circumstances, and there is a cap on the amount that might be awarded.

For the detailed reasons set out above I would dismiss the appeal.

I agree.

I also agree.