B, R (on the application of) v Criminal Injuries Compensation Appeals Panel [2007] EWHC 180 (Admin)

[2007] EWHC 180 (Admin)Case No CO/6940/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 14 th February 2007
Before
THE HON MR JUSTICE LANGSTAFF
Between
The Queen on the application of “B” who acts by his litigation friend PWClaimantCriminal Injuries Compensation Appeals PanelDefendant
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Stuart C Brown Q.C.(instructed by Kitching Kneale and Co Solicitors) for ClaimantMr Robert Jay Q.C. with Mr Jeremy Johnson (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 12 January 2007
Judgment
[1]This application raises a question of general importance, namely whether an applicant to the Criminal Injuries Compensation Authority under the terms of the 1990 Criminal Injuries Compensation Scheme has the burden of proving that no local authority provision will be made available to him in respect of his needs for care and accommodation consequent upon his injuries.[2]This point of general principle arises in the context set by the following facts.[3]The claimant was born on 12th May 1994. When he was 10 months old, he was the victim of a crime of violence. He was shaken so violently that he suffered a large right subdural haematoma, which it required surgery to remove. He had cerebral swelling, and an infarction of the right cerebral hemisphere, the right cerebellum, and the left frontal lobe.[4]On 13th June 2003, Doctor Morrell reported that the claimant’s vision was significantly restricted, that he had orthopaedic problems, and that in consequence of the ischaemic injury to his right cerebral hemisphere he suffered a severe form of cerebral palsy with left hemiplegia.[5]He has a spastic and largely useless left arm, and a spastic left leg. He suffers severe learning difficulties. He will never be independent.[6]It is clear that the claimant requires total care, and life-long medical supervision. At page 4 of his report Doctor Morrell summarised the prognosis as follows:- “C requires total care for all his needs and this will continue for the rest of his life. He requires physical care in terms of washing, toileting, dressing and help with feeding. He requires help with his mobility. He requires extra stimulation in view of his severe learning difficulties and his visual impairment. His carers will also need to provide daily physiotherapy to ensure that his muscles and joints are kept flexible. There is a particular problem with the sensitivity of the scalp, which makes washing his hair very difficult and carers would need to be aware of this. The carers will need to be aware of C’s medical needs. He does have a ventriculo-peritoneal shunt and this could become blocked or infected at any stage and the carers would need to be aware of the medical indications of this. C will need to remain under medical supervision for the rest of his life, including supervision of his general health, his orthopaedic needs, his visual impairment and the ventriculo-peritoneal shunt. C will need to attend a special school for children with severe learning difficulties on a long term basis. When he reaches the age of 18 years and leaves school he will continue to require full-time care. This could obviously be provided at home if his parents are able to do this. There are also residential colleges that can provide 24 hour care for children like C. There are also other residential facilities available, which can provide fulltime care if his parents are not able to do this.”[7]In a report dated 7th September 2004 Virginia Atkins, an expert on care and its costs, gave three examples of residential placements suitable for the care for someone such as the claimant at age 19. The costs of each were similar: the range was from £32,500.00p per annum to £37,570.00p.[8]An application to the Criminal Injuries Compensation Authority was made in 1996 in respect of these injuries. For reasons immaterial to this decision, it was not until the 8th January 2003 that the decision was made that the claimant would be entitled to a full award.[9]Because of the date of the crime giving rise to his injuries, the assessment of the quantum of this award fell under the terms of the 1990 Scheme.[10]The Scheme is an extra-statutory one. In paragraph 12, at the start of a section headed “Basis of Compensation” the Scheme provides as follows:- “Subject to other provisions of this Scheme, compensation will be assessed on the basis of common law damages, and will normally take the form of a lump sum payment, although the Board may make alternative arrangements in accordance with paragraph 9 above. More than one payment may be made where an applicant’s eligibility for compensation has been established but a final award cannot be calculated in the first instance - for example where only a provisional medical assessment can be given. In a case in which an interim award has been made, the Board may decide to make a reduced award, increase any reduction already made or refuse to make any further payment at any stage before receiving notification of acceptance of a final award.”[11]The opening words – “subject to the other provisions of this Scheme” render potentially material the terms of paragraphs 25, 9 and 13. Paragraph 25 begins with the words:
“It will be for the applicant to make out his case at the hearing, and where appropriate this will extend to satisfying the Board compensation should not be withheld or reduced under the terms of paragraph 6 or paragraph 8…The Board will reach their decision solely in the light of evidence brought out at the hearing, and all the information and evidence made available to the Board members at the hearing will be made available to the applicant, at, if not before, the hearing. The Board may adjourn a hearing for any reason…”
[12]Paragraphs 6 and 8 to which reference is made do not deal with the assessment of compensation. They deal with the scope of the scheme, and provide for withholding or reducing compensation if the applicant has failed to inform the authorities of the circumstances of his injury or to cooperate with authority or The Board, or in respect of his conduct before during or after the events giving rise to the claim; and paragraph 8 provides for payment of compensation only in certain circumstances, none of which are applicable to the case before me.[13]Paragraph 19 provides that:- “Compensation will be reduced by the full value of any present or future entitlement to:(a) United Kingdom social security benefits;(b) …(c) social security benefits, compensation awards or similar payments whatsoever from the funds of other countries; or(d) payments under insurance arrangements except as excluded below which may accrue, as a result of the injury or death, to the benefit of the person to whom the award is made”[14]An issue in the present case is whether the phrase “United Kingdom social security benefits” is apt to include the provision of accommodation or its value to a person whose physical needs require it by a Local Authority performing its statutory duty to make such provision.[15]Paragraph 9 of the Scheme provides:- “If in the opinion of the Board it is in the interests of the applicant (whether or not a minor or a person under a incapacity) so to do, the Board may pay the amount of any award to any trustee or trustees to hold on such trusts…as the Board shall think fit. Subject to this the Board will have a general discretion in any case in which they have awarded compensation to make special arrangements for its administration.”[16]Paragraph 13 provides so far as material that:
“Although the Board’s decisions in a case will normally be final, they will have discretion to reconsider a case after a final award of compensation has been accepted where there has been such a serious change to the applicant’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand, or where the victim has since died as a result of his injuries…”
[17]This broadly provides an equivalent within the Scheme to the statutory provision enabling a court to make an award of provisional damages, though it goes further in providing for claw-back by the paying party where the victim has died, as to which there is no statutory equivalent.[18]It is accepted in argument before me that there is no power within the 1990 Scheme to make provision for payment of an appropriate sum periodically, replicating what was then known as a “structured settlement” and which now falls under the power of the court to award future loss by way of periodical payments.[19]After January 2003, the way was clear for a final assessment of compensation to be made. On 27th September 2004, however, Roger Goodier, Chairman of the Criminal Injuries Compensation Appeals Panel said at paragraph 1 of a reply to a letter of July 27th from solicitors representing the claimant:- “C is now just 10 years of age. Having considered the medical report from Doctor B. Morrell, consultant paediatrician, dated 13th June 2003, I fail to see how this application will be capable of final assessment for many years, probably not until C is 19 years of age after he has left school and his long term care requirements and provision would be better capable of being assessed…(3) prior to final assessment of this application, it would be entirely appropriate for staged interim payments to be made generally on account on the final award of compensation, upon written application by the applicants’ representatives supported by reasons for the need for such payments…”[20]He directed a further interim payment of £20,000 generally on account of the final award of compensation.[21]That decision was not subject to any application for review, nor could it sensibly have been. The Chairman was exercising a power to defer assessment of a final award in accordance with paragraph 12 of the Scheme, because he took the view that circumstances were such that a final award could not then properly be calculated. The Appeals Panel were, however, prepared to entertain submissions that the time was indeed ripe for such a final rather than interim determination, and heard those on 7th June 2005.[22]Before then, however, but after the decision which Mr Goodier had made in September 2004, the decision of the Court of Appeal in the combined cases of Sowden and Crookdake were reported: Sowden v Lodge; Drury v Crookdake [2004] EWCA (Civ) 1370. This case focused practitioners upon the fact that local authorities owed a duty under Section 21 of the National Assistance Act 1948 (“the 1948 Act”) to make arrangements for providing residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances were in need of care and attention not otherwise available to them (See Section 21(1) of the 1948 Act, as amended by the National Health Service and Community Care Act 1990 (“the 1990 Act”))”. It also reminded practitioners that where it appeared to a local authority that any person for whom they might provide (or arrange for the provision of) community care services might be in need of them they were obliged to carry out an assessment of his needs for those services and then decide whether those needs, as assessed, called for the provision of any such services (See Section 47(1) of the 1990 Act).[23]Section 22 of the 1948 Act provided for payment to be made by a person provided with accommodation. What the decision in Sowden and Crookdake made clear was that the effect of the applicable Regulations was that a personal injury claimant whose damages were in a personal injury trust, or who was a patient, could not be required to make any contribution under Section 22, so that provision to him of accommodation would be free of charge.[24]I shall return to the decision in this central authority below. It seems to have inspired a note from the Chairman which was circulated to members of the Criminal Injuries Compensation Appeals Panel. That note, entitled “Catastrophic Injuries - Claims for Cost of Care and Accommodation- Chairman’s Guidance and Checklist” was dated 2nd February 2005. It contained 15 points. Those potentially material to the present case are as follows:- “1. Does Applicant require provision of care and accommodation? 2. Burden is on Applicant to establish that local authority care and accommodation is not sufficient to meet Applicant’s reasonable needs 3. Receiver is under a duty to investigate what is available from welfare services 4. Has there been an assessment by the local authority under Section 21 of the National Assistance 1948…? 5. If not, the presumption (subject to paragraph 6 below) is that a final assessment cannot be made and you should consider only an interim payment generally on account of compensation, but not so high as effectively to bind the next Panel (e.g. avoid assumption that Applicant needs own specially adapted house and one-to-one care) 6. There is a statutory obligation on local authorities to carry out an assessment when Applicant is 18 years old. In absence of an assessment before Applicant’s 18th Birthday, do not finalise claim until after this statutory assessment has been carried out. But where an Applicant is over the age of 18, living at home, and the carer (usually a spouse or other family member) has not asked the local authority to carry out an assessment and does not intend to do so, it will be open to the Panel to make no award for future care on the grounds that the Applicant has not established that the local authority cannot provide care and accommodation for the Applicant’s reasonable needs.”[25]The hearing was conducted before Mrs Walker, Chairman, Miss Cotton Q.C. and Mr Tyrell Q.C. A number of exchanges between Miss Cotton Q.C. and Mr Brown Q.C. who appeared for the applicant before the Appeals Panel as he appears for the claimant before us show that Miss Cotton Q.C. had in mind that the relevant local authority in the claimant’s case would be obliged once he reached the age 18 to fulfil those statutory duties which I have summarised above. She appeared to endorse the general applicability of Mr Goodier’s guidance of February 2005:
“We generally adopted it and it is now official policy of the Board”
Then added:- “There may be cases where we would not follow it.” It was thus not treated as an inflexible policy permitting of no exception.[26]The decision the Panel came to is recorded in a letter of 14th June 2005. It was that the Panel would authorise an interim payment of £250,000 pending further information being obtained in connection with the application. The Panel made the following observations:
“Our priority today is to take a proportionate and fair approach but above all to do what is in C’s best interests. He is only 11 years of age at the moment. Counsel urges us to make directions and list for final hearing. We considered the 2001 and 2002 cases cited by counsel. But we take the view Dowden and Crookdale (sic) cases have application here and account must be taken of what the local authority can and will provide for C’s case both pre and post 19 years of age. The parents have made it clear that post 19 years (i.e. 2013) they anticipate C will be placed in suitable residential accommodation. We have considered that overall it is preferable for C if a finalisation of his compensation is done when the Board have an assessment of his needs and know what the local authority will provide for him. That information is not available now thus we decide not to finalise. The appropriate way is to make a substantial interim payment now to be used for C’s benefit. Moreover, if and when further money is required e.g. to provide for further care, then additional interims can be appealed for (sic). Therefore, we decide on the basis of evidence in the papers and needs care provided to date and likely to be provided in the future, in these circumstances further interim of £250,000.00p to be made.”
[27]By an application lodged on 30th August 2005, the claimant challenged the Board’s decision to defer final assessment of his claim until he reached the age of 19 on three bases: first, that this was unlawful (essentially because it failed to approach the assessment of damages upon the basis the Common Law would, as required by the Scheme), that it was irrational, and that it paid undue attention to an irrelevant criterion (that of unknown provision by a local authority in the future); second, it was said to be intended to be in B’s best interests when that was not so; and, third, that it was not adequately reasoned, in that what was in B’s best interests was not explained.[28]Mr Stuart Brown Q.C. for the claimant, in attractively presented submissions, argued that the central dispute between the parties was as to the burden of proof. He maintained that if compensation was to be assessed on the basis of Common Law damages, as paragraph 12 of this Scheme requires, then the burden of proof is not on the claimant: Sowden v Lodge, Drury v Crookdake establishes this. Paragraph 25 of the Scheme, which requires the applicant to make out his case at the hearing, is procedural. It does not require the claimant to prove a negative, namely that he will not receive any funding from a local authority, nor does it require him to establish how much it is probable that he will receive, for what, and why it is inappropriate that such provision should affect the level of compensation paid to him under this Scheme.[29]Since Mr Jay Q.C. for the defendant opened his submissions by accepting that for his argument to succeed he would have to persuade me that the burden of proof apparent in the judgments of Pill LJ and Longmore LJ in Sowden and Crookdake did not apply to the present case, it is appropriate to consider this point first. That inevitably brings me back to the Sowden decision.[30]In the case of Sowden v Lodge, Andrew Smith J. gave judgment in respect of a claimant who, though a child when injured, was adult by the time of trial. The Judge accepted a submission that he should determine what was in the best interests of the claimant, and concluded that was to live in residential, as opposed to private accommodation. Noting that the requirement upon a local authority under Section 21 was that the accommodation provided by a local authority should be appropriate in the authority’s assessment to meet the needs of the claimant, and that this was a different and less demanding approach than that the accommodation should be that which restored the claimant as nearly as possible to the position in which he would have been but for the accident, he nonetheless accepted and assessed compensation upon the basis that the defendant would augment the probable local authority provision to make up the shortfall.[31]Crookdake also concerned an adult. Owen J. concluded that the agreed expert evidence before him was that the claimant needed to be accommodated in his own home. The central issue between the parties was that the defendant contended that the local authority were required by the statutory provisions to which I have referred to provide both accommodation and ancillary services for the claimant, that the duty was such that the nature and standard of the services had to be appropriate to the claimant’s individual needs, that this would in reality be no different from his reasonable requirements, that he could not be charged for them, and in consequence that he had sustained no loss requiring compensation in respect of the cost of accommodation and care. The judge rejected that argument for four reasons - that the local authority were under no obligation to provide a property capable of accommodating his wife and daughter from time to time (as well as himself); he might be located elsewhere than he would have chosen had he been free to do so; the accommodation might consist of a series of short term placements in rental accommodation as opposed to a permanent and secure base for the future; and he would find his freedom of choice as to domestic arrangements circumscribed by being dependant upon the local authority for his accommodation.[32]The principal judgment in the Court of Appeal is that of Lord Justice Pill. It sets out the basis upon which damages are awarded at Common Law for personal injury. The principle is that the claimant will be provided with such a sum of money as will put him as nearly as possible in the same position he would have been had he not sustained the wrong for which he is now being compensated (see paragraphs 10 to 12, and the citations from both Rialis v Mitchell (Court of Appeal, unreported, 6th July 1984, and Lord Blackburn in Livingstone v Rawyards Coal Company [1880] 5 AC 25, at 39). As he pointed out (paragraph 38) the focus of judicial inquiry is not to determine what is in the “best interests” of a claimant, but what a claimant can establish as reasonable. The practical consequence of this is that unless it can be shown that a claimant’s choice is unreasonable in the circumstances, it must be provided for. It does not matter that there may be other ways, which are also not unreasonable, of providing for the claimants’ needs.[33]Thus, at paragraph 41, Pill LJ. said:- “In general terms, the approach is to compare what a claimant can reasonably require with what a local authority, having regard to uncertainties which almost inevitably are present, are likely to provide in the discharge of their duty under Section 21. If the second falls significantly short of the first, as Owen J. found in Crookdake it did, the tortfeasor must pay, subject to the argument raised in both cases that Section 21 provision augmented by contribution from the tortfeasor meets the reasonable requirements. If it is the statutory provision which reaches the claimant’s reasonable requirements, as assessed by the Judge, the tortfeasor does not have to pay for a different regime. I accept that in making the comparison a court may have regard to the power to compel a local authority to perform its duties”[34]I see, here, a parallel with the approach taken to what is often called the “duty to mitigate” loss. It is trite law that the test whether the actions of a claimant are such that he has failed to mitigate his loss is whether or not a claimant has acted unreasonably in doing as he did, the burden of proof being upon he who asserts that the claimant’s actions were unreasonable (see Banco de Portugal v Waterlow & Sons Ltd[1932] AC 452, at 506). The parallel arises in cases where local authority provision or financial support is possibly available, just as in a case where means of defraying an apparent loss are possibly available (e.g. by seeking and obtaining alternative employment) because it is said that the claimant could reduce his apparent loss; and in each case the emphasis is on whether the claimant has, or has not acted unreasonably. The emphasis is not upon that which the court might think the better choice (although, obviously, assessments on these two bases may overlap). In each case, the Common Law places the burden of proof upon he who asserts the claimant’s actions to have been unreasonable.[35]In the case of local authority provision, this emerges most clearly from paragraphs 61 to 63 in the judgment of Pill LJ. At 62 he said:- “In written submissions on behalf of the defendant, reliance was sought to be placed on the absence of ‘proper evidence before the court as to how the local authority would in fact discharge its statutory duty in providing 24 hour care’. That absence does not assist the defendant. The Judge must reach a conclusion on the evidence before him, drawing inferences where appropriate. That is what the Judge did and I see no fault in the way in which he did it. The defendant did not call evidence of what the local authority would have, or would be likely to have, provided, evidence which might, I put it no higher, have undermined the claimant’s case. 63. While claimants, and those advising them, must be expected to cooperate with local authorities discharging their statutory duties, they claim in the action that to which they believe the claimant is entitled and there is no legal burden upon them first to disprove that statutory provision will be adequate. It may of course be prudent to call evidence, as in any situation where a judgment on the facts is to be made, as to why statutory provision is inadequate.”[36]It is plain that Pill LJ.’s view that there was no burden upon the claimant to disprove that statutory provision would be adequate formed part of the ratio of the decision.[37]Longmore LJ. at paragraph 99 said:- “…while it is for a claimant to assert what are his or her reasonable needs, it is for a defendant who asserts that a claimant should be content with local authority residential care to set out in clear terms whether such reasonable needs can be met by such care and whether there is any respect in which they accept such care does not meet the claimant’s reasonable needs, so that top up will be appropriate. It will then be for the claimant to assert that top up or further top up in addition to that proposed by the defendant will be required, if local authority residential accommodation is to be provided.”[38]Although not identified in submissions before me, there is a slight difference of emphasis as to the requirements resting upon a claimant as between the practical repercussions of the view which Pill LJ. took, and the approach taken by Longmore LJ. Scott Baker LJ. agreed with both judgments, but at paragraph 102, in observing that where there was an issue whether “top up” was appropriate and what it should amount to, the issue should be properly identified and supported by evidence ordinarily well in advance of the trial, he plainly had in mind that this was for the defendant to do, and not for the claimant to disprove.[39]Accordingly, I am prepared to accept as well founded the submissions of both counsel before me that in any claim brought before the Common Law courts the claimant must show what his reasonable needs are, and propose the way in which those needs should be satisfied. It is then for the defendant to show that the claimant is making a demand which is unreasonable, either because he does not reasonably require the provision he desires, or that the cost of such reasonable provision will be defrayed in whole or in part by provision from a local authority.[40]Mr Jay Q.C., who appeared with Mr Jeremy Johnson for the defendant, accepted that the approach indicated by the judgments in Sowden was the approach to be taken to assessing compensation at Common Law. Unless he could persuade me, therefore, that those principles did not apply to the assessment of compensation by the Board despite the wording of paragraph 12 of the 1990 Scheme, the claimant should succeed, for it was on the basis that he bore the burden of proof that the Panel made its decision to adjourn assessment of any award to the age of 19 (at least). He submitted that paragraphs 9, 12, 19 and 25 of the Scheme should be read in conjunction with one another. Secondly, they should not be read as though the Scheme were a statute or statutory instrument. Thus where paragraph 19 provided that compensation be reduced by “the full value of any present or future entitlement to (a) United Kingdom social security benefits…” this was capable in the context of referring to benefits which were provided by a local authority under a statutory obligation applicable nationwide, even if, were the Scheme a statute, such an interpretation would not be permissible – and, accordingly, the power of the Board to refuse to make an award until the applicant had taken “such steps as the Board consider reasonable to claim (benefits from the local authority)” would come into play. When coupled with paragraphs 9, 12 and 25 this would confer legality on the decision of the Appeals Panel in this present case not to determine compensation for some eight years.[41]Paragraph 25, on this submission, expressly requires the applicant to make out his case. The burden of proof is on him. This makes sense in the context of a Scheme which is not adversarial in the way in which a civil court hearing is. The Board has no “side”. Whereas it might be reasonable to expect a defendant in a claim before the civil courts to provide evidence, which, if lacking, would lead to the court inevitably concluding the case in favour of the claimant as to the availability of local authority funding (as Sowden suggests) it is not appropriate to place an onus upon the Board to do so, absent which a claimant must as a matter of law receive the full monetary value of his claim for his reasonable requirements as to care and accommodation. Paragraph 12 provides for assessment “on the basis of Common Law damages”. This is plainly modified by paragraph 19, and should be taken as modified by paragraph 25 in the present case.[42]I was less clear as to what precise submission was made as to the interaction of paragraph 9 with the other three paragraphs. I hope I do justice to Mr Jay Q.C.’s submissions by expressing the point thus: paragraphs 12 and 9 look to a form of payment which is normally by lump sum award, but specifically provide that interim awards may be made, or a lump sum award paid to persons other than the claimant himself, or that “special arrangements” might be made for its administration. The provision in paragraph 12 permitting more than one payment to be made where an applicant’s eligibility for compensation has been established, but a final award cannot in the first instance be calculated, shows that the Board does not have to reach a final award, but may award a series of interim payments; and although the example given at paragraph 12 of a situation in which an award “cannot be calculated” is that where only a provisional medical assessment is available, this is merely an exemplar of a general principle. If a final award cannot be calculated in the first instance because local authority funding will be available, which will need to be taken into account if there is not to be over compensation, that would be a further example of the application of the principle (and it should not be assumed this works solely contrary to a claimant’s interests, for since the burden of proof under paragraph 25 is upon the applicant, it would in the absence of that proof fall to be assumed that local authority provision will meet every reasonable requirement of the claimant: this assumption may not be a fair one, and thus under compensation might result. Waiting would guard against this).[43]Mr Jay referred me to the decision of Mr Justice Stanley Burnton in the case of R (on the application of DB) v Criminal Injuries Compensation Appeal Panel [2002] EWHC 698 (Admin). One challenge to a decision by way of review with which he dealt was that the Panel had not been entitled to conclude an issue of fact contrary to the claimant without having evidence contradicting the evidence called on the claimant’s behalf. At paragraph 36 he echoed the points Mr Jay made, summarised above. The procedure of the Panel is not adversarial, but more inquisitorial. There is no defendant to respond before the Panel. It is for the applicant to satisfy the Panel of the facts on which the award he seeks is to be based. He may fail to do so although no adverse evidence is before them. He went on to say that the evidence called in that case had not satisfied the panel, and the Panel were entitled not to be satisfied.

Discussion

[44]The phrase in paragraph 12 “on the basis of common law damages” falls short of requiring the Board exactly to replicate the process by which Common Law damages are established. However, it seems to me to provide for the way in which damages should be calculated unless there is some contrary provision expressly or implicitly within the Scheme.[45]The judgments in Sowden clearly place upon the defendant the burden of showing that the apparent cost of the claimant’s reasonable requirements should be reduced because of the possibility that local authority provision will meet all or some of them. Authority since Sowden: Walton v Calderdale Health Authority[2005] EWHC (QB) 1053, Godbold v Mahmoud[2005] EWHC (QB) 1002; Tinsley v Sarkar[2005] EWHC (QB) 192, at paragraph 126; Freeman v Lockett [2006] EWHC (QB) 102, at paragraphs 24 onwards all re-emphasise the point, as Mr Brown Q.C. submitted.Crofton v NHSLA touches on the point. The judgment of the Court of Appeal in this last case is currently awaited. This may illuminate matters further, but is no reason in my view to delay my determination.[46]Paragraph 25 of the Scheme provides for that which is also the case at Common Law – in general terms, it is for the applicant to make out his case. It is not therefore an exception to the principle of “common law approach”. The wording (see paragraph 11 above) refers to two specific inclusions. Both relate to issues of what might be termed liability, as opposed to issues of compensation. This express inclusory phrase therefore does not itself suggest that issues of compensation should be approached any differently from the way in which they would be at Common Law. Indeed, the very mention of two specific inclusions suggests that otherwise the general principle expressed in paragraph 25 might not be understood as covering them. If it had been intended that paragraph 25 would alter the common law approach, it would have been easy for it to say so – either by making express provision for the claimant to disprove any suggestion that he should have mitigated his loss, or by saying that the claimant would have the burden, too, of showing that the provision which a local authority was under a duty to provide to a claimant would not be sufficient to meet his reasonable needs. (Since it appears that the profession were alerted to the relevant local authority duties by cases such as Sowden and Crookdake, it might be thought unreasonable to interpret the clause by reference to that which would probably not have been in the mind of the draftsman: but the analogy (or overlap) between the duty to mitigate, and the specific question of local authority funding, is plain, and it would be expected that the draftsman would have had the former in mind).[47]It does not seem to me that paragraph 25 was intended to alter the general approach indicated by paragraph 12. It is not inconsistent with it. Reading the two together, the burden of proof falls where it would fall at common law.[48]I do not see that the argument as to paragraph 9 of the Scheme affects the conclusion which, I have thus far reached.[49]Nor does paragraph 19 of the Scheme, in my judgment affect the position. It seems to be accepted between counsel that as the paragraph stood it would, if it were statute, have to be read such that payments by local authorities in discharge of their statutory duties under Sections 21 and 22 of the National Assistance Act 1948, and Sections 42 and 47 of the National Health Service and Community Care Act 1990 did not fall within it. The fact that the Scheme is not statute, though announced to Parliament, does not in my view alter this position. “United Kingdom social security benefits” has two aspects to it. One is indicated by the words “United Kingdom”, the other by “social security benefits”. The first indicates benefits which are provided on a national basis. They are not local social security benefits. The clause naturally looks, therefore, to benefits provided on a national basis. It is known that local authorities vary in the extent to which they provide finance for accommodation and care. Budgetary constraints apply to the extent to which local authorities determine the quantum of “benefits” (assuming, for this point, that “benefits” is an appropriate word). Assessment of needs may vary within a legitimate range. “United Kingdom social security benefits” looks, however, at benefits afforded on an equal basis nationwide.[50]Second, the phrase “social security” coupled with “benefits” suggest payments made to which there is an entitlement, universally available within the jurisdiction, and of the character of income support, disability living allowance and the like. The word “benefit” suggests a set payment, rather than the defraying of an expense, which may vary from individual to individual depending both upon his needs, and the region in which he lives.[51]The meaning can also be gauged from the fact that in paragraph 19(c) “social security benefits” is linked with “compensation awards or similar payments whatsoever” (thereby suggesting monetary payments) “from the funds of other countries”. This supports a conclusion that in (a) what is being considered are social security benefits as generally understood: not contributory, assessed, variable payments toward, or provision of, accommodation and care.[52]The practical repercussions of this conclusion are limited. The Criminal Injuries Compensation Scheme of 2001 differs from the provisions of the 1990 Scheme which are critical to my conclusion. Under paragraph 35 of the “new” scheme, it is plain that a claimant’s claim for care whether in a residential establishment or at home is a claim for that which is not provided or available free of charge from the National Health Service, local authorities or any other agency. Although the interpretation of this new Scheme is not material to my decision, it would appear to be very different in effect from the 1990 Scheme. Secondly, even under the 1990 Scheme, regard must be had as to the difference between a hearing before the Criminal Injuries Compensation Appeals Panel and that in front of a Judge in the Common Law courts. I see no reason why the panel should not invite the claimant to make appropriate enquires of any relevant local authority as to what level of provision might currently be available. Always remembering where the burden of proof lies, appropriate inferences may be drawn from evidence before the panel as to the attempts made by the claimant to obtain any such information, and the quality of the answers received.[53]However, in the present case it could not have been assumed (as the panel seemed to think it could be) that if the panel proceeded to a determination in June 2005 it would inevitably have had to disallow any of the claim for accommodation and care upon the basis that the duty of the local authority would, in the absence of contrary evidence from the claimant, satisfy the entirety of his needs. This (which is the only appropriate explanation of the reference to the decision being in the claimant’s best interests) is contrary to the approach which I have accepted above. Nor does it necessarily follow from cases such as Sowden, for it is clear from that (and following cases) that there may be a wide and sometimes unbridgeable gulf between what a local authority will offer and the reasonable needs of the claimant in respect of which he is entitled at common law to claim.[54]I do not need to explore further the question of whether the Panel were entitled to take the view that the decision they reached was in the claimant’s best interests. If this were not for the reason I have given (i.e. a misguided approach to the law) and was, instead, for some other reason this reason is not apparent, and would support the “inadequacy of reasoning” head advanced by Mr Brown Q.C.[55]The decision to adjourn until the claimant reached 19 might, depending on what was intended, be irrational in the circumstances: the claimant here powerfully makes the case that he wishes to plan for his future. Provision by way of interim payments, even made serially, cannot for instance provide him with the accommodation that he claims reasonably to need. If his needs in that respect are not shown to be unreasonable, they would fall to be met at common law. At common law there may often be a tension between finalising an award of compensation on the one hand, with the advantage finality brings, and accepting a delay for the purposes of more accurate calculation, on the other. These considerations are not all one way, but it is plain that a particular value must be put on finality. Thus in Adan v Securicor Custodial Services Ltd [2005] PIQR P6, [2004] EWHC 394 the claimant argued that the assessment of compensation, if made contemporaneously, would potentially be highly inaccurate either by under compensation or over compensation. On this basis, he sought adjournment of final determination of quantum until it became plain, if ever, that he would not be released to live in the community from his then current residence in a psychiatric institution. Eady J. rejected the contention there should be an adjournment, recognising that it had long been regarded as desirable in the administration of justice generally, but specifically in the context of personal injury litigation, that there should be finality: noting that Lord Pearce observed to that effect in Murphy v Stone-Wallwork (Charlton) Ltd[1969] 1WLR 1023, 1027, as did Lord Hodson in Mulholland v Mitchell[1971] AC 666, at 674. In the present case, the defendant specifically recognises (in his skeleton argument) that a defendant in a medical negligence action would not normally be able to defer assessment of damages until the claimant was 18 years old. There are in my view, good practical reasons for this in many cases – such as that in the present, which motivates the claim before me, namely the desire to make capital provision now which will inure to the long term benefit of the claimant, and may well improve his position compared to that which would otherwise be the case.[56]I do not however, have to determine the two further substantive challenges to the decision which was made, in the light of my conclusion as to the burden of proof. I should say no more than I already have done, in case this matter should go further.[57]For the reasons I have given, this application must succeed. The decision of 7th June 2005 must be quashed. The hearing of the claimant’s assessment of damages shall be remitted to a differently constituted Appeal Panel. I shall hear counsel as to any consequential order which may be sought.

Cited in 1 later judgment