Soper, R (on the application of) v Criminal Injuries Compensation Appeals Panel

In assessing compensation under a criminal injuries scheme, different multipliers may properly be used for future care costs and future benefits. A reduced care multiplier may reflect contingencies, including care that would have been needed with age, without implying a particular level of care from the end of the multiplier period. Future benefits must be assessed by reference to the chance that they will continue, rather than by treating a balance-of-probabilities finding as a fixed 51% chance. A very strong or overwhelming likelihood may justify a near-full multiplier. Judicial review is concerned with legality and rationality, not a rehearing of the factual merits.

The claimant was injured while working as a cleaner and was awarded £8,013 under the 1990 Criminal Injuries Compensation Scheme. The Criminal Injuries Compensation Appeals Panel calculated common law damages and deducted social security benefits attributable to the injury. It used a multiplier of 15 for future care costs but a substantially higher multiplier for future benefits, including Disability Living Allowance.

Munby J dismissed the claimant’s judicial review challenge. The claimant appealed, arguing that the different multipliers were irrational and that the Panel had applied the wrong legal test by using a balance-of-probabilities approach to future benefits. She also sought to raise, belatedly, possible entitlement to other benefits.

1. Appeal dismissed. The proceedings were judicial review proceedings and did not involve a rehearing of the factual merits.
2. The multiplier of 15 for future care costs was an orthodox adjustment for future contingencies. It did not amount to an implicit finding that the claimant would require a particular level of care from about age 72. The Panel could recognise that some care would have been required with ageing while finding that the claimant would not otherwise have qualified for Disability Living Allowance.
3. The different multipliers were therefore rational and legally permissible. The calculation of future care costs and the deduction of future benefits did not require identical multipliers because the two assessments addressed different matters.
4. The Panel had not necessarily applied a 51% balance-of-probabilities test. Its use of the words likely and unlikely, read with the medical evidence, recorded a finding that continued receipt of Disability Living Allowance attributable to the injury was very highly likely. Alternatively, the judge was entitled to conclude that any error in approach was sufficiently reflected by the modest adjustment to the multiplier.
5. The challenge based on Attendance Allowance and other benefits was raised too late. The court declined to introduce matters that had not previously been advanced or considered.

• Court of Appeal (Civil Division): appeal from the Administrative Court decision of Munby J dated 2 May 2002; appeal dismissed.
• Administrative Court, Queen’s Bench Division: judicial review claim challenging the Panel’s award dismissed.