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

When compensation is assessed on the basis of common law damages, the claimant must establish his reasonable needs and the proposed reasonable method of meeting them. The party asserting that local-authority provision will meet some or all of those needs must show that it will do so. The claimant does not bear a legal burden of disproving the adequacy of statutory provision.

An extra-statutory compensation scheme may modify the common-law approach only through a contrary provision, express or necessarily implied. The phrase “United Kingdom social security benefits” does not ordinarily include variable, locally determined provision of care or accommodation. A panel may seek information from a local authority and draw appropriate inferences, but must keep the burden of proof in its proper place.

The claimant, a child who suffered catastrophic injuries during infancy, applied under the 1990 Criminal Injuries Compensation Scheme. The Criminal Injuries Compensation Appeals Panel had authorised an interim payment but deferred final assessment until he was at least 19, pending information about care and accommodation that a local authority might provide under the National Assistance Act 1948 and the National Health Service and Community Care Act 1990.

By judicial review, the claimant challenged the Panel’s approach to the burden of proof, its treatment of possible local-authority provision, its reliance on the claimant’s best interests, and the adequacy and rationality of its reasons. The central issue was whether the Scheme displaced the common-law allocation of the burden when assessing future care and accommodation.

1. Application allowed. The Panel’s decision of 7 June 2005 was quashed. The assessment was remitted to a differently constituted Appeal Panel.
2. Paragraph 12 of the 1990 Scheme required compensation to be assessed on the basis of common-law damages, subject only to contrary provisions express or necessarily implied in the Scheme. Paragraph 25 required an applicant to make out his case generally, but did not alter the common-law allocation of the burden in compensation issues.
3. The reasoning in Sowden v Lodge; Drury v Crookdake [2004] EWCA (Civ) 1370 applied. The claimant had to identify his reasonable needs and propose how they should be met. It was for the party asserting that local-authority provision would defray the cost, in whole or in part, to establish that proposition. The claimant was not required first to disprove the adequacy of statutory provision.
4. Paragraph 19(a), referring to the full value of “United Kingdom social security benefits”, did not include local-authority care or accommodation. “United Kingdom” indicated provision on a national basis. “Social security benefits” suggested generally available, entitlement-based monetary benefits, rather than variable provision dependent on individual needs and local resources.
5. The Panel could invite enquiries of a local authority and draw appropriate inferences from the evidence, including the claimant’s attempts to obtain information. It could not assume that local-authority duties would satisfy all reasonable needs merely because contrary evidence had not been produced.
6. The court left open the claimant’s other substantive challenges. It observed, obiter, that the importance of finality and the practical value of making capital provision could bear on whether postponing assessment until age 19 was irrational, but did not decide that issue.

This was a first-instance judicial review in the Administrative Court. The claim succeeded and the Panel’s decision was quashed and remitted.