The Guardian: Analysis - compensation culture
Analysis: Is Josie Russell a victim for a second time?: The press has been in an uproar over the "low" £18,500 award to the child who lost her mother, Lin Russell, and her sister Megan in a murderous attack. Yet to what extent should the taxpayer be asked to compensate innocent sufferers? By David Rowan
ON NOVEMBER 24, 1991, Georgina Bobin was brutally attacked at her home in Churchill Gardens, in Pimlico, central London. The upstairs neighbour, 'from Iran or Iraq' (Bobin finds it painful to recall details too precisely), had been stalking the 36-year-old for some time; that day he turned on her 'out of the blue', breaking her neck in two places and leaving eight fractures in her skull.
He took the opportunity to flood her flat and destroy her household belongings. But that was only the start of Bobin's troubles. 'I was attacked on the Sunday, and a detective helped me put in a claim for criminal-injuries compensation on the Monday,' remembers Bobin, who was told to expect financial redress for her injuries, inability to work, and losses in the flood. 'Yet I've had nothing but grief and aggravation from the Criminal Injuries Compensation Board ever since. If I had known what I would be going through seven years ago, I would never have put in a claim. The pain has been unbearable.'
Georgina Bobin has been made to relive her pain this week, as the Criminal Injury Compensation Authority (which took over from the board two years ago in administering the scheme) has faced widespread condemnation over a rather better publicised case of criminal violence. It emerged that 11-year-old Josie Russell, left for dead two years ago when her mother Lin and sister Megan were killed in a hammer attack near their home in Chillenden, Kent, had been awarded £18,500 for the loss of her mother.
The amount was derisory, her lawyer immediately declared; it was a slap in the face, according to her father; 'how can it be right?' asked the Daily Mail. And the CICA - run by 'a cold-hearted, unfeeling, arrogant man', as the Sun put it - stood squarely in the firing line.
This is not the first time the authority has faced hostility. Publicity surrounded the award of £6,000 to Wilf Ball, whose three-year-old son Jonathan died in the Warrington IRA bomb blast in 1993. In 1996, five men who were abused in childhood won an appeal against the CICA, which had refused them compensation because of their criminal convictions.
Bobin herself has no doubts that the CICA is inadequate for its task, something the Josie Russell case merely confirms. 'What she was awarded is not fair,' she says. 'That sum is not going to replace her mother, who even if she wasn't working made a vital contribution (to the household economy).'
The authority points out that it had made the award according to the book - at least, according to a fixed tariff which Parliament itself demanded. But it is this formal, officious approach of the CICA that, Bobin believes, has led to its inefficiency, slowness and insensitivity to individual victims' circumstances.
Bobin used to be a nurse, but because of her injuries was off work for five years. She was not allowed to return to nursing, and since a hysterectomy has only lately been able to take a part-time job in a Thornton's chocolate shop in Victoria. Seven years on, she has still to receive any compensation beyond a 'little' interim payment. 'They haven't given me any justification, apart from the fact that my name is in the queue.' Meanwhile, she says she has been put through a treadmill of tests and examinations to assess just what level of post-traumatic stress she has suffered, according to the authority's fixed guidelines. 'The trauma of having to go through a different psychiatrist or psychologist each time has caused me to have flashbacks,' she says. 'Each time I have to relive the attack all over again; it has been more traumatic than the actual injuries.'
As for the CICA's treatment of Josie Russell, it is perhaps too soon to rush to judgment. She still awaits separate (probably larger) compensation awards for her own injuries, for her care and for potential loss of earnings. The £18,500 award, plus £4,000 made to her father for post-traumatic stress, are the subjects of appeals. But politicians have already been keen to intervene. The Labour MP Gwyn Prosser, whose Dover constituency includes Chillenden, said the award was 'inadequate, derisory and insulting'. On the Tory benches, Julian Brazier condemned 'a very mean award'. Even Tony Blair's official spokesman told the Sun: 'He is very sympathetic towards this case - he genuinely feels a sense of injustice here and thinks it is an outrageous award.' This followed Prime Ministerial intervention earlier this week in another legal matter, involving one Deirdre Rashid.
But there is a crucial difference between offering support in the Weatherfield One's quest for justice, in Coronation Street, and refining the way the criminal-injury scheme works: the CICA's tariffs were set up to save money, and any loosening-up of the tariffs would have cost implications. And the Labour government does not generally like changes with cost implications. The tariffs were imposed under Michael Howard, in the previous government. Criminal-injuries compensation had been paid since 1964, but by 1990 the scheme had a backlog of 100,000, and costs were rising sharply.
Howard tried to introduce a new scheme by Royal Prerogative, without Parliamentary debate; after the Law Lords ruled against him, in April 1995, he brought in an emergency bill to replace individual assessment of compensation with the fixed tariff.
'According to one view, the Government wanted to make the scheme simpler and quicker,' says Prof Desmond Greer of Queen's University, Belfast, and author of Compensating Crime Victims: A European Survey (Max Planck Institute, 1996). 'According to the other, it wanted to save money. The Conservatives feared the taxpayers' bill would just keep rising.'
Suzanne Burn, a former personal-injury solicitor, was the Law Society's lobbyist when the scheme was introduced. She remains critical of the tariff, which she says ensured the Russell award 'doesn't have any basis in logic. If you took the case to a civil court, the judge would have discretion over the award for her 'pain and suffering'.' The tariff, she says, is a real mess, arrived at through MPs' demands as much as what went before. 'You get generous token payments. Although some people can do better than under the old system, most lose out, especially compared with what they could gain taking a case to the civil courts.'
Then there are what appear to be arbitrary gaps between the levels of compensation according to the tariff. 'Because Josie's made quite a good recovery, it's hard to say what she'll get for her head injury,' Suzanne Burn says. 'The tariff sets £40,000 for a moderate head injury, but £250,000 if it's very serious. She's unlikely to be in the top category; her pain and suffering are likely to be in the order of £30,000- £40,000. In a civil court she would almost certainly get more.'
There is also some confusion in the way the scheme is drafted as to just how much discretion the CICA has in interpreting the tariff. Helen Peggs, spokesperson for Victim Support, the national charity that supports victims of crime, believes that the authority had no discretion to vary Russell's award. Another way Josie Russell will suffer compared with the old system is in the way multiple injuries are compensated. The full tariff is awarded only for the most serious injury, and then a percentage is taken for others, such as 10 per cent for the second-most serious. Helen Peggs believes that the tariff system is working 'in the bureaucratic sense - it's quicker than the old system, and our system is still used as the model in other countries' - but that the tariffs are set too low. 'The levels were set about four years ago, based on median awards then made, but are not adjusted for inflation. They must be revised as a matter of urgency.'
YET a broader question underpins the whole debate. Increasingly we assume that the law ought to offer some financial means of resolving our grievances, whether consumer, medical or commercial. Whether we trip on a paving stone or are made ill by a wedding banquet, we are implored to sue for compensation. When life involves inevitable risks, why should we expect the state to compensate us if through chance we become the victims of crime?
'That's because crime isn't an accident,' says Helen Peggs of Victim Support. 'It's a deliberate act by a human being. A crime is a crime against the state, and is prosecuted as such; society takes responsibility. So the value of compensation is it's a gesture by the state; it won't right the wrong, but it is a mark of recognition that you have been wronged.'
Desmond Greer goes further. 'A victim of crime has the right to claim compensation from the offender; but since the offender is normally not in a position to pay, or has not been apprehended, the state steps in.' What may be confusing the critics of the Russell award, he points out, is that the compensation is not being paid for bereavement as such. 'The basis of a claim is the financial loss that results from the death; that's also the case for damages in a road accident. And for the father in this case, the compensation is not for the loss of his wife as such, but for the financial loss.'
What, then, should be done now to improve the scheme? Suzanne Burn at the Law Society believes that the fairest solution would be to go backwards. 'I'd love to go back to the previous system, where awards were more closely related to those made in the civil courts. Today, to have a chance of gaining compensation through a civil claim, you have to be lucky enough to be attacked by someone of means.'
Sources: A Guide to the Criminal Injuries Compensation Scheme (CICA, April 1996); CICA Annual Report, 1996/7; Criminal Injuries Compensation Board, 33rd Report (March 1998).
David Rowan is editor of the Analysis page.
(The Guardian, April 3 1998)
ON NOVEMBER 24, 1991, Georgina Bobin was brutally attacked at her home in Churchill Gardens, in Pimlico, central London. The upstairs neighbour, 'from Iran or Iraq' (Bobin finds it painful to recall details too precisely), had been stalking the 36-year-old for some time; that day he turned on her 'out of the blue', breaking her neck in two places and leaving eight fractures in her skull.
He took the opportunity to flood her flat and destroy her household belongings. But that was only the start of Bobin's troubles. 'I was attacked on the Sunday, and a detective helped me put in a claim for criminal-injuries compensation on the Monday,' remembers Bobin, who was told to expect financial redress for her injuries, inability to work, and losses in the flood. 'Yet I've had nothing but grief and aggravation from the Criminal Injuries Compensation Board ever since. If I had known what I would be going through seven years ago, I would never have put in a claim. The pain has been unbearable.'
Georgina Bobin has been made to relive her pain this week, as the Criminal Injury Compensation Authority (which took over from the board two years ago in administering the scheme) has faced widespread condemnation over a rather better publicised case of criminal violence. It emerged that 11-year-old Josie Russell, left for dead two years ago when her mother Lin and sister Megan were killed in a hammer attack near their home in Chillenden, Kent, had been awarded £18,500 for the loss of her mother.
The amount was derisory, her lawyer immediately declared; it was a slap in the face, according to her father; 'how can it be right?' asked the Daily Mail. And the CICA - run by 'a cold-hearted, unfeeling, arrogant man', as the Sun put it - stood squarely in the firing line.
This is not the first time the authority has faced hostility. Publicity surrounded the award of £6,000 to Wilf Ball, whose three-year-old son Jonathan died in the Warrington IRA bomb blast in 1993. In 1996, five men who were abused in childhood won an appeal against the CICA, which had refused them compensation because of their criminal convictions.
Bobin herself has no doubts that the CICA is inadequate for its task, something the Josie Russell case merely confirms. 'What she was awarded is not fair,' she says. 'That sum is not going to replace her mother, who even if she wasn't working made a vital contribution (to the household economy).'
The authority points out that it had made the award according to the book - at least, according to a fixed tariff which Parliament itself demanded. But it is this formal, officious approach of the CICA that, Bobin believes, has led to its inefficiency, slowness and insensitivity to individual victims' circumstances.
Bobin used to be a nurse, but because of her injuries was off work for five years. She was not allowed to return to nursing, and since a hysterectomy has only lately been able to take a part-time job in a Thornton's chocolate shop in Victoria. Seven years on, she has still to receive any compensation beyond a 'little' interim payment. 'They haven't given me any justification, apart from the fact that my name is in the queue.' Meanwhile, she says she has been put through a treadmill of tests and examinations to assess just what level of post-traumatic stress she has suffered, according to the authority's fixed guidelines. 'The trauma of having to go through a different psychiatrist or psychologist each time has caused me to have flashbacks,' she says. 'Each time I have to relive the attack all over again; it has been more traumatic than the actual injuries.'
As for the CICA's treatment of Josie Russell, it is perhaps too soon to rush to judgment. She still awaits separate (probably larger) compensation awards for her own injuries, for her care and for potential loss of earnings. The £18,500 award, plus £4,000 made to her father for post-traumatic stress, are the subjects of appeals. But politicians have already been keen to intervene. The Labour MP Gwyn Prosser, whose Dover constituency includes Chillenden, said the award was 'inadequate, derisory and insulting'. On the Tory benches, Julian Brazier condemned 'a very mean award'. Even Tony Blair's official spokesman told the Sun: 'He is very sympathetic towards this case - he genuinely feels a sense of injustice here and thinks it is an outrageous award.' This followed Prime Ministerial intervention earlier this week in another legal matter, involving one Deirdre Rashid.
But there is a crucial difference between offering support in the Weatherfield One's quest for justice, in Coronation Street, and refining the way the criminal-injury scheme works: the CICA's tariffs were set up to save money, and any loosening-up of the tariffs would have cost implications. And the Labour government does not generally like changes with cost implications. The tariffs were imposed under Michael Howard, in the previous government. Criminal-injuries compensation had been paid since 1964, but by 1990 the scheme had a backlog of 100,000, and costs were rising sharply.
Howard tried to introduce a new scheme by Royal Prerogative, without Parliamentary debate; after the Law Lords ruled against him, in April 1995, he brought in an emergency bill to replace individual assessment of compensation with the fixed tariff.
'According to one view, the Government wanted to make the scheme simpler and quicker,' says Prof Desmond Greer of Queen's University, Belfast, and author of Compensating Crime Victims: A European Survey (Max Planck Institute, 1996). 'According to the other, it wanted to save money. The Conservatives feared the taxpayers' bill would just keep rising.'
Suzanne Burn, a former personal-injury solicitor, was the Law Society's lobbyist when the scheme was introduced. She remains critical of the tariff, which she says ensured the Russell award 'doesn't have any basis in logic. If you took the case to a civil court, the judge would have discretion over the award for her 'pain and suffering'.' The tariff, she says, is a real mess, arrived at through MPs' demands as much as what went before. 'You get generous token payments. Although some people can do better than under the old system, most lose out, especially compared with what they could gain taking a case to the civil courts.'
Then there are what appear to be arbitrary gaps between the levels of compensation according to the tariff. 'Because Josie's made quite a good recovery, it's hard to say what she'll get for her head injury,' Suzanne Burn says. 'The tariff sets £40,000 for a moderate head injury, but £250,000 if it's very serious. She's unlikely to be in the top category; her pain and suffering are likely to be in the order of £30,000- £40,000. In a civil court she would almost certainly get more.'
There is also some confusion in the way the scheme is drafted as to just how much discretion the CICA has in interpreting the tariff. Helen Peggs, spokesperson for Victim Support, the national charity that supports victims of crime, believes that the authority had no discretion to vary Russell's award. Another way Josie Russell will suffer compared with the old system is in the way multiple injuries are compensated. The full tariff is awarded only for the most serious injury, and then a percentage is taken for others, such as 10 per cent for the second-most serious. Helen Peggs believes that the tariff system is working 'in the bureaucratic sense - it's quicker than the old system, and our system is still used as the model in other countries' - but that the tariffs are set too low. 'The levels were set about four years ago, based on median awards then made, but are not adjusted for inflation. They must be revised as a matter of urgency.'
YET a broader question underpins the whole debate. Increasingly we assume that the law ought to offer some financial means of resolving our grievances, whether consumer, medical or commercial. Whether we trip on a paving stone or are made ill by a wedding banquet, we are implored to sue for compensation. When life involves inevitable risks, why should we expect the state to compensate us if through chance we become the victims of crime?
'That's because crime isn't an accident,' says Helen Peggs of Victim Support. 'It's a deliberate act by a human being. A crime is a crime against the state, and is prosecuted as such; society takes responsibility. So the value of compensation is it's a gesture by the state; it won't right the wrong, but it is a mark of recognition that you have been wronged.'
Desmond Greer goes further. 'A victim of crime has the right to claim compensation from the offender; but since the offender is normally not in a position to pay, or has not been apprehended, the state steps in.' What may be confusing the critics of the Russell award, he points out, is that the compensation is not being paid for bereavement as such. 'The basis of a claim is the financial loss that results from the death; that's also the case for damages in a road accident. And for the father in this case, the compensation is not for the loss of his wife as such, but for the financial loss.'
What, then, should be done now to improve the scheme? Suzanne Burn at the Law Society believes that the fairest solution would be to go backwards. 'I'd love to go back to the previous system, where awards were more closely related to those made in the civil courts. Today, to have a chance of gaining compensation through a civil claim, you have to be lucky enough to be attacked by someone of means.'
Sources: A Guide to the Criminal Injuries Compensation Scheme (CICA, April 1996); CICA Annual Report, 1996/7; Criminal Injuries Compensation Board, 33rd Report (March 1998).
David Rowan is editor of the Analysis page.
(The Guardian, April 3 1998)
posted by David Rowan at Friday, April 03, 1998
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