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intentionally or recklessly). Accidental injuries su¬ered while engaged in law
enforcement activities (arresting or attempting to arrest an o¬ender or suspected
o¬ender, preventing or attempting to prevent an o¬ence, or assisting a constable)
are covered; as are injuries su¬ered in the course of ˜any other activity directed to
containing, limiting or remedying the consequences of a crime™; provided, in both
cases, that at the time the injuries were su¬ered, the victim was taking ˜an excep-
tional risk which was justi¬ed in all the circumstances™.86 It does not matter what
the immediate cause of the injuries was, provided the Authority is prepared to
treat them as directly attributable to the law-enforcement activity. But innocent
bystanders injured in the course of law-enforcement activities are not entitled to
compensation.87
The Guide to the 1996 Scheme attempted to de¬ne ˜exceptional risk™ by giving
examples of risks that cannot be so de¬ned.88 Compensation would not normally
be awarded, for example, to a police o¬cer who trips over while running after an
o¬ender, or is injured while climbing over a fence.89 An act which would not be
regarded as presenting an exceptional risk if done in daylight might be so regarded
if done at night. Civilians are more likely to be treated as taking an exceptional risk
than a police o¬cer or ¬re-¬ghter. Police o¬cers injured in tra¬c accidents during
car chases are unlikely to be compensated in the absence of an exceptionally risky
factor such as extreme adverse weather conditions.90
Despite the ˜exceptional risk™ limitation, it is di¬cult to appreciate the justi-
¬cation for the inclusion of such cases in the Scheme, given that if the victim is a
police o¬cer,91 they will be covered by the industrial injuries scheme (by virtue of
being an employed worker); and if the victim is an ordinary citizen, they will be
entitled in the normal way to social security bene¬ts. The rationale for awarding
compensation in such cases must be very di¬erent from the original aim of the
Scheme which was, essentially, to compensate the victims of intentional violence.
One of the problems is that the relationship between the CICS and other compen-
sation schemes has never been properly thought out. Although social security
bene¬ts, tort damages and compensation received under compensation orders are

86 2001 Scheme, para. 12. As we saw earlier, the proviso does not apply to the crime of trespass on a
railway. A government proposal to remove such cases from the CICS was abandoned in the face
of opposition from twelve respondents to a Home O¬ce consultation paper: Home O¬ce,
˜Compensation and Support for Victims of Crime™ Summary of Responses to a Home O¬ce
Consultation Paper (2004), 17.
87 K. Williams, ˜Compensation for Accidental Shootings by Police™ [1991] New LJ 231.
88 Paras. 7.16“17.
89 Unless doing so was essential and the victim did not or could not see what was on the other side.
90 Contrast the decision at common law in which a police o¬cer injured during a car chase was
awarded £286,000 damages for injuries attributable to negligent driving by the person being
chased: The Times, 16 January 1997.
91 In 2002“3 awards were made to 1,700 police o¬cers injured on duty (4% of resolved cases).
Compensation for criminal injuries 315

all set o¬ against awards under the Scheme, no systematic attempt has ever been
made to justify awarding compensation under the CICS (which may be greater than
that available from other sources) when alternative sources of compensation exist.
A related issue arose in a case in which a man deliberately drove his car at
another man, seriously injuring him.92 The defendant was not insured against
liability, and the House of Lords held that the MIB was liable to pay damages.
Although the CICS does not, in general, cover injuries attributable to tra¬c
o¬ences,93 it does include cases of deliberate injury resulting from the use of motor
vehicles. The MIB argued that the claimant ought to have brought his claim under
the CICS and not against the MIB. The House held that he had a choice between
the two schemes, and was entitled to choose the MIB alternative, which the House
considered to be more advantageous to him than the CICS. The House seems to
have ignored the fact that the CICB did not make awards in such cases where com-
pensation was available from the MIB or under an insurance policy. This sort of
issue is bound to arise so long as there exists a variety of compensation schemes
with overlapping rules of entitlement. The only way of eliminating such problems
is to adopt a uni¬ed compensation scheme based on the claimant™s need rather than
on the cause of injuries.

12.4.2.3 Exclusions
As we have just seen, the CICS does not cover injuries resulting from tra¬c
o¬ences, except where the injuries are due to a deliberate attempt to run the victim
down, or where they are directly attributable to law-enforcement activities. The
reason for this exclusion is that there are usually other means of ensuring that ade-
quate compensation is paid in these cases.
Another important restriction relates to violence within the family. In 1963, F.H.
McClintock found that as many as 30.8% of criminal assaults were ˜domestic™,
although he included within this category quarrels between neighbours, not merely
assaults on members of the same family.94 Subsequent research suggests that
perhaps 15% of indictable crimes of violence occur within families.95 Where the
victim and the person responsible for the injuries were living in the same house-
hold as members of the same family at the time the injuries were in¬‚icted, several
conditions have to be satis¬ed before compensation is payable.96 These conditions
are mainly designed to exclude cases of collusion between victim and o¬ender; so,
normally, the o¬ender must have been prosecuted. If o¬ender and victim are both
adults, they must be no longer living together at the time of the application.
Furthermore, the Authority will not award compensation where it appears that the


92 Gardner v. Moore [1984] AC 548.
93 2001 Scheme, para. 11; Guide, 22.
94 Crimes of Violence (London, 1963), 32.
95 Review of the Criminal Injuries Compensation Scheme: Report of an Interdepartmental Working
Party, 89.
96 2001 Scheme, para. 17.
316 Chapter 12

o¬ender might bene¬t from it.97 Where the claimant is under 18 years of age, com-
pensation will not be awarded unless the Authority is satis¬ed that this will not be
against the claimant™s interests.98 Awarding a child compensation in respect of an
act of an adult member of the same family may only have the e¬ect of making rela-
tions between the adult and the child even more strained, especially if they continue
to live as a family. A violent adult may well try to extract the compensation from
the child.
Although one naturally feels sympathy for children who su¬er as a result of crim-
inal violence and abuse, the Scheme does create considerable anomalies. Suppose
a man is convicted of murdering his spouse or partner and is sent to gaol. His chil-
dren will be entitled to substantial compensation from the Scheme for loss of their
mother™s services and income. Is there a rational justi¬cation for awarding such
compensation when nothing is awarded to a child who is, say, orphaned through the
death of both parents without anyone™s fault? If fault is the essential element, is it
evident that death or injury of one spouse in an accident in the home caused by the
negligence of the other (for which, in practice, a child is highly unlikely to receive
any tort compensation) is less worthy of sympathy and compensation?

12.4.3 Comparison between the CICS and tort liability
12.4.3.1 Mental distress and nervous shock
In tort law, personal injury includes mental as well as bodily injury. Similarly, ˜per-
sonal injury™ for the purposes of the CICS includes ˜mental injury™. In tort law,
compensatable mental injury is limited to psychiatric illnesses and conditions,
whereas under the 2001 Scheme it is de¬ned more widely to include ˜temporary
mental anxiety, medically veri¬ed, or a disabling mental illness con¬rmed by psy-
chiatric diagnosis™.99 The tari¬ of CICS compensation payments elaborates this
de¬nition by listing various psychological and physical symptoms. As in tort law,
mental injury may attract compensation under the CICS whether or not it is
accompanied by physical injury. The basic rules of recovery under the Scheme for
mental injury standing alone are similar to, but somewhat narrower than, their
common law counterparts; and there are special provisions relating to sexual
o¬ences and the o¬ence of trespass on a railway. Unlike the common law,100 the
Scheme does not cover shock attributable to loss of possessions because (with the
minor exception of physical aids) loss of or damage to property is not covered by
the CICS.
97 Ibid., para. 16(a). This condition applies to all applications, not just those arising out of domes-
tic violence. The tort system does not normally object to compensation being given even though
the tortfeasor might bene¬t from it (but see 6.2.3). Indeed, the Law Reform (Husband and Wife)
Act 1962 was enacted to enable a spouse to obtain damages from the other spouse(™s insurers)
in the case of injuries in road accidents, though there is clearly a di¬erence between paying com-
pensation to a spouse in such a case, and paying it where the other spouse has been guilty of
a criminal assault on their partner.
98 2001 Scheme, para. 16(b).
99 2001 Scheme, para. 9.
100 Attia v. British Gas Plc [1988] QB 304.
Compensation for criminal injuries 317

Mental injury, like all other injury, quali¬es for compensation under the CICS
only if it was ˜directly attributable™ to a crime of violence. In one case, the mother
and stepfather of a child su¬ered reactive depression as a result of learning that
their child had been the victim of serious indecent assaults by the stepfather™s father
over a period of time.101 The judge held that on the facts, the Board had been enti-
tled to deny compensation. However, he also said that if the claimants had su¬ered
mental injury as a result of being given a graphic description of one of the assaults
by their child, almost immediately after it had occurred, at a time when the child
was obviously very upset about the incident, the mental injury could properly be
said to be directly attributable to the crime. By contrast, under English common
law it seems that there can be no recovery for psychiatric injury su¬ered as a result
of being told of the death of or injury to another.

12.4.3.2 Conduct of the claimant
Paragraphs 13(d) and (e) of the 2001 Scheme give the CICA a wide discretion to
reduce an award or to make no award at all because of the conduct of the clai-
mant102 (before, during or after the o¬ence), or of their character as shown by crim-
inal convictions or by other evidence. These provisions have some a¬nity with the
common law concept of contributory negligence103 in that they involve looking
at the conduct of the victim; they also cover ground which might be covered by the
defences of illegality and volenti non ¬t injuria (assumption of risk) and the notion
of intervening cause. However, they are much wider than any of these because they
allow account to be taken of the victim™s character as well as their actions, and
because there need be no causal relationship at all between the relevant conduct of
the victim and the injuries.104 Consider the following claims under the Scheme: a
man is having an a¬air with a married woman, and is assaulted or beaten up by the
woman™s husband;105 a claimant was drinking in a low-grade public house, ¬‚ashing

101 R v. Criminal Injuries Compensation Board, ex parte Kent and Milne [1998] PIQR Q98.
102 Where the victim is killed and the claim is made by dependants, both the claimants™ and the
victim™s conduct and character are relevant: 2001 Scheme, para. 15.
103 In R v. CICB, ex parte Ince [1973] 3 All ER 808 the Court of Appeal said that this provision
should not be thought of in terms of the doctrine of contributory negligence. This is partly
because the CICA can take into account a much wider range of factors than are included within
the concept of contributory negligence; and also because, both at common law and under the
Scheme, mere negligence, when weighed against a violent intentional assault, may rightly be
disregarded as immaterial. It is not clear why it is wrong to think in terms of contributory neg-
ligence at least in relation to accidental injuries which fall within the Scheme. Such injuries
tend to occur in ˜emergency™ situations, such as ¬re-¬ghting or law enforcement, and in such
cases the common law tends to take a rather lenient attitude towards mere negligence on the
part of the claimant.
104 Past criminal convictions may be relevant even if they are totally unconnected with the inci-
dent if the applicant was injured. Guide, 26“9 sets out a points system for calculating the pos-
sible percentage reduction of the award; Miers, State Compensation for Criminal Injuries, 159“60.
Use of these provisions to justify low awards in rape cases (e.g. CICB Twenty-Seventh Report
(Cm 1782, 1991), para. 24.5) has been particularly controversial: Independent on Sunday,
20 December 1992, 6; F. Bawdon, ˜Putting a Price on Rape: Increasing Compensation Awards™
[1993] New LJ 371.
105 CICB Fourth Report (Cmnd 3814, 1968), para. 11(4)(d).
318 Chapter 12

money around, and is subsequently robbed while in a drunken condition;106 a man
is solicited by a prostitute and then beaten up by her associates.107 Cases of this sort
at ¬rst caused much disagreement amongst CICB members, but it is now clear108
that even the most tenuous connection between the applicant™s conduct or charac-
ter and the injuries can bar compensation. By contrast, consider the tort case of
Revill v. Newbery109 in which a burglar was awarded damages (reduced on account
of contributory negligence) for injuries su¬ered when the property owner negli-
gently shot at him. To deny liability, Evans LJ said, ˜would mean . . . that the tres-
passer who was also a criminal was e¬ectively an outlaw™.110
The aim of the provision dealing with the claimant™s conduct and character
seems to be to restrict the Scheme to ˜deserving™ victims and to exclude ˜delinquent™
victims from its bene¬ts.111 Indeed, the CICA™s professed aim is to support ˜blame-
less™ victims of violent crime.112 An applicant can be denied compensation simply
because the CICA considers that they are ˜not the sort of person™ to whom taxpayer-
funded compensation ought to be given. The only analogous principle at common
law is that damages will not be awarded under the Fatal Accidents Act 1976 to the
extent that the deceased maintained dependants out of the proceeds of crime;113
nor will an injured person be compensated for loss of actual or potential ˜income™
from crime. The signi¬cance of claimant conduct as a basis for refusing to make an
award can be gauged by the fact that in 2002“3, of the 38,884 claims that were dis-
allowed (as compared with 42,283 awards made), 7,253 were rejected because of
the claimant™s conduct or criminal record.114
The Guide contains detailed provisions about ¬ghts. Compensation will not
normally be awarded if the victim voluntarily participated in the ¬ght (even if it
turns out to be much more serious than expected); or, without reasonable cause,
struck the ¬rst blow (regardless of the severity of the retaliation); or provoked the
attack; or was taking revenge. Nor will an award be made if the ¬ght was part of a
pattern of violence between the victim and the assailant; or if the victim was intox-
icated.115 The CICB has said that a ˜realistic attitude™ to ¬ghts is appropriate so as to
avoid just compensating the loser or the one with the more serious injuries.116 It
seems that similar results might be reached at common law as a result of the

106 Ibid., para. 11(4)(e).
107 Ibid.
108 R v. CICB, ex parte Thompstone [1984] 1 WLR 1234.
109 [1996] QB 567. But note Tony Weir™s outrage: ˜Swag for the Injured Burglar™ [1996] Cambridge
LJ 182.
110 [1996] QB 567, 579.
111 Miers, State Compensation for Criminal Injuries, 156“9. The Guide to the old Scheme made it
clear that members of violent gangs were very unlikely ever to receive compensation however
their injuries occurred; and that terrorists would never be compensated: para. 33.
112 E.g. CICA Annual Report 2002“3, 4.
113 Burns v. Edman [1970] 2 QB 541.
114 Another 9,500 or so were rejected because of the claimant™s failure to report the crime in a timely
fashion or to co-operate with the police in bringing the assailant to justice.
115 Guide, 25“6.
116 CICB Nineteenth Report (Cmnd 9193, 1983), para. 29.
Compensation for criminal injuries 319

decision in Murphy v. Culhane,117 in which it was held that if a person initiates a
serious assault on another, and then gets more than they bargained for, any claim
in tort by the initiator may be met by pleas of volenti non ¬t injuria, illegality or, in
an appropriate case, contributory negligence. But at common law, unlike under the
CICS, a trivial assault which is met by savage retaliation may still entitle the victim
to full damages.118 This di¬erence in result may, once again, be justi¬ed on the basis
that the CICS is funded by the State, not by o¬enders. Tort law does not distinguish
between an action in which the damages will be paid by the tortfeasor and one in
which they will be paid by someone else, for example, an employer. Insurers would
rarely be responsible for payment of damages in this sort of case because few lia-
bility policies would cover criminal assault.119
Normally, no award will be made unless the applicant has reported the crime
to the police, though in some cases a report to some other authority (such as a
school in the case of violence amongst students) may su¬ce. This is partly a pro-
tection against fraud,120 and partly an aspect of the concept of the blameless
victim. But it does raise issues of equity and fairness in the Scheme™s operation. For
example, unemployed people are less likely to report crime than people in work;
and crimes of which women are the main victims “ rape and domestic violence,
for instance “ are seriously under-reported. Moreover, awards are not made in
cases of domestic violence unless the o¬ender has been prosecuted or, in the case
of violence between adults, the applicant has separated from the assailant (2001
Scheme, para. 17).

12.4.3.3 Assessment of compensation
It is in relation to the assessment of compensation that the new Scheme di¬ers most
from the old Scheme. Under the old Scheme, compensation was, in general,
assessed according to the same rules (including statutory rules) as govern the award
of damages by the courts in claims for personal injury and death; but there were
certain important exceptions to this principle. In the ¬rst place, in the interests of
economy, awards were made only in cases where the amount of compensation
payable was not less than £1,000 after deduction of social security bene¬ts, but
ignoring other deductions required under the Scheme (so, in practice, awards of
less than £1,000 could be made).121 In 1985 the Home A¬airs Committee122 thought
that the threshold was too high when it stood at £400, but it no doubt had the

117 [1977] QB 94.
118 Lane v. Holloway [1968] 1 QB 379.
119 It would be ˜contrary to public policy™ for an insured person to enforce payment under a liabil-
ity policy for their own bene¬t where they have been guilty of criminal conduct, but this does
not prevent the policy being enforced for the bene¬t of a third party: Hardy v. MIB [1964] 2 QB
745; see also Gray v. Barr [1970] 2 QB 626.
120 See also National Audit O¬ce, Compensating Victims of Violent Crime (2000), paras. 3.23“6.
121 This threshold produces a compensation gap because criminals are rarely worth suing in tort,
and many victims of crime do not bene¬t from compensation orders, which are, anyway, typic-
ally for an amount less than £1,000.
122 Report, HC 43 (1984“5), para. 50.
320 Chapter 12

advantage of discouraging a large number of small claims. As we saw earlier, all the
evidence suggests that trivial injuries and losses are vastly more common than more
serious injuries and losses.123
There was also an upper limit on awards for net loss of earnings, namely one-
and-a-half times ˜gross average industrial earnings™ at the date of assessment. So far
as compensation for non-pecuniary loss was concerned, the Board issued guide-
lines for the award of compensation for non-pecuniary loss in particular types of
case.124 The ¬gures125 included £20,000 for the loss of an eye, £11,500 for loss of
hearing in one ear and £1,750 for the loss of two upper front teeth. A large facial
scar rated £6,000 for a male and £9,000 for a female. Each case was considered on
its own facts in the light of these guidelines.
In fatal cases under the old Scheme, dependants, as de¬ned in the Fatal Accidents
Act 1976, could make a claim and the compensation was assessed along the same
lines as in proceedings under that Act (with the same limit as above on compensa-
tion for loss of income). An award for bereavement could be made. No compensa-
tion (other than for funeral expenses) was payable for the bene¬t of the deceased™s
estate.126
The majority of awards under the old CICS were for relatively small sums. In
1996“7, 2.7% were for sums under £1,000 and 83.1% for sums under £5,000; only
14.2% of awards exceeded £5,000, and only fourteen applicants received more than
£500,000 (the largest award in 1996“7 was about £1.1 million).127
As far as assessment of compensation is concerned, the new ˜enhanced tari¬™
scheme is a cross between a tari¬-based, social security-type scheme and the
common law. The tari¬ element “ called the ˜standard amount of compensation™ “
is determined by reference to the nature of the injury su¬ered by the claimant.
Under the tari¬ there are twenty-¬ve levels of compensation and more than four
hundred separately listed injuries. Compensation at level 1 is £1,000,128 and at
level 25, £250,000. For instance, quadriplegia attracts compensation at level 25,
while deafness lasting 6“13 weeks attracts compensation at level 1. A perforated ear
drum attracts compensation at level 4 (£1,750), permanent moderately blurred
vision at level 12 (£8,200), severe multiple injuries resulting from child abuse at
level 14 (£13,500), loss of an arm at level 20 (£44,000) and so on. Compensation


123 This is also borne out by the Osgoode Hall Study (Victims of Crime), 35, table VIII which showed
over 28% of victims of crimes of violence with out-of-pocket losses less than $100 and (since
44% had no out-of-pocket losses at all) an equal percentage with losses exceeding this ¬gure.
Of course, this does not take into account pain and su¬ering and loss of amenities; but, on the
other hand, in many cases it includes an item for medical expenses “ which would not normally
arise in this country.
124 Punitive damages cannot be awarded under the CICS.
125 See CICB Thirty-Third Report, Appendix G.
126 Old Scheme, para. 15. See 2001 Scheme, para. 37.
127 CICB Thirty-Third Report, para. 3.15.
128 In 2002“3, 10,670 applications were rejected because the injuries su¬ered were found not to be
serious enough to justify an award of £1,000.
Compensation for criminal injuries 321

for mental injury ranges from level 1 to level 18, and sexual assault from level 1 to
level 19.129 In the words of Baroness Blatch:130
Under the enhanced tari¬ scheme we do not try to make a ¬nely judged assessment of
compensation, in the sense of attempting to put the individual back into the position
in which he or she would have been had the attack not occurred. What we aim to do is
to make a generous payment in recognition of society™s concern for the blameless
victim of violent crime.

The tari¬ approach has been widely criticized for being in¬‚exible and unfair
because it does not take account of the individual claimant™s circumstances.131 It
was argued that, as at common law, the tari¬ should consist of compensation bands
rather than ¬xed amounts for itemized injuries (of which more than 400 are listed
in the 2001 Scheme). But the government resisted this argument on the basis that
the use of bands would defeat the whole point of the tari¬ scheme, which was to
provide quicker, simpler and more transparent decision-making.
At the time the new Scheme was ¬rst introduced in 1996, the highest standard
amount of compensation “ £250,000 at level 25 “ was very much higher than the
highest awards for non-pecuniary loss at common law (then about £130,000). The
explanation for this lies in the way the standard amounts were arrived at. Under
the ¬rst tari¬ scheme introduced by the government (which was subsequently held
illegal), the standard amounts were the only compensation available “ there were
no additional amounts for loss of earnings or for expenses. The standard amounts
were arrived at by calculating the median of past awards for various types of
injuries under the old Scheme. Such awards included compensation for loss of
earnings and expenses as well as for non-pecuniary loss. The standard amounts,
therefore, included a component for pecuniary loss. When the current enhanced
tari¬ scheme was introduced in 1996, the same standard amounts were used, even
though (as we shall see) ˜additional amounts™ for loss of earnings and for expenses
are available under the new Scheme. On the other hand, such additional amounts
are not payable in respect of the ¬rst 28 weeks of loss of earnings (although
expenses can attract compensation from the date of the injury). Moreover, com-
pensation ˜in respect of the same injury™ under the new Scheme is capped at
£500,000;132 and where a claimant has su¬ered multiple injuries as a result of a
crime, the tari¬ award will consist of the standard amount for the highest rated
injury plus 30% of the standard amount for the second highest-rated injury and

129 ˜The Tari¬ includes an element of compensation for the degree of shock which an applicant in
normal circumstances would experience as a result of an incident resulting in the injury™: 1996
Guide, para. 4.9. It is only more serious shock which attracts compensation in its own right.
130 HL Debates, vol. 566, col. 637 (16 October 1995).
131 For other criticisms of tari¬s see 13.4.3.2.
132 2001 Scheme, para. 24. Suppose that if there was no upper limit on compensation, an applicant™s
standard amount of compensation plus compensation for loss of earnings and expenses would
be £1 million. Still, the maximum award is £500,000, and that before any deduction, e.g. to take
account of the applicant™s contribution to the injury-causing incident. So if the applicant™s con-
tribution were assessed at 20%, only £400,000 would be awarded.
322 Chapter 12

15% of the standard amount for the third highest-rated injury. As under the old
Scheme, £1,000 (the standard amount at level 1) is the minimum award available
under the CICS. The net result of these various rules is that in more serious cases,
in particular, awards under the CICS may be much lower than at common law for
equivalent injuries and losses.
As has been noted, as well as the standard amount of compensation, the
Authority may award ˜additional amounts™ for ˜loss or earnings or earning capac-
ity™ and for ˜special expenses™, provided the applicant has lost earnings or earning
capacity for longer than 28 weeks as a direct consequence of the criminal injury
su¬ered. No compensation for lost earnings can be awarded for the ¬rst 28 weeks
of loss. The 28-week period coincides with the period for which statutory sick pay
(and the lower rate of short-term incapacity bene¬t)133 is payable. In cases where
compensation for expenses is available, it is calculated from the date of injury. As
at common law, the multiplier method is used in relation to continuing future
expenses and loss of income. The basis for arriving at the multiplicand is the ¬gure
for ˜net loss of earnings™ (as de¬ned in para. 32 of the 2001 Scheme). The
maximum amount of net loss of earnings that can be taken into account is set at
one-an-a-half times ˜gross average industrial earnings™ at the time of assessment.
(In 2002 average weekly earnings of full-time male employees in manufacturing
industries134 were about £480, and of female employees about £349.) Net earnings
above this ¬gure are ignored. This maximum is probably not aimed at keeping
costs down: the number of potential applicants whose net earnings are more than
£480 must be very small indeed. The real reason for the limitation is that it was
thought to be inequitable to have widely varying awards for similar injuries
because of wide variations in earnings, given that the CICS is ¬nanced by the tax-
payer and not according to an insurance principle under which those earning
more pay higher contributions. The ethical problems involved in the earnings-
related principle have already been discussed.135
In fatal cases under the new Scheme,136 the compensation payable includes a
standard amount “ at level 13 (£11,000) if there is only one qualifying claimant, and
at level 10 (£5,500) for each qualifying claimant, if more than one. Where the
deceased died as a direct consequence of the criminal injury, additional compen-
sation may be payable where a claimant was ¬nancially dependent on the deceased.
Such compensation is calculated as from the date of death and in basically the same
way as in a fatal accident claim at common law. A dependent claimant under 18 may
recover in addition an annual payment for loss of the parental services of a deceased
parent (at level 5 (£2,000)). Where the deceased™s death is not a direct consequence
of the criminal injury, but the deceased, had they lived, could have recovered addi-

133 See 13.4.3.1.
134 The term ˜average industrial earnings™ has no technical meaning. The ¬gure given is the nearest
equivalent in published statistics.
135 6.3.
136 2001 Scheme, paras. 37“44.
Compensation for criminal injuries 323

tional compensation for loss of earnings of expenses, supplementary compensation
may be awarded to dependants calculated in accordance with the rules for assess-
ing additional damages for lost earnings and expenses. There are two respects in
which compensation in fatal cases is more generous under the new Scheme than at
common law. First, the amounts of standard compensation payable under the
Scheme are higher than damages for bereavement under the Fatal Accidents Act
1976 (currently £10,000 to be divided amongst all claimants), and they are payable
to a larger class of claimants than under the Act. Secondly, compensation for loss
of parental services is not, as such, available at common law.
As noted above, the maximum award under the new Scheme is £500,000, which
is considerably less than the highest awards under the old Scheme, and very much
less than the highest awards at common law. Awards usually take the form of a lump
sum, but the CICA can make a structured settlement.
The general pattern of awards under the new Scheme is similar to that under the
old Scheme. About 86% of applicants received tari¬ awards of £5,000 or less. Only
46 of more than 42,000 awards were for £30,000 or more. The maximum tari¬
award of £250,000 was made in three cases, and the maximum award of £500,000
in four cases.
One very important distinction between the assessment of damages in tort and
compensation paid under the CICS is that under the Scheme, many more deduc-
tions are made from compensation to take account of the existence of alternative
forms of compensation.137 The di¬erence between awards under the CICS and tort
damages in this regard is particularly pronounced in relation to compensation
awards under the Fatal Accidents Act 1976 which, as we will see, are very favourably
treated in terms of deductions. Under the old Scheme, the deductions were made
from the total award of compensation. Under the new Scheme, certain amounts are
deducted from the total CICS award (2001 Scheme, paras. 48, 49)138 while others
are set only against compensation for loss of income or expenses (2001 Scheme,
paras. 45“7).
It has been pointed out that when the establishment of the CICS was being
debated in the early 1960s, no clear explanation or justi¬cation was given for the
adoption of common law damages as the model for compensation under the
Scheme.139 The introduction of the ¬rst tari¬ scheme in 1994 seems to have been
prompted primarily by a desire to reduce, or at least contain, the cost of the CICS;
and the enhanced tari¬ scheme, introduced in 1996, was designed to assuage
criticism of the 1994 Scheme. In 2001, the level of most tari¬ awards was increased
by 10%, but the level of awards for sexual o¬ences and child abuse was increased
more than this, suggesting a concern to mark the perceived seriousness of certain

137 15.4.
138 It follows that although no award can be made unless the injuries were serious enough to justify
a tari¬ award of £1,000, the actual payment may be less than £1,000.
139 P. Du¬, ˜The Measure of Criminal Injuries Compensation: Political Pragmatism or Dog™s
Dinner?™ (1998) 18 OJLS 105.
324 Chapter 12

o¬ences. Thus the rules for assessment of CICS compensation rest on a mix of
ideas. Tari¬ awards address the seriousness of the injury su¬ered and, to a lesser
extent, the seriousness of the o¬ence, while payments for loss of income and for
expenses promote the common law™s traditional goal of compensation for harm.

12.4.4 Administration
When we turn to the administrative machinery of the Scheme we ¬nd major depar-
tures from the processes of the common law. Under the new Scheme, applications
for compensation are determined by claims o¬cers on the basis of written mater-
ial without an oral hearing. A decision of a claims o¬cer may be reconsidered in
the light of new evidence or changed circumstances at any time before ˜actual
payment of a ¬nal award™ (2001 Scheme, para. 53). Moreover, an award may be
re opened (normally no more than 2 years after the date of the ¬nal decision):140
. . . where there has been such a material change in the victim™s medical condition that
injustice would occur if the original assessment of compensation were allowed to
stand, or where he has since died in consequence of the injury.

The claimant may seek a review of a decision of a claims o¬cer, and the review will
be conducted by a more senior claims o¬cer. A claimant who is dissatis¬ed with
the outcome of a review may appeal within 90 days of the review decision. Appeals
are heard by adjudicators who are members of the Criminal Injuries Compensation
Appeals Panel (CICAP). Where the appeal is against a decision to make, withhold
or seek repayment of an award, there may be an oral hearing (normally in private)
before at least two adjudicators. The claimant may be represented by a legal or non-
legal adviser at an oral hearing, but must bear the cost. If the appellant fails to attend
the hearing without giving a reasonable excuse, it may take place in their absence;
but such an appellant may apply to have the appeal reheard. This elaborate mixture
of administrative and quasi-judicial modes of decision-making is perhaps a
re¬‚ection of the mixed nature of the new Scheme, having, as it does, tari¬ and non-
tari¬ (tort-like) elements, the latter requiring much more attention to individual
circumstances than the latter.
The cost of administering the Scheme in 1996“7 was 8.8% of total expenditure;
and in 2002“3, 13.5% of total expenditure. These ¬gures compare favourably with
the cost of administering the social security system, and are very much lower than
the cost of administering the tort system, as we shall see later.141 However, it is sur-
prising that the administrative cost of the new, and supposedly simpler and less
resource-intensive, Scheme is signi¬cantly greater than that of the old Scheme.
One of the besetting problems of the old Scheme was the time taken to process
applications and the size of the backlog of claims waiting to be dealt with; and one
of the main justi¬cations for the new Scheme given by the government was that


140 2001 Scheme, para. 56.
141 16.1.
Compensation for criminal injuries 325

claims could be dealt with more quickly. Under the old Scheme, in 1993“4, 30% of
claims took more than 12 months to resolve; in 1996“7 this ¬gure had jumped to
52%. As at 31 March 1997 there was a backlog of about 44,167 unresolved applica-
tions despite the fact that no new applications under the old Scheme were received
after 1 April 1996. As for cases that went to a hearing under the old Scheme, in
1996“7, only 37% were resolved within 12 months of the request for a hearing
being made. As at 31 March 1997 there was a backlog of more than 25,400 unre-
solved hearings. Because ¬gures were not given for how long it took to resolve the
large number of cases that were still active after 12 months, it was di¬cult to
compare the old Scheme with the tort system in this respect. However, it was clear
from the ¬gures available that the CICS (like the tort system) could not be seen as
a source of immediate ¬nancial help.142
Under the new Scheme, of the cases resolved in 2002“3, about 24% took more
than 12 months; and as at 31 March 2003 there was a backlog of more than 91,000
cases, despite the fact that there were fewer new applications in 2002“3 (73,928)
than in recent previous years. The drop in the backlog (5,300) was less than the
drop in new applications. On the other hand, as at 31 March 2004 the backlog of
cases on appeal was only about 5,000. It is hard to resist the conclusion that, overall,
the Scheme is signi¬cantly under-resourced.
Advice and assistance (˜legal help™) is available under the publicly funded legal aid
scheme for applications to the CICA, but legal representation is not; and the CICA
cannot pay for representation.143 However, it seems that many solicitors would be
willing to act for a claimant on a no-win, no-fee basis; and claims management com-
panies operate in the criminal injuries compensation area. In 1980, the last year for
which statistics were kept, 34% of applicants were represented by solicitors in respect
of initial decisions, while 19% were represented by a trade union representative.
A small survey by the National Audit O¬ce in 2000 found that almost two-thirds of
applicants sought assistance in making their claim.144 The rest acted on their own
behalf. In the typical appeal, where there is an oral hearing, about half of applicants
are advised or represented by a lawyer, a non-legal adviser or a friend/relative.145 The
CICAP describes the quality of representation at appeals as ˜variable™, but observes
that represented appellants ˜generally appear to feel more comfortable™ whatever


142 Shapland, ˜Victims, the Criminal Justice System and Compensation™, 144“7.
143 Moreover, there is no ˜defendant™ against whom an order for costs could be made. In evidence to
the Home A¬airs Committee (Compensating Victims Quickly: the Administration of the Criminal
Injuries Compensation Board (HC 92, 1989“90)), Victim Support, the Law Society and the TUC
all supported giving the Board power to pay applicants™ costs of investigating claims. Under the
new Scheme, the adjudicators who hear an appeal can direct the CICA to ˜meet reasonable costs
[other than costs of representation] incurred by the appellant and any person who attends to
give evidence at the hearing™: 2001 Scheme, para. 74.
144 Compensating Victims of Violent Crime (2000), para. 2.8. In a small sample, the NAO found little
di¬erence between the success rate of represented and unrepresented applicants; but also that
represented applicants were twice as likely to appeal as the unrepresented.
145 Criminal Injuries Compensation Appeal Panel, Annual Report 2003“4, 10. In 2003“4 about 46%
of appeals (1,876) were successful.
326 Chapter 12

the quality of representation. Because the hearing process is not adversarial,
representation is, perhaps, less critical than in proceedings before an ordinary court.
In 1978, the success rate of those who are represented at hearings was estimated to be
much higher than the success rate of those who are not.146 This is consistent with other
research into the e¬ectiveness of representation before tribunals. However, in 2000 the
National Audit O¬ce found that the di¬erence between the success rates of repre-
sented and unrepresented appellants was less than 2%.147
Although there is no further right of appeal from decisions of the CICAP, the
Panel™s decisions can be challenged by application for judicial review in the Admin-
istrative Court. In 2002“3, fourteen such applications were made, and ¬fteen were
decided by the court, all in the CICAP™s favour.148

12.4.5 Claims consciousness
Since the CICS was started in 1964, the Board has been conscious that the level
of claims has been a good deal lower than might have been expected merely by
looking at the ¬gures for crimes of violence against the person. Typically, the
number of applications received in any one year under the old Scheme was only
about a ¬fth of the noti¬able crimes of violence recorded by the police in that year.
One of the reasons for introducing the new tari¬ scheme was to make it ˜more
accessible to, and better understood by, members of the public™.149 However, the
number of applications has remained more or less the same in recent years, and
actually fell in 2002“3. The British Crime Survey estimated that there were about
2.4 million violent incidents against adults in England and Wales in 2004, of which
about half might have resulted in personal injury. However, in many of those cases,
the victim would have su¬ered only minor injuries that would not qualify for CICS
compensation.150 In addition, the domestic violence exclusion (2001 Scheme,
para. 17) no doubt cuts out a large number of potential claimants.
However, there is still reason to think that a signi¬cant number of potential
claimants remain unaware of their rights under the Scheme and fail to claim.151 One
researcher found that over half of the victims surveyed ˜did not know of any means
to obtain compensation, although between 57 and 64% would have wished it™; and,
moreover, that there was no evidence that the majority who did not apply to the
Scheme were less likely to qualify for compensation than the minority who did.152

146 70“85% as against 43% according to the Review of the Criminal Injuries Compensation Scheme:
Report of an Interdepartmental Working Party, 75.
147 Compensating Victims of Violent Crime, para. 2.9.
148 Summaries and transcripts of judicial review applications are available on the CICAP™s website.
149 CICA Annual Report 1995/6, 7.
150 According to F.H. McClintock™s ¬ndings, at least 75% of victims of violent crime were back at
work within a week, about 12% were o¬ work for 10 days, and less than 2% su¬ered permanent
disability: Crimes of Violence, 54.
151 For unknown reasons, the rates of applications by victims of violent crime varies greatly around
the country: National Audit O¬ce, Compensating Victims of Violent Crime (2000),
paras. 2.14“16.
152 Shapland, ˜Victims, the Criminal Justice System and Compensation™, 144.
Compensation for criminal injuries 327

In 1990 the House of Commons Home A¬airs Committee, in its report on the CICS,
expressed itself to be sure that many who are entitled do not claim, and suggested
that special attention should be given to the possibility of claims for compensation
by child victims of crime and abuse.153 The CICA is aware of the need to make the
Scheme more widely know to potential applicants and in 2002“3, for instance,
launched a poster and lea¬‚et campaign in police stations, doctors™ surgeries and
Victim Support o¬ces which, it is said, generated a signi¬cant increase in tra¬c to
the Authority™s call centre. Whether such steps will be re¬‚ected in increased numbers
of applications remains to be seen.

Postscript: Rebuilding Lives: Supporting Victims of Crime (December 2005)
announced proposals to reduce the amount spent on criminal injuries compensa-
tion and to spend the savings on other forms of support for victims. The plan
(except in relation to fatal cases and sexual o¬ences) is to limit the CICS to ˜serious™
injuries; to abolish additional payments for loss of earnings and care costs; to
increase tari¬ payments for injuries remaining within the Scheme and to raise the
£500,000 cap. These proposals are designed not only to reduce the cost of the CICS
but also to reduce the time taken to handle claims. The CICA would be given power
to make interim awards. A further proposal to reduce the cost of the Scheme is to
remove from it injuries su¬ered ˜at work™.

153 Home A¬airs Committee Second Report, Compensating Victims Quickly (HC 92, 1989“90),
paras. 44, 45. See J. Plotniko¬, ˜Conference on Criminal Injuries Compensation for Children™
(1991) 10 Civil Justice Q. 30. In 1989“90 there were 4,825 applications to the Board in respect of
child abuse; in 1994“5 there were 13,162 such applications, and in 1995“6 there were 11,969.
13

The social security system*




13.1 Foundations of the social security system
13.1.1 Workers™ compensation
Although the origins of the modern social security system have been traced to the
poor law of the Elizabethan age,1 it is su¬cient for our purposes (since we are con-
cerned primarily with disability) to look no further back than 1897 when the ¬rst
Workmen™s Compensation Act was passed. In the nineteenth century the tort
system rarely provided any compensation to the victim of an industrial injury
because of the three defences which the courts had evolved for the protection of
employers “ namely common employment, denying liability for the negligence of
a fellow worker; contributory negligence, denying liability where the worker was
partly responsible for their own injuries; and volenti non ¬t injuria (assumption of
risk) which (as then interpreted) denied liability for injuries occurring from a
known and obvious risk. However, in 1880 Parliament passed the Employers™
Liability Act, which restricted the scope of the doctrine of common employment;2
and in 1891 the House of Lords limited the availability of the defence of volenti.3
Furthermore, between 1878 and 1901 a stream of new factory legislation emerged
dealing with the health and safety of workers, and the common law responded with
the creation of the action for breach of statutory duty.4
But these developments were dwarfed in signi¬cance by the enactment in 1897
of the Workmen™s Compensation Act, which broke away entirely from the common
law principle that liability must be based on fault, and conferred on a worker (or

* I am deeply indebted to Professor Nick Wikeley for his detailed comments on a draft of this
chapter. Of all the matters dealt with in this book, social security law is undoubtedly the most
di¬cult for the non-specialist to penetrate and understand. I know of no-one more knowledge-
able in this area than Nick. His help saved me from many errors. Of course, he bears no respon-
sibility for this version.
1 R. Cranston, Legal Foundations of the Welfare State (London, 1985), ch. 2.
2 The doctrine was not entirely abolished until 1948: Law Reform (Personal Injuries) Act 1948,
s. 1(1); W.R. Cornish and G. de N. Clark, Law and Society in England 1750“1950 (London, 1989),
522“8, 537“8.
3 Smith v. Baker & Sons [1891] AC 325.
4 The action for breach of statutory duty was ¬rmly established in Groves v. Wimborne [1898] 2 QB
402; but the development had begun in the 1850s: Cornish and Clark, Law and Society in England
518“20.


328
The social security system 329

the worker™s dependants) a right to compensation for any accident ˜arising out of
and in the course of employment™. In e¬ect, this Act treated workers as insured
against such risks, although employers were not compelled to insure against their
new statutory liability. In practice, however, most employers did insure against this
liability; indeed, the new and fast-growing liability insurance industry obtained a
tremendous boost from this species of liability.5 The Act did not follow the
common law in providing ˜full compensation™; it was based on the idea that indus-
trial risks should be shared between employers and employees. Compensation was
to be assessed on the basis that the employee was to bear half the loss, and the
employer the other half. Over the years, legislation gradually ate into this principle,
and by 1940 it was possible for compensation to be as much as seven-eighths of lost
earnings in some cases.6
Although in these two ways workers™ compensation broke away from common
law principles, in other important respects the new remedy was cast in the trad-
itional mould. For example, something very like contributory negligence remained
a defence to the employer under the Act: compensation was denied if the accident
was due to the worker™s ˜serious and wilful default™. In 1906 this defence was exclu-
ded by statute in cases of serious and permanent disablement and in fatal cases, but
it was still possible in some circumstances to deny compensation for an accident
caused by the worker™s fault (even though not serious and wilful) on the ground that
the worker™s conduct was beyond the ˜sphere of employment™, so that the resulting
accident was held not to arise ˜out of and in the course of employment™.
The administrative process of workers™ compensation law was also almost iden-
tical to that of the tort system. Disputed cases typically went to a county court, and
many cases were taken on appeal to the Court of Appeal and even the House of
Lords.7 The out-of-court settlement process was similar to that which is a feature
of tort claims today. The pressure on injured workers to settle was even greater than
it is now, partly because trade unions were not so willing and able as they are today
to give moral and ¬nancial support to litigation by their members; and partly
because (with no other social security payments to fall back on) an injured person,
or that person™s dependants, could not a¬ord to wait while a case meandered
through the legal process. Parties were free to settle the claim by the award of a lump
sum. Although the Act did envisage and provide for the award of compensation by
periodical, weekly payments to take the place of lost wages, insurance companies
preferred to dispose of claims in lump sums and often put pressure on accident

5 W.A. Dinsdale, History of Accident Insurance in Great Britain (London, 1954), 152; H.E. Raynes,
A History of British Insurance, 2nd edn (London, 1964). Insurers soon became skilled at contest-
ing claims and at securing settlements which were quite disadvantageous to the injured worker:
Cornish and Clark, Law and Society in England, 531“2; see also 513“14, 524.
6 Sir William Beveridge, Social Insurances and Allied Services (Cmnd 6404, 1942) (Beveridge
Report), para. 99 and 216“17, 233. For a detailed account of the legal developments of the nine-
teenth century see P.W.J. Bartrip and S. Burman, The Wounded Soldiers of Industry (Oxford, 1983);
also Cornish and Clark, Law and Society in England, ch. 7.
7 Cornish and Clark, Law and Society in England , 533“6.
330 Chapter 13

victims to accept them.8 Like tort law, the workers™ compensation system dealt with
partial incapacity as well as total incapacity.
The stipulation in the 1897 Act that the injury must have arisen ˜out of and in
the course of the employment™ meant that the employment must have been not
only a cause-in-fact of the injury, but also that there must have been some rela-
tionship between the employment and the injury similar to that embodied in the
common law notion of legal cause (5.3.1). This gave rise to di¬culty in respect of
diseases. Knowledge about the causes of many diseases was even more rudimentary
than it is now, and this generally made it impossible to require proof of causation
in individual cases. The solution eventually adopted was to include only those
industrial diseases that were known to be caused by certain types of work (e.g.
pneumoconiosis).9
The workers™ compensation system was, like the modern tort-cum-liability-
insurance system, one under which the worker was insured by the employer. No
contributions or premiums were exacted from employees, although in practice
some of the costs of the system were probably passed on to employees in the form
of lower wages.

13.1.2 National insurance
The second major contribution to the foundations of the modern social security
system was Lloyd George™s National Insurance Act of 1911. While the Workmen™s
Compensation Act 1897 was concerned to ¬ll in gaps left by the common law, this
Act dealt with matters with which the common law did not concern itself at all;
that is, with earnings loss arising from sickness unrelated to employment, and
with unemployment.10 So far as insurance against sickness is concerned, the Act
represented a major departure in many ways. First, it was a national insurance
system established by the government and administered by ˜approved societies™,11
in e¬ect as agents of the State.12 Administration of the system was not based on
the adversarial model; those responsible for administering the system were req-
uired to ensure that applicants received the bene¬ts to which they were entitled
as a matter of law. Secondly, the cost of the bene¬ts was paid for partly by the
employee, partly by the employer and partly by the taxpayer. Thirdly, the insur-
ance was compulsory, and the premiums were ¬‚at-rate contributions which gen-
erally did not depend on the nature of the risk covered.13 The bene¬ts payable
were not earnings related; the national insurance system was not concerned with
replacing what had been lost “ not with ˜compensation™ “ but with the meeting of
basic ¬nancial needs.

8 See further Beveridge Report, para. 77¬.
9 J. Stapleton, Disease and the Compensation Debate (Oxford, 1986), 21“3.
10 Concerning unemployment see J. Creedy and R. Disney, Social Insurance in Transition (Oxford,
1985), 28“32.
11 These were friendly societies and commercial insurers.
12 Creedy and Disney, Social Insurance in Transition, 32“3.
13 It thus entailed subsidization of more risky by less risky industries.
The social security system 331

The National Insurance Act 1911 was not intended to provide su¬cient to main-
tain those who were dependent on it; the object of the Act was rather to assist the
industrious and thrifty working person who had a regular occupation by supple-
menting the claimant™s own savings and the proceeds of private insurance schemes
operated by commercial insurers, trade unions and friendly societies.


13.2 The Beveridge report and the 1946 Acts
In course of time these two pillars of the social security system became exceedin-
gly complex.14 At the same time, other forms of national insurance (principally
against unemployment and medical expenses) and pension schemes for the retired
and for widows grew in importance and complexity. The Great Depression, which
started in 1929, went a long way towards destroying the national unemployment
insurance system because it became impossible to maintain 2 million unemployed
out of the contributions the system generated. Then persistent in¬‚ation brought
by the Second World War so reduced the value of other national insurance and
workers™ compensation bene¬ts which were related to contributions made years
earlier, that the State was forced to provide various supplements during the war.
This was the background to the Beveridge Report, which was published in 1942.15
Beveridge proposed a new streamlined national (i.e. public) insurance system
based on six fundamental principles. These were: ¬‚at-rate subsistence bene¬ts; ¬‚at-
rate contributions; the uni¬cation of administrative responsibility; adequacy of
bene¬ts; comprehensiveness; and classi¬cation (by which Beveridge meant the pro-
vision of di¬erent treatment according to the di¬erent needs of various classes of
people).16 The system of national insurance against sickness established in 1911
remained in essence undisturbed. When Beveridge turned his attention to workers™
compensation, he found a system which was becoming increasingly unpopular
with employees and trade unions.17
It allows claims to be settled by bargaining between unequal parties, permits payment
of socially wasteful lump sums instead of pensions in cases of serious incapacity . . .
and over part of the ¬eld, large in the numbers covered, though not in the proportion
of total compensation paid, it relies on expensive private insurance.18

He therefore had no hesitation in proposing the integration of the workers™ com-
pensation system with the national insurance system. Beveridge was then faced
with question of whether workers™ compensation should be shorn completely of
its tort-like characteristics or whether it should retain certain special features

14 Re workers™ compensation see P.W.J. Bartrip, Workmen™s Compensation in Twentieth-Century
Britain (Aldershot, 1987).
15 A.W. Dilnot, J.A. Kay and C.N. Morris, The Reform of Social Security (Oxford, 1984), 9“23.
16 Beveridge Report, paras. 17 and 303“9; Dilnot, Kay and Morris, The Reform of Social Security,
31“2.
17 Beveridge Report, paras. 93“6.
18 Ibid., para. 80.
332 Chapter 13

despite its merger with national insurance. He recognized that in principle there
was a good deal to be said for a complete uni¬cation of the two systems:19
. . . it might well be argued that the general principle of a ¬‚at rate of compensation for
interruption of earnings adopted for all other forms of interruption, should be applied
also . . . to the results of industrial accident and disease . . . If a workman loses his leg in
an accident, his needs are the same whether the accident occurred in a factory or in the
street; if he is killed, the needs of his widow and other dependants are the same, however
the death occurred . . . adoption of a ¬‚at rate of compensation for disability, however
caused, would avoid the anomaly of treating equal needs di¬erently and the administra-
tive and legal di¬culties of de¬ning just what injuries were to be treated as arising out
of and in the course of employment . . . whatever words are chosen di¬culties and
anomalies are bound to arise. A complete solution is to be found only in a completely
uni¬ed scheme for disability without demarcation by the cause of disability.

Despite these arguments, Beveridge decided to retain a separate and more favour-
able scheme for industrial injuries, and gave three main reasons for this course.20
First, some work is especially dangerous, and it is desirable that people should not
be discouraged from doing such work by the risks involved; secondly, a person
injured while at work is injured ˜whilst working under orders™; and, thirdly, only if
special provision was made for industrial injury would it be possible, as Beveridge
wanted, to limit the employer™s liability at common law to actions for which the
employer was ˜morally and in fact™ responsible. None of these arguments is very con-
vincing.21 First, the fact that work is more dangerous than other activities22 may be
a reason to pay people more for doing it but not for compensating injuries caused
by it more generously.23 Secondly, the fact that a person injured at work was ˜under
orders™ is merely an indication that the worker did not, in some sense, voluntarily
choose to incur the risk; but this is also true of the sick and disabled generally. The
fate of Beveridge™s third argument is somewhat ironical because the introduction of
the industrial injuries national insurance scheme was followed by a decision to
widen the scope of liability for common law damages,24 and not as a ground for
con¬ning common law actions within narrow limits. It is estimated that by 1996,
total payments of compensation for work-related injury and illness under the tort
system were greater than those under the social security system.25

19 Ibid.
20 Ibid., para. 81; see also Pearson Report, vol. 1, paras. 93“108; S. Jones, ˜Social Security and
Industrial Injury™ in N. Harris ed., Social Security Law in Context (Oxford, 2000), 470. But the real
reason was union pressure: Bartrip, Workmen™s Compensation, 184.
21 Report of the Royal Commission of Inquiry on Compensation for Personal Injuries in New Zealand
(New Zealand, 1967) (Woodhouse Report), paras. 52“4; Report of the Committee on Local
Authority and Allied Personal Social Services (Cmnd 3703, 1968) (Seebohm Report), para. 327;
V. George, Social Security: Beveridge and After (London, 1968), 184.
22 Itself a questionable assumption: Bartrip, Workmen™s Compensation, 183.
23 See also Creedy and Disney, Social Insurance in Transition, 129“30.
24 See 15.4.5.
25 C. Parsons, ˜Employers™ Liability Insurance “ How Secure is the System? (1999) 28 Industrial LJ
109, 113“14.
The social security system 333

The Pearson Commission adopted a somewhat peculiar stance on the issue. On
the one hand, it appeared to condemn the industrial preference as unjusti¬ed; but,
on the other hand, it recommended (in e¬ect) that the industrial injuries scheme
should be extended, with modi¬cations, to road accident victims. As we shall see in
chapter 18, the problem of reform is much a¬ected by the extent to which prefer-
ences of this nature are treated as ˜vested rights™ which cannot be abrogated. Yet, in
reality, the rights are only vested for those who have already become entitled to
bene¬ts, and certainly no reform is likely to remove or whittle away rights which
are vested in that sense. The present extent of the industrial preference will be made
clear later in this chapter.
Despite Beveridge™s decision to recommend special treatment for the industrially
injured, workers™ compensation was to become part of the National Insurance
system. The private insurance companies and the adversary process of settle-
ment and litigation were to go; the system was to be ¬nanced by contributions from
employer, employee and State in the same way as National Insurance, and payments
were to be weekly and not by way of lump sums. On the other hand, Beveridge
wanted earnings-related pensions for victims of long-term disablement;26 but this
was rejected by the government, which was even more wedded than Beveridge
himself to the ¬‚at-rate philosophy.27 Beveridge also wanted to impose a ˜special levy™
on industries with particularly bad accident records;28 but this, too, was rejected by
the government,29 principally because of opposition from the trades unions.
Beveridge had intended that only those who were o¬ work for more than 13 weeks
should receive preferential treatment, but the government extended it to all those
injured at work.30 Instead of earnings-related pensions for the long-term disabled,
the government decided on disability pensions and gratuities for the disability ˜as
such™, irrespective of lost earnings. These payments resemble tort compensation for
˜loss of faculty™. One of the main reasons for reverting to this tort idea was that great
resentment had been caused by the fact that payments for partial incapacity under
the workers™ compensation system were liable to be reduced if the worker recovered
and began to earn substantially more again.31 The government agreed with
Beveridge that compensation for lost income should not take the form of lump
sums, though payment of lump sums for disabilities in minor cases was adopted.32


13.3 Developments since 1946
The social security system has undergone many changes since Beveridge™s day, some
of them of major signi¬cance. The main pieces of legislation for our purposes are

26 Beveridge Report, para. 85.
27 Government White Paper, Social Insurance, Part II (Cmnd 6551, 1944), para. 28.
28 Beveridge Report, paras. 86“9.
29 Cmnd 6551, para. 31.
30 Ibid., para. 26.
31 Ibid., para. 29(3).
32 Ibid., para. 30.
334 Chapter 13

the Social Security (Contributions and Bene¬ts) Act 1992 (SSCBA) and the Social
Security Administration Act 1992 (SSAA), which are consolidating Acts; and the
Social Security Act 1998. It is beyond the scope of this book to chart the many twists
and turns in the social security system since it was set up, and the main aim in what
follows will be to give an account of the present position of disabled people within
the system. But a few general comments are needed.
First, concerning the level of social security bene¬ts, between 1948 and
1977 prices increased by about ¬ve times and earnings by about ten times, but
social security bene¬ts about twelve times. This was particularly important for
the long-term disabled and the chronically sick. In 1974 the Labour government
enacted a commitment to review the levels of National Insurance bene¬ts annu-
ally, and to increase them su¬ciently to keep pace with the general level of earn-
ings; but in 1979 the Conservative government altered this to a commitment to
increase bene¬ts (other than earnings-related bene¬ts and some others) in
line with prices. This was part of a policy of reducing the cost of social security
provision.33
Secondly, a number of major changes in the social security system after
Beveridge™s day deserve mention. One was the introduction of earnings-related
elements. Earnings-related bene¬ts were ¬rst introduced in 1961 in connection
with retirement pensions; in 1966 they were extended on a limited scale to sickness
and unemployment bene¬ts, as well as to industrial injury bene¬ts. In 1975
National Insurance contributions became earnings-related, subject to upper and
lower limits. Under the Social Security Act 1975, a new long-term earnings-related
retirement pension scheme (called SERPS) was introduced. Although this change
was grafted onto the existing system with a minimum of structural alteration, it
represented an enormous shift in the philosophy of the National Insurance system
as a whole. Beveridge was opposed to earnings-related additions: he thought that
the State had done its duty when it had provided a subsistence income for all its
citizens who were unable to provide their own; protection above this level on a
compulsory basis was an unjusti¬able interference with the freedom of the indi-
vidual to spend money as they chose.34 If individuals wanted more than basic
bene¬ts, they could provide them for themselves by means of private insurance.
Adoption of the earnings-related principle was partly a product of increased
a¬„uence, and partly of a popular desire to re¬‚ect wage di¬erentials in bene¬ts,
especially since many poorer people would not be able to a¬ord to buy earnings-
related additions in the private market.
In the 1980s the Conservative government, as part of its philosophy of ˜rolling
back the frontiers of the State™ and encouraging private arrangements, eschewed the
earnings-related principle. Earnings-related additions to short-term bene¬ts were

33 Wikeley, Ogus and Barendt™s The Law of Social Security, 265“7.
34 Beveridge Report, para. 304. In this respect, there is a fundamental contrast between the British
and European models of social security: House of Commons Social Security Select Committee
Report, The Contributory Principle (Fifth Report, 1999“2000), para. 19.
The social security system 335

abolished as from 1982. When statutory sick pay was introduced in 1983 it was
payable at three di¬erent rates depending on earnings; but in 1987 the rates were
reduced to two, and in 1994 to one. There are still some earnings-related, long-term
bene¬ts, but these are being phased out. In the mid-1980s the Conservative gov-
ernment wanted to abolish SERPS because of its anticipated cost, but in the face of
widespread protest it legislated in 1986 just to reduce bene¬ts under the scheme.35
The extent to which social security bene¬ts are earnings-related has important
rami¬cations for the tort system which is, of course, fully earnings-related. Com-
plete abolition of tort as a means of compensating for personal injuries is unlikely
to be politically attractive so long as social security bene¬ts for disabled people are
¬‚at-rate.
Another important change in the social security system since Beveridge has been
improvement of provision for the disabled, and especially the long-term disabled.
In the last 35 years or so the Disability Income Group and the Disability Alliance
have been very active pressure groups and have secured many legislative improve-
ments in the position of the disabled, such as the introduction of attendance and
mobility bene¬ts and bene¬ts for carers in addition to income-replacement
bene¬ts. After pensions, spending on the sick and disabled is the second largest
component of the social security budget; and more is spent on the disabled than on
any other group of working-age people.36 In the 1980s the Conservative govern-
ment conducted a major review of the social security system (the Fowler review)
which led to radical changes made by the Social Security Act 1986. Bene¬ts for the
disabled were speci¬cally excluded from this review pending the outcome of a
major survey of the extent and nature of disability in the population by the O¬ce
of Population Censuses and Statistics (OPCS). The results of this survey were
referred to in chapter 1. In 1988 the Social Security Advisory Committee published
proposals about bene¬ts for the disabled; and the government™s response to this,
Bene¬ts for Disabled People: The Way Ahead,37 identi¬ed four objectives: ¬rst, to
improve the position of those unable to work, especially those disabled from birth
or early life; secondly, to improve assistance in meeting the extra costs of disable-
ment for people of working age and below; thirdly, to help those who want to work
by making it easier for them to enter and remain in the workforce; and, fourthly, to
avoid duplication of assistance from various sources. Major changes designed to
meet these objectives were enacted in the Social Security Act 1990 and the Disability
Living Allowance and Disability Working Allowance Act 1992.38 What the review
did not achieve was any overall rationalization of the disability bene¬ts system;
in particular, the distinction between those disabled at work and other disabled


35 It has not been possible to acquire new rights under the SERPS scheme since April 2002 follow-
ing the introduction of the State Second Pension (S2P).
36 N. Wikeley,˜Social Security and Disability™ in N. Harris ed., Social Security Law in Context (Oxford,
2000), 363.
37 Cm 917; T. Buck,˜The Way Ahead: Bene¬ts for the Disabled (Cm 917)™ (1990) 19 Industrial LJ 125.
38 Now consolidated in the SSCBA 1992.
336 Chapter 13

people is still signi¬cant. Nor is there any single bene¬t that ˜can be identi¬ed as
providing an adequate basic income by itself ™.39
In the 1980s and early 1990s, the numbers of people claiming, and expenditure
on, the main long-term sickness and disability bene¬t “ invalidity bene¬t “
increased enormously. This bene¬t became the target of the government™s cost-
cutting agenda, and the Social Security (Incapacity for Work) Act 1994 replaced
invalidity bene¬t with a less generous incapacity bene¬t and made it harder to
obtain. The New Labour government continued this policy in the Welfare Reform
and Pensions Act 1999, which tightened up eligibility criteria and imposed new
contribution conditions.40 Notably, receipt of a private or occupational pension is
now taken into account in determining the amount of incapacity bene¬t payable.
One result of the many piecemeal adjustments to social security provision for the
disabled over the years is that the system is extremely complex and by no means free
of anomalies.
A third important change in the social security system since Beveridge™s day
has been a weakening of the contributory (or ˜insurance™) principle. Beveridge
had envisaged that entitlement to bene¬ts would be conditional on the claimant
having paid a certain number of weekly contributions. Now, many bene¬ts are
wholly non-contributory (which means that even a person who has never paid
National Insurance contributions may be eligible for them); in particular, there are
no contribution conditions for the receipt of most bene¬ts for the disabled.41
Indeed, National Insurance contributions are, in e¬ect, a tax, not an insurance
premium. There is no National Insurance fund, except in a book-keeping sense, and
contributory bene¬ts are funded on an annual basis and not out of accumulated
revenue.42 There is a good case for abolishing National Insurance contributions
entirely; among other things, this would save considerable administrative expense.
A step in this direction was taken in 1999 with the transfer of the work of the
Contributions Agency (which collects National Insurance contributions) to Her
Majesty™s Revenue and Customs (formerly the Inland Revenue).
When Beveridge ¬rst put forward his proposals in 1942 he intended that the
levels of bene¬t payable under the National Insurance system should not be less

39 P. Larkin, ˜Social security provision for disability: a case for change?™ (1998) 5 J. of Social Security
L 9, 11.
40 D. Bonner, ˜The Incapacity and Disability Provisions in the Welfare Reform and Pensions Act:
Work for Those Who Can and Security for Those Who Cannot?™ (2000) 7 JSSL 208.
41 Statutory sick pay and industrial injury bene¬ts, for example, are contributory in the sense that
they are only available to employed earners, but there are no contribution conditions for their
receipt “ a person may be eligible for them even if the sickness or injury is su¬ered on the ¬rst day
at work. The only bene¬ts relevant to our discussion which have contribution conditions attached
are short-term incapacity bene¬t (the counterpart of statutory sick pay for the self-employed) and
bereavement bene¬ts. The contribution conditions for incapacity bene¬t were made more restric-
tive by the Welfare Reform and Pensions Act 1999 (see Bonner, ˜Work for Those Who Can and
Security for Those Who Cannot?™).
42 That is, on a ˜pay-as-you-go™, not on a ˜fully-funded™, basis. For more explanation of these terms
see 18.2.5. For a general consideration of the role and future of the contributory principle in the
social security system see Social Security Select Committee Report, The Contributory Principle.
The social security system 337

than was thought necessary for subsistence. It was also appreciated that national
assistance (as it was ¬rst called; we will refer to it as ˜income support™) would still
be needed in some cases where there was no entitlement to the bene¬ts payable
under the National Insurance Act 1911 (because the required contributions had not
been paid). But Beveridge was determined to maintain the insurance element in
National Insurance “ the idea that people were paying for their bene¬ts “ and he
therefore felt it necessary that national assistance should be made ˜less desirable™43
than National Insurance. He proposed to achieve this by making it subject to a
means test. Beveridge clearly thought national assistance would become a fringe
area of social security dealing with a small number of special cases.
As things have developed, matters have taken a very di¬erent course from
that envisaged by Beveridge. Income-support bene¬ts have never been conceived
by any government as merely ¬lling in the gaps for those who fail to qualify for the
other bene¬ts, but as an addition to the other bene¬ts to bring them up to subsis-
tence level and to accommodate housing costs that Beveridge™s contributory
bene¬ts failed to cover. Ordinary sickness bene¬ts were in fact from the very begin-
ning below the rates required for subsistence. Furthermore, an insurance-based
system assumes that most people are either in work or dependent on someone who
works; it makes no allowance for those who, because of disability, for example, have
never been able to work or who have worked only intermittently, or for the long-
term unemployed or for those (such as single parents engaged in full-time child-
care) who, for some other reason, do not participate in the labour market. One of
the most important changes since Beveridge™s day has been an enormous increase
in the number of people dependent on non-contributory bene¬ts and on means-
tested, income-support bene¬ts.44
A policy of keeping contributory bene¬ts for speci¬c groups (such as the unem-
ployed and the disabled) relatively low and supplementing them with income-
support bene¬ts re¬‚ects a social welfare philosophy quite di¬erent from Beveridge™s
insurance principle. It means that that those who are better o¬ not only pay more
of the costs of the system through contributions (which are earnings-related) and
through the tax system; also they receive less in bene¬ts from the system because
they are less likely, even when they are in receipt of contributory bene¬ts, to qualify
for income-support bene¬ts. In this respect, the social security system di¬ers
greatly from the system of tort liability with liability insurance. Under this system,
the better o¬ the claimant, the greater the compensation; at the same time, liability
insurance premiums are unrelated to income and so bear more heavily on those
who are less well o¬.


43 Beveridge Report, para. 369.
44 The long-term unemployed are more heavily dependent on income-support bene¬ts than
the long-term disabled because contribution-based jobseeker™s allowance (the successor to
unemployment bene¬t) is payable only for a limited period. Old age is also a major cause of
poverty.
338 Chapter 13

13.4 The industrial injuries system
13.4.1 The scope of the system
The Industrial Injuries Scheme (IIS)45 covers, as workers™ compensation did before
it, all accidental injuries arising ˜out of and in the course of employment™. The ¬rst
requirement of the Scheme is that the victim should have been an ˜employed earner™
which, in the vast majority of cases, means employed under a contract of service; the
system does not extend to the self-employed.46 Apart from cost considerations, two
justi¬cations are o¬ered for this limitation: lack of demand from the self-employed
and potential problems in de¬ning the scope of an expanded scheme.47 This second
reason is perhaps supplemented by a fear of abuse or fraud. For instance, a small
shopkeeper might be tempted to allege that they fell and broke a leg in the shop
instead of in the living quarters above the shop, and it would be impossible to detect
the fraud since there would be no employer present to verify the allegation. But
employed workers no doubt also have opportunities to make fraudulent claims.
Moreover, if a self-employed person converts their business into a limited company,
there is nothing in law to prevent the person being employed by the company,48 in
which case that person will then fall within the IIS. The Pearson Committee49 and the
Industrial Injuries Advisory Council have both recommended that the Scheme
should be extended to cover the self-employed. Given that there are no contribution
conditions for industrial injury bene¬ts, and that extending the scheme to the unem-
ployed would not greatly increase its cost, reluctance to do so seems petty.
The phrase ˜arising out of and in the course of employment™ is an extremely
di¬cult one. The di¬culty is inherent in the concept of insurance against ˜employ-
ment risks™ because there is no clear and sound policy reason for distinguishing
between employment risks and non-employment risks; and so it is almost impos-
sible to construct a satisfactory criterion for distinguishing injury within the Scheme
from injury outside the Scheme. This generates many borderline cases. Despite uni-
versal dissatisfaction with the formula in the workers™ compensation system, it was
retained in the National Insurance (Industrial Injuries) Act 1946 subject to reversal
of a number of speci¬c decisions under the old scheme, which were felt to be par-
ticularly hard. For instance, the Act reversed a decision of the House of Lords50 that
a worker travelling to a coalmine in a train provided by his employers was not in the
course of his employment unless he was required to travel on the train, even though
there was no other practical way of getting to work.51 But even the present law

45 Wikeley, Ogus and Barendt™s The Law of Social Security, ch. 20. The term ˜industrial injury scheme™
(or ˜system™) is used here even though there is no longer a separate Act or a separate fund.
Industrial injury bene¬ts are simply a part of the social security system provided for in the SSCBA
1992 and the SSAA 1992.
46 Who represent about 8% of the workforce.
47 Wikeley, Ogus and Barendt™s The Law of Social Security, 721.
48 Lee v. Lee™s Air Farming Ltd [1961] AC 12.
49 Pearson Report, vol. 1, paras. 851“7.
50 St Helen™s Colliery Ltd v. Hewitson [1924] AC 59.
51 SSCBA 1992, s. 99.
The social security system 339

distinguishes between an injury occurring to a person travelling in a bus or train
provided by or by arrangement with the employer and injury occurring to a person
travelling by public transport or their own transport. It has been a persistent source
of complaint by the trades unions that injuries incurred while travelling to and from
work are not covered by the industrial injuries system. By a single vote, the Pearson
Commission recommended that the IIS should be extended to cover commuting
accidents,52 but in the debate in the House of Commons on 17 November 1979,
Patrick Jenkin described this as an eccentric proposal that few would support.53 The
fact is that although the way travel accidents are classi¬ed a¬ects the bene¬ts to
which the injured person is entitled, there is no obvious way of deciding whether
they should be treated as work accidents or as ordinary transport accidents.
The requirement that the accident should arise ˜in the course of ™ employment
normally indicates that the claimant must have been doing the employer™s work
when injured; while the requirement that the accident should arise ˜out of the
employment™ indicates that the injury must have arisen out of a risk peculiar to the
employment. For instance, a person working at a workshop bench is in the course
of employment; but if the injury is the result of an assault by an escaped prisoner
who has wandered into the factory, the injury will not have arisen ˜out of ™ the
employment “ unless the employment in some way added to the risk of such injury,
as, for example, if the factory was part of the prison. However, where a person is
injured in the course of employment, the injury is presumed, in the absence of con-
trary evidence, to have arisen out of the employment.54 In addition, under s. 101 of
the SSCBA 1992 certain types of accident are treated as having arisen ˜out of ™ the
employment if they occurred in the course of employment. This provision was
introduced in 1961 to deal with certain types of situation in which claimants had
previously been denied bene¬t, but it is hard to see that there is any intelligible
policy behind these extensions of the scheme, unless it is merely the feeling that the
place where accidents occur is a more important criterion for compensation than
the way in which they occur. Certainly we appear to have got very close to a point
where an accident arising in the course of the employment will almost inevitably
fall within the system, and be treated as having arisen ˜out of ™ the employment. This
makes it di¬cult to justify having a special scheme for work-caused accidents. But
at least these provisions have had a good practical e¬ect: in 1976 the then Chief
National Insurance Commissioner commented that the ˜out of ™ requirement now
gives little trouble.55
It is possible, though not very common, for injuries to arise ˜out of ™ the employ-
ment, but to a person who is not ˜in the course™ of employment. A person who, while
taking a prolonged and unauthorized break to drink tea or smoke a cigarette, is

52 Pearson Report, vol. 1, paras. 858“68.
53 Hansard, 5th series, HC, vol. 958, col. 795. However, most other EU social security schemes cover
commuting accidents: Wikeley, Ogus and Barendt™s The Law of Social Security, 734.
54 SSCBA 1992, s. 94(3).
55 R.G. Micklethwait, The National Insurance Commissioners (London, 1976), 82“3.
340 Chapter 13

injured by a risk arising ˜out of ™ the employment, may be held not to have been in the
course of employment.56 In this kind of situation, the ˜course of employment™
formula performs a function not very di¬erent from that of the common law defence
of ˜contributory negligence™, even though ˜fault™ as such plays no part in the industrial
injuries scheme. There are certain other situations in which the conduct of the
claimant is relevant. Under s. 10(1)(b) of the SSAA 1992, for instance, a claimant may
be disquali¬ed from receiving bene¬t for up to 6 weeks on account of wilful obstruc-
tion or other misconduct in respect of any medical examination or treatment to
which they are required to submit. Again, there is a proviso to the operation of s. 101
of the SSCBA 1992 (which was mentioned above) relating to the conduct of the
claimant. The fault idea, although out of place in a social security system, dies hard.
Perceived administrative di¬culties may have been as important as theoretical objec-
tions in preventing the wider introduction of fault ideas into the scheme.57

13.4.2 Accidents and diseases
The term ˜accident™ as used in the IIS means something like ˜separate incident™ as
opposed to ˜continuous process™. 58 It does not mean an event which was ˜acciden-
tal™ in the everyday sense. Thus, injuries in¬‚icted deliberately in an assault may be
accidental in the relevant sense.59 Basically the distinction is between ˜accidental
injury™ and ˜disease™, and the main reason for drawing such a distinction is the
di¬culty of deciding, especially in relation to diseases common in the population
at large “ such as cancer and heart failure “ whether, in any particular case, the
disease was contracted as a result of the employment. Under the IIS all accidental
injuries arising out of, and in the course of, employment, are insured against; but
diseases are not insured against unless they are ˜prescribed™ by the Minister.60 When
it becomes possible to assert with some con¬dence that there is a causal connection
between a certain disease and a certain type of employment, the Minister can
provide by regulation that the disease is a ˜prescribed™ disease under the Act. Any
person employed in the relevant occupation who then contracts the disease is
treated in the same way “ subject to certain exceptions “ as a person su¬ering acci-
dental injury in the course of employment.61

56 R v. Industrial Injuries Commissioner, ex parte Amalgamated Engineering Union (No. 2) [1966] 2
QB 31.
57 When the CICS was under consideration it was thought administratively impossible to combine
an industrial injury-type scheme and weekly payments etc. with a provision for reducing bene¬ts
on the ground of ˜provocation™: Cmnd 1406, para. 92.
58 Wikeley, Ogus and Barendt™s The Law of Social Security, 722“6.
59 In such cases there is a complete overlap between the IIS and the criminal injuries scheme, though
double compensation is not generally permitted. Since the cost of the two systems falls on
di¬erent parties, it is necessary to ask which is the more appropriate body to pay for such injuries:
see generally 15.2.
60 There are more than 60 prescribed diseases.
61 In 1981 the Industrial Injuries Advisory Council recommended a new system (to supplement that
of prescribing diseases) under which, except in relation to certain diseases such as lung cancer and
coronary conditions, the causes of which are much disputed and which are common in the popu-
lation at large, it would be open to a worker to claim bene¬t in relation to any disease which could
The social security system 341

Although most diseases do not fall within the IIS unless they are prescribed dis-
eases, the accident part of the scheme does cover diseases caused by a single event
or series of separate incidents (as opposed to a continuous process). For instance,
a worker may su¬er a heart attack while trying to lift a heavy object.62 Inclusion of
such cases in the scheme seems to be the result of sympathy more than logic. The
anomaly in such a case is that the incident may have acted merely as a trigger; the
worker may have been prone to a heart attack at any moment from any cause, and
only if it happens while the person is at work and working is the result treated as
within the system. The only di¬erence, between this sort of case and the case of a
disease which falls ¬rmly outside the scheme unless prescribed, is that in this type
of case it is possible to point to some speci¬c event or series of events which pro-
duced the disease. In some cases, where disease is contracted as a result of a special
risk arising from the employment, the result seems less anomalous; as, for instance,
where a nurse catches a disease from a patient. Another problem is that the dis-
tinction between a series of separate incidents and a continuous process is very
di¬cult to draw, and it produces some hard cases, such as that of injury to a hand
by constant use of a pneumatic drill which is held not to have been caused by an
accident but is not a prescribed disease either.63
In recent years, claims arising out of stress-related illnesses have caused trouble.
One result of the dramatic decline of manufacturing industries in the UK in the
latter part of the twentieth century and their replacement by service industries has
been a corresponding change in the pattern of work-related illness. Work-related
mental illness has become a much more prevalent, or at least a much more recog-
nized, phenomenon than it was 30 or 40 years ago. But, for instance, post-traumatic
stress disorder (PTSD) is not a prescribed disease; and in 2004, the Industrial
Injuries Advisory Council (IIAC) concluded that work-related stress as not suitable
for inclusion in the list of prescribed diseases.64 This means that if such conditions
are to come within the scope of the IIS, they must qualify as injury by accident. In
one case a prison o¬cer, who su¬ered PTSD after a confrontation with a prisoner,
made a successful claim for bene¬t. By contrast, the claim of a ¬re-¬ghter who
su¬ered stress as a result of attendance at a series of horri¬c accidents, was refused
because there was insu¬cient evidence linking the claimant™s condition to any par-
ticular incident(s).65 The result that a person who su¬ers a stress-related illness as

be proved to have been contracted as a result of employment. But when it considered the matter
again in 1995, it declined to recommend any change.
62 For a much more di¬cult example concerning passive smoking see J. Meltzer, ˜Smoking at Work™
[1991] New LJ 596.
63 Micklethwait, The National Insurance Commissioners, 82. But note that since 1996 carpal tunnel
syndrome (A12) has been a prescribed disease for those working with ˜hand-held power tools™. See
also Jones in Harris, Social Security Law in Context, 476.
64 IIAC Position Paper 13. Perhaps the main reason was that diagnosing stress-related illness and
linking it to work would require a degree of investigation of individual cases which, although
characteristic of the common law, was impractical in a high-volume social security system. This
suggests a general limit on the potential coverage of disability-related social security systems.
65 Chief Adjudication O¬cer v Faulds [2002] 2 All ER 961.
342 Chapter 13

a result of one incident should be able to claim, but that a person who becomes ill
as a result of repeated exposure to stressful conditions cannot, does not easily admit
of a convincing explanation. For instance, all that the IIAC says, apparently by way
of supporting the House of Lords™ decision about the ¬re-¬ghter, is that claims
from the emergency services are problematic because their work is intrinsically
stressful.66 Nevertheless, the IIAC has said that stress-related illness (in the form of
PTSD) will fall within the accident part of the IIS only if it results from a single
event that is ˜quite outside the realms of normal human experience™; is, or could
readily be perceived to be, life-threatening or extremely dangerous to the claimant
or others; and would be su¬cient to cause severe distress to almost anyone.67
In numerical terms, the accident part of the scheme is very much more import-
ant than the disease part. For example, in 2002 some 278,000 disablement bene¬t
pensions were being paid, of which some 217,000 resulted from accidents.68 The
reason for this disparity is not that industrial diseases are a less frequent source of
incapacity than industrial accidents; the converse is undoubtedly the case. But
many diseases which may result from working conditions are not prescribed; and
even in relation to prescribed diseases, it is probably the case that many workers do
not claim because they are less likely to attribute a disease to their working condi-
tions than an accident. One reason for this is that we tend to see diseases as being
the result of ˜natural causes™, perhaps because they are often partly the result of indi-
vidual predisposition, or of voluntary action (such as smoking) by the su¬erer, or
of environmental factors to which everyone is subject. A second reason is that much
remains unknown about the causation of diseases.

13.4.3 Bene¬ts
The law relating to the bene¬ts provided under the IIS69 is every bit as complicated
as the law relating to the assessment of damages at common law, though it is a much
more precise and rigid system in which speci¬c sums are laid down as the appro-
priate payments for particular cases. We may for convenience divide the bene¬ts
into three main classes, namely short-term bene¬ts, long-term bene¬ts and bene¬ts
for the bereaved. However, this classi¬cation cuts across another important dis-
tinction, namely that between bene¬ts for income loss, bene¬ts for disabilities as
such and bene¬ts for the extra expenses incurred as a result of being disabled. There
are no ˜contribution conditions™ for bene¬ts under the IIS. A person injured on the
¬rst day at work is entitled to bene¬ts. Moreover, provided a person is an ˜employed
66 Position Paper 13, para. 44. So far as tort liability is concerned, the traditional rule is that mental
harm will attract compensation only if it is the result of a ˜shock™ as opposed, e.g. to a long period
of anxiety about the fate of a missing loved one. Australian law has now abandoned this limita-
tion because, it is said, the ˜shock™ rule (which is similar to the criteria adopted by the IIAC) is not
supported by medical knowledge.
67 Ibid., para. 46.
68 Work and Pensions Statistics 2005, tables IIDB 1.3 and 1.4.
69 The following account aims only to explain the basic principles underlying the relevant law. For
more detail the reader should consult Wikeley, Ogus, Barendt™s The Law of Social Security or other
works on social security.
The social security system 343

earner™, that person is covered by the scheme whether or not they are liable to make
National Insurance contributions.

13.4.3.1 Short-term incapacity
The main short-term bene¬t is statutory sick pay (SSP). This is an earnings-
replacement bene¬t payable in respect of periods of incapacity for work. As is gen-
erally the case in relation to social security bene¬ts, nothing is payable for the ¬rst
3 days of incapacity. This rule performs a function similar to that of the ˜excess™ in
¬rst party insurance, and eliminates a large number of very small claims, which
would cost a great deal in aggregate and would generate disproportionate admin-
istrative expense. SSP is not limited to those whose sickness falls within the IIS, and
to this extent the victim of industrial injury is no better treated than other sick
workers. But the industrial victim is better o¬ in that entitlement to long-term dis-
ablement bene¬t under the IIS arises after 15 weeks, whereas entitlement to long-
term incapacity bene¬t for other workers arises only after 52 weeks of incapacity
for work. SSP is administered70 and payable by the employer.71
If one considers SSP in isolation, it seems that very few, if any, persons injured
at work would be better o¬ (or even as well o¬) on bene¬ts as at work; and the great
majority of workers would be much worse o¬ receiving SSP rather than their ordin-
ary wages. A large proportion of employees72 enjoy a contractual right to receive
sick pay from their employers, and such ˜occupational sick pay™ will often represent
a higher proportion of ordinary earnings than SSP does (and commonly 100% for
higher-paid workers).73
SSP is available for the ¬rst 28 weeks of incapacity. For the period between 29
and 52 weeks of incapacity, the relevant bene¬t is called ˜short-term incapacity
bene¬t™, which is paid at the same rate as SSP.74
SSP and short-term incapacity bene¬t are payable in respect of total incapacity
to earn. The social security system, unlike the tort system, provides no short-term
bene¬ts for partial earnings loss. The common law, of course, in theory aims to

70 Sickness bene¬ts payable under the National Insurance Act 1911 were also administered by the
private sector. After 1946 administration of all sickness bene¬ts was taken over by the State; but
in 1983, administration of short-term sickness bene¬t was returned to the private sector in order
to cut costs. A more radical step would be to privatize the provision as well as the administration
of short-term sickness bene¬ts, by requiring employers to set up minimum occupational sick pay
schemes underwritten by private insurers: Creedy and Disney, Social Insurance in Transition,
215“18.
71 Until 1994 employers were reimbursed by the government for most or all of the cost of SSP. In
1994 reimbursement was abolished except for ˜small employers™. The system was changed again in
1995 so that now all employers are reimbursed but only for expenditure above a certain (high)
level.
72 Estimated to be about 90% in 1981: Wikeley, Ogus, Barendt™s The Law of Social Security, 160. See
also Creedy and Disney, Social Insurance in Transition, 133.
73 Concerning the extent to which the coverage of occupational sick pay schemes is correlated with
the risk of sickness in particular industries see Creedy and Disney, Social Insurance in Transition,
134“8.
74 There is a lower rate of short-term incapacity bene¬t payable for the ¬rst 28 weeks of incapacity
to people who do not qualify for SSP.

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