Publication
50120 (2 March 2022)
From Criminal Injuries Compensation Scheme
Published on
Last updated on
From Criminal Injuries Compensation Scheme
Published on
Last updated on
Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of one member of the Tribunal pursuant to section 25 of the Scheme
Applicant: [ ]
Date of injury: [ ]
Date of application: [ ]
Case reference: 50120
Decision: The application is refused.
1. By way of application form marked as received on [ ], the applicant, through her mother, applied to the Tribunal for compensation arising from a crime of violence which took place on [ ], when the applicant was [ ] years old.
2. The applicant attached to her application a statement made by her to An Garda Siochana on [ ] in which she stated that she had been severely sexually assaulted and raped by [ ] the previous night.
3. The Tribunal has had the benefit of a Garda Report dated [ ] which states that the applicant reported the crime to a neighbour and then to An Garda Siochana the same day that the assault and rape took place. The Garda Report states that, as a result of physical assault and rape, the applicant suffered severe bruising to her neck, face and body. Criminal proceedings against [ ] took place in the [ ] Court between [ ] and [ ] and the perpetrator received a custodial sentence.
4. By letter to the Tribunal dated [ ], [ ] Rape Crisis centre stated that the applicant had attended a number of counselling sessions between [ ] and [ ].
5. The applicant provided short details of visits to An Garda Siochana and hospital.
6. On [ ], the secretariat of the Tribunal wrote to the applicant’s mother informing her that the Scheme does not cover compensation for expenses for actual pain and suffering, and that the Tribunal could only provide compensation for vouched out-of-pocket expenses. Further, the applicant was asked whether she had received any social welfare payments as a result of the injury which gave rise to the application.
7. Further, the letter noted that, in order to ascertain what compensation may be due in respect of travel expenses, the applicant should submit details of the mode of transport used and the amount of journeys made.
8. No response was received to this latter.
9. On [ ], the secretariat of the Tribunal wrote to the applicant seeking any documentation including original receipts and vouching documentation in regard to any out-of-pocket expenses arising from any personal injuries, and that the file would be sent to a member of the Tribunal for decision in the absence of same on [ ].
10. No response was received to this correspondence.
11. The following documents were furnished to the Tribunal Member for determination:
12. Arising from the foregoing a number of issues arise, which will be dealt with in turn.
13. Paragraph 21 of the Scheme which was in place at the time of the applicant states: “Applications should be made as soon as possible but, except in circumstances determined by the Tribunal to justify exceptional treatment, not later than three months after the event giving rise to the injury.”
14. It is accepted that the applicant was aged [ ] on the date in [ ] that the sexual assault and rape took place. It is also accepted that the perpetrator was convicted in [ ] and the applicant made her application to the Tribunal in [ ]. The Tribunal accepts that it is appropriate, given the facts of this case, that exceptional treatment is justified and therefore the application will be accepted notwithstanding it was submitted outside of the three-month time period after the event giving rise to the injury.
15. Paragraph 6(e) of the Scheme states that “compensation will not be payable… in so far as injuries sustained on or after 1 April 1986 are concerned in respect of pain and suffering.”
16. Therefore, despite the severity of the crime to which the applicant was subjected, the applicant would not be eligible for any compensation other than those out-of-pocket expenses for which vouched documentation and receipts have been submitted to the Tribunal.
17. Paragraph 11 of the Scheme reads: “No compensation will be payable to an applicant who has not, in the opinion of the Tribunal, given the Tribunal all reasonable assistance, in relation to any medical report that it may require, and otherwise.”
18. In determining whether a lack of reasonable assistance has been given such that compensation is not payable, consideration must be given to the scope and purpose of Paragraph 11. It effectively cuts applicants off from compensation and is thus a far-reaching provision. Its purpose is to serve as a sanction against those who do not co-operate with the Tribunal – its secondary purpose is to encourage applicants to give the Tribunal reasonable assistance.
19. The Tribunal should not rely on paragraph 11 to deny an applicant the potential for compensation in an irrational or arbitrary way. It seems logical to take into account two main factors: (i) the nature of the information or assistance sought by the Tribunal (and in particular whether its absence prevents a proper decision being made) and (ii) the frequency of requests and time elapsed wherein no adequate response has been received by the Tribunal.
20. It is observed that without evidence of the expenses incurred, including documentation relating to the costs of travel, there is no information upon which the Tribunal can base an assessment of compensation, having regard to the value of any social welfare benefits received by the applicant.
21. The documents in question are integral to the formation of any determination.
22. In [ ] and in [ ], the secretariat of the Tribunal wrote to the applicant inviting the applicant to provide information relating to social welfare payments and further information on the travel expenses claimed, and asking the applicant to submit any vouching documentation to support the application for compensation.
23. No response was received to either of these requests.
24. The Tribunal finds that because of the integral nature of the documentation sought to the decision-making process, and the elapse of time with no communication from the applicant (despite request), that there has been a failure to give reasonable assistance to the Tribunal.
25. Based on the foregoing provisions of the Scheme, the application is refused.
Signed: Peter Stafford BL
Dated: 2 March 2022