Proposed Cuts to Compensation For Workers Who Suffer An Assault Or Railway Suicide
From General Secretary Bob Crow
I write to advise you that the Government yet again are proposing changes to the CICS that if implemented will affect the compensation that our members currently receive when attacked at work or when they experience a suicide on the railways. It is currently proposed to abolish the lower tariff bands of the Compensation Criminal Injury Scheme (CICS), this move will remove from eligibility the majority of our members injured as a result of criminal violence during the course of their work.
This Union supports the principle that victims of crime should be given a wider range of support; the proposals to abolish the lower levels of compensation and reduce awards in the middle ones will punish and alienate our members.
Emotional and practical support is important. But practical support, if it does not extend to financial support for, say, loss of earnings due to the injuries caused by the criminal act, runs the risk that our members are financially punished.
If a member is injured at work due to employer negligence, they can claim compensation for loss of earnings and other losses on their employer's insurance. Under these proposals, our members who are assaulted at work and left with exactly the same injuries as a colleague with a civil claim will be unable to claim a penny.
We accept that supporting victims is about more than simply providing them with financial assistance. But an award under the scheme represents an acknowledgement by society of what has happened to them and assists with resulting loss and expenses.
It cannot be right to restrict compensation to injuries that are more severe and thus disregard other injuries that society would judge as worthy of compensation.
We consider the proposal to exclude offences connected with trespass on the railway, including suicide or attempted suicide, from the scheme is particularly objectionable.
The government’s justification for removing offences connected to trespass on the railways, including suicide or attempted suicide, is that these are not crimes of violence.
In the 1980’s our solicitors Thompsons went to court to establish that those killing themselves in front of a train were committing a crime of violence. Even though the House of Lords was not convinced that suicide was within the CICS, the government was persuaded that railway workers should be able to claim compensation for the trauma of seeing someone commit suicide by jumping in front of a train or from having to deal with the aftermath of the suicide.
It was accepted then that the best way to compensate those who suffered was to allow payments to be made under the CICS.
It is a train driver’s job to concentrate on the line ahead but this means they will often see an individual some way off kneel down and put their neck on the track. They have plenty of time to take in the horror of the situation. They apply the emergency brakes knowing it is futile and they hear a sickening thump on impact. They remember this for their rest of their lives often in flashbacks and nightmares and whenever they have to pass the spot again. It can mean the end of their driving career.
Drivers are required to stop the train to check the line in case the individual needs urgent medical attention. Already in shock, they are likely to be traumatised by what they see. It is an insult to suggest that they have not been the victim of crime.
We have numerous examples of members who have suffered nightmares and flashbacks for months and years after a suicide. Many struggle to return to driving duties, or are unable to drive again on the line where the suicide happened.
The majority of claims are however for £1,000. As a money saving measure, removing railway suicides from eligibility has little to offer.
We are also concerned that no reference is made in the consultation document of incidents in which drivers are left injured and traumatised by vandalism – most commonly where bricks are thrown from bridges or the side of the track at the driver’s windscreen.
This is clearly a crime of violence, with the driver a guaranteed victim who may be left severely injured or even killed. But the assailants have long since fled the scene when the police arrive and there is no hope of their identity being ascertained or of them being sued - even if they had the money to pay. Without strict liability the employer cannot be sued so the CICS is the only means the driver has of obtaining compensation.
We must seek an assurance that this sort of act carried out as a result of trespass on the railway would continue to be eligible as a crime of violence.
It is also proposed that to be eligible for compensation, applicants have to demonstrate a connection to the UK through residence in the UK for a period of at least six months at the time of the incident?
We find this proposal offensive. It is also contrary to the Rule of Law and discriminatory.
If someone is resident in the UK and are the victim of a crime in the UK then they should be entitled the same support as any other resident, irrespective of length of residence. Anything else implies that they are a second class of victim.
Removing awards for injuries in bands 1 to 5 will exclude a great many injuries of the type typically suffered by our members who are the victims of violent crime in the course of their duties.
As I said above, this proposal creates the deeply unjust situation where, if a member is injured at work due to employer negligence, they can claim compensation for loss of earnings and other losses on their employer's insurance. Under these proposals, a member who is assaulted at work and left with exactly the same injuries as a colleague with a civil claim, but who cannot pursue a civil claim, will be unable to claim a penny.
Bands 6 to 12 represent serious injuries that would be worth a considerable amount as a civil claim, but are significantly less as a CICA claim. These include eye injuries, scarring to the limbs and torso, moderate burns and injuries resulting in continuing significant disability such as fractured collar bones. To halve the awards in these bands is doing anything but supporting these victims of violent crime.
The consultation paper states that “a significant proportion of the [CICS] budget is spent on payments for those who suffer relatively minor injuries, such as a sprained ankle”. Awards in bands 1 to 5 can be significantly more serious than a sprained ankle.
Take the member who is assaulted by a passenger and suffers broken teeth. They will have no access to justice if injuries in these bands are removed. Making a claim to the CICA in these circumstances isn’t simply about getting some money for the sake of it for a relatively minor injury. The award is effectively a contribution to the cost of dental treatment to fix the damaged teeth. Without it and without any prospect of a civil claim because the assault was not foreseeable by the employer, the member will have to pay for costly dental treatment themselves.
Take the following examples as to how the proposals if implemented would affect our members:-
· A member suffers a dislocated thumb as a result of a passenger bending it sharply backwards would currently be awarded around £2,000. Under the proposals they would not qualify for an award.
· A driver who witnesses a suicide and is suffering from mental anxiety a likely final award would be around £4,400 – band 9. Under the proposals this driver would get no more that £2,400 for a serious assault.
There are proposed changes to loss of earnings payments:
Option A, to cap annual net loss of earnings at £12,600 and continue to reduce payments to reflect an applicant’s other sources of income.
Option B.1, to pay all applicants a flat rate equivalent to Statutory Sick Pay and not reduce payments to reflect an applicant’s other sources of income.
Option B.2, as option B.1 but not make payments in any year where the applicant had employer-funded income in excess of £12,600.
We are of the opinion that option A represents a huge reduction from the current cap of approx £39k. To cap at £12,600, the current full-time minimum wage, will have a significant impact on those who lose earnings as a result of an assault and have commitments based on their income.
Option B is significantly below the minimum wage. Not taking into account other sources of income means that the payment is completely arbitrary.
It is also proposed that applicants should pay a small cost (up to a maximum of £50) to obtain initial medical evidence to make out their claim?
This proposal is clearly intended to deter our members from claiming. It is very far from the claimed intention of these reforms to give victims of crime more support.
It is further proposed that where CICA continues to cover the initial medical costs, there should be a deduction from the final award (up to a maximum of £50.). We are opposed to any deduction from awards. CICA awards are significantly less than civil compensation so a member who is assaulted at work and left with exactly the same injuries as a colleague with a civil claim would, if they were able to apply to the CICA at all, be penalised still further by a deduction. This is not giving support to the victims of crime.
It is proposed to reduce the time limits for seeking a review and accepting an award. In our view, this is an attempt to disqualify members from seeking a review. I see no advantage to be gained by it otherwise.
It is crucial that members have 90 days to accept or seek a review. The CICA rarely send the evidence they have obtained in order to make their decision.
There is a proposed to defer decisions in some cases for four years. It is the Unions view that there should be a provisional damages provision for conditions or deterioration which may develop many years after the incident.
It is also proposed to permit claims officers to withdraw a review decision under appeal and issue a decision in the applicant’s favour In our view this proposal is long overdue. We see many cases which have to proceed to an appeal hearing unnecessarily because of the absence of this provision. Often at appeal the CICA offers no argument as they do not dispute the appeal. This has the effect of increasing delays and costs for both sides and also incurring Tribunal costs. This would be avoided by this provision.
We will work with our Parliamentary Group to oppose these draconian proposals