Liam Symonds and David Oldfield report on the case of A v CICA, which saw a victim of decades-long abuse secure significant compensation for his injuries and loss of earnings.
In 2017, nine members of the notorious Rooney family were convicted in one of the most severe cases of modern slavery ever uncovered in England and Wales.
1‘Rooney traveller family jailed for modern slavery offences’, BBC News, 12 September 2017. In June 2024, Mr A (one of the longest-standing survivors of the family’s offences) finally received compensation. The Criminal Injuries Compensation Authority (CICA) initially refused to grant him any compensation, but he was successful in his appeal in the First-tier Tribunal (FtT).
The decision itself has not been published (in line with the standard procedure for private hearings) and is not legally binding. However, the lessons learned from this case may enable other survivors of modern slavery and human trafficking to obtain fairer compensation awards.
Background
Mr A’s period of enslavement with the Rooney family spanned over 26 years, during which time he was subjected to repeated assaults, violent threats and forced/compulsory labour. Mr A was severely exploited, abused and made to live in squalid conditions, and reportedly subjected to numerous threats and acts of violence.
As a result, Mr A sustained many psychological injuries including moderately severe brain damage and post-traumatic stress disorder (due to persistent mental and emotional abuse), as well as extensive physical injuries including a fractured ankle, loss of teeth, numerous head injuries and other physical scarring.
Compensation initially refused
In 2017, Mr A applied for compensation from CICA as a litigant in person (this type of matter not being in scope for legal aid). In 2020, CICA rejected the application.
Mr A was referred to Freshfields’ pro bono team by Jamila Duncan-Bosu, solicitor at the Anti Trafficking Labour Exploitation Unit. Liam Symonds (disputes associate) took the lead on the case, and James Robottom from Matrix Chambers was instructed. The team requested a review of CICA’s decision, which resulted in a nominal offer of £2,000 in compensation (reduced to £1,600 due to an unspent criminal conviction), before appealing this decision to the relevant chamber of the FtT.
Tribunal’s decision
Following some deliberation, the FtT allowed Mr A’s appeal, awarding him over £350,000 compensation (with no reduction for any convictions). The award compensates him for all his injuries and his past and future loss of earnings.
Mr A’s case highlights how the Criminal Injuries Compensation Scheme does not neatly, nor consistently, cater for survivors of modern slavery and human trafficking. It also illustrates how inaccessible the scheme can be for litigants in person who want to secure a fair level of compensation to which they are legally entitled. Duncan-Bosu said:
For many survivors of trafficking and modern slavery, an application to the Criminal Injuries Compensation Authority is the only route to obtain compensation. Such compensation can be life-changing for survivors, providing them with the financial ability to help rebuild their lives and reduce their risk of being re-exploited – which can otherwise happen – through greater access to necessary care and support.
The award in detail
The FtT’s award comprised the following:
•a ‘tariff’ award of over £110,000 on the basis that Mr A met the criteria for:
•moderately severe brain damage (at level A18);
•prolonged physical abuse spanning over three years (at level B8), for which the tribunal awarded £2,420 (applying a 70 per cent reduction as this was the second injury for which compensation was payable);
•a fractured ankle (for which the tribunal awarded £360, because although Mr A ‘had to have a cast, and … walked with a limp’, it found that he had ‘made a substantial recovery’; it also applied an 85 per cent reduction as this was the third injury for which compensation was payable);
•an award for past loss of earnings of over £195,000 (ie, statutory sick pay of £109.40 per week for 24 years) and future loss of earnings of over £50,000 (ie, a similar weekly rate for the period until Mr A reaches state pension age);
•no award for care or supervision;
•a reduction of around £12,000 to account for the compensation Mr A received in the course of criminal proceedings; and
•an amount for the creation of a trust (given Mr A’s personal circumstances).
Analysis
Definition/scope of direct victim of a crime of violence
Under para 4 of
The Criminal Injuries Compensation Scheme 2012 (Ministry of Justice, 13 November 2012; as amended on 13 June 2019) (the Scheme Rules), an applicant is only eligible to apply for criminal injuries compensation if they have been a ‘direct victim’ of a ‘crime of violence’. The rules set out, in annex B, a list of offences that qualify as a ‘crime of violence’. Modern slavery is not included as a crime of violence (nor are any other forced labour/human trafficking-related offences), which often leads to difficulty for applicants who have sustained injuries from modern slavery-related offences.
In Mr A’s case, CICA argued in the appeal proceedings that:
Had it been parliament’s intention to make all forced compulsory labour and human trafficking cases to be crimes of violence then this would have been specifically stated as a definition of a crime of violence at annex B of the 2012 scheme … [and that where] the scheme remains silent, we cannot infer or incorporate into the scheme that forced labour or human trafficking by its very nature is a crime of violence. The facts of a Modern Slavery Act or similar offence may well, in the circumstances, include one or more circumstance such as to make it a ‘Crime of Violence’ as defined by the scheme. However, it would be wrong for a claims officer to determine whether the definition of crime of violence is met by reference to some other definition than that contained in annex B.
Freshfields argued that the Scheme Rules should be interpreted in the present case purposively so as to include modern slavery/human trafficking as a crime of violence.
The FtT considered Mr A’s injuries to be directly attributable to a crime of violence because he would not have sustained those injuries if it were not for the relevant acts of violence (namely the physical violence, threats and coercion that he had faced while he was enslaved by the perpetrators). This determination meant that Mr A was eligible to claim compensation for injury, loss of earnings, special expenses and any other prescribed heads of loss under the Scheme Rules.
Eligibility for loss of earnings
Another issue in Mr A’s case was his eligibility to claim for loss of earnings. This was a particularly important element within his case due to the length of time he had been held in modern slavery/forced labour.
For an applicant to be eligible for a loss of earnings payment, they must satisfy the conditions set out in para 43(1) and (2) of the Scheme Rules, which are that:
1as a direct result of the injury for which the applicant is eligible for an injury payment is that they have no or very limited capacity for paid work; and
2the applicant:
awas in paid work on the date of the incident giving rise to the injury (or, in the case of a series of incidents, at any time during the series);
bhad been in regular paid work for a period of at least three years immediately before the date of the incident giving rise to the injury; or
chad a good reason for not having been in regular paid work for the period mentioned in (b).
CICA argued that, for para 43(1), ‘[t]he test that has to be applied is if the appellant had no or very limited capacity to work, the appellant has to demonstrate that he either could not work or could not work as he had very limited capacity to work’. It went on to refer to the types of ‘work’ that Mr A was capable of undertaking while he was enslaved, thereby suggesting that he failed this test.
We argued that the tasks that Mr A was forced to complete were not ‘work’ in the ordinary sense of the word that could be relied on for assessing his eligibility for loss of earnings in para 43(1) of the Scheme Rules (ie, Mr A’s work was not paid work that he had willingly undertaken).
The FtT was satisfied that, based on the expert medical evidence before it, Mr A did satisfy the condition in para 43(1) of the Scheme Rules and that, on the balance of probabilities, he satisfied it at the beginning of the period of his enslavement.
The tribunal further noted that para 43(2) and (3) of the Scheme Rules requires ‘regular’ and not ‘continuous’ paid work for the purpose of assessing eligibility for loss of earnings. Although there was little documentary evidence of Mr A’s employment before he was taken into slavery (partly because he was initially enslaved over 35 years prior to the appeal), the tribunal accepted witness evidence from his family that Mr A had worked in various jobs prior to being enslaved.
The tribunal decided, based on circumstantial evidence, to infer on the balance of probabilities the date on which Mr A satisfied the conditions in order to calculate his lost earnings accordingly.
Discretionary approach to making reductions for unspent convictions under the Scheme Rules
Criminal injuries compensation awards can be withheld or reduced on the grounds that the applicant has an unspent conviction (unless there are ‘exceptional reasons’ not to withhold or reduce it) – see para 26 and annex D para 4 of the Scheme Rules. In Mr A’s case, CICA had sought to withhold 20 per cent of its award offer (at the review decision stage) on the ground that he had an unspent conviction.
However, following our arguments made on appeal, the FtT decided that it should not withhold or reduce any award because Mr A had no unspent convictions at the date of the application, at the date of the CICA review decision, or at the date of the appeal hearing before it.
The tribunal also considered that there were exceptional reasons for not withholding or reducing Mr A’s award, including:
•the length of time during which he had been subject to enslavement;
•the seriousness of the offending to which he had been subject;
•that when sentencing him to a conditional discharge, the criminal court had taken into account the nature of the offence and his character and then imposed the sentence, which was not considered to be punitive;
•CICA’s delay in dealing with his application for compensation; and
•the fact the conviction had been spent for over three years by the date of the final hearing before the tribunal.