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Coda: The 2012 Scheme
Coda: The 2012 Scheme
Although the case is governed by the terms of the 2001 Scheme, I did raise with counsel the terms of the 2012 Scheme in which paragraph 42(b) reappears, differently worded, as paragraph 65(b).
In the Ministry of Justice Consultation Paper CP3/2021 (January 2012) “Getting it right for victims and witnesses” (Cm 8288), the Paper deals with loss of parenting in the following terms:
“Loss of parenting
245. We propose to continue to pay compensation for loss of parenting to qualifying applicants who were under the age of 18 and dependent on the victim at the time of the victim’s death. (Footnote: Paragraph 42 of the Scheme (loss of parental services).) A payment is made at an annual rate of £2,000 for each year of loss up to the age of 18. This currently costs approximately £3m per year.
246. We also propose to retain the provision in the current Scheme thatprovides for additional payments that the claims officer considers reasonable to meet other specific losses the child may suffer.
Question for consultation
Q51 What are your views on our proposals on parental services:
To continue making payments for loss of parental services at the current level (£2,000 per annum up to the age of 18)?
To continue to consider other reasonable payments to meet other specific losses the child may suffer?”
It does not appear from the Consultation Paper that there was any proposal to alter the ambit of paragraph 42(b).
In the Government response to the Consultation Paper (July 2012) (Cm 8397) the Ministry of Justice stated that
“Fatal cases
200. We proposed that the bereavement award, funeral payments andparental service payments will be protected. We proposed to makedependency payments in fatal cases in line with our loss of earningsproposals.
We asked:
Q50. …
Q51. What are your views on our proposals on parental services:
To continue making payments for loss of parental services at the current level (£2,000 per annum up to the age of 18)?
To continue to consider other reasonable payments to meet other specific losses the child may suffer?
Q52. …
Q53. …
201. There were 50 responses to this set of questions. The majority agreedthat the bereavement award and parental services awards should be retained at their current levels. A small number of respondents, including local police authorities, thought that the bereavement award should be extended, at the discretion of the claims officer, to cover siblings, and also victims of overseas terrorism. Individual comments included suggestions that a bereavement award should include families bereaved by homicideabroad, the process of claiming should be made easier, and that weshould exclude those with unspent criminal convictions from receivingpayments.
202. The majority of respondents agreed that dependency awards should be retained and paid in line with loss of earnings. Where additionalcomments were made respondents thought that dependency awards should be higher.
203. The majority of respondents agreed that funeral payments shouldcontinue to be paid. A number of respondents said that this should be a fixed amount and should be paid up-front, more quickly than the rest of the award.
204. We have considered extending eligibility to receive a bereavement award. However, we believe that the current criterion for qualifying claimants covers those most affected by the death of the victim. To extend eligibility to other categories of qualifying applicant would increase the cost of the Scheme at a time when we are seeking to make it sustainable for the future.
205. We have considered whether dependency payments and loss of earningsawards should be higher. However, as with loss of earnings we believe that the alternatives would lead to significantly increased costs, at a time when the Scheme needs to be made sustainable, and that dependency payments should be made in line with loss of earnings awards.
206. We considered responses relating to funeral payments and agree that making an up-front payment would assist bereaved families. In the new scheme claims officers will be able to pay a flat rate of £2,500 up front to the deceased’s estate and, where the applicant can demonstrate other additional costs, it will be possible to make further funeral payments up to a maximum value of £5,000.
We will retain:
the bereavement award at its current level;
the existing categories of qualifying applicant for the bereavement awardand other fatal payments;
payments for loss of parental services at the current level (£2,000 perannum up to the age of 18);
consideration to make other reasonable payments to meet other specificlosses that qualifying applicants under the age of 18 may suffer;
dependency payments and pay them in line with loss of earnings proposals.
We will pay £2,500 up front to the deceased’s estate for funeral costs.Where the applicant can demonstrate other additional costs we will make further funeral payments up to a maximum of £5,000.”
Again, it does not appear that it was intended to alter the ambit of paragraph 42(b) of the Scheme.
However, when the draft 20212 Scheme was issued, paragraph 42(b) had been recast as paragraph 65(b) and in its new form it provided that
“The amount of a child’s payment is:
(a) £2,000 for each year (pro rata for each part year) of theperiod to which the payment relates; and
(b) such additional amount in relation to any expenses
suffered by the child as a direct result of the loss of
parental services as a claims officer considers reasonable”.
There is no material which I have seen which explains why the wording of the 2001 Scheme was not carried over into the 2011 Scheme and why it was thought necessary to alter the wording of what was now paragraph 65(b). It may be that the draftsman was simply clarifying the language of the previous provision rather than seeking substantively to alter it, particularly since the consultation process evinced no intention to alter the ambit of the provision, but it is curious that there is apparently no explanation for the redraft of the provision.
However that may be, the position is quite clear under the 2012 Scheme. In the 2012 Scheme, by virtue of paragraph 65(b), the amount of a child’s payment is such additional amount in relation to any expensessuffered by the child as a direct result of the loss of parental services as a claims officer considers reasonable. Thus, just as the expenses sought in the instant case are not recoverable under the 2001 Scheme, they would not have been recoverable under the 2012 Scheme either.
I reached my conclusion about the effect of the 2001 Scheme without recourse to the 2012 Scheme, which did not apply to the award in this case, but the upshot is that the result would be the same, whichever version of the Scheme applied.
- Heading
- Section 1
- The Tribunal’s Decision
- Costs of appointing a deputy in the Court £16,710 of Protection
- The issues
- Whether the costs of administering a trust of any award and Court of Protection costs were compensable and Whether the costs of adaptation/ extension to Mrs Treacey’s house were recoverable
- Discussion
- The Decision
- The 2001 Scheme So far as a material, the 2001 Scheme provides that
- The 2012 Scheme So far as material, and as I explain at the end of this decision, the 2012 Scheme provides that
- The Applicant’s Submissions
- adaptation to accommodation – at [39] trust and Court of Protection costs – at [40-41]
- The First Ground – The interpretation of the word ‘other’
- words in the scheme were intended to have their ordinary everyday meaning, contrary to other words which could have very specific legal meanings. The paragraph did permit discretion as to which facts
- The Second Ground - Adaptation to accommodation
- The first line of reasoning was that
- The second and third line of reasoning was that
- the Concise Oxford English Dictionary read
- The first line of reasoning at [40] was that
- The second line of reasoning at [41] was that
- The Applicant repeated his submission that the Tribunal erred in finding that “other resultant losses” meant “ resultant from”
- The First Ground: The interpretation of the word ‘other’
- the phrase “ other resultant losses ” appeared in a paragraph specifically concerning loss of parental services (both the stem of paragraph 42 and paragraph 42(a)) and it was a natural reading to link
- the payment for loss of parental services at paragraph 42(a) was a tariff award; it made sense therefore that the Scheme should provide discretion to the claims officer under paragraph 42(b) to make “
- the interpretation of paragraph 42(b) contended for by the Applicant, that it concerned payments “ distinct from parental services as previously mentioned ”, was to read words into the scheme which we
- the wider reading contended for ignored the word “ resultant ” – if the Scheme were intended to refer to any heads of loss without restriction, the word “ resultant ” would not have been used
- The Second Ground: Adaptation to accommodation
- the question was whether a loss or expense claimed was to meet “ other resultant losses ”, not whether the items were spent as part of the provision of parental services. Otherwise, the 2001 Scheme wo
- The Third Ground: Trust and Court of Protection costs
- they were described in the Applicant’s Grounds as “ administrative legal costs ”. Under that logic, any legal costs associated with the fatal injury could be captured by paragraph 42(b); that clearly
- the fact a decision maker would consider “ factors and contingencies ” when considering the appropriate multiplier to be applied to payments which fell under paragraph 42(b) was not relevant to the qu
- Analysis
- The Second Ground: Adaptation to accommodation
- The Third Ground: Trust and Court of Protection costs
- Coda: The 2012 Scheme
- Conclusions