Recovering Costs Incurred In Court Of Protection Proceedings Under The Criminal Injuries Compensation Scheme

In some cases, the Protected Party is awarded damages to assist them in covering the cost of their needs going forward as a result of an injury. When the damages sum is awarded to the Protected Party, the amount will usually take into consideration the costs that may be incurred in respect of the Protected Party, such as future litigation costs or the costs incurred in appointing or removing a deputy.

This recent appeal case considered whether Court of Protection costs are recoverable under paragraph 42(b) of the 2001 Criminal Injuries Compensation Scheme. This scheme allows for “other resultant losses” following the death of a parent.

Background

The Protected Party was born in 1997 and suffers from Kabuki syndrome in addition to other medical issues. In 2005, his father killed his mother when he was 7 years old. The Protected Party was cared for by his maternal aunt, who made changes to her home to accommodate his needs.

The first-tier tribunal initially awarded £16,720 for the cost of appointing a new deputy in the Court of Protection. It then later clarified that this was made in error, but it would not seek to recover this sum. The first-tier tribunal concluded that future Court of Protection costs were not recoverable under paragraph 42(b) as:

The upper tribunal agreed with the first-tier tribunals’ decision and held that the Court of Protection costs were not a replacement for parental care and found that the costs arose due to civil and other claims and not as a result of the criminal act.

The Court of Appeal affirmed both tribunals’ decisions and added further clarification, stating that the need for Court of Protection involvement was not caused by the death of the Protected Party’s mother but by his congenital condition. The costs, therefore, did not qualify as “other resultant losses” under paragraph 42(b). The argument that the Protected Party’s status as a qualifying claimant could justify the recovery of these costs was rejected.

This decision clarifies the scope of what can and cannot be recovered under the criminal injuries compensations scheme, namely that the scheme is there to deal with costs caused by the crime itself and not broader care needs unrelated to the criminal injury.