B e f o r e :
MRS JUSTICE LANG DBE ____________________
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Simon Howarth KC (instructed by Irwin Mitchell LLP) for the Claimant Louis Browne KC (instructed by the Government Legal Department) for the Interested Party The Defendant did not appear and was not represented Hearing date: 18 February 2026 ____________________
HTML VERSION OF APPROVED JUDGMENT ____________________
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Mrs Justice Lang:
The Claimant applies for judicial review of the Decision of the First-tier Tribunal ("the Tribunal"), dated 2 April 2024, to refuse her application to reconsider her case under paragraph 13 of the Criminal Injuries Compensation Scheme 1990 ("the Scheme"). The claim is resisted by the Interested Party ("the CICA").
The Claimant is outliving her predicted life expectancy, upon which the original award was assessed in 2010. She submits, under Ground 1, that the increase in her life expectancy is a serious change in her medical condition which comes within the scope of paragraph 13 of the Scheme. Under Ground 2, she submits that the Tribunal erred in law in its approach, when rejecting her submission, that the renewed application could be considered without the need for extensive enquiries, in accordance with paragraph 13 of the Scheme.
Permission to apply for judicial review was initially refused on the papers, but granted at an oral renewal hearing by Sir Peter Lane (sitting as a High Court Judge) on 1 May 2025.
History
The Claimant was born a healthy baby on 14 November 1994 and is now aged 31. She sustained a very severe brain injury in March 1995 after being shaken by her natural father. As a result she is severely disabled and needs intensive 24 hour care.
On her discharge from hospital, the Claimant was placed in the foster care of George and Margaret Grass, who later adopted her on 30 April 2001. It is agreed that they have provided her with care of the highest quality.
An application for criminal injuries compensation was made on behalf of the Claimant by Cambridgeshire County Council in March 1996. The application was determined at a hearing on 20 July 2010 ("the 2010 Decision"). The lump sum award was £510,084.48 net of deductible benefits of £200,685.28. After further deduction of the interim payments (£330,000), the balance of the award was £180,084.48. This sum was accepted by Mr Grass on 10 August 2010 in full and final settlement of the Claimant's claim for criminal injuries compensation. Additionally Mr and Mrs Grass have been able to claim social security and other benefits for the Claimant.
The Claimant's Deputy, Emma Truin of Barr Ellison Trust Corporation Limited, applied to the CICA to reconsider the case on 10 May 2018.
The Claimant's condition as assessed for the 2010 Decision
In the transdisciplinary report completed on 25 April 2009, Professor Sam Lingam, Consultant Neurodevelopmental Paediatrician, described the applicant as "... a child with severe disabilities and . . . severe management issues". Her disabilities were summarised as follows:
i) Cerebral palsy - spastic quadriplegia.
ii) Severe learning difficulties - performing like a newborn baby at 14 years plus of age.
iii) wind-swept deformity - severe scoliosis, dislocation of hips, flexion contractures of hip, knee, foot, elbow and wrist.
iv) Non ambulant (wheelchair bound).
v) Severe visual impairment - cortical blindness.
vi) Epilepsy.
vii) Reflux - had fundoplication - not orally fed, feeding for all practical purposes by gastrostomy tube and pump.
viii) Precocious puberty - as part of severe brain damage.
ix) Shaken baby syndrome.
x) Hearing within normal limits for practical purposes.
In the same report, Sally Wright, Chartered Physiotherapist, added that the Claimant could be in pain which limits her attention, learning, comfort and quality of life, that she had no purposeful movement or independent mobility, was totally dependent on her carers for all positioning transfers and self-care needs, could only sit with full support, could not speak and could only communicate by jerking movements and facial flushing when distressed or in discomfort or by smiling and giggling. Her general health was pretty good though on occasion she suffered chest infections. She was uncomfortable lying on her left side, sounding 'wheezy' and secreting heavily from her mouth.
In her report of 14 August 2009, Ms Alison Dunning RGN, a care expert, advised that the Claimant was incontinent and noted she frequently woke at night, crying out and requiring repositioning. She had to be checked for incontinence at least twice a night. She occasionally suffered petit mal seizures at night.
Assessment of life expectancy for the 2010 Decision
The 2010 Decision found, on the basis of the agreed expert evidence, that the Claimant was unlikely to live beyond 20 years of age.
Dr Elaine Lewis, Consultant Community Paediatrician, reported on 28 August 2007 "... Her life expectancy is difficult to predict but it is unlikely that she will live longer than her late teens or early adulthood. Undoubtedly the quality of care that she receives at home is maximising her life expectancy". Professor Lingham advised in April 2009 "... Having now spoken to several colleagues on this matter the expert view is that her life expectancy will not exceed 20 years of age. In the rare possibility of [her] life going beyond 20 years it would be a great credit to the current carers ...".
Assessment of life expectancy for the Tribunal Decision in 2024
Professor Anthony Ward, a Consultant Physician in Rehabilitation Medicine, provided an assessment of life expectancy, in his report of 7 December 2018. He stated (footnotes omitted) :
On considering Professor Ward's evidence, the Tribunal concluded that the Claimant, then aged 29, had already substantially outlived Professor Lingham's assessment of her life expectancy by about 50%. If Professor Ward was right, she was likely to outlive it by over 75% (paragraphs 23 and 25 of the Decision ("Decision/23, 25")).
Assessment of the Claimant's current condition for the Tribunal Decision in 2024
The Tribunal assessed the Claimant's current condition at Decision/26-28, as follows:
Ongoing care
At the Tribunal, Ms Fancourt, an occupational therapist, assessed the gratuitous care provided by Mr and Mrs Grass at 43 hours per week, less an amount for time spent at a day centre and some respite care, funded by social services. Ms Fancourt advised that the Claimant would continue to require 24 hour supervision, and assistance with most tasks.
Mr and Mrs Grass are concerned that, because of their age and increasing infirmity, they will no longer be able to manage the physical nature of the Claimant's care and will need increasing support from professional carers. George Grass was born on 1 January 1948, and is now aged 78. Margaret Grass was born on 18 August 1952, and is now aged 73. The Tribunal recognised this as a genuine concern and accepted that the delivery of the Claimant's future care by professionals will be costly.
Legal framework
The Scheme is a forerunner of the tariff schemes now in place. It is a non-statutory ex gratia scheme created under prerogative powers and designed to compensate innocent victims of crimes of violence on the basis, subject to its other provisions, of common law damages, usually in the form of a final lump sum payment (Decision/32).
The scope of the Scheme is described in paragraph 4. Applications for compensation may be made where the applicant has sustained personal injury directly attributable to a crime of violence, or the apprehension of an offender, or trespass on a railway. The term "directly attributable" is defined in paragraph 4 of "A Guide to the Criminal Injuries Compensation Scheme" ("the Guide") as follows:
According to the Guide, "Personal injury" can include mental injury directly attributable to a crime or threat of violence.
Applications must be made within three years of the incident, though there is discretion to waive this requirement (paragraph 4 of the Scheme). Awards are intended to be final. However, the CICA may reconsider a case pursuant to paragraph 13 of the Scheme which provides:
In R (Criminal Injuries Compensation Board), ex parte Williams [2000] PIQR Q339, the Court of Appeal held that a serving police officer who had been given an award for an injury to his back was entitled to apply, under paragraph 13 of the Scheme, for his case to be re-opened when he subsequently suffered exacerbations of his back injury, in 1994 and 1995, which rendered him unable to return to work. The Court accepted that, on the medical evidence, the claimant had sustained an injury to the lumbar spine which rendered him susceptible to further injuries, and so the events that triggered the exacerbations were not supervening new causes, but were part of an unbroken chain (per Ward LJ at Q347).
Ward LJ analysed the elements of paragraph 13 of the Scheme as follows (Q345):
Laws LJ agreed with Ward LJ's judgment and added (Q348) that "directly attributable" is apt to excludes causes which are plainly secondary or subsidiary" but "does not necessarily bar from compensation a worsened condition which occurs upon the happening of some …. event where the original injury has rendered the claimant vulnerable to such a worsened state". He concluded:
The CICA referred to a redacted First-tier Tribunal decision identified by its reference number C1017/21/00042 (bundle page number Ma35-39), made under the Criminal Injuries Compensation Scheme (2008) ("2008 Scheme"). It had an equivalent provision to paragraph 13, save that it referred to a "material change" not a "serious change". The appellant applied for a reconsideration because the CICA had wrongly assumed her life expectancy to be up to 30 years of age, whereas she had a normal life expectancy. There was no change to her physical or mental condition. The tribunal found that life expectancy was an aspect of prognosis and relied upon Williams where Ward LJ stated that misdiagnosis or mis-prognosis was not a justification for reconsideration (at [8] – [10]). The tribunal held, in the alternative, at [13]:
In Colefax v First-tier Tribunal [2014] EWCA Civ 945 , the Court of Appeal considered the correct interpretation of the time limits in paragraph 18 of the 2008 Scheme. Briggs LJ held, at [16] and [19], that the provision should be interpreted "by reference to the ordinary meaning of the words used …. construed both in the context of the Scheme as a whole, and with due regard to its evident purpose". Briggs LJ also considered the parallel provision to paragraph 13 of the Scheme, and observed, at [24]:
In R (LXR) v First-tier Tribunal (Social Entitlement Chamber) & Ors [2025] EWCA Civ 1608 , the Court of Appeal upheld an appeal by the CICA which had refused an application under paragraphs 114 – 116 of the 2012 Scheme. Singh LJ rejected the Upper Tribunal's criticism of the First-tier Tribunal's reference to a dictionary definition of the phrase "medical condition". Singh LJ cited with approval the judgments in Williams (at [51] – [54]). At [70], Singh LJ also cited with approval the judgment of Gross LJ in Criminal Injuries Compensation Authority v Hutton & Ors [2016] EWCA Civ 1305 , on the approach to take to a challenge to the decision of a specialist tribunal of fact:
The CICA also drew my attention to the judgment of Lord Lloyd-Jones in R (A) v Criminal Injuries Compensation Authority [2021] UKSC 27 , [2021] 1 WLR 3746 .
Ground 1
Mr Howarth KC submitted that the Tribunal misdirected itself in law as to what can amount to "a serious change in medical condition", in particular, by declining to accept that unexpected longevity can amount to a serious change in medical condition.
Mr Howarth KC submitted that the expected duration of a condition is part of the definition of the condition, as a matter of ordinary speech, and as the concept would be understood by the reasonable person in the street. A person consulting a doctor about a medical condition will likely ask how long it will persist; that is part of ascertaining the nature of the medical condition. Advice from a doctor that a patient has a terminal condition is a conclusion or at least a prognosis as to how long the patient has to live. It follows that if a person outlives the life expectancy predicted by medical opinion, there has been a serious i.e. significant change in that person's medical condition. Furthermore, as at the date of the Tribunal hearing, the Claimant had already exceeded her life expectancy and her unexpected longevity was a matter of established fact, not merely a prediction.
The Tribunal, at Decision/58, accepted that the duration of a medical condition affects the level of disablement. Therefore it was irrational and incoherent to proceed to find that the Claimant's life expectancy was different to the duration of her condition and that her life expectancy was not part of and did not affect her health.
Conclusions
Pursuant to paragraph 12 of the Scheme, compensation is assessed on the same basis as common law damages, with some exceptions. The Tribunal rightly accepted the submission made by Mr Browne KC for the CICA, based on Colefax , that finality was a principle of common law damages and that finality should be modified by paragraph 13 of the Scheme only to the minimum extent necessary and only expressly or by necessary implication (Decision/48). However the Tribunal was also right to reject Mr Browne KC's submission that paragraph 13 should be construed narrowly or strictly (Decision/50). It agreed with Mr Howarth KC that the words of paragraph 13 should be given their ordinary natural meaning (Decision/50). I also consider that, as Briggs LJ held in Colefax , the ordinary natural meaning of the words should be construed both in the context of the Scheme as a whole, and with due regard to its evident purpose. The Tribunal and Mr Browne KC did not accept Mr Howarth KC's reliance on the understanding of the "reasonable and fair-minded taxpayer" (Decision/61, 62). However, I note that the test of a "reasonable and literate man's understanding" was applied by Lawton LJ in R v Criminal Injuries Compensation Board ex parte Webb [1987] QB 74, at 78, and cited by Laws LJ in Williams . Therefore I have also applied it when construing the Scheme and its application to this case.
I note that if the Claimant had been able to bring a common law claim against the tortfeasor, she would not have been entitled to claim damages for loss of expectation of life, as a separate head of loss. The court, in assessing damages for pain and suffering, would have taken account of suffering caused by her awareness (if any) of the reduction in expectation of life (see section 1 of the Administration of Justice Act 1982). Save to that limited extent, loss of expectation of life would not have been treated as part of the personal injury sustained and not compensated. Damages for the cost of future care and other needs would have been assessed by reference to her life expectancy. As a young child, the Claimant would not have been allowed to claim for loss of earnings during the "lost years": see Croke v Wiseman [1982] 1 WLR 71. The Supreme Court, in CCC (by her mother and litigation friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 , overruled Croke v Wiseman on 18 February 2026, placing children in the same position as adults and adolescents.
The Tribunal noted that the phrases "medical condition" and "serious change" were not defined in the Scheme (Decision/52). Their use of dictionary definitions as an aid to construction was helpful and appropriate (see Singh LJ in LXR at [42]). The Tribunal set out Ward LJ's analysis of paragraph 13 in Williams and concluded:
Under the heading "Has there been a serious change in the applicant's medical condition", the Tribunal found as follows:
In my judgment, the Tribunal correctly applied the requirements of paragraph 13 of the Scheme to the facts of this case. Although Williams was distinguishable on the facts, Ward LJ's analysis of paragraph 13 is helpful and I consider it to be binding on me. Importantly, the Tribunal identified that a "serious change in the applicant's medical condition" requires a change in the applicant's " substantive state of health" and "a change in diagnosis or prognosis is not of itself a change in medical condition" (emphasis added) . It was common ground that there was no significant change in the Claimant's substantive medical condition. Therefore, even if life expectancy could be categorised as part of a patient's prognosis, reflecting ordinary medical usage, it did not, of itself, engage paragraph 13.
Moreover, in this case the cause of the increased life expectancy was not a change in the Claimant's medical condition. The causes were the continued devoted care of her adoptive parents, and Professor Ward's use of more recent statistical data (Decision/59).
The Tribunal acknowledged that the duration of a medical condition affected "the level of disablement of the sufferer" and was well aware that the Claimant had already exceeded the life expectancy assessed in 2010. In my view, the Tribunal was entitled to conclude that the Claimant's life expectancy was different in kind to the duration of her medical condition. Life expectancy was an assessment of how long she was likely to live, by reference to statistics of cohorts of people with similar medical conditions. It was assessed in the light of her state of health, but was not part of, and did not affect, her state of health.
The Tribunal agreed with Mr Browne KC's submissions that, if the Scheme was intended to allow cases to be reconsidered on the basis of a change in life expectancy, it was reasonable to expect that express provision would have been made for this. It was in the nature of a lump sum payment for future loss that it may prove to be too little or too much, and the assessment of damages was not an exact science. As life expectancy is assessed by reference to the average survival time of a cohort with similar characteristics, it was not unusual for an individual to fail to reach an estimated life expectancy or to outlive it (Decision/51). In this Court, Mr Browne KC supported these submissions by reference to passages on "Projected Mortality" in the 'Professional Negligence Bar Association Facts and Figures Tables for the Calculation of Damages 2025/2026', at pages 19-21, and passages in Wells v Wells [1999] 1 AC 345 , per Lord Lloyd at 363H-364A, 378D-E; Lord Steyn at 383A.
As I have already stated, the natural and ordinary meaning of the words in paragraph 13 must be construed in the context of the Scheme as a whole and with regard to its purpose. The Court of Appeal has held that previous schemes should be construed with regard to a "reasonable and literate man's understanding" of the circumstances in which he could be paid compensation. In my view, the requirement in paragraph 13 of the Scheme that there must be a "serious change in the applicant's medical condition" is deliberately restrictive. Paragraph 13 could have been drafted more broadly to refer, for example, to a "serious change in circumstances". The Scheme's choice of words, and the underlying intention to limit the scope of applications to re-open final awards, which are funded by the tax payer, must be respected by the court.
Mr Howarth KC submitted that paragraph 13 refers to a change, not a deterioration, but that submission did not address the additional requirement of seriousness. In my view, the natural and ordinary meaning of the phrase "a serious change in … medical condition", construed in the context of a request to reopen an award, is an adverse change in medical condition i.e. an increase in disability (see Ward LJ in Williams and the Oxford English Dictionary definition of "serious" in the medical context, cited in Decision/57). The change relied upon by the Claimant, namely, an increase in life expectancy, did not significantly affect her level of disablement and her expected outcomes have improved. Therefore there was no serious change in her medical condition. The consequence of the increased life expectancy is likely to be serious in other senses (e.g. financially) but that is not a basis upon which an application under paragraph 13 was intended to be granted.
For the reasons set out above, I do not accept that the Tribunal misdirected itself on the scope of paragraph 13 of the Scheme, or misapplied it to the facts of this case. I consider that the Decision was soundly reasoned and rational. Therefore Ground 1 does not succeed.
Ground 2
In view of my conclusions on Ground 1, Ground 2 falls away and I do not need to address it.
Final conclusions
The claim for judicial review is dismissed.