Legal Rights

What is involved in Claiming Compensation?

Compensation claims arising out of acts of abuse are usually complex and many legal difficulties can arise.

The first step is to establish against whom the claim for compensation should be made (the Defendant). In cases involving abuse that occurred in Residential Care Institutions, for example a Children’s Home, it is often the body responsible for running the Care Home against whom the claim will be made, for example a Local Authority, a Charity or a Religious Institution. Such a claim would usually be made on the basis that the body responsible for running the Home failed in their duties to adequately look after the child or adult in their care.

In other instances, compensation claims are often brought against individuals who have perpetrated acts of abuse, usually where the act of abuse has taken place outside of a residential care setting, for example, in the family home.

In all civil claims for compensation, it is necessary initially to establish how the compensation claim is to be funded. Then, the solicitor will try to obtain as much evidence as possible to help to prove the claim and arrange the help of medical experts in order that the value of the claim can be assessed.

If it is then appropriate to begin Court Proceedings a formal legal claim is begun in Court. In most cases, the case does not need to proceed to a final Trial and in many cases compensation claims are settled “out of Court”. If a case does proceed to trial, it would usually be necessary for the person bringing the case (the Claimant) to give evidence in court as a witness, unless the Claimant was not able to give evidence, for example if they suffered from a disability.

Difficulties Along the Way

Although no abuse is acceptable, for many reasons not every claim for compensation will be successful.

From 1st April 2000 Legal Aid was withdrawn from all compensation claims arising out of cases involving negligently caused personal injury or death. The Legal Aid Board has been replaced by the Legal Services Commission, which decides whether to help to fund claims for compensation. The Commission will only authorise public funding to cases that arise from an alleged assault or deliberate abuse as opposed to allegations of “negligently caused” injury. Claims alleging assault or abuse by a public servant may well be brought against the responsible Authority that employs him or her as well as or instead of the individual. The Legal claim against the Authority may be one of negligence, but such claims are not excluded from funding, as the Commission looks at whether the injury itself was caused negligently or deliberately. For the time being at least therefore, Legal Aid remains available for many abuse claims where the party qualifies financially.

In a very large percentage of cases involving abuse, particularly child abuse, the abuse survivor is unable to talk about the abuse or seek the advice of a professional until many years after the abuse took place. Often this may be some twenty or thirty years after the abuse took place. In legal terms this can often cause great difficulties in pursuing compensation claims as the law presently does not adequately take into account the length of time a person takes to first disclose the abuse to someone else.

However, in many cases involving claims in the Civil Courts for compensation against Local Authorities arising out of negligent abuse in Residential Care Homes, the Courts often have a discretion to allow a person to bring a claim for compensation even though the claim might ordinarily be outside of the legal time limits.

In many cases where a compensation claim is being pursued against an individual person, rather than a Local Authority, the law is less willing to allow a compensation claim to be brought outside of the usual legal time limits. Difficulties can often arise if that individual Defendant would not have sufficient financial resources to be able to pay compensation to the person making the claim. Under such circumstances, it would be unwise to pursue any claim for compensation against the individual. It may still however be possible to pursue a claim for Criminal Injuries Compensation.

In any proposed claim for compensation, it is essential to obtain proper legal advice at the earliest possible opportunity to minimise the risk of being unable to pursue the compensation claim. The same will apply in respect of claims for Criminal Injuries Compensation.

All of the above difficulties can present many legal hurdles to a person seeking to pursue a claim for compensation in the Civil Courts. This can often lead to disappointment or a sense of injustice if a case does not succeed. However, with the right professional legal advice, many of the hurdles can often be overcome. It is always imperative however to obtain the right legal advice at the earliest possible stage.