Thomas Mountford successful before the First Tier Tribunal (Criminal Injuries Compensation)
News | Fri 20th May, 2016
Thomas Mountford appeared on behalf of the Appellant, a care support worker in a residential unit for individuals with special needs. The Tribunal found that the Appellant, who had been injured whilst restraining a resident, had been the direct victim of a crime of violence under paragraph 4 of the Criminal Injuries Scheme 2012.
The two issues for determination by the Tribunal were whether, under the Criminal Injuries Compensation Scheme 2012, the Appellant sustained a criminal injury directly attributable to being a victim of a crime of violence under paragraph 4 or, in the event that this was not found established, whether the Appellant had taken an exceptional and justified risk under paragraph 5.
The Appellant was employed as a care support worker by a company providing supported living in residential accommodation for individuals with special needs. On the date of the incident the Appellant had been asked to provide cover for a staff shortage at a care home where she had worked previously but which was not her ordinary place of work.
The Appellant was providing support to a male resident diagnosed with Down’s syndrome, autism and learning difficulties, whom she had supported on a number of occasions previously, when he became anxious, agitated and aggressive. The resident’s behaviour escalated to the point of him throwing objects and endeavouring to upset furniture within the premises. After verbal intervention techniques to calm the resident failed, the Appellant and a colleague implemented a two-person restraint and removal technique to prevent the patient causing harm to himself, members of staff or property. During the course of the restraint the patient struggled causing the Appellant’s arm to be raised sharply thereby injuring her shoulder.
It was submitted on behalf of the Appellant that under paragraph 2 of Annex B to the 2012 Scheme that there had been either (a) a physical attack; or (b) an act of a violent nature causing physical injury and that the resident had intended to cause injury or was at the very least reckless as to the possibility of causing injury. Alternatively, it was submitted that the injury was directly attributable to the Appellant having taken an exceptional and justified risk. Although the Appellant was trained in restraint techniques it was argued that recourse to physical interventions was exceptional because (i) it was used as a last resort once other verbal techniques had failed; (ii) such techniques were only to be used where a resident displayed high risk behaviours; and (iii) the Appellant had not, during four years of employment with the company, including seven months of intermittent work at this specific care home, needed to resort to physical restraint techniques.
The Tribunal considered on the balance of probabilities that the patient exerted force against his lawful restrainers in a reckless manner. The Tribunal inferred that as the resident was a voluntary resident that he was likely to be aware of the potential consequences of his actions. There was no evidence that the resident did not have legal capacity. The extent of the effects of his disabilities upon him was not established, save for brief evidence from the Appellant on this point. In the circumstances the Tribunal considered that the Appellant was the victim of a crime of violence and that paragraph 4 of the 2012 Scheme was satisfied.
Although the Tribunal did not need to go on to consider eligibility under paragraph 5, the Tribunal stated that if it had not found paragraph 4 satisfied it would have found that paragraph 5(2) applied on the basis that the range of the resident’s behavioural difficulties were known to the Appellant, she had training in this field of work and the risks involved were known to the Appellant and could not be said to be exceptional.