Summary
A statutory criminal-injuries compensation scheme which confers awards as of right creates a proprietary interest within article 1 of Protocol 1. Article 14 is therefore engaged where, but for an allegedly discriminatory condition of eligibility, the claimant would have been entitled to an award.
Living with an assailant as a member of the same family is an “other status” for article 14. A blanket exclusion of victims of pre-October 1979 violence on that ground was unjustified. It was inconsistent with the scheme’s purpose and policies, was not rationally supported by concerns about offender benefit or proof, and struck no fair balance merely by saving uncertain costs. A public authority must not apply the incompatible provision of subordinate legislation where primary legislation does not require it.
Factual background
JT applied for compensation under the Criminal Injuries Compensation Scheme 2012 after her stepfather was convicted of repeated sexual assaults and rape committed during her childhood. CICA rejected the application because paragraph 19 excluded victims injured before 1 October 1979 who had lived with their assailant as members of the same family.
The First-tier Tribunal upheld that decision. The Upper Tribunal dismissed JT’s judicial-review claim: [2015] UKUT 0478 (AAC). On appeal, JT relied solely on article 14 of the Convention read with article 1 of Protocol 1. The issues were whether the complaint fell within the ambit of a Convention right, concerned a protected status, was objectively justified, and what remedy should follow.
Held
- Appeal allowed. The court held that applying paragraph 19 of the Criminal Injuries Compensation Scheme 2012 to JT was incompatible with article 14 read with article 1 of Protocol 1.
- The criminal-injuries scheme formed part of the general framework of state welfare provision. Since 1995, a victim satisfying its eligibility conditions had an enforceable domestic right to an award. Applying the but for test in Stec v United Kingdom, JT’s claim therefore fell within the ambit of article 1 of Protocol 1: but for the same-roof condition, she would have had such a right.
- The proper comparison was between victims injured between August 1964 and October 1979 who lived with their assailant as family members and analogous victims who did not. The date of an injury was not the relevant status. Family membership at the time of the crime was, however, a personal status protected by article 14.
- The exclusion had no objective and reasonable justification. Although considerable latitude was due for socio-economic policy, the rule neither rationally advanced the prevention of an offender benefiting from an award nor addressed evidential difficulty proportionately. Paragraphs 20 and 21 supplied better-targeted safeguards, and the scheme’s ordinary rules already controlled difficult historic claims. Retaining a historic exclusion merely because it had always existed could not justify perpetuating discrimination.
- Saving potentially uncertain expenditure was a legitimate aim, but it could not justify allocating finite resources by a criterion that was arbitrary and inconsistent with the scheme’s stated focus on serious injury and sexual abuse. The rule manifestly failed to strike a fair balance.
- Under section 6(1) of the Human Rights Act 1998, paragraph 19 had to be treated as invalid and without effect in JT’s case. The court set aside the Upper Tribunal’s decision, quashed the First-tier Tribunal’s decision, and declared that paragraph 19 did not prevent JT from receiving an award. Entitlement and amount remained for determination under the scheme.
The court’s approach to earlier authorities
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Appellate history
- Court of Appeal (Civil Division) Allowed JT’s appeal, set aside the Upper Tribunal’s decision, quashed the First-tier Tribunal’s decision, and made a declaration disapplying paragraph 19 of the Criminal Injuries Compensation Scheme 2012 in JT’s case.
- Upper Tribunal (Administrative Appeals Chamber) Dismissed JT’s judicial-review claim: [2015] UKUT 0478 (AAC).
- First-tier Tribunal Dismissed JT’s appeal from CICA’s refusal of compensation under the same-roof rule.
Appeal route
- Appealed from[2015] UKUT 478 (AAC)This appealappeal allowed
- This judgment [2018] EWCA Civ 1735 Court of Appeal (Civil Division)
Key cases cited
21 authorities cited.
- Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36
- Cameron Mathieson, a deceased child v Secretary of State for Work and Pensions [2015] UKSC 47
- In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3
- Bank Mellat v Her Majesty's Treasury (No 1) [2013] UKSC 38
- Humphreys v The Commissioners for Her Majesty’s Revenue and Customs [2012] UKSC 18
- Tomlinson and others (FC) v Birmingham City Council [2010] UKSC 8
- R (on the application of RJM) (FC) (Appellant) v Secretary of State for Work and Pensions (Respondent) [2008] UKHL 63
- In re P and others (AP) (Appellants) (Northern Ireland) [2008] UKHL 38
- Belfast City Council (Appellants) v. Miss Behavin' Limited (Respondents) (Northern Ireland) [2007] UKHL 19
- The Secretary of State for Work And Pensions v Carmichael & Anor [2018] EWCA Civ 548
- MA v Criminal Injuries Compensation Board [2017] CSIH 46
- C v Home Office & Anor [2004] EWCA Civ 234
- Vrountou v Cyprus (2017) 65 EHRR 31
- Minter v United Kingdom (2017) 65 EHRR SE6
- Fabris v France (2013) 57 EHRR 19
- Associazione Nazionale Reduci Dalla Prigionia dall' Internamento e dalla Guerra di Liberazione v Germany (2008) 46 EHRR SE 11
- Roche v United Kingdom (2006) 42 EHRR 50
- Von Maltzan v Germany (2006) 42 EHRR SE11
- Stec v United Kingdom (2006) 43 EHRR 74
- Connors v United Kingdom (2005) 40 EHRR 9
- Stec v United Kingdom (2005) 41 EHRR SE18
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Cases citing this case
20 later cases · 15 positive · 5 caution
Most senior citing decisions:
- RR v Secretary of State for Work and Pensions [2019] UKSC 52 applied
- Joyce Oji, R (on the application of) v The Director of Legal Aid Casework [2026] EWCA Civ 11 explained
- AXO, R (on the application of) v First-Tier Tribunal (Social Entitlement Chamber) [2024] EWCA Civ 226 applied
- Peiris, R (on the application of) v First-Tier Tribunal & Ors [2023] EWCA Civ 1527
- CN (R on the application of) v The Secretary of State for Health and Social Care [2022] EWCA Civ 86
- Simawi v London Borough of Haringey [2019] EWCA Civ 1770
- SC & Ors, R (on the application of) v The Secretary of State for Work And Pensions & Ors [2019] EWCA Civ 615
- Samer Alabboud Alhasan, R (on the application of) v The Director of Legal Aid Casework & Anor [2024] EWHC 2031 (Admin)
- ZX, R (on the application of) v Criminal Injuries Compensation Authority & Anor [2024] EWHC 1703 (Admin)
- Joyce Oji, R (on the application of) v The Director of Legal Aid Casework [2024] EWHC 1281 (Admin)
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