JT v First-Tier Tribunal

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.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

• 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.