JT v First-tier Tribunal

The Court of Appeal allowed JT's appeal against the application of paragraph 19 of the Criminal Injuries Compensation Scheme 2012 (the "same roof" rule). The court held that the criminal injuries compensation scheme constitutes an entitlement within the ambit of Article 1 of Protocol No. 1 (A1P1) to the European Convention on Human Rights and that Article 14 (prohibition of discrimination) accordingly applies via the "but for" test derived from Stec v United Kingdom.

The relevant ground of differential treatment was identified as the status of having been, at the time of the offence, "living together as members of the same family" as the assailant. That status falls within Article 14. The Secretary of State's reasons for retaining the historic "same roof" exclusion were not sufficient: the distinction was not justified, was manifestly without reasonable foundation and failed proportionality review. The Human Rights Act 1998, s.6, makes it unlawful for public authorities to apply a provision incompatible with Convention rights and the court disapplied paragraph 19 in JT's case, declaring that she is not prevented by para 19 from receiving an award.

Background and facts: JT suffered repeated sexual abuse and rape by her stepfather between about age five and age 17. Her assailant was convicted in 2012. JT applied to the Criminal Injuries Compensation Authority (CICA) in December 2012 but her application was rejected under the so-called "same roof" rule (para 19 of the 2012 scheme) which bars awards for injuries sustained before 1 October 1979 where applicant and assailant were living together as members of the same family.

Procedural posture: The First-tier Tribunal rejected JT's appeal and the Upper Tribunal dismissed her judicial review ([2015] UKUT 0478 (AAC)). The Court of Appeal heard an appeal against the Upper Tribunal's decision; the Equality and Human Rights Commission intervened and CICA opposed the appeal.

Nature of the claim and relief sought: JT sought a declaration and relief that the application of para 19 to her was incompatible with Article 14 ECHR read with Article 1 of Protocol No. 1 (A1P1), and therefore unlawful under the Human Rights Act 1998.

Issues framed by the court: (i) whether the complaint falls within the ambit of a Convention right (A1P1); (ii) whether the differential treatment was on a prohibited ground/status under Article 14; (iii) whether the differential treatment amounted to discrimination, applying the objective and reasonable justification / proportionality test and the appropriate intensity of review; and (iv) the appropriate remedy if Article 14 was violated.

Reasoning: Applying Stec and subsequent authority, the court held that the statutory criminal injuries compensation scheme creates an enforceable entitlement that falls within the ambit of A1P1, so Article 14 applies. The relevant comparator and status was victims who sustained similar injuries in the same period but were not living as family members with their assailant; "living as a member of the same family" is a personal status within Article 14. The Secretary of State's justifications (preventing assailant benefit, evidential difficulties, non-retrospectivity/'twas ever thus' and containing costs) were examined. The court found: (a) existing and less intrusive safeguards in the scheme (paras 20–21 and the general prohibition against benefit to assailant) undermined the rationale for a blanket historic bar; (b) evidential safeguards already in the scheme addressed historic-claim difficulties; (c) maintaining an historic discriminatory rule merely because it existed before is not a sufficient justification; and (d) cost-saving alone did not provide a rational, proportionate basis for excluding a class of victims who had suffered serious abuse. The difference in treatment was manifestly without reasonable foundation and therefore incompatible with Article 14.

Remedy: The Court of Appeal set aside the Upper Tribunal and First-tier Tribunal decisions and declared that paragraph 19 of the 2012 scheme does not prevent JT from receiving an award; the court disapplied para 19 in her case rather than making a section 4 declaration because primary legislation did not prevent disapplication.

Appeal allowed. The court held that (i) the statutory criminal injuries compensation scheme creates a proprietary interest within the ambit of Article 1 of Protocol No. 1 and thus Article 14 applies; (ii) treating victims who were "living together as members of the same family" as ineligible for awards in respect of injuries before 1 October 1979 is discrimination on a status within Article 14; and (iii) the Secretary of State's justifications for retaining the historic 'same roof' rule were not objectively and reasonably justified (manifestly without reasonable foundation). As a result paragraph 19 of the Criminal Injuries Compensation Scheme 2012 was treated as having no effect in JT's case and a declaration was made that she is not prevented by para 19 from receiving an award.

First-tier Tribunal decision refusing compensation; Upper Tribunal (Administrative Appeals Chamber) dismissed judicial review: JR/4047/2014 – [2015] UKUT 0478 (AAC). Appeal to the Court of Appeal allowed: [2018] EWCA Civ 1735.