MP v First-tier Tribunal (Social Entitlement Chamber)

On a judicial review of a human-rights decision by the First-tier Tribunal, the Upper Tribunal must identify any material public-law error, although the court system as a whole must fairly determine whether proportionality is satisfied. A criminal-injuries compensation scheme may fall within the ambit of A1P1, but that does not determine the appropriate comparator under article 14. Nationality and residence may constitute grounds of differential treatment, while a status defined entirely by the alleged discrimination cannot itself be an article 14 status. In allocating public funds, the State has a wide margin of judgment. A residence-based eligibility rule, including its application to relatives claiming after a fatal injury, was justified by legitimate cost and policy considerations. The Scheme was therefore compatible with article 14.

The applicant, ordinarily resident in Sri Lanka, was the father of a Sri Lankan national who was lawfully resident and working in the United Kingdom when murdered. His claim for a bereavement payment under the Criminal Injuries Compensation Scheme 2012 was refused because he did not satisfy paragraph 10’s eligibility requirements. The First-tier Tribunal dismissed his appeal, relying in part on JT v First-tier Tribunal and CICA [2018] EWCA Civ 1735, and rejected his article 14 and A1P1 challenge. The Upper Tribunal considered whether the First-tier Tribunal had erred in law, whether a late Thlimmenos argument could be considered, and whether the residence and nationality requirements were discriminatory and unjustified.

1. Jurisdiction and procedure. The application for judicial review was refused. Under section 15(4) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal applies the principles governing judicial review relief. It does not simply remake the First-tier Tribunal’s decision. In a human-rights challenge, however, the court system as a whole must fairly determine proportionality. On judicial review, intervention still requires a material public-law error in the First-tier Tribunal’s decision.
2. The applicant was permitted to advance the Thlimmenos formulation. Although it had not been clearly identified by name in the original grounds, the interested parties had a fair opportunity to answer it through written submissions and the hearing process.
3. The claim fell within the ambit of A1P1, following the binding decision in JT v First-tier Tribunal and CICA [2018] EWCA Civ 1735. The description of criminal-injuries compensation as a welfare benefit in that case was confined to the issue of whether the scheme created a proprietary interest within A1P1. It did not determine whether the reasoning in Carson applied to the article 14 comparison.
4. The applicant’s alternative status, defined solely by failure to satisfy the Scheme’s eligibility conditions, could not constitute an article 14 status. Nevertheless, the Scheme treated him unfavourably on grounds of nationality and ordinary residence. He was in an analogous position to a parent whose deceased child satisfied the relevant connection with the United Kingdom, but not to a person in a treaty country for the reasons given in R (Carson) v SSWP [2005] UKHL 37.
5. The residence requirements pursued the legitimate aim of controlling expenditure while maintaining a compensation scheme for victims of violent crime. The State was entitled to substantial weight and a wide margin of judgment in this field. It was rational and practicable to use bright-line eligibility rules. The failure to allow a bereaved relative to rely on the deceased person’s eligibility had received inadequate governmental consideration, but the court was not reviewing the lawfulness of making the Scheme itself. The overall policy remained justified, including the choice to attach eligibility to the claimant rather than the deceased.
6. Any criticisms of the First-tier Tribunal’s reasoning, including its treatment of alternative comparators, were immaterial to the outcome. On an independent evaluation there was no breach of article 14, and no quashing order was warranted.

• First-tier Tribunal (Social Entitlement Chamber: appeal against the Criminal Injuries Compensation Authority’s refusal was dismissed on 18 October 2018.
• Upper Tribunal (Administrative Appeals Chamber: permission to apply for judicial review was granted, but the application was refused.