Peiris, R (on the application of) v First-Tier Tribunal & Ors

An Article 14 challenge to eligibility rules for criminal-injuries compensation requires consideration of analogous situations, status, legitimate aim and proportionality. A scheme may legitimately pursue sustainability through control of expenditure and may require applicants to demonstrate a connection with the United Kingdom.

In the context of welfare or social benefits, ordinary residence or British nationality is not generally a suspect ground requiring very weighty reasons. Parliamentary scrutiny, resource allocation and the purpose of social solidarity are relevant to the proportionality assessment. Reciprocal international obligations and association with the armed forces may also justify different eligibility rules.

The appellant’s son was murdered in the United Kingdom. The appellant, a Sri Lankan national who was not ordinarily resident in the United Kingdom, sought a bereavement payment under the Criminal Injuries Compensation Scheme 2012. The Authority refused the application because he did not satisfy the Scheme’s eligibility requirements.

The First-tier Tribunal dismissed his appeal. On judicial review, the Upper Tribunal accepted that he was in a materially analogous position to eligible parents and that the difference in treatment was based on nationality and/or residence, but held that it was objectively justified: [2022] UKUT 91 (AAC). The appeal concerned whether that conclusion was legally erroneous, together with the respondent’s arguments on analogy and status.

Appeal dismissed. Lord Justice Lewis gave the leading judgment, with Lord Justice Peter Jackson and Lady Justice Falk agreeing.

1. The Article 14 analysis required consideration of whether the claim fell within the ambit of a Convention right, whether persons in analogous situations were treated differently, whether the difference was based on status, and whether it had objective and reasonable justification. Justification required a legitimate aim and a reasonable relationship of proportionality between the means and that aim.
2. The Court applied the nuanced proportionality approach required for economic and social measures. A wide margin is usually available where scarce resources are allocated, but the court must consider the nature of the status relied upon, parliamentary scrutiny and all relevant circumstances. The Scheme had been made by the executive and approved by both Houses of Parliament.
3. The legitimate aim was not merely saving costs. It was establishing a sustainable system of compensation and related services for victims of violent crime. Control of expenditure was necessarily part of that legitimate aim.
4. The requirement that an applicant demonstrate a connection with the United Kingdom through ordinary residence or British nationality bore a reasonable relationship to that aim. The Scheme treated compensation as a welfare or social benefit reflecting the community’s social solidarity. Residence or British nationality was not, in this context, a suspect ground involving stigma, stereotyping or social exclusion. Very weighty reasons were therefore not required. In any event, the connection with the United Kingdom, resource allocation and parliamentary approval would have supplied such reasons.
5. The Court distinguished Gaygusuz, Koua Poirrez and Ponomaryov, which concerned materially different circumstances, including exclusion based exclusively on nationality or access to important secondary education. Eligibility for the Scheme was not exclusively dependent on nationality because ordinary residence was sufficient. The extensions for nationals protected by reciprocal obligations and for armed-forces personnel were also objectively justifiable.
6. The appellant and other parents of deceased victims were in materially analogous positions, and ordinary residence was an Article 14 status. The respondent’s reliance on Carson was misplaced because pensions formed part of a different interlocking welfare system, whereas the Scheme was triggered by a crime of violence.

The separate funeral-expense claim was distinct from the bereavement claim and was subsequently awarded. The refusal of the bereavement payment was nevertheless lawful, and the appeal was dismissed.

1. Court of Appeal (Civil Division) — In [2023] EWCA Civ 1527, the appeal was dismissed and the Upper Tribunal’s conclusion was upheld.
2. Upper Tribunal (Administrative Appeals Chamber) — In [2022] UKUT 91 (AAC), the claim for judicial review was dismissed. The Tribunal held that the differential treatment was objectively justified.
3. First-tier Tribunal — The appellant’s appeal against the Authority’s refusal was dismissed on 18 October 2018.
4. Criminal Injuries Compensation Authority — The bereavement-payment application was refused on 14 September 2016 and following review on 1 March 2017.