CFP v First-tier Tribunal (Social Entitlement Chamber)

For the purposes of the Criminal Injuries Compensation Scheme 2012, a criminal injury consisting of a longer-term mental condition is sustained when the assault or other trauma causing it occurs. It is not sustained anew when its disabling effects are later experienced.

Article 14 of the Convention is engaged by eligibility for a scheme award. A distinction between persons who sustained criminal injuries before and after 1964 is an “other status”, but the Scheme’s pre-1964 exclusion is objectively and reasonably justified. It continues a longstanding prospective compensation policy in an area of social and economic policy, where a wide margin of judgment is appropriate.

The applicant sought judicial review of a First-tier Tribunal decision of 24 June 2020 which held that her claim for criminal injuries compensation was barred by paragraph 17 of the Criminal Injuries Compensation Scheme 2012. She alleged sexual and physical abuse between 1955 and 1962, when she was a child, and applied for compensation in 2019.

Permission was granted on the question whether the rule excluding compensation for criminal injuries sustained before 1964 could be departed from or disapplied. The Upper Tribunal permitted the applicant also to advance arguments on the construction of “sustained” and on alleged discrimination based on pre-1964 injury, age and sex under article 14 read with article 1 of Protocol 1.

1. Judicial review dismissed. The First-tier Tribunal made no error of law in holding that paragraph 17 barred the claim.

2. The Scheme had to be construed by the ordinary meaning of its language, in its full context and in light of its purpose. Although a victim of a crime of violence and the sustaining of criminal injury are distinct concepts, that distinction does not determine when an injury is sustained.

3. For a long-term mental condition, including PTSD, the relevant criminal injury is sustained when the assault or other trauma occurs. The tariff distinguishes the injury from its disabling effects. A construction which treated the later effects as the injury would be inconsistent with the treatment of sexual assault and physical injury elsewhere in the Scheme. The applicant’s disabling effects did not therefore make her injury post-date 1964.

4. Eligibility for an award falls within the ambit of article 1 of Protocol 1. The distinction between persons who sustained injury before and after 1964 is an “other status” for article 14 purposes. The age argument added no distinct status. The evidence relied upon did not establish a prima facie case that paragraph 17 indirectly discriminated on grounds of sex.

5. In any event, the differential treatment was objectively and reasonably justified. Criminal injuries compensation is social and economic policy, the Scheme was approved by Parliament, and the relevant grounds were not suspect. The 1964 cut-off gave effect to a longstanding policy of prospective compensation from the inception of the first scheme. It rationally pursued stability and affordability and struck a fair balance. The later application time limits served a different purpose and did not make the cut-off disproportionate.

• Upper Tribunal (Administrative Appeals Chamber): Judicial review dismissed: CFP v First-tier Tribunal (Social Entitlement Chamber) [2023] UKUT 145 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): On 24 June 2020, dismissed the applicant’s appeal because paragraph 17 of the Criminal Injuries Compensation Scheme 2012 excluded injuries sustained before 1964.