KM v First-tier Tribunal (Social Entitlement Chamber)

Under Article 14, a challenge to the Criminal Injuries Compensation Scheme must apply the established four-stage discrimination analysis. Where the scheme operates in the field of social welfare policy and the differential treatment is not based on a suspect ground, the question of justification is whether the measure is manifestly without reasonable foundation.

A victim seeking preferential treatment because criminal offending was connected with their victimisation must establish the relevant causal nexus. In the absence of that nexus, the exclusion of an applicant with an unspent conviction from compensation is justified by the legitimate aim of limiting awards to victims considered deserving of a share in finite public funds.

The applicant sought judicial review of a First-tier Tribunal decision of 14 December 2021. The tribunal had dismissed her appeal against the Criminal Injuries Compensation Authority’s refusal of compensation for child sexual abuse. At the date of her application, she had an unspent conviction resulting in a community order, which engaged the exclusionary rule in the Criminal Injuries Compensation Scheme 2012.

She contended that the rule was unjustifiably discriminatory under Article 14 read with A1P1, and under Article 14 read with Articles 3 and 8. She submitted that victims of child sexual abuse should receive different treatment, particularly where later offending was connected with the abuse. The central issue was whether the tribunal had erred in treating A and B v CICA [2021] UKSC 27 as binding and determinative.

1. Judicial review dismissed. The First-tier Tribunal made no material error of law in dismissing the applicant’s compensation appeal.

2. The tribunal correctly applied the four-stage Article 14 analysis. A claim to compensation under the Criminal Injuries Compensation Scheme 2012 fell within the ambit of A1P1 and, on the wider modern approach to ambit, Articles 3 and 8. Both an unspent conviction and being a victim of child sexual abuse could amount to an “other status”.

3. The applicant did not establish that her offending had a direct causal connection with her child sexual abuse. The tribunal was entitled, on the evidence, to find that she had not established that she was a nexus offender. Its factual or evaluative finding could be disturbed only if no reasonable properly instructed tribunal could have made it.

4. Consequently, no basis arose for treating the applicant preferentially to victims of other crimes who had unspent convictions. The position of potential nexus offenders could not require differential treatment for all victims with convictions. Nor could the applicant be treated as a blameless victim where the necessary connection between her offending and the abuse had not been established.

5. The exclusionary rule pursued the legitimate aim of limiting taxpayer-funded compensation to those considered deserving of it. In this social-welfare context, and where the ground was not suspect, the appropriate standard was whether the rule was manifestly without reasonable foundation. Applying A and B v CICA [2021] UKSC 27, the rule was rationally connected to that aim, proportionate and struck a fair balance. The Supreme Court authority was binding and could not be distinguished.

6. The Upper Tribunal confirmed the First-tier Tribunal’s decision to dismiss the appeal against the refusal of compensation.

• Upper Tribunal (Administrative Appeals Chamber): Judicial review dismissed. The Upper Tribunal confirmed that the First-tier Tribunal had made no material error of law.
• First-tier Tribunal (Social Entitlement Chamber): On 14 December 2021, dismissed the applicant’s appeal against the refusal of compensation under the Criminal Injuries Compensation Scheme 2012.