AXO, R (on the application of) v First-Tier Tribunal (Social Entitlement Chamber)

Paragraph 49(1) of the 2008 Criminal Injuries Compensation Scheme permits repayment only where retaining a later payment would otherwise result in double recovery. The phrase “in respect of the same injury” is not a free-standing test covering every connected payment.

The comparison must identify what each award compensates. Pecuniary losses can usually be compared directly. For non-pecuniary loss, the court must adopt a high-level, broad-brush assessment of the overall context. Moral damage does not, by itself, prevent duplication. Where overlap cannot be established, CICA cannot recover.

Here, loss of parental services did not overlap with the Convention damages, but the Article 2 damages duplicated the bereavement award.

The appellant received £25,500 under the 2008 Criminal Injuries Compensation Scheme after her mother was murdered. The award comprised £5,500 for bereavement and £20,000 for loss of parental services.

She later settled claims under Articles 2 and 3 of the Convention against the police, social services and probation for £15,000. The settlement allocated £10,000 to the Article 2 claim and £5,000 to the Article 3 claim. The settlement was approved as just satisfaction under the Human Rights Act 1998.

CICA sought repayment under paragraph 49(1) of the Scheme. The First-tier Tribunal required repayment of the whole sum. The Upper Tribunal, in [2022] UKUT 265 (AAC), held that the Article 3 payment was not recoverable but that the Article 2 payment was. The appeal concerned whether the Article 2 payment involved double recovery.

Appeal allowed in part. Whipple LJ gave the substantive judgment, with Moylan LJ and Underhill LJ agreeing. The Upper Tribunal’s decision was set aside insofar as it concerned the £10,000 Article 2 settlement, and the Court remade the decision.

1. Construction of the repayment power. Article 9 of the European Convention on the Compensation of Victims of Violent Crimes frames repayment as a means of avoiding double compensation. Paragraph 49(1) of the 2008 Criminal Injuries Compensation Scheme must therefore be read as requiring actual or prospective double recovery. The Upper Tribunal erred by treating any connection with the same injury as sufficient.
2. Nature of the CICA awards. The £5,500 bereavement award was comparable to a statutory bereavement award and compensated non-pecuniary loss, including grief and the loss of the deceased’s help, counsel and guidance. The £20,000 loss of parental services award represented pecuniary loss.
3. Nature of Convention damages. Damages under section 8 of the Human Rights Act 1998 provide just satisfaction. Their focus is the vindication of Convention rights and the maintenance of human-rights standards, although actual pecuniary and non-pecuniary harm may be compensated. Moral damage refers to actual harm to the individual’s well-being. It does not necessarily distinguish Convention damages from domestic compensation.
4. Assessment of overlap. The court must analyse what each award was for, considering the overall context at a high and broad level. In Article 2 cases, harm closely connected with the death may overlap with a bereavement award. Discrete harm caused by a separate failure, such as an inadequate investigation, may be distinguishable. If overlap cannot be established, repayment is not made out.
5. Application. The Article 2 settlement compensated the appellant’s grief and mental suffering following her mother’s death. It therefore duplicated the £5,500 bereavement award. The loss of parental services award was pecuniary and did not overlap with the non-pecuniary Convention damages. CICA could accordingly reclaim £5,500 from the £10,000 Article 2 settlement. The Upper Tribunal’s conclusion concerning the £5,000 Article 3 settlement remained undisturbed.

Underhill LJ additionally emphasised that Convention moral-damage awards and domestic compensation for injury to feelings address the same kind of injury. Whipple LJ also observed that a protected-party approval hearing may take possible CICA repayment into account, but should not determine the issue of recoupment.

1. Court of Appeal (Civil Division): In [2024] EWCA Civ 226, the appeal was allowed in part. The Court set aside the Upper Tribunal’s decision concerning the £10,000 Article 2 settlement and remade the decision, permitting recovery of £5,500 only.
2. Upper Tribunal (Administrative Appeals Chamber): In [2022] UKUT 265 (AAC), the Tribunal quashed the First-tier Tribunal’s decision concerning the £5,000 Article 3 settlement but upheld the decision concerning the £10,000 Article 2 settlement.
3. First-tier Tribunal (Social Entitlement Chamber): The Tribunal dismissed the appellant’s appeal and treated the £15,000 settlement as recoverable under paragraph 49(1) of the Scheme.