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

Key legal principle: paragraph 49(1) of the 2008 Criminal Injuries Compensation Scheme permits the Criminal Injuries Compensation Authority (CICA) to reclaim previously paid awards only where there would otherwise be double recovery. The right of repayment is therefore limited to avoiding double compensation.

The Court of Appeal held that the Upper Tribunal erred in construing paragraph 49(1) more widely to allow repayment whenever another payment was “in respect of the same injury” even if no double recovery would arise. The correct construction follows the Compensation Convention and domestic statutory context: repayment is permissible where a later payment duplicates the loss already compensated by CICA.

Applying that test to the facts, the court concluded that the £10,000 element of the Human Rights Act (HRA) damages paid in respect of the Article 2 claim overlapped with CICA’s £5,500 bereavement award and therefore permitted CICA to seek repayment of that £5,500. The £20,000 award for loss of parental services was pecuniary in nature and did not overlap with the HRA damages.

This is an appeal from the Upper Tribunal's partial judicial-review decision concerning CICA's right to recoup part of HRA damages paid in settlement of claims under Article 2 ECHR. The appellant, a child whose mother was murdered, had earlier received CICA compensation of £25,500 (£5,500 bereavement; £20,000 loss of parental services). The appellant later accepted settlement of HRA claims for £15,000 (approved by the court): £10,000 for breach of Article 2 and £5,000 for breach of Article 3.

The relevant procedural history:

• The CICA sought repayment under paragraph 49(1) of the 2008 Scheme.
• The First-tier Tribunal dismissed the appellant’s appeal against recoupment.
• On judicial review the Upper Tribunal allowed challenge in part (holding the £5,000 Article 3 element not repayable but that the £10,000 Article 2 element could be recouped).
• The appellant appealed to the Court of Appeal; permission had previously been granted.

Nature of relief sought: the appellant sought to resist CICA’s claim to repayment from the HRA damages and to argue that paragraph 49(1) is limited to preventing double recovery and could not be applied to deny or reduce her HRA damages.

Issues the court framed and decided:

• Whether paragraph 49(1) of the 2008 Scheme is limited to situations of double recovery.
• What the CICA awards and Convention damages respectively compensate (pecuniary v non-pecuniary heads and the concept of moral damage).
• Whether, on the facts, any part of the HRA damages duplicated CICA compensation.

Reasoning summary:

• The court construed paragraph 49(1) against the background of the Compensation Convention, whose Article 9 expressly speaks of avoiding double compensation. That context limits paragraph 49(1) to preventing double recovery.
• CICA awards were analysed: the bereavement award was similar to Fatal Accidents Act bereavement awards and compensated non-pecuniary loss; the loss of parental services award was pecuniary in nature.
• Convention damages under the HRA and Article 41 ECHR are discretionary and may reflect moral damage, but that concept overlaps substantially with non-pecuniary loss recognised in domestic law; moral damage does not, by itself, prevent a finding of duplication.
• Applying a broad-brush analysis of the “overall context”, the court concluded the £10,000 Article 2 settlement was for the appellant’s grief and mental suffering consequent on her mother’s death and therefore duplicated the CICA bereavement award, producing double recovery to the extent of £5,500.

The court therefore allowed the appeal in part, set aside the Upper Tribunal’s broader construction, and remade the decision: CICA may seek repayment of £5,500 (the bereavement award) from the Article 2 element of the HRA damages; the £20,000 loss-of-parental-services award is not repayable.

The appeal was allowed in part. The Court of Appeal held that paragraph 49(1) of the 2008 Criminal Injuries Compensation Scheme is limited to preventing double recovery; the Upper Tribunal erred in construing it more widely. Applying the correct test, the court remade the decision and concluded that the £10,000 HRA damages paid in settlement of the Article 2 claim duplicated CICA’s bereavement award so that CICA may seek repayment of £5,500. The £20,000 loss of parental services award is not repayable.

FTT (appeal dismissed, decision dated 16 March 2021) -> Upper Tribunal, Administrative Appeals Chamber (judicial review allowed in part) [2022] UKUT 265 (AAC) -> Court of Appeal (this judgment) [2024] EWCA Civ 226. Permission to appeal was previously granted by Dingemans LJ on 8 March 2023.