ZX, R (on the application of) v Criminal Injuries Compensation Authority & Anor

A statutory criminal-injuries compensation scheme may draw bright-line distinctions between victims, dependants and other relatives. Article 14 requires a status, an analogous situation and objective justification, but these questions are not rigidly compartmentalised.

In the context of a scheme approved by Parliament and directed to social welfare and limited public resources, the court should allow a wide margin of appreciation. A distinction will generally be lawful unless it is manifestly without reasonable foundation and disproportionate to the legitimate aim.

Common-law principles governing damages for gratuitous care cannot be imported into compensation governed by the Scheme. The same considerations defeated the irrationality challenge.

The claimant was the mother of a seriously injured victim of violent crime who died from complications before his compensation claim, including special expenses for care, had been finalised. She challenged the Criminal Injuries Compensation Scheme 2012 because family members could not claim such expenses after a victim’s death from the criminal injury, whereas financially dependent relatives could claim certain pre-death losses where death was unrelated.

She alleged irrationality and discrimination contrary to article 14 of the European Convention on Human Rights read with article 1 of Protocol 1. She also sought damages under the Human Rights Act 1998. The court determined whether the Scheme was unlawful and whether any financial claim could succeed.

1. Financial claim. The claimant’s proposed claims for gratuitous care, equipment and Court of Protection expenses were extinguished by deductions for social security benefits and interim payments. In any event, care would probably have been refused for periods when equivalent state care was available. The financial claim therefore could not succeed.
2. Article 14. Following JT v Criminal Injuries Compensation Authority [2019] 1 WLR 1313, the Scheme was capable of engaging article 1 of Protocol 1. Being a family carer of a victim who later died from the injury, and being a non-dependent qualifying relative of such a victim, were capable of constituting “other status”.
3. The claimant was nevertheless not in an analogous situation to the proposed comparators. Death was a material difference for the carer comparison. Financial dependency was a material difference for the comparison with relatives whose victim died from an unrelated cause. The Scheme’s purposes and structure also differed between fatal and non-fatal cases.
4. The distinction was objectively justified. The Scheme pursued legitimate aims of social solidarity, support for those financially affected by violent crime, sustainability, control of expenditure and avoidance of duplicated provision. Parliamentary approval under section 11 of the Criminal Injuries Compensation Act 1995 reinforced the need for judicial restraint. Applying a wide margin of appreciation and the “manifestly without foundation” test, the Scheme struck a fair balance.
5. The claimant could not rely on common-law damages principles concerning gratuitous care. Under Rust-Andrews v First Tier Tribunal (Social Entitlement Tribunal) [2011] EWCA Civ 1548, compensation under the Criminal Injuries Compensation Act 1995 had to be determined in accordance with the Scheme.
6. The irrationality challenge failed for the same reasons. The distinctions had a rational explanation and fell within the broad discretion accorded to the Secretary of State and Parliament. The claim for judicial review was dismissed.

This was a first-instance judicial review in the Administrative Court. Permission was granted by Sweeting J on 12 April 2024. The claim was dismissed by Mrs Justice Lang DBE.