HJ v First-Tier Tribunal (Social Entitlement Chamber)

Paragraph 59(b) of the 2012 Criminal Injuries Compensation Scheme requires both a qualifying relationship and continuous cohabitation in the same household for at least two years immediately before death. Household membership is assessed as a question of fact and degree. Temporary separation does not necessarily end household membership, but an intention to resume living together is only one relevant factor.

Paragraph 59(c) operates as an exception to the cohabitation requirement. The question is whether the parties did not live together because of either person’s ill-health or infirmity. A specialist tribunal may conclude on the evidence that other causes, including safeguarding concerns, infidelity and dishonesty, were not attributable to ill-health. Judicial review does not permit re-evaluation of those factual conclusions unless there is a material error of law or irrationality.

The Applicant sought a bereavement payment under the 2012 Criminal Injuries Compensation Scheme after the murder of her partner. The Criminal Injuries Compensation Authority refused the claim under paragraph 59(b). The First-tier Tribunal found unanimously that the Applicant and the deceased had not lived in the same household continuously for the required two-year period. By a majority, it also rejected reliance on the ill-health or infirmity exception in paragraph 59(c).

The Applicant sought judicial review of the First-tier Tribunal’s decision, alleging errors concerning household membership, causation, irrationality and the meaning of ill-health. The central issues were whether the tribunal had applied the correct tests and whether its factual conclusions were legally reviewable.

1. Application dismissed. The First-tier Tribunal’s decision contained no material error of law.
2. Paragraph 59(b) imposes both a relationship requirement and a cohabitation requirement. The Applicant and the deceased had been separated and living apart for substantial parts of the relevant two-year period. The First-tier Tribunal therefore correctly concluded that paragraph 59(b) was not satisfied.
3. The phrase “living in the same household” requires a multi-factorial assessment of fact and degree. Temporary physical separation may not end household membership. Relevant matters include the duration and nature of the separation, continuing links, the intention to resume life together, and whether a separate household has been established. The approach in In re Dix, dec’d [2004] EWCA Civ 139 was relevant, but it did not make settled acceptance that the relationship had ended an essential prerequisite. The guidance in Sohrab and Others (continued household membership) Pakistan [2022] UKUT 157 (IAC) was properly applied.
4. Paragraph 59(c) concerns whether the parties did not live together because of ill-health or infirmity. The First-tier Tribunal considered all the relevant reasons for the separation and was entitled to find that safeguarding concerns, infidelity and dishonesty were not attributable to the deceased’s ill-health, whether wholly or partly.
5. The ordinary meaning of “ill-health” did not include volatile, anti-social and occasionally violent behaviour arising from drug addiction, even where the addiction had ultimate causes in mental-health difficulties. The majority’s conclusion was reasonably open to it on the evidence. The dissenting view within the First-tier Tribunal did not establish irrationality.
6. Judicial review of a specialist tribunal requires restraint. A different assessment of the evidence is insufficient. Intervention requires a material error of law, a conclusion outside the range of reasonable decisions, or a demonstrable flaw in the reasoning process. None was established.

• First-tier Tribunal (Social Entitlement Chamber): appeal dismissed on 24 August 2023. The tribunal unanimously rejected paragraph 59(b) and by a majority rejected paragraph 59(c).
• Upper Tribunal (Administrative Appeals Chamber): application for judicial review dismissed. The First-tier Tribunal’s decision was upheld.