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Nicola Kohn, barrister at of 39 Essex Chambers, examines the Court of Appeal’s declaration that the rule at paragraph 19 of the Criminal Injuries Compensation Scheme 2012 (CICS 2012), which prevents victims of a criminal injury sustained before 1 October 1979 from receiving compensation if they were then living with the assailant as members of the same family, should be treated as having no effect on the appellant’s claim for compensation.
JT v First-Tier Tribunal (Equality and Human Rights Commission intervening)  EWCA Civ 1735,  All ER (D) 15 (Aug)
What are the practical implications of the case?
The Ministry of Justice (MoJ) announced in August 2018 that it would not be appealing against the judgment. Then on 9 September 2018, the MoJ announced that it would be conducting a review into the CICS. Justice Secretary, David Gauke, announced plans to scrap the pre-1979 same roof rule, which ‘unfairly blocked some victims from compensation’.
The change in the scheme will require new secondary legislation. The current 2012 scheme includes the same roof rule at paragraph 19 and will require rewriting to put the government’s stated intentions into effect.
It is unclear at present how this will work for new claimants. The claimant in JT has a declaration in her favour that she is ‘not prevented by paragraph 19 of the CICS from being paid an award of compensation under the scheme’. It is hard to see how paragraph 19 can now be enforced against other claimants.
That said, claims officers have no authority outside of the terms of the scheme to make an award. Logically then, new claimants would need to make applications for compensation to the Criminal Injuries Compensation Authority (CICA) which, where relevant, would be refused on the grounds of paragraph 19, and they would then need to make onward appeals in order to achieve declarations mirroring that in JT. It has to be assumed that the government will take steps to put in place an effective remedy, so that this convoluted route to compensation is not required, but it is unclear how soon that can effectively be done.
It is also relevant that the scheme in its current form includes a two-year limitation period for bringing claims, save for in exceptional circumstances. It also provides, at paragraph 18, that an award will not be made if a person has previously made an application in respect of the injury. The MoJ has said it will consider these elements alongside the same roof rule, but as things stand, claimants who have previously attempted to claim compensation and been excluded by virtue of paragraph 19 will not be able to claim.
What was the background?
The appellant was violently sexually abused by her stepfather from the age of five until she turned 17 in 1979. In 2012, she appeared as a witness at his trial, following which he was convicted and sentenced to 14 years’ imprisonment for rape, indecent assault and indecency with a child.
After the conclusion of the trial, local police advised the appellant to make a claim for criminal injuries compensation. This was done in December 2012 but the interested party, the CICA refused it on the grounds of the same roof rule. The appellant appealed to the First-tier Tribunal (FTT), which dismissed her appeal on the same grounds. The Upper Tribunal (UT) refused her application for judicial review of that decision.
She appealed to the Court of Appeal, arguing that the right to criminal injuries compensation constituted a potential right to a possession and therefore came within the ambit of Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR)—the right to peaceful enjoyment of one’s possessions. She then argued that she had ‘other status’ within the meaning of Article 14 of the ECHR by virtue of having lived together as a member of the same family as her assailant at the time when the offence against her was committed.
Both of these arguments had been successfully made in a parallel Scottish Court of Session (Inner House) case of MA v Criminal Injuries Compensation Board  CSIH 46, 2017 SLT 984, 2017 Scot (D) 17/7.
The appellant argued that the imposition of the same roof rule was discriminatory on the grounds of her other status and that the said discrimination was not justified. There was also an argument about the remedy that could be afforded, with the interested party seeking to rely on Secretary of State for Work and Pensions v Carmichael and another  EWCA Civ 548,  All ER (D) 11 (Apr) to argue that it did not have authority to act outside the terms of the 2012 scheme and was thus bound to apply paragraph 19 and maintain the same roof rule disqualification.
What did the court decide?
The court concluded that a potential entitlement to compensation could constitute a right to a possession and therefore was within the ambit of Article 1 Protocol 1 of the ECHR. Both sides in the argument had relied on the Strasbourg case of Stec v United Kingdom (Applications 65731/01 and 65900/01),  41 EHRR SE18,  ECHR 65731/01. The interested party had argued that the Stec principle, that a right to a benefit could constitute a possession within the meaning of Article 1 Protocol 1 of the ECHR, was restricted to social security and welfare benefits only.
The Court of Appeal dismissed this argument, agreeing with the appellant that the proper approach was to consider first whether an individual had an enforceable right under domestic legislation to a welfare benefit. Then, where a complaint had been made under Article 14 of the ECHR in conjunction with ECHR, Art 1, Protocol 1, that a benefit has been denied on a discriminatory ground, the relevant test was whether the applicant would have an enforceable right to receive the benefit in question, but for the allegedly discriminatory treatment (see para ). On that basis it was confirmed that the appellant did have a claim that came within the ambit of Article 1 Protocol 1 of the ECHR, and further, that the Stec principle was not restricted to welfare payments in their traditional designation.
On the matter of status, less controversially and in accordance with the Supreme Court judgment in R (on the application of RJM (FC) v Secretary of State for Work and Pensions  UKHL 63,  2 All ER 556, the Court of Appeal acknowledged that the definition of ‘other status’ had to be interpreted broadly. Further, as per RJM, ‘the more peripheral or debatable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify’ (see para ). However, Leggatt LJ—who delivered the unanimous judgment—concluded that ‘although not a core feature of a person’s identity such as gender or sexual orientation, living with another person as a member of the same family seems to me to come within the middle of Lord Walker’s concentric circles, being a status that—certainly in the case of a parental or quasiparental relationship—is central to the development of an individual’s personality and is not a matter which he or she can be expected to change’ (see para ).
Justification was the ground on which the appellant’s challenge failed before the UT. There was substantial argument about whether the grounds for review in a case of alleged discrimination should be the test of fair balance or one of ‘manifest unreasonableness’. Leggatt LJ dismissed this as ‘a point of some nicety which seems unlikely to make a practical difference in many cases’ and applied both versions of the test. He then concluded that the appellant’s status as an individual living as a member of the same family as her assailant, while not a ‘suspect’ ground within the meaning of Article 14 of the ECHR, such as race or sex nonetheless constituted a status which she had no power to change. Preventing her from receiving compensation on that ground was, he concluded unreasonable and would require a good reason to be justified (see para ).
The interested party’s argument was effectively ‘’twas ever thus’: that the same roof rule had been imposed in 1979 as a decision to change the rules prospectively rather than retrospectively and was ‘a legitimate choice made at the time, and was in line with the general approach that changes are ordinarily made going forward, rather than in respect of historic claims’. Leggatt LJ gave this argument short shrift:
‘What I do not accept is that a policy of changing rules only prospectively is capable of justifying a decision to perpetuate existing discrimination. In circumstances where victims of violent crimes who sustained injuries before 1 October 1979 are in general eligible for awards, as they are under the 2012 scheme, in the absence of some other justification it cannot be a good reason for excluding one group of victims from being considered for awards that they were excluded before. If it were, then no discriminatory rule or practice would ever need to be changed. As it was well put by [the appellant's counsel], it is not a reasonable foundation for a decision to retain an otherwise unjustifiable rule simply to say “’twas ever thus”’ (see para ).
On the matter of an effective remedy, Leggatt LJ declined the invitation of the FTT, as respondent in the instant proceedings, to follow the conclusion in Carmichael, which he concluded was not analogous to the appellant’s case. Rather, he concluded that the provision of the same roof rule within paragraph 19 was a discrete provision that was excisable on the grounds that it constituted an unlawful discrimination in contravention of section 6(1) of the Human Rights Act 1998. Accordingly, he concluded that ‘it is sufficient simply to treat paragraph 19 as invalid and without effect in [the appellant’s] case’ and made a declaration to that effect (see para ).
The judgment echoes the recommendations of the Independent Inquiry into Child Sexual Abuse, which has recommended scrapping the same roof rule—the MOJ decision not to appeal against this judgment and the announcement of a wholesale review of the scheme suggests the conclusion that the same roof rule is discriminatory and thus unlawful is now unassailable.
Nicola Kohn appeared for appellant in the Upper Tribunal and with Fenella Morris QC in the Court of Appeal in this case. Interviewed by Robert Matthews.
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