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Court of Appeal decision reported as [2018] AACR 34
Criminal injuries compensation - sexual offences - same household – discrimination - justification - proportionality
The claimant, who had been repeatedly sexually assaulted and raped by her stepfather during her childhood and before 1 October 1979, applied for compensation for her injuries from the Criminal Injuries Compensation Authority many years later, following her stepfather’s conviction and imprisonment for those offences. The original compensation scheme, set up in 1964 under the royal prerogative, had included a “same roof” rule by which compensation was not payable to a victim who was living with the assailant as a member of the same family. A new scheme had been introduced in 1979 which made a substantial change to the “same roof” rule but only prospectively for injuries incurred after 1 October 1979, not retrospectively. The scheme had been put on a statutory basis by the Criminal Injuries Compensation Act 1995 and a further scheme was introduced in 2012 but the “same roof” rule in paragraph 19 was retained for criminal injuries suffered before 1979. The claimant’s application was refused on the basis of the rule in paragraph 19 and her appeal against this decision was dismissed by the First-tier Tribunal. She sought judicial review of that decision on the basis, inter alia, that the “same roof” rule discriminated against her on the basis of her age contrary to the Human Rights Act 1998. The Upper Tribunal dismissed her claim for judicial review but decided that the possibility of a claim to compensation under the criminal injuries compensation scheme was sufficiently within the ambit of article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms to form the basis of a discrimination claim under article 14 of the Convention. The claimant appealed to the Court of Appeal (Civil Division).
Held, allowing the appeal and reversing the decision of the Upper Tribunal (AAC), that:
(1) the first question, in deciding whether the application of paragraph 19 of the 2012 criminal injuries compensation scheme was incompatible with article 14 of the Convention, which applied only to secure the rights and freedoms set out in the Convention, was whether the difference in treatment complained of concerned the enjoyment of such a right and the test was whether the facts fell “within the ambit” of a Convention right. Where a complaint had been made under article 14 in conjunction with article 1 of the First Protocol so that a right created by the state had been withheld on a discriminatory ground, the test was whether the applicant would have had an enforceable right to receive it but for the allegedly discriminatory treatment. The domestic criminal injuries compensation legislation had created a right for a victim of crime who fulfilled the eligibility criteria to an award, which had created a proprietary interest falling within the ambit of article 1 of the First Protocol. It followed that article 14 applied to the claimant’s claim that she would have been eligible for an award under the 2012 scheme but for discrimination on a ground prohibited by article 14;
(2) the list of grounds in article 14 of the Convention on which discrimination was prohibited was illustrative, not exhaustive. The claimant had not been discriminated against on the ground of a status specifically mentioned in article 14, but the issue was whether she had come within the words “or other status”. If the claimant had been compared with people who had sustained injuries from assaults during the relevant period, the ground on which one group of such persons had been treated differently, by being barred from receiving compensation, from others whose situation was otherwise analogous was solely that those in the excluded group had been living together as a member of the same family as their assailant when the offence had been committed. By reference to that comparator group, the difference in treatment complained of had clearly been based on a ground which constituted “other status” for the purpose of article 14;
(3) where the claimant had been treated differently from a class of persons whose situation was relevantly similar, whether that difference constituted discrimination had depended on whether there had been an objective and reasonable justification for the difference in treatment. The ground on which the claimant had been barred from receiving compensation, that she had been living as a member of the same family as her assailant, was not a ground such as sex or race requiring very weighty reasons to justify a difference in treatment. As a minor at the relevant time, the claimant had no power to change that status and to treat that situation, which had been not of her making and which she could not alter as a ground for preventing her from receiving compensation was, on its face, unreasonable. The central importance of family life and home, particularly for a child, to a person’s identity made the sexual abuse of a child by another family member, particularly one with parental responsibility, all the more injurious because it constituted a grave abuse of trust.
(4) that a policy of changing rules only prospectively did not justify a decision to perpetuate existing discrimination. Where victims of violent crimes who sustained injuries before 1 October 1979 were in general eligible for awards, as under the 2012 scheme, it was not an adequate reason for excluding one group of victims from being considered for awards because they had been excluded before, nor that their exclusion would save money. Although a wide margin of appreciation had been accorded to the Secretary of State in allocating funds available to compensate victims of crime, those funds had to be allocated according to some rational set of criteria and not in a wholly arbitrary way. In all the circumstances, the difference in treatment of which the claimant complained was manifestly without reasonable foundation and violated article 14 of the Convention. Section 6(1) of the Human Rights Act 1998 made it unlawful for a public authority to apply paragraph 19 of the 2012 scheme to the claimant’s case and, accordingly, the claimant was entitled to a declaration that she was not prevented by paragraph 19 of the 2012 scheme from being paid an award of compensation under the scheme. |
