“Same roof” rule excluding compensation for abuse is unlawful – Court of Appeal

31 July 2018 by Rosalind English

w1200_h678_fcropJT v First Tier Tribunal [2018] EWCA Civ 1735 – read judgment

Between 1968 and 1975 the appellant JT was repeatedly assaulted and raped by her stepfather in her family home. Many years later, her assailant was prosecuted for those crimes and convicted on all counts in 2012. As a victim of violent sexual crime, JT applied for compensation under the Criminal Injuries Compensation Scheme. Her application was refused on the basis of the “same roof” rule, which stated that an award would not be made in respect of a criminal injury sustained before 1 October 1979

if, at the time of the incident giving rise to that injury, the applicant and the assailant were living together as members of the same family

This criterion may sound odd to anyone with a professional or even mild interest in crime stories, where the prime suspect is considered to be a member of the family of the victim, whether of rape, abuse, or even murder. But the thinking behind the rules  – and there has to be a bright line for eligibility – was that there should be a requirement that the victim and the assailant no longer live together. This would at least suffice to ensure that the rapist or abuser would not benefit from the award accruing to his victim, and, if possible, is brought to justice.

Inevitably, unfairness is the consequence of bright line rules. A relative of JT who gave evidence at the stepfather’s criminal trial received an award of compensation under the criminal injuries scheme of £1,000 in respect of two incidents of indecent assault by JT’s stepfather. Both incidents occurred before 1 October 1979 but, unlike JT, the relative was not barred from receiving compensation by the ‘same roof’ rule because she was not living as a member of the same family as her assailant when the incidents occurred.

JT challenged the Compensation Authority’s decision, contending that the “same roof rule” was incompatible with her right to equal protection of the law under Article 14 of the European Convention. This is not a stand alone right. It safeguards Convention rights as follows:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The appellant therefore needed to press her argument that the right to receive criminal injuries compensation was protected by Article 1 Protocol 1 of the Convention, which protects the right to property.  Once she could established a protected interest under Art 1 Prot 1, she could then go forward with her contention that it was discriminatory and therefore unlawful to draw a distinction between a person who was living as a member of the same family as her assailant and one who was not.

The Criminal Injuries Compensation Authority challenged the contention that their compensation was a proprietary right within Article 1 Protocol 1. Consequently, they argued, the prohibition on discrimination under Article 14 was not applicable because the complaint of discrimination did not fall within the ambit of any Convention right. The CICA asserted that, in any event, any difference in treatment arising from the same roof rule was objectively justified for reasons including preventing an assailant from benefiting from an award, the difficulties in proving facts of historic offences by a family member, and concerns as to the effect of increasing the scheme’s potential liability in an uncertain way.

The CICA relied in part on the admissibility decision of the Strasbourg Court in Stec v United Kingdom (2005) 41 EHRR SE18,  in particular paragraph 50 of the judgment in which the Court said

“In the modern, democratic state, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfilment of the conditions of eligibility – as of right. Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Article 1 of Protocol No. 1 to be applicable.”

The CICA pointed to the distinction between compensation and welfare payments in this statement in order to argue that proprietary rights under Article 1 Protocol 1 did not extend to compensation claims which fall outside the framework of social security legislation. In short, they said that awards made under the UK criminal injuries compensation scheme fall into the latter category and hence are outside the ambit of this provision.

The Court of Appeal rejected the CICA’s arguments and allowed JT’s appeal.

Background to the Compensation Injuries Scheme

In 1964, when the Home Secretary introduced the first scheme (based on the prerogative powers of the crown rather than parliament), the idea that victims of crimes should be compensated by state action was comparatively recent. He emphasised the experimental nature of the proposed scheme and the fact that nobody could tell how many claims there would be. He explained the decision to exclude offences committed against a member of the offender’s family living with him at the time of the offence in this way:

“We feel that the difficulties in clearly establishing the facts and ensuring that the compensation does not, in the end, benefit the offender are so great that these offences should be excluded, at least from an experimental scheme.”

 The system of payouts for victims of crime from the state’s purse initially rested on the state’s discretion. In due course, in 1979, the decision was made to make it easier for victims of crime in their own homes to claim compensation, but this was to apply prospectively rather than retrospectively.

In 1995 the idea that victims of crime should be compensated by right rather than by the discretion of the Crown brought in the Criminal Injuries Compensation Act, which had a tariff for award and certain rules for what injuries qualified for compensation, and what did not. When the scheme was overhauled in 2012, the pre-1979 “same roof” rule was retained.

one of the aims of the Scheme reforms is to reduce the burden on the taxpayer and make the Scheme sustainable in the long term

As mentioned above, one of the justifications for retaining the “same-roof” rule was to prevent an assailant from benefiting from an award. That, in Leggatt LJ’s view, was “unquestionably a legitimate aim.’ The other reason given for adopting the ‘same roof’ rule when a criminal injuries scheme was first introduced in 1964 was concern that it would be difficult to ascertain the facts of offences which were committed against a member of the offender’s family living with him at the time of the offence. The difficulty with this justification is that claims have been accepted from victims who were not living as a member of the same family as their assailant at the time of the offence. The potential difficulties of investigating such historic claims have not been considered a good reason for excluding them from the scope of the scheme. As Leggatt LJ said,

it is hard to see why the difficulties for claims officers in establishing the link between the offence and injuries sustained between 1964 and 1979 should be considered inherently greater in cases where the victim was living as a member of the same family as the assailant when the offence was committed (but is not now) than in other cases.

Reasoning behind the  Court’s decision

The questions before the court may be summarised thus:

  1. Did the facts of JT’s case fall “within the ambit” of a Convention right. In other words, criminal injuries compensation a proprietary interest within Article Protocol 1?  The Court answered yes.
  2. Was the difference in treatment on the ground of a “status” which falls within article 14. The Court answered yes.
  3. Was the difference in treatment “discrimination” prohibited by article 14. Where the claimant has been treated differently from a class of persons whose situation is relevantly similar, this depends on whether there is an objective and reasonable justification for the difference in treatment.  The Court answered yes.

Question 1

Article 1 Protocol 1 protects an individual’s right to peaceful enjoyment of possessions, including various intangible rights and legitimate expectations to payments or assets of various kinds. Welfare benefits in the ambit of this provision: see Stec v United Kingdom, link above.  Payments made by the state under the UK’s criminal injuries compensation scheme were to be regarded as welfare benefits. Awards of compensation under the scheme were not made because the state was responsible for causing the victim’s injuries; the underlying justification was that they had suffered a very serious misfortune which the whole community should help to compensate for reasons of equity and social solidarity. The scheme formed part of the general framework of the UK’s social security legislation. Since the scheme was placed on a statutory footing in 1995, a victim of crime had a right to an award where the eligibility criteria were met. Hence, the court concluded  that the current legislation in the UK was therefore to be regarded as establishing a proprietary interest falling within the ambit of Article 1 Protocol 1  for persons satisfying its requirements.

Question 2

Although Article 14 contains a list of grounds on which discrimination is prohibited, this list is not exhaustive. In the RJM case [2009] 1 AC 311, para 5, Lord Walker depicted the grounds covered by article 14 as falling within a series of concentric circles, with those characteristics which are innate or most closely connected with an individual’s personality at the core. (He gave the examples of gender, sexual orientation, pigmentation of the skin and congenital disability.) A wider circle would include characteristics such as nationality, language, religion and politics which are regarded as important to the development of an individual’s personality and reflect important values protected by the Convention. Further out in the concentric circles are characteristics that are “more concerned with what people do, or with what happens to them, than with who they are” but which may still come within article 14 – homelessness being one of these.

The court decided that the status of a person who, when a victim of a violent crime, was living together as a member of the same family as her assailant was undoubtedly a personal status of a kind which fell within the middle circles of the ambit of Article 14.

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 quasi-parental 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.

Question 3.

The resources of the states that have signed up to the European Convention are  sometimes acknowledged, and in this context, the rules are as follows. If you as a nation state have set up a “good” system not mandated by the European Convention, such as legislative provision for adoption, this is caught by Article 14 and must be done in a non-discriminatory manner: see EB v France (2008) 47 EHRR 21. Note that neither the right to family life under Article 8 or Article 12 mandate such a duty on the state. The right to respect for private and family life protected by article 8 does not confer a right to adopt a child, and the right to found a family is rarely enforced, but if you do it, you must do it fairly.

Here is an up to date check list of the protected interests in the prohibition of discrimination under Article 14:

  1. Covered:  place of residence (see R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173and R (A) v Secretary of State for Health (Alliance for Choice and other intervening) [2017] UKSC 41; [2017] 1 WLR 2492), “homelessness” (see the RJM case), a person’s immigration status (see R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57; [2015] 1 WLR 3820), being a child suffering from particularly severe disabilities which required lengthy in-patient hospital treatment (see the Mathieson case), and being a co-habitee (see In Re Brewster [2017] UKSC 8; [2017] 1 WLR 519).
  2. Not covered: being a non-European citizen working as primary carer of a European citizen was not considered to be protected status under Article 14 in Sanneh v Secretary of State for Work and Pensions [2017] UKSC 73; [2017] 3 WLR 1486

The appellant’s status as a member of the same family as her stepfather when he assaulted and raped her was one she had had no power to change. To treat a situation not of her making and which she could not alter as a ground for preventing her from receiving compensation was, on its face, unreasonable. Further, the central importance of family life and home, particularly in the case of 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. If anything, therefore, it might be thought that a victim in the appellant’s position would have a greater claim to be treated as eligible for an award than a person who was assaulted by someone who was not living as a member of their family when the incident occurred. A good reason was needed to justify a rule which adopted the opposite position. There was no such justification. Whilst preventing an assailant from benefiting from an award was a legitimate aim, it would be hard to suggest that a rule which precluded any award from being made to an applicant who was living with their assailant at the time of an incident which occurred over 30 years ago, irrespective of their present situation, was rationally connected to that aim. The potential difficulties of investigating historic claims by non-family members was not considered to be a good reason for excluding them from the scope of the scheme.  Whilst saving a potentially significant and uncertain cost was undoubtedly a legitimate aim, there were plainly other ways of saving money which did not involve excluding a group of applicants from the scheme on an arbitrary and irrational basis. Such an approach in any event manifestly failed to strike a fair balance between the objective of saving cost and the rights of individuals in the appellant’s position.

Comments

There are so many interesting questions in this judgment it’s hard to know where to start. I will hazard a few questions of my own.

What are we talking about, when we talk about Article 1 Protocol 1 giving rise to property interests, enforceable by our courts? As Leggatt LJ says, “welfare benefit” and “social security” are not terms of art. They are capable of describing almost any form of financial support or help provided to citizens by the state to promote or protect their welfare.

In the Court of Appeal’s view, payments made by the state under the UK’s criminal injuries compensation scheme are … to be regarded as welfare benefits….

The underlying justification for making payments to victims of violent crimes is that they have suffered a very serious misfortune which the whole community should help to compensate for reasons of “equity and social solidarity”

But, wait. The stated “underlying justification” for making payments to victims of violent crimes is that they have suffered a very serious misfortune for which the whole community must provide (money) “for reasons of equity and social solidarity”.

But why should the whole community pay for the crimes of others?

A victim of an uninsured driver causing catastrophic injury has a claim against the Motor Insurers’ Bureau  because they are subject to the Road Traffic Accident Act which requires that that all motor insurers comply with its funding requirements. These costs are included in the premiums paid by drivers who take out insurance. The claims settlement procedure under the MIB should produce, in theory, awards equivalent to those available to victims of accidents caused by drivers covered by insurance.

The main purpose of the criminal injuries scheme is to “provide payments to those who suffer serious physical or mental injury as the direct result of deliberate violent crime, including sexual offences, of which they are the innocent victims.”

A welfare society that seeks to look after the victims of random criminals and random car drivers in equal measure is a society we all want to live in and support. The fact that a sex abuser is nastier than a reckless car driver makes little difference to the victim. But in the MIB instance, the payments for uninsured car accidents is drawn from the premiums paid by car drivers. For criminal injury compensation schemes, the money is contributed by people who feel they have nothing to do with the crimes being perpetrated. This may be an important difference, and one worth thinking about when the Criminal Injury Compensation Authority is being challenged for its tightfistedness.

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