JT JR 4047 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge C. Turnbull |
| Judgment Date | 01 September 2015 |
| Neutral Citation | 2015 UKUT 478 AAC |
| Subject Matter | Criminal Injuries Compensation |
| Respondent | (1) First-tier Tribunal & (2) Criminal Injuries Compensation Authority |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | JR 4047 2014 |
| Appellant | JT |
IN THE UPPER TRIBUNAL Case No. JR/4047/2014
ADMINISTRATIVE APPEALS CHAMBER
1. This is an application for judicial review of a decision made by a First-tier Tribunal (the FTT) sitting at North Shields on 21 May 2014. For the reasons set out below the FTT’s decision was in my judgment wrong in law, and I quash it. In exercise of the power in s.17 of the Tribunals, Courts and Enforcement Act 2007 I substitute a decision dismissing the Applicant’s appeal to the FTT against the Interested Party (CICA’s) decision of 23 May 2013 refusing her claim for compensation under the Criminal Injuries Compensation Scheme 2012 (“the 2012 Scheme”). In substance this application for judicial review has therefore not succeeded. At the request of the Applicant I make an order prohibiting the disclosure or publication of the Applicant’s name or other material likely to lead to members of the public being able to identify her.
Introduction
2. The Applicant is a woman who was born in 1963 and was a victim of sexual abuse committed by her step-father, to whom I will refer as Mr T, between 1968 and 1979, when she was aged between 5 and 16 and living with Mr T as part of his family. In 2012 the Applicant appeared as a key witness at Mr T’s trial. As a result of her testimony Mr T received a 14 year custodial sentence. He was convicted of 8 offences, including rape and indecent assault, all against the Applicant. He was also convicted of lesser offences against a relative of the Applicant, who was not, however, a member of the Applicant’s family.
3. On 6 December 2012 the Applicant applied for criminal injuries compensation. However, that application was refused on 23 May 2013 by reason of what has become known as the “same roof” rule, now in para. 19 of the 2012 Scheme, which provides:
“An award will 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.”
4. That decision was upheld on review on 19 July 2013, and by the decision now sought to be judicially reviewed the FTT dismissed the Applicant’s appeal.
5. However, the Applicant’s relative, who similarly applied for compensation, was awarded compensation of £1,000 for injuries suffered as a result of two indecent assaults. Her claim was of course not barred by para. 19 of the 2012 Scheme.
6. I held an oral hearing of this judicial review application at which Miss Nicola Kohn of counsel, instructed by Mr Andrew Perriman of the Teesside Law Clinic at Teesside University, appeared for the Applicant, and Mr Ben Collins of counsel appeared for CICA.
7. It is contended on behalf of the Applicant, in broad outline, as follows. Para. 19 of the Scheme discriminates against people born before 1 October 1979, and is therefore discriminatory by reference to age. The inclusion of that provision in the Scheme, alternatively the application of it by CICA and/or the FTT so as to deny compensation in the Applicant’s case, therefore infringes:
(a) what is referred to in Miss Kohn’s skeleton argument as “the intra vires requirement in the Padfield sense”;
(b) what is referred to in that skeleton argument as “the public law rule of equality, requiring like situations to be treated alike”;
(c) the duty under s.29 of the Equality Act 2010 (“the 2010 Act”);
(d) the public sector equality duty under s.149 of the 2010 Act;
(e) Article 14, in conjunction with Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights.
8. It is contended that the consequence of those infringements is that (i) the Scheme ought to be construed so as to remove the discrimination, alternatively (ii) para. 19 should be declared unlawful and/or quashed.
The 2012 Scheme
9. The first Criminal Injuries Compensation Scheme was introduced in 1964. It was a non-statutory Scheme which provided for the making of ex gratia payments to victims. Four further non-statutory schemes followed, in 1966, 1969, 1979 and 1990.
10. However, the Criminal Injuries Compensation Act 1995 (“the 1995 Act”) provided a statutory basis for the subsequent compensation schemes. Section 1 of the 1995 Act provides:
“1(1) The Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries.
(2) Any such arrangements shall include the making of a scheme providing, in particular, for –
(a) the circumstances in which awards may be made; and
(b) the categories of person to whom awards may be made.
(3) The scheme shall be known as the Criminal Injuries Compensation Scheme.”
11. Section 11 of the 1995 Act provides:
“(1) Before making the Scheme, the Secretary of State shall lay a draft of it before Parliament.
(2) The Secretary of State shall not make the Scheme unless the draft has been approved by a resolution of each House.”
12. The first statutory Scheme was made in 1996. The non-statutory schemes had contained a general provision that compensation was to be assessed on the basis of common law damages. However, the 1996 Scheme provided for compensation to be a standard amount determined by reference to the nature of the injury, as set out in a tariff, plus additional amounts in respect of loss of earnings or earning capacity.
13. Further statutory schemes followed in 2001, 2008 and 2012.
14. The 2012 Scheme is therefore a creation of statute. It falls within the definition of “subordinate legislation” in section 21(1) of the Interpretation Act 1978. It was made in accordance with the statutory procedure under section 11, as set out above.
15. Paragraph 86 of the 2012 Scheme provides:
“An application for an award will be determined by a claims officer in the Authority in accordance with this Scheme.”
16. Section 2 of the 1995 Act provides:
“(1)The amount of compensation payable under an award shall be determined in accordance with the provisions of the Scheme.
……………………………………….
(7)The Scheme may –
(a) ………………..
(b)include such transitional provision with respect to any alteration of its provisions relating to compensation as the Secretary of State considers appropriate.”
17. Section 3(4) of the 1995 Act provides:
“The Scheme shall include provision for claims for compensation to be determined and awards and payments of compensation to be made—
(a) if a Scheme manager has been appointed, by persons appointed for the purpose by the Scheme manager; but
(b) otherwise by persons (“claims officers”) appointed for the purpose by the Secretary of State.”
18. Paragraph 4 of the 2012 Scheme provides:
“A person may be eligible for an award under this Scheme if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence committed in a relevant place.”
19. Paragraphs 17 to 21 of the 2012 Scheme provide:
“17. Subject to paragraphs 87 to 89, a person is eligible for an award under this Scheme only in relation to a criminal injury sustained on or after 1 August 1964.
18. An award will not be made to a person in respect of a criminal injury where that person has previously made an application in respect of the same injury under this Scheme or any Criminal Injuries Compensation Scheme mentioned in paragraph 141, irrespective of whether or how that application was finally disposed of.
19. An award will 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.
20. An award will not be made in respect of a criminal injury sustained on or after 1 October 1979 if, at the time of the incident giving rise to the injury, the applicant and the assailant were adults living together as members of the same family, unless the applicant and the assailant no longer live together and are unlikely to do so again.
21. An award will not be made if an assailant may benefit from the award.”
20. Section 5 of the 1995 Act provides:
“The Scheme shall include provision for rights of appeal to the First-tier Tribunal against decisions taken on reviews under provisions of the Scheme made by virtue of section 4.”
21. Paragraph 117 of the 2012 Scheme provides that an applicant may seek a review as to the determination of an award. Paragraph 125 provides for a right of appeal to the First-tier Tribunal against a decision taken on review.
The history of the ‘same roof’ rule.
22. Paragraph 7 of the first (1964) Scheme provided:
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