JT v First-Tier Tribunal

Factual and Procedural Background

The appellant ("JT") was repeatedly sexually assaulted and raped by her stepfather during her childhood, from about age five until she was 17 years old. Her stepfather was prosecuted and convicted in 2012 for multiple offences including rape and indecent assault. JT applied for compensation under the criminal injuries compensation scheme in December 2012 but was denied due to the 'same roof' rule, which excludes compensation for injuries sustained before 1 October 1979 if the victim and assailant lived together as family members at the time. A relative of JT, who was assaulted before that date but did not live with the assailant, received compensation. JT appealed the rejection on grounds that the 'same roof' rule was discriminatory under article 14 of the European Convention on Human Rights ("the Convention") as incorporated by the Human Rights Act 1998. The Criminal Injuries Compensation Authority ("CICA") opposed this, arguing article 14 did not apply or was justified. JT’s appeal reached the court after earlier tribunals and judicial review proceedings dismissed her claims.

Legal Issues Presented

1. Whether the difference in treatment under the 'same roof' rule falls within the ambit of a Convention right, specifically article 1 of Protocol 1 (peaceful enjoyment of possessions) in conjunction with article 14 (prohibition of discrimination).
2. Whether the difference in treatment is based on a status protected under article 14, including whether living as a family member with the assailant constitutes such a status.
3. Whether the difference in treatment amounts to discrimination prohibited by article 14, and if so, whether it is objectively and reasonably justified.
4. The appropriate test for justification and the suitable remedy if a violation of article 14 is found.

Arguments of the Parties

Appellant's Arguments

• The 'same roof' rule unlawfully discriminates against victims like JT who lived with their assailant at the time of the offence, violating article 14 of the Convention.
• The distinction drawn by the rule is arbitrary and contrary to the principle of non-discrimination because it excludes certain victims from compensation solely based on family living arrangements.
• JT's case is supported by the Equality and Human Rights Commission, emphasizing the incompatibility of the rule with human rights obligations.
• The rule disproportionately impacts victims of serious crimes such as sexual abuse by family members, undermining the scheme’s purpose to compensate innocent victims.
• The refusal to remove the rule despite reforms and consultations that did not consider article 14 rights renders the decision unlawful.
• JT sought a declaration that the rule does not prevent her from receiving compensation rather than a direct award, as the amount and entitlement require further adjudication.

Respondent's Arguments (CICA)

• Article 14 does not apply because the criminal injuries compensation scheme is outside the ambit of Convention rights, particularly article 1 of Protocol 1, since it is not a welfare benefit but a discretionary compensation scheme.
• The difference in treatment is justified on legitimate grounds, including the government's policy choice to limit liability and administrative burden by retaining the 'same roof' rule for historic claims.
• The rule aims to prevent assailants from benefiting from awards and to address difficulties in proving historic claims, which are legitimate policy considerations.
• The distinction based on the date of injury is a fundamental factor and not a discrimination on a prohibited ground such as age.
• The court should defer to the government's wide margin of appreciation in social and economic policy decisions, particularly regarding allocation of finite resources.
• CICA relied on precedent distinguishing welfare benefits from one-off compensation schemes, arguing the latter fall outside article 1P1’s ambit.
• On remedy, CICA referred to the Court of Appeal decision in the Carmichael case to argue limits on courts' power to disapply subordinate legislation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by confirming that the criminal injuries compensation scheme creates a proprietary interest protected by article 1 of Protocol 1, thus engaging article 14's prohibition on discrimination. It rejected CICA's argument that the scheme falls outside the ambit of article 1P1, noting the scheme’s statutory basis, the enforceable right to compensation, and the UK’s international obligations under the Compensation Convention and EU Directive.

The court identified the relevant status under article 14 as living as a member of the same family with the assailant at the time of the offence, a personal and protected status given its centrality to identity and development, especially in a parental or quasi-parental relationship.

The court rejected the argument that the date of injury is the relevant status, clarifying that JT’s complaint concerns differential treatment among victims injured in the same period, distinguished only by family living arrangements.

Applying the justification test, the court acknowledged the wide margin of appreciation afforded to government in socio-economic policy but emphasized that such latitude is not unlimited. It found the justifications for the 'same roof' rule insufficient and irrational, particularly as alternative, less discriminatory safeguards exist for post-1979 injuries.

The court noted the absence of any consideration of article 14 rights in the 2012 scheme consultation and impact assessments, which focused only on Equality Act grounds. It found the rule inconsistent with the scheme’s fundamental purpose to compensate innocent victims of serious violent crimes, including sexual offences.

The court rejected justifications based on preventing assailants benefiting from awards and difficulties in proving historic claims, observing that these concerns are addressed by other scheme provisions and are not rational bases for a blanket exclusion.

The court also dismissed the argument that prospective application of rule changes justifies perpetuating historic discrimination, holding that "'twas ever thus" is not a reasonable foundation for retaining an unjustifiable rule.

Regarding costs and administrative burden, the court accepted these as legitimate aims but found that excluding a whole class of victims arbitrarily fails to strike a fair balance and is disproportionate.

In relation to remedy, the court held that para 19 of the 2012 scheme is unlawful as applied to JT and must be treated as having no effect in her case under section 6 of the Human Rights Act 1998. It rejected the alternative of a declaration of incompatibility, as no primary legislation prevents removal of the incompatibility.

The court distinguished the Carmichael case on the basis that here a specific provision with discriminatory effect is identifiable and can be disapplied, unlike the broader regulatory context in Carmichael.

Holding and Implications

The court ALLOWED the appeal. It set aside the decisions of the Upper Tribunal and First-tier Tribunal and declared that para 19 of the Criminal Injuries Compensation Scheme 2012 does not prevent the appellant from receiving an award of compensation.

The direct effect is that the appellant is eligible to have her claim considered without the exclusion imposed by the 'same roof' rule. The court did not make a determination on the amount or entitlement to compensation, leaving those matters to be decided by the claims officer or tribunal in due course.

No new precedent was created beyond clarifying the application of article 14 to the criminal injuries compensation scheme and the unlawfulness of the 'same roof' rule insofar as it discriminates against victims living with their assailant before 1 October 1979. The decision underscores the necessity for government schemes to comply with human rights obligations and for courts to disapply subordinate legislation incompatible with Convention rights when possible.