Appeal Court rejects child abuse victim’s claim for criminal injuries compensation

The Inner House of the Court of Session held that it was within the Government’s discretion for “socio-economic policy” reasons not to backdate a change to the scheme in 1979, under which victims of violence became entitled to compensation for injuries caused by a family member living in the same home, even though the rule was “discriminatory”.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull, heard that the woman, “MA”, submitted a claim for compensation in November 2012 in respect of assaults upon her in 1968 and 1973, when she was aged three months and five years, by her mother, who was later convicted for the offences.

Same roof rule

But her claim was refused by the Criminal Injuries Compensation Authority because of an exclusion under paragraph 7(b) of the Criminal Injuries Compensation Scheme 2008, which provides that no compensation will be paid “where the criminal injury was sustained before 1 October 1979 and the victim and the assailant were living together at the same time as members of the same family”.

Under the original, pre-1979 scheme, claims for offences committed against a member of the offender’s household were excluded altogether.

The rationale for the so-called “same roof rule” was the difficulty in establishing the facts and to ensure that the compensation did not benefit the offender.

But the scheme’s rules were changed following a review in 1978, which meant that for offences committed on or after 1 October 1979 an award could be made where the assailant and applicant lived together so long as the assailant had been prosecuted in connection with the offence, or where there were good reasons why a prosecution had not been brought, though for offences committed before that date the original rules were retained.

Unlawful discrimination

MA lodged a petition for judicial review, arguing that the respondent acted “unlawfully” by withholding compensation on the basis of the same roof rule, and that the Secretary of State acted unlawfully by including the paragraph 7(b) exclusion within the 2008 scheme.

She claimed that paragraph 7(b) of the 2008 scheme and the decision taken in terms of it were “discriminatory”, being in breach of article 14 and Article 1 of the First Protocol (A1P1) to the European Convention of Human Rights, as a claim for criminal injuries compensation constituted a “possession” within the meaning of A1P1.

The Lord Ordinary held that her claim for compensation did fall “within the ambit” of A1P1 in conjunction with article 14 and that the rule led to a “difference in treatment” between people in “analogous situation”, but he dismissed the petition after ruling that that respondent had demonstrated that the discrimination was “justified”.

Appeal

MA challenged the decision and counsel for the reclaimer submitted that the only justification which had been applied prior to 1979 related to the two-fold considerations of potential collusion and the possibility of benefit to perpetrators.

However in 2012, when an equality impact assessment was carried out in relation to the scheme then introduced, it was clearly considered that the rules on co-operation and the requirement that the victim and assailant should no longer live together would be sufficient to ensure that offenders did not benefit from an award and, if possible, were brought to justice.

Counsel submitted that this was ex post facto reasoning; it was speculative; and based entirely upon cost, which was not a sufficient basis to justify discrimination.

There had been “no proper exercise of proportionality”, balancing the interests of the state and the citizens.

Counsel for the respondent submitted that a key consideration was that the scheme had to be sustainable and a key component to sustainability was to avoid exposure to claims of unknown dimensions.

Insofar as the justification was ex post facto it was based on sound and substantial reasons, in that the restriction of the scheme constituted a prudent decision about allocation of financial and other resources, to shield the scheme from liabilities of uncertain dimensions and promote its sustainability.

The decision was within the range of reasons open to the decision-maker, the justifications were squarely within the bounds of what was justifiable in applying the correct test and the court should be slow to interfere with the view of the decision-maker.

It was also submitted that retention the rule for pre 1 October 1979 was a “proportionate response” and could not be said to be manifestly without foundation.

Reasonable justification

Delivering the opinion of the court, the Lord Justice Clerk said: “In the circumstances, we are satisfied that a reasonable and objective justification has been made out. The discriminatory provision pursued a legitimate aim, which was to ensure long term sustainability of the scheme.

“The means employed was proportionate in order to avoid exposure to claims of unknown dimensions and unreasonably to increase the administrative burden, thereby shielding future sustainability.

“The restriction of the scheme was a prudent policy decision concerning the allocation of finite resources in a matter of socio-economic policy. Neither the aim, nor the means employed, can be said to be manifestly without reasonable foundation, and there is no basis upon which the court may interfere.”