Child abuse victim wins appeal for criminal injuries compensation

The Inner House of the Court of Session had ruled that it was within the UK 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”.

But after appealing to the UK Supreme Court, the Ministry of Justice conceded that the so-called “same roof rule” was “unlawful”.

The woman, Monica Allan, 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 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.

However, for offences committed before that date the original rules were retained.

Ms Allan 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”.

Unlawful discrimination

MA challenged the decision, but the Inner House refused the appeal.

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.”

However, having appealed to the Supreme Court, Ms Allan has now won her case after the Government withdrew its opposition.

The Supreme Court’s order states: “It is ordered that the appeal be allowed and the decision of the Inner House of the Court of Session dated 14 July 2017 be set aside; a declarator be made that the appellant is not prevented by paragraph 7(b) of the Criminal Injuries Compensation Scheme 2008 from being paid an award of compensation under the scheme; the decision 10 March 2014 of the Criminal Injuries Compensation Authority’s claims officer withholding an award of compensation under the scheme be reduced.”

The Supreme Court also ordered that the respondent be liable to the appellant in the costs of this court and in expenses in the Court of Session, as taxed, it being reserved to the appellant if so advised to seek an additional fee under rule 42.14 of the Rules of the Court of Session or any further incidental orders made in relation to expenses.