Judge rejects claim for criminal injuries compensation despite ‘discriminatory’ rule

A judge in the Court of Session ruled that it was within the Government’s discretion for 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, despite accepting her argument that the rule was “discriminatory”.

Lord Burns 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.

Because of the date of her application her claim fell to be considered under the Criminal Injuries Compensation Scheme 2008, but her claim was refused by the Criminal Injuries Compensation Authority because of an exclusion under paragraph 7(b) of the 2008 scheme, 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 a claims officer considered that there were good reasons why a prosecution had not been brought, though for offences committed before that date the original rules were retained.

But MA raised a petition for judicial review, arguing that the claims officer who decided her claim acted unlawfully in terms of section 6(1) of the Human Rights Act 1998 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.

The petitioner claimed that paragraph 7(b) of the 2008 scheme and the decision taken in terms of it were “unlawful”, being in breach of article 14 and Article 1 of the First Protocol (A1P1) to the European Convention of Human Rights and section 6 of the Human Rights Act 1998.

It was submitted that the same roof rule was “discriminatory” in terms of article 14, as a claim for criminal injuries compensation constituted a “possession” within the meaning of A1P1.

On behalf of the Government, it was submitted that the justification for the same roof rule could be traced back to the origins of the scheme in 1964 and that the policy decision to make changes prospectively and not retrospectively from 1 October 1979 was “rational” and avoided an “unquantifiable financial burden”.

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

In any event, the respondents submitted that a claim to criminal injuries compensation was “not a possession within the meaning of A1P1, and that there was “no enforceable claim”.

The judge held that the petitioner’s 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.

In a written opinion, Lord Burns said: “The offending rule is one for which there was thought by the state to be justification in the scheme as originally framed in 1964 on the basis of difficulties of proof and a fear that the offenders might benefit from awards given. That was rational and understandable.

“When criticism was made of the rule in 1972 as being unjust, the government’s response was to make a prospective change but to retain the rule for injuries inflicted before 1 October 1979. That was done because of the difficulty in estimating the cost of wholesale abolition.

“The change meant that victims of family violence inflicted after that date would be eligible for compensation and thus extended the scheme.”

He added: “The rule does impose a ‘bright line’ rule which excludes claims for injuries occurring before the relevant date. It thus does discriminate. But it was done in that way because it was not thought possible to estimate the cost of abolition.

“It produces hard cases for those falling on the wrong side of the relevant date such as the petitioner. However, the change has benefitted claimants, injured after the relevant date, who would not otherwise be eligible. The rule assists in making the scheme sustainable.

“Having regard to those factors and the deference the court should pay to policy decision of this sort in an area of general public interest, I am unable to conclude that the same roof rule contained in the 1979 scheme is manifestly without foundation. It is a proportionate response to the criticisms made of the rule and one within the legitimate exercise of the discretion accorded to Parliament.”