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In JT v First-Tier Tribunal & CICA & Equality and Human Rights Commission [2018] EWCA Civ 1735

the Court of Appeal held that the “same-roof” rule in the Criminal Injuries Compensation Authority Scheme, which provides that 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 appellant and the assailant were living together as members of the same family” was manifestly without reasonable foundation and thus struck it down.

This is an important and significant decision which may open up the heavily curtailed CICA Scheme to other challenges.

Here, the applicant’s stepfather was convicted of repeatedly raping and sexually assaulting her while they were living together as members of the same family, but the same-roof rule meant that no compensation was payable.

By contrast, a relative of the applicant, not living under the same roof, did receive compensation in relation to two incidents of indecent assault by the stepfather.

The rule was modified in 1979, but only in relation to post-1979 incidents, not claims, and thus a pre-1979 incident always remained outside the scheme.

On appeal the applicant argued that the same-roof rule was incompatible with article 14 of the European Convention on Human Rights which provides:

“Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court of Appeal then set out its task in determining this issue:

“40. To determine whether applying para 19 of the 2012 scheme is incompatible with article 14, three questions need to be answered. The first is whether the difference in treatment of which JT complains concerns the enjoyment of a right set forth in the Convention – the test for this purpose being whether the facts of the case fall “within the ambit” of a Convention right. The second question is whether the difference in treatment is on the ground of a “status” which falls within article 14. The third question is whether the difference in treatment amounts to “discrimination” prohibited by article 14. Where the claimant has been treated differently from a class of persons whose situation is relevantly similar, this depends on whether there is an objective and reasonable justification for the difference in treatment.”

The judgment contains detailed examination of the principles, issues in case law in relation to all matters, and its first task was to decide whether the facts of this case fell “within the ambit “of  article 14 and concluded that they did.

The applicant here relied upon article 1 of Protocol 1 (1P1) which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law…”

It concluded:

“69. The necessary conclusion, in my view, is that the current criminal injuries compensation legislation in the UK is to be regarded as establishing a proprietary interest falling within the ambit of article 1P1 for persons satisfying its requirements. It follows that article 14 applies to JT’s claim that she would be eligible for an award under the 2012 scheme but for discrimination on a ground prohibited by article 14.

70. In reaching this conclusion, I am fortified by the fact that it accords with the recent decision of the Court of Session (Inner House) in MA vCriminal Injuries Compensation Board[2017] CSIH 462017 SLT 984, which has been followed by the High Court of Northern Ireland in In re F [2018] NIQB 7.”

The Court of Appeal then considered whether the difference in treatment was on the ground of “a status” which falls within article 14:

“71. Article 14 contains a list of grounds on which discrimination is prohibited. But the wording of article 14 also makes it plain that the list is illustrative and not exhaustive. Thus, the list is preceded by the words “on any ground such as” and ends with the words “or other status”. It is not suggested that JT has been discriminated against on the ground of a status which is specifically mentioned in article 14. What is said is that the case falls within the words “or other status”. The approach of the European Court of Human Rights has been to interpret that phrase (“toute autre situation” in the French text) broadly. As interpreted, article 14 is not restricted to grounds such as sex or race which are particularly suspect because they are commonly or historically associated with prejudice and discriminatory treatment. (Such an interpretation would in any event be inconsistent with the inclusion of “property” in the list of grounds.) In addition, while the court has repeatedly referred to the need for a distinction based on a “personal” characteristic in order to engage article 14, this has not been taken to limit the scope of “other status” to characteristics which are innate or inherent: see Clift v United Kingdom (Application No 7205/07) 13 July 2010, paras 58-59.”

Again, the Court of Appeal reviewed the relevant case law and principles and concluded that once the relevant comparator group is correctly identified, it is clear that the difference in treatment complained of is based on a ground which constitutes a status for the purposes of article 14:

“77. The main and much more focused way in which the case has been advanced in this court identifies the relevant status by reference to the terms of para 19 of the 2012 scheme as that of someone who, when a victim of a violent crime, was living together as a member of the same family as her assailant. That, in my view, is undoubtedly a personal status of a kind which falls within article 14. Although not a core feature of a person’s identity such as gender or sexual orientation, living with another person as a member of the same family seems to me to come within the middle of Lord Walker’s concentric circles, being a status that – certainly in the case of a parental or quasi-parental relationship – is central to the development of an individual’s personality and is not a matter which he or she can be expected to change. This is reflected in the fact that respect for a person’s family life and home is protected in the Convention by article 8 because of its “central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community”: see Connors v United Kingdom(2005) 40 EHRR 9, para 82.”

The Court of Appeal then considered the issue of discrimination and said that the settled case law showed that this depended upon whether the state can show an “objective and reasonable” justification for the difference in treatment, judged by whether it has a legitimate aim and there is a “reasonable relationship of proportionality” between the aim and the means employed to realise it.

The Court of Appeal saw this as equivalent to the irrationality test and said that “it is also firmly established and is common ground in the present case that the test for justification remains one of proportionality.” It then added:

“83. … The canonical formulation of that test is now that of Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39[2014] AC 700, para 74, where he identified the assessment of proportionality as involving four questions:

“(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”

Put more shortly, the question at step four is whether the impact of the rights’ infringement is disproportionate to the likely benefit of the impugned measure: ibid. Another way of framing the same question is to ask whether a fair balance has been struck between the rights of the individual and the interests of the community: see Bank Mellat v HM Treasury (No 2) [2013] UKSC 39[2014] AC 700, para 20 (Lord Sumption).

  1. In In re Medical Costs for Asbestos Diseases (Wales) Bill[2015] UKSC 3[2015] AC 1016, paras 46-52, Lord Mance (giving the lead judgment in the Supreme Court) discussed at some length the question of how the “manifestly without reasonable foundation” test relates to this four-stage assessment of proportionality. Lord Mance concluded that the test is applicable at the first stage, when asking whether the measure has a legitimate aim, and possibly at the second and third stages. However, at the fourth stage where the court is required to weigh the benefits of the measure against its impact on individual rights, it may be appropriate to give significant weight to the choice made by the legislature but “the hurdle to intervention will not be expressed at the high level of ‘manifest unreasonableness'” (paras 46 and 52). Lord Thomas, who gave the other judgment, agreed with Lord Mance on this point (para 114). This view has since been endorsed by Lord Wilson in giving the majority judgment in R (A) v Secretary of State for Health (Alliance for Choice and others intervening) [2017] UKSC 41[2017] 1 WLR 2492, para 33.
  2. On this authority counsel for JTand for the Equality and Human Rights Commission submitted that the criterion of whether the policy choice made is “manifestly without reasonable foundation” is not relevant at the final stage of assessing proportionality in asking whether a fair balance has been struck between the rights of the individual and the interests of the community. Counsel for CICA disputed this, relying on other decisions of the Supreme Court in which no distinction has been drawn between different stages of the proportionality assessment in applying the “manifestly without reasonable foundation” test. They relied above all on R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58[2016] 1 WLR 4550, where a Supreme Court of seven justices unanimously rejected an argument that the courts below had been wrong to apply the “manifestly without reasonable foundation” test and the Supreme Court itself applied the test without referring to proportionality. Counsel for CICA also emphasised that the Medical Costs case and the Alliance for Choice case were not concerned with the provision of state benefits: the former involved the retrospective deprivation of property and the latter was concerned with the provision of abortion services, a quite different field.
  3. I do not accept that the Medical Costsand Alliance for Choice cases can be distinguished on the ground that they did not involve the provision of state benefits. Both involved matters of economic or social policy which fell squarely within the area where the court will be very slow to substitute its view for that of the executive or legislature. Moreover, there is nothing in the Stec case (or other jurisprudence of the European Court of Human Rights) from which the “manifestly without reasonable foundation” test derives, and no reason in principle or logic, to adopt a different and special rule in benefit cases. However, the approach endorsed in the Medical Costs and Alliance for Choice cases has not been explicitly discussed or applied in other decisions. It may be that at some point the Supreme Court will re-visit and clarify the correct analysis. That said, whether, at the stage of assessing whether a policy choice strikes a fair balance, the “hurdle for intervention” is pitched at the level of “manifest unreasonableness” or something slightly less is a point of some nicety which seems unlikely to make a practical difference in many cases. Certainly it would make no difference to my conclusions in the present case. In these circumstances I propose to apply both versions of the test.” 

Thus the Court of Appeal has asked the Supreme Court to consider ditching the “manifestly without reasonable foundation” test.

The Court of Appeal considered in detail the history of the CICA Scheme and the amendments to it and its key findings are at paragraphs 113 to 115:

“113. Put in terms of proportionality, saving a potentially significant and uncertain cost is undoubtedly a legitimate aim and the ‘same roof’ rule is at least causally connected to that aim. However, there are plainly other ways of saving money which do not involve excluding a group of applicants from the scheme on an arbitrary and irrational basis. Such an approach in any event manifestly fails to strike a fair balance between the objective of saving cost and the rights of individuals in the position of JT.

114. The arbitrary and unfair nature of the rule which prevents JT from receiving an award of compensation is starkly illustrated by the award which has actually been made to her relative (see para 3 of this judgment). I do not belittle the injuries which that person suffered as a result of two incidents of sexual assault which occurred before 1 October 1979. But it is clear that in terms of severity those incidents cannot stand comparison with the repeated sexual abuse and rape to which JT was subjected during most of her childhood, as established at a criminal trial. A scheme under which compensation is awarded to the relative but denied to JT is obviously unfair. It is all the more unfair when the reason for the difference in treatment – that JT was living as a member of the same family as her abuser, whereas her relative was not – is something over which JT had no control and is a feature of her situation which most people would surely regard as making her predicament and suffering even worse.

115. In these circumstances I have no hesitation in concluding that the difference in treatment of which JTcomplains is manifestly without reasonable foundation and violates article 14 of the Convention.”

The Court of Appeal, article 14, concluded:

118. I would therefore hold that treating JT as ineligible for an award of compensation on the ground that she was living as a member of the same family as her assailant at the time when he assaulted her is incompatible with article 14 of the Convention.

119. Under section 6 of the Human Rights Act 1998, it is unlawful for a “public authority” – which includes a court or tribunal – to act in a way which is incompatible with a Convention right unless (broadly speaking) it is required to do so by primary legislation. The precise test is set out in section 6(2) but it is unnecessary to consider the test in detail as it has not been suggested that section 6(2) is applicable in this case. The 2012 scheme is contained in subordinate legislation and there is nothing in any primary legislation which requires the 2012 scheme to contain the ‘same roof’ rule or which prevents its removal. In particular, there is nothing in the 1995 Act under which the scheme was made which has that effect. Accordingly, section 6(1) of the Human Rights Act makes it unlawful for CICA (or any other public authority including the First-tier Tribunal) to apply para 19 of the 2012 scheme in JT’s”

Written by kerryunderwood

August 17, 2018 at 8:10 am

Posted in Uncategorized

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