Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/4047/2014

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an application for judicial review of a decision made by a First-tier Tribunal (the FTT) sitting at North Shields on 21 May 2014. For the reasons set out below the FTT’s decision was in my judgment wrong in law, and I quash it. In exercise of the power in s.17 of the Tribunals, Courts and Enforcement Act 2007 I substitute a decision dismissing the Applicant’s appeal to the FTT against the Interested Party (CICA’s) decision of 23 May 2013 refusing her claim for compensation under the Criminal Injuries Compensation Scheme 2012 (“the 2012 Scheme”). In substance this application for judicial review has therefore not succeeded. At the request of the Applicant I make an order prohibiting the disclosure or publication of the Applicant’s name or other material likely to lead to members of the public being able to identify her.

 

Introduction

2. The Applicant is a woman who was born in 1963 and was a victim of sexual abuse committed by her step-father, to whom I will refer as Mr T, between 1968 and 1979, when she was aged between 5 and 16 and living with Mr T as part of his family. In 2012 the Applicant appeared as a key witness at Mr T’s trial. As a result of her testimony Mr T received a 14 year custodial sentence. He was convicted of 8 offences, including rape and indecent assault, all against the Applicant. He was also convicted of lesser offences against a relative of the Applicant, who was not, however, a member of the Applicant’s family.

 

3. On 6 December 2012 the Applicant applied for criminal injuries compensation. However, that application was refused on 23 May 2013 by reason of what has become known as the “same roof” rule, now in para. 19 of the 2012 Scheme, which provides:

 

“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 applicant and the assailant were living together as members of the same family.”

 

4. That decision was upheld on review on 19 July 2013, and by the decision now sought to be judicially reviewed the FTT dismissed the Applicant’s appeal.

 

5. However, the Applicant’s relative, who similarly applied for compensation, was awarded compensation of £1,000 for injuries suffered as a result of two indecent assaults. Her claim was of course not barred by para. 19 of the 2012 Scheme.

 

6. I held an oral hearing of this judicial review application at which Miss Nicola Kohn of counsel, instructed by Mr Andrew Perriman of the Teesside Law Clinic at Teesside University, appeared for the Applicant, and Mr Ben Collins of counsel appeared for CICA.

 

7. It is contended on behalf of the Applicant, in broad outline, as follows. Para. 19 of the Scheme discriminates against people born before 1 October 1979, and is therefore discriminatory by reference to age. The inclusion of that provision in the Scheme, alternatively the application of it by CICA and/or the FTT so as to deny compensation in the Applicant’s case, therefore infringes:

 

(a) what is referred to in Miss Kohn’s skeleton argument as “the intra vires requirement in the Padfield sense”;

 

(b) what is referred to in that skeleton argument as “the public law rule of equality, requiring like situations to be treated alike”;

 

(c) the duty under s.29 of the Equality Act 2010 (“the 2010 Act”);

 

(d) the public sector equality duty under s.149 of the 2010 Act;

 

(e) Article 14, in conjunction with Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights.

 

8. It is contended that the consequence of those infringements is that (i) the Scheme ought to be construed so as to remove the discrimination, alternatively (ii) para. 19 should be declared unlawful and/or quashed.

 

The 2012 Scheme

9. The first Criminal Injuries Compensation Scheme was introduced in 1964. It was a non-statutory Scheme which provided for the making of ex gratia payments to victims. Four further non-statutory schemes followed, in 1966, 1969, 1979 and 1990.

10. However, the Criminal Injuries Compensation Act 1995 (“the 1995 Act”) provided a statutory basis for the subsequent compensation schemes. Section 1 of the 1995 Act provides:

 

“1(1) The Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries.

(2) Any such arrangements shall include the making of a scheme providing, in particular, for –

(a) the circumstances in which awards may be made; and

(b) the categories of person to whom awards may be made.

(3) The scheme shall be known as the Criminal Injuries Compensation Scheme.”

 

11. Section 11 of the 1995 Act provides:

 

“(1) Before making the Scheme, the Secretary of State shall lay a draft of it before Parliament.

(2) The Secretary of State shall not make the Scheme unless the draft has been approved by a resolution of each House.”  

 

12. The first statutory Scheme was made in 1996. The non-statutory schemes had contained a general provision that compensation was to be assessed on the basis of common law damages. However, the 1996 Scheme provided for compensation to be a standard amount determined by reference to the nature of the injury, as set out in a tariff, plus additional amounts in respect of loss of earnings or earning capacity.

 

13. Further statutory schemes followed in 2001, 2008 and 2012.

14. The 2012 Scheme is therefore a creation of statute. It falls within the definition of “subordinate legislation” in section 21(1) of the Interpretation Act 1978. It was made in accordance with the statutory procedure under section 11, as set out above.

15. Paragraph 86 of the 2012 Scheme provides:

 

“An application for an award will be determined by a claims officer in the Authority in accordance with this Scheme.”

 

16. Section 2 of the 1995 Act provides:

 

“(1)The amount of compensation payable under an award shall be determined in accordance with the provisions of the Scheme.

……………………………………….

(7)The Scheme may –

(a) ………………..

(b)include such transitional provision with respect to any alteration of its provisions relating to compensation as the Secretary of State considers appropriate.”

 

17. Section 3(4) of the 1995 Act provides:

 

“The Scheme shall include provision for claims for compensation to be determined and awards and payments of compensation to be made—

(a) if a Scheme manager has been appointed, by persons appointed for the purpose by the Scheme manager; but

(b) otherwise by persons (“claims officers”) appointed for the purpose by the Secretary of State.”

 

18. Paragraph 4 of the 2012 Scheme provides:

 

“A person may be eligible for an award under this Scheme if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence committed in a relevant place.”

 

19. Paragraphs 17 to 21 of the 2012 Scheme provide:

 

“17. Subject to paragraphs 87 to 89, a person is eligible for an award under this Scheme only in relation to a criminal injury sustained on or after 1 August 1964.

 

18. An award will not be made to a person in respect of a criminal injury where that person has previously made an application in respect of the same injury under this Scheme or any Criminal Injuries Compensation Scheme mentioned in paragraph 141, irrespective of whether or how that application was finally disposed of.

 

19. 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 applicant and the assailant were living together as members of the same family.

 

20. An award will not be made in respect of a criminal injury sustained on or after 1 October 1979 if, at the time of the incident giving rise to the injury, the applicant and the assailant were adults living together as members of the same family, unless the applicant and the assailant no longer live together and are unlikely to do so again.

 

21. An award will not be made if an assailant may benefit from the award.”  

 

20. Section 5 of the 1995 Act provides:

 

“The Scheme shall include provision for rights of appeal to the First-tier Tribunal against decisions taken on reviews under provisions of the Scheme made by virtue of section 4.”

 

21. Paragraph 117 of the 2012 Scheme provides that an applicant may seek a review as to the determination of an award. Paragraph 125 provides for a right of appeal to the First-tier Tribunal against a decision taken on review.

 

The history of the ‘same roof’ rule.

22. Paragraph 7 of the first (1964) Scheme provided:

 

“Offences committed against a member of the offender’s family living with him at the time will be excluded altogether.”

 

23. The rationale for the same roof rule arose out of:

 

“the difficulty in establishing the facts and ensuring that the compensation does not benefit the offender” (White Paper: “Compensation for Victims of Crimes of Violence” (1964, Cmnd. 2323), and see paragraph 1 of DJS v CICAP and others [2007] CSIH 49).

 

24. The same roof rule was repeated in the same terms in the 1966 and 1969 schemes (each of which, as I understand it, entirely replaced the previous scheme in the sense that they applied to all claims made after the commencement of the scheme, even if the incident occurred before the enactment of the scheme).

 

25. However, the 1979 Scheme was expressed to apply to, “all incidents occurring on and after 1 October 1979”. A substantial modification was made to the same roof rule by the 1979 Scheme, para. 8 of which provided:

 

“8.Where the victim and any person responsible for the injuries which are the subject of the application (whether the person actually inflicted them or not) were living in the same household at the time of the injuries as members of the same family, compensation will be paid only where –

 

(a) the person responsible has been prosecuted in respect of the offence, except where the Board consider that there are practical, technical or other good reasons why a prosecution has not been brought; and

(b) the injury was one for which compensation – as assessed under paragraph 5 above – of not less than £500 would be awarded; and

(c) in the case of violence between adults in the family, the Board are satisfied that the person responsible and the applicant stopped living in the same household before the application was made and seem unlikely to live together again; and

(d) in the case of an application under this paragraph by or on behalf of a minor, i.e. a person under 18 years of age, the Board are satisfied that it would not be against the minor’s interests to make a full or reduced award.”

26. Applications could therefore be made by family members who would previously have been caught by the same roof rule, in respect of incidents occurring on or after 1 October 1979, subject to the safeguards in para. 8. In respect of incidents occurring between 1 August 1964 and 30 September 1979 the terms of the 1969 Scheme, including the same roof rule in its previous unqualified form, continued to apply.

27. A further Scheme was made in 1990. Unlike the 1979 Scheme, the 1990 Scheme applied to applications made after its commencement (1 February 1990), even if relating to incidents which occurred before that date. However, para. 28 of the 1990 Scheme contained transitional provisions which prevented persons injured before 1 February 1990 who claimed after that date from taking advantage of certain more favourable provisions of the 1990 Scheme. Para. 28(b) of the 1990 Scheme preserved the same roof rule, as enacted in para. 7 of the 1969 Scheme, in respect of injuries which occurred before 1 October 1979.

28. The 1996 Scheme generally applied to all applications for compensation made after its commencement (1 April 1996), even if relating to incidents occurring before that date. But, as previously, no compensation was payable in respect of injuries occurring before 1 August 1964 .The 1996 Scheme also preserved the existing position that the same roof rule in absolute terms applied to incidents which occurred before 1 October 1979, and modified the position in respect of same roof incidents occurring on or after that date:

“7. No compensation will be paid under this Scheme in the following circumstances:

(a) where the applicant lodged a claim before 1 April 1996 for compensation in respect of the same criminal injury under any scheme for the compensation  of the victims of violent crime in operation in Great Britain before that date; or

(b) where the criminal injury was sustained before 1 October 1979 and the victim and the assailant were living together at the time as members of the same family…

 

16. Where a case is not ruled out under paragraph 7(b) (injury sustained before 1 October 1979) but at the time when the injury was sustained, the victim and any assailant (whether or not that assailant actually inflicted the injury) were living in the same household as members of the same family, an award will be withheld unless:

(a) the assailant has been prosecuted in connection with the offence, except where a claims officer considers that there are practical, technical or other good reasons why a prosecution has not been brought; and

(b) in the case of violence between adults in the family, a claims officer is satisfied that the applicant and the assailant stopped living in the same household before the application was made and are unlikely to share the same household again.”

 

29. Similar provisions appear in the 2001 Scheme (paragraphs 7 and 16), the 2008 Scheme (paragraphs 7 and 17) and the 2012 Scheme (paras. 19 and 20, set out above).

30. In short, therefore, when the “same roof” rule was modified in 1979, that was expressly done on the basis that the modification would benefit only victims of incidents occurring on or after 1 October 1979, and that position has been retained in all subsequent versions of the compensation scheme.

The Equality Act 2010

31. In s.4 of the 2010 Act, ‘age’ and ‘sex’ are listed as among the “protected characteristics”.

 

32. Section 5 provides:

 

“(1) In relation to the protected characteristic of age—

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same age group.

(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.”

 

33 Section 13 of the 2010 Act is headed “direct discrimination” and provides:

 

“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.”

 

34. Section 19 is headed “indirect discrimination” and provides:

 

“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

 

35. Part 3 of the 2010 Act relates to the provision of services and public functions. By virtue of section 29, discrimination in the provision of services or the exercise of a public function is prohibited:

 

“(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—

(a) as to the terms on which A provides the service to B;

(b) by terminating the provision of the service to B;

(c) by subjecting B to any other detriment.

(3) ……………………..

(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.”

 

36. Schedule 3 to the 2010 Act provides that section 29 does not apply to:

 

(a) “the exercise of …… a function of Parliament” (para. 1(1)(a));

(b) “preparing, making, confirming, approving or considering an instrument which is made under an enactment by …. a Minister of the Crown” (para. 2(3)(a)); or

(c) “a judicial function” (para. 3(1)(a)). By para. 3(2) “a reference …. to a judicial function includes a reference to a judicial function conferred on a person other than a court or tribunal.”

 

37. As well as a duty not to discriminate, a public authority has a further duty under the 2010 Act: the public sector equality duty (‘PSED’). This is defined at section 149 as follows:

 

“(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

…

(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

 

(7) The relevant protected characteristics are –

age;

disability;

………….

sex

……………”

 

38. The exceptions to s.149 set out in Schedule 18 include:

 

“(1) Section 149 does not apply to the exercise of—

(a) a judicial function;

(b) a function exercised on behalf of, or on the instructions of, a person exercising a judicial function.

(2) The references to a judicial function include a reference to a judicial function conferred on a person other than a court or tribunal.”

 

The FTT’s decision

39. The argument (advanced by Mr Perriman) on behalf of the Applicant before the FTT was that para. 19 of the 2012 Scheme discriminated against those born before 1 October 1979 (whose claims might be excluded by para. 19) and in favour of those born on or after that date (whose claims could not be so excluded), and was thus directly or indirectly discriminatory by reference to age, contrary to sections 13 and/or 19 of the 2010 Act. Mr Perriman’s written submission to the FTT also included a contention that as more females than males are sexually abused, para. 19 was also directly or indirectly discriminatory by reference to sex.

 

40. Mr Perriman’s contention was that in those circumstances:

 

(i) CICA and/or the FTT should exercise a discretion to make an award, notwithstanding para. 19; and/or

 

(ii) para. 19 should be disapplied by CICA and/or the FTT because:

 

(a) it was contrary to sections 13 and/or 19 of the 2010 Act; and/or

 

(b) there had been a failure to comply with the public sector equality duty in s.149 of the 2010 Act.

 

41. The FTT’s reasons for rejecting those submissions were as follows:

 

“25. The Tribunal knew that in many paragraphs of the Scheme provision was made for the claims officer to exercise discretion but paragraph 19 was not one of them.

 

26. Having decided that issue against the Appellant the Tribunal did not go on to consider the arguments surrounding the application of the Equality Act. However the Tribunal fully endorsed the submission of Mr Collins that Mr Perriman was mistaken in his submissions that the Scheme discriminated against people born after October 1979. That date related to when the offences were carried out and not to the applicant’s date of birth. Mr Perriman’s submissions in relation to discrimination were based on a false premise.

 

27. In the experience of the Tribunal there were just as many cases of sexual abuse against men as against women and there was nothing in the Scheme that could be regarded as discriminatory against an Appellant on grounds of sex.”

 

42. In my judgment the FTT’s decision was wrong in law in that it appears to have regarded the fact that there was no discretion in claims officers to depart from para. 19 as decisive and as a reason for not fully considering the merits of the equality arguments. Although it did in paras. 26 and 27 go on to consider those arguments very briefly, it seems to have founded its decision simply on the fact that the Scheme itself did not give any discretion to depart from para. 19. In my judgment it should have gone on to consider the arguments based on the 2010 Act.

 

43. I therefore consider it appropriate to quash the FTT’s decision as wrong in law. However, under s.17 of the Tribunals, Courts and Enforcement Act 2007 I can, rather than remitting the Applicant’s appeal to a fresh FTT, substitute my own decision, but only if, without the error of law made by the FTT, “there would have been only one decision that the [FTT] could have reached.” I therefore propose to go on to consider whether that is the case.

 

Irrationality

44. I turn first to consider Miss Kohn’s contention that para. 19 of the 2012 Scheme infringes what she refers to as “the intra vires requirement in the Padfield sense”. As I understand it this is a contention that para. 19 was ultra vires because it could not reasonably have been considered as within the powers conferred by the 1995 Act to include it in the 2012 Scheme. Miss Kohn contends that the original purpose of the same roof rule was to prevent fraudulent claims and to prevent injuries arising out of family disputes from giving rise to a right to compensation. She submits that there can be no suggestion that Parliament’s intent was to deprive victims of incest and the very worst of sexual crimes of the right to compensation, or that it would intend to do so by applying a time bar allowing younger siblings to recover where older siblings who suffered the same abuse would not. She submits that para. 19 as it stands is at odds with the original intention of the Scheme. It has perverted the will of Parliament.

 

45. In R v Criminal Injuries Compensation Board, ex parte P [1994] 1 All ER 80 a claimant sought to attack the same roof rule, as contained in the 1990 ex gratia scheme. The contention of Mr Anthony Lester QC on behalf of the applicant was summarised by Leggatt LJ as follows:

 

“……..the Secretary of State has maintained in force an absolute and inflexible exclusionary rule which, according to Mr Lester’s submission, is arbitrary, irrational and unfair, and unlawfully prevents the board from making an award in the circumstances of the applicant’s case. He contends that the rule sweeps too broadly in its exclusions; it discriminates arbitrarily and unfairly between different classes of citizen, bearing in mind that girls are more commonly than boys the victims of sexual abuse; and it lacks any rational nexus or proportionality between the Secretary of State’s legitimate aims and the means employed to achieve those aims. The solution is simple: to waive the ‘same roof’ rule in relation to violence sustained before 1 October 1979………..Although no complaint can be made of inability to claim before the scheme came into force in 1964, complaint can be made (on the ground that it is arbitrary and capricious) about the adoption of any date during the currency of the scheme as a date before which a rule that has not worked satisfactorily should thereafter continue to operate. The perversity consists in maintaining it in force, despite the applicability of the three-year time limit.”

 

46. The Divisional Court rejected those contentions, although it is fair to say that its reasoning depended in part on the fact that the schemes were ex gratia. Leggatt LJ said:

 

“In my judgment the scheme was not irrational at its inception and it has not been rendered so, in whole or in part, by subsequent amendments. The making of a claim is not a right but a privilege. It follows that the only legitimate expectation that a claimant can have is of recovering an award in accordance with the scheme in force for the time being. In short, as Mr Kent submitted, the fact that some claimants are or continue to be excluded from the scheme by force of amendments made to it neither demonstrates that it is perverse nor renders it so.  Like any essay in bounty it is tempered with expedience. In my judgment therefore the exercise of the discretion by the Secretary of State under prerogative power cannot in this instance be impugned.”

 

47. In my judgment it is impossible to describe the decision to retain the same roof rule in the 2012 Scheme in respect of pre 1 October 1979 offences as one which was so unreasonable that it cannot have been within the bounds of the Minister’s decision making power. Such victims had no entitlement under the ex gratia schemes which subsisted down to 1996, and it cannot be said to have been wholly outside the bounds of what was reasonable to maintain  that position in subsequent schemes.

 

The public law rule of equality

48. Miss Kohn contended in her skeleton argument that in applying para. 19 the FTT has “offended the public law rule of equality, requiring like situations to be treated alike.” She again gives the example of two siblings, one born and abused before 1 October 1979 and the other born and abused after that date.

 

49. Miss Kohn did not cite any authority justifying intervention on this ground. If this argument has any sort of validity, it seems that it could only do so under one or more of the other heads on which she relies. I do not see how the FTT can be criticised on this ground. The FTT did no more than apply the provisions of the Scheme. It would be necessary to attack the vires of the 2012 Scheme itself.

 

Section 29 of the 2010 Act.

50. Miss Kohn submits in her skeleton argument that para. 19 of the 2010 Scheme “infringed the s.29 duty under the [2010 Act] and is therefore ultra vires.”

 

(a) Indirect discrimination under s.19 of the 2010 Act

51. Miss Kohn submits that the FTT was wrong to reject the contention that para. 19 is discriminatory by reference to age. She contends that, although the FTT’s reasoning may be the answer to a contention that para. 19 constitutes direct discrimination, it is not an answer to the contention that it amounts to indirect discrimination, as defined in s.19 of the 2010 Act. In her skeleton argument she put the contention as follows, which I think is essentially the way in which it was put to the FTT:

 

“The Appellant was born before 1 October 1979. As a result of this, she suffered discrimination: she was exposed to the double trauma of suffering abuse and being denied compensation. Another person, sharing all the same characteristics as the Appellant, but being younger by virtue of having been born after 1 October 1979, would not suffer such discrimination.”

 

52. However, in oral argument Miss Kohn modified that submission somewhat. Her contention was that para. 19, as it operates in 2015, uniquely or primarily affects people now aged between 36 and 51: those are the only people who were children between 1964 and 1979. She submits that it is right to focus on people who were children at the date of the offence because children cannot leave home and will therefore be living with other family members.

 

53. In my judgment it is not right to focus on the particular position of people who were children at the time when the offence was committed. Adults who were living under the same roof are also potentially affected by para. 19. There are many adult victims of domestic violence, some of whom (e.g. the mentally disabled) would not realistically have been able to leave the home of their own volition. Para. 19 therefore potentially affects anyone now aged 36 or over.

 

54. But the question remains whether para. 19 is “discriminatory in relation to” persons (whether children or adults at the time of the offence) born before 1 October 1979, within the meaning of s.19(2) of the 2010 Act. Is the fact that persons born on or after that date cannot find their claim excluded by para. 19, but that persons born before it may find their claim excluded, sufficient to render it discriminatory in relation to age?

 

55. A person born before 1 October 1979 will only be affected by para. 19 if the offence was committed before that date. It is well arguable that para. 19 does not “put persons with whom B shares the characteristic [i.e. of being born before 1 October 1979] at a particular disadvantage when compared with persons with whom B does not share it” because the defining factor is not age but rather the date when the offence was committed. That is Mr Collins’ submission, which the FTT said that it “fully endorsed”.

 

56. If Miss Kohn’s submission is correct, then it would seem that any provision which has the effect that an amendment beneficial to claimants applies only to subsequent incidents is capable of giving rise to indirect discrimination by reference to age. The statutory or other scheme in question will potentially operate less favourably in relation to persons born before than after the date of the amendment. It would mean, for example, that the fact that all the criminal injuries compensation schemes have excluded claims in respect of incidents occurring before the commencement of the first scheme in 1964 would similarly be capable of giving rise to discrimination in relation to age: no-one now aged less than 51 is capable of being affected by that exclusion, but people aged 51 or more may be.  

 

57. I was not referred by either counsel to any authority which assists in relation to this question. In my judgment the better view is that a transitional provision of this nature does not “put persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it”. The characteristic relied on is that of being in a particular age group (see s.5 of the 2010 Act). What puts such persons at a disadvantage is the fact (if it is the case) that the offence occurred before 1 October 1979, which is not a fact directly related to the victim’s age.

 

58. In the course of preparing this decision I have found myself wondering whether the alternative contention which Mr Perriman put to the FTT (at least initially), namely that there was indirect discrimination by reference to sex, is a more realistic way of putting the matter. The authors of the 2012 equality impact report referred to in para. 89 below appear to have been prepared to assume that of pre-1979 cases excluded by the same roof rule “the majority ……. may involve female applicants who have suffered historic abuse.” In his written submission to the FTT Mr Collins said that “while it may be true that more women than men and/or older people are caught by the rule (there is at present no evidence before the tribunal), there is clear justification for it.” The FTT said that in its experience there were just as many cases of sexual abuse against men as against women, but for the purposes of this decision I am prepare to assume that there may well be more domestic violence type offences committed against females then males. The contention would then be that para. 19 puts females “at a particular disadvantage when compared with” males, in that more females will find their claims excluded by para. 19 than males. The comparison would therefore not be between victims living under the same roof as the assailant and suffering an offence before, as opposed to on or after, 1 October 1979. The comparison would be simply between males and females suffering criminal injury before 1 October 1979, females being (I am assuming) more likely to have been a victim of some form of domestic violence or assault and therefore to have a criminal injuries compensation claim excluded on that ground. This was in effect one of the grounds on which Mr Anthony Lester QC argued in R v CICB, ex parte P [1994] 1 All ER 80 that the provision in the then scheme should be struck down for irrationality.

 

59. I could not of course decide this case in the Applicant’s favour on the basis of discrimination by reference to sex without at the very least giving CICA the opportunity to present further argument, as this is not a contention which was pursued before me.

 

60. I propose to go on to consider what the position under the 2010 Act would be if the correct view is that (subject to the question of justification under s.19(1)(d)) para. 19 is indirectly discriminatory in relation to age and/or sex.

 

(b) Was para. 19 enacted in breach of s.29?

61. The provision of section 29 of the 2010 Act potentially applicable would appear to be subsection (6), which provides that a person must not, in the exercise of a public function that is not the provision of a service to the public, do anything that constitutes discrimination.

 

62. It is submitted by Miss Kohn in her skeleton argument that the 2012 Scheme does not comply with s.29 and that “as such, in enforcing the Scheme, the FTT acted ultra vires.” In my judgment that cannot be right.

 

63. The first question is whether the Minister could be said to have acted in breach of s.29 when enacting para. 19. The answer to that question is plainly “no”, having regard to the exception in para. 2(3)(a) of Schedule 3 to the 2010 Act. The validity of the 2012 Scheme itself cannot therefore be attacked under s.29.

 

64. On the face of it that is then the end of the matter, because both CICA and the FTT are bound to apply the provisions of the Scheme.

 

65. That is confirmed by two further specific provisions of the 2010 Act. The effect of para. 1(1) of Schedule 22 is that a person (P) does not contravene s.29, so far as relating to the protected characteristics of (inter alia) age and sex, if P does anything P must do pursuant to a requirement of “an enactment”. By s.212 “enactment” is defined as including “subordinate legislation”, itself defined as including subordinate legislation within the meaning of the Interpretation Act 1978. The 2012 Scheme is plainly “subordinate legislation”, as defined in s.21(1) of the Interpretation Act 1978. CICA’s application of para. 19 cannot therefore be attacked under s.29(6), by reference to discrimination in relation to age or sex, as CICA is bound to apply the provisions of the 2012 Scheme.

 

66. The second provision is para. 3 of Schedule 3 to the 2010 Act, providing that s.29 does not apply to “a judicial function”. That in my judgment also prevents CICA’s application of para. 19 being attacked under s.29. In “determin[ing] claims for compensation in accordance with this Scheme”, as required by para. 2 of the 2012 Scheme, CICA claims officers are in my judgment exercising “a judicial function” (which by para. 3(2) of Schedule 3 includes “a judicial function conferred on a person other than a court or tribunal”).

 

67. Both those provisions would also prevent the FTT’s application of para. 19 being attacked under s.29(6).

 

The public sector equality duty in s.149 of the 2010 Act

(a) jurisdiction

68. By s.149(1) of the 2010 act a public authority must, in the exercise of its functions, “have due regard to” the need to eliminate discrimination. A Minister of the Crown is a person listed in Schedule 19 as within the definition of “public authority” in s.150(1). The Minister was therefore required, when making the 2012 Scheme, to have due regard to the need to eliminate discrimination.

 

69. However, even if it could be shown that he did not have due regard to the need to eliminate discrimination, what would the consequence be, and in particular would it require or enable either CICA or the FTT (or the Upper Tribunal on judicial review of the FTT’s decision) to disapply para. 19?

 

70. It cannot in my judgment be argued that CICA and/or the FTT were themselves under a direct s.149(2) duty, when applying para. 19 of the 2012 Scheme, to have due regard to the need to eliminate discrimination. That is because by para. 3 of Schedule 18 to the 2010 Act s.149 does not apply to the exercise of a judicial function.

 

71. However, that alone would not prevent the Applicant from arguing before the FTT or the Upper Tribunal that, in making the 2012 Scheme, and in particular in enacting para. 19, the Minister had failed to comply with s.149. However, in my judgment no such contention can be entertained by either the FTT on appeal from a decision by CICA, or by the Upper Tribunal on judicial review of the FTT’s decision, because a breach by the Minister of his duty to “have due regard to” the need to eliminate discrimination could not of itself lead to the conclusion that the Applicant was entitled to criminal injuries compensation as if para. 19 had not been enacted. The FTT’s only jurisdiction is to decide whether CICA’s decision refusing compensation was correct.

 

72. If it could be demonstrated that the Minister failed, when enacting the 2012 Scheme, to have “due regard to” the need to eliminate discrimination, the Administrative Court could give relief to an individual claimant in exercise of its judicial review jurisdiction. Such relief would most obviously consist of a declaration and/or an order requiring the Minister to perform the duty and consider amending the Scheme. It could also consist of an order quashing the 2012 Scheme, or quashing para. 19 of the Scheme. It would be a matter for the discretion of the Court to decide what relief would be appropriate in the particular circumstances. But it would clearly not be possible for the FTT, on appeal against a decision by CICA on a particular claim, or the Upper Tribunal by way of judicial review of the FTT’s decision on such an appeal, to give such relief to an individual claimant.

 

73. Nor, in my judgment, could the FTT allow an appeal on the basis of disapplying para. 19, because a breach of s.149 cannot of itself lead to any particular conclusion as regards an individual’s entitlement under the Scheme. As I have noted, the relief  which the Administrative Court might consider it appropriate to grant might or might not include quashing of para. 19. Further, it is not possible to say what the outcome would be if the Minister were to perform his s.149 duty and reconsider. In the present case, for example, it would be impossible to say what the outcome would be if (on the hypothesis that he has not yet done so) the Minister were to reconsider whether to retain or re-enact para. 19, in the light of the s.149 duty. The Minister might consider that there is no discrimination because there is justification for it. Or he might consider that, even though it gives rise to indirect discrimination by reference to age or sex, there are countervailing factors which mean that it would be appropriate to retain (or re-enact) para. 19. Even if he were to conclude that some amendment of the scheme is needed, it may be that discrimination could be removed or lessened in other ways than by removing para. 19. I do not therefore see how it could be argued that a breach of the s.149 duty, if established, would make it appropriate for the FTT, or Upper Tribunal on judicial review of the FTT’s decision, to award compensation as if para. 19 had not been enacted.

 

74. These conclusions in my judgment follow simply from the nature of the s.149 duty, as analysed by (for example) Elias LJ in R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin):

 

“77. …………….Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.

 

78. The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”

 

It follows from the nature of the duty that, as Laws LJ said in R(MA and Others) v SSWP [2013] EWHC at [72]:

 

“the duty of due regard is not a duty to achieve a particular result. The courts will not administer s.149 so as in effect to steer the outcome which ought in any particular case to be arrived at. The evaluation of the impact on equality considerations of a particular decision clearly remains the responsibility of the primary decision-maker.”

 

75. It was held by the House of Lords in Foster v Chief Adjudication Officer [1993] AC 754; R(IS) 22/93, that the Social Security Commissioners had jurisdiction to determine a challenge to the vires of a provision in subordinate legislation as being beyond the scope of the enabling power, whenever it was necessary to do so in determining whether a benefit decision under appeal was erroneous in law. In that case a claimant had been refused the severe disability premium of income support. The enabling Act (the Social Security Act 1986) provided that the applicable amount for income support purposes should include an amount in respect of the claimant being a severely disabled person, and that “regulations may specify circumstances in which persons are to be treated as being or as not being severely disabled.” The relevant regulations imposed conditions, one of which had nothing to do with the severity of the claimant’s disability. The Commissioner held that that condition was ultra vires, and therefore that the claimant should not have been refused the severe disability premium by reason of that condition. The House of Lords held that the Commissioner had had jurisdiction so to decide (but that the provision was not ultra vires).

 

76. In VL v Secretary of State for Work and Pensions [2011] UKUT 227 (AAC) the claimant was refused income support by reason of an amendment to the relevant regulations which removed such entitlement from lone parents whose children had reached the age of 12. The claimant appealed on the ground that the decision infringed her rights under s.7 of the Education Act 1996 to educate her children at home, as she would in practice be unable to do so if she were compelled to claim jobseeker’s allowance instead of income support.

 

77. Upper Tribunal Judge Levenson said (para. 27):

“I conclude that the Upper Tribunal has the power not only to find subordinate legislation to be invalid if it is ultra vires the enabling legislation (Foster) but also if it conflicts with statutory rights already enacted by other primary legislation (JCWI and for the reasons given above relating to the effects of the 2007 Act) but only in cases where there is no other reasonable way to exercise such rights (because if there is such a way, there is no real conflict).”

 

78. Judge Levenson’s decision in VL was that s.7 of the Education Act 1996 did not create a specific right to home educate and its provisions therefore did not render the amendment to the income support regulations ultra vires or invalid.

 

79. In LS v SSWP [2014] UKUT 298 (AAC) the relevant regulations were amended, with effect from 23 January 2011, to the effect that a Sure Start Maternity Grant could only be claimed in respect of one child, and the claimant was refused a grant on that ground. It was contended on her behalf that in making the amending regulations the Minister had failed to comply with the public sector equality duty in s.71 of the Race Relations Act 1976 and that the amendment was therefore of no effect.

 

80. Under the heading “The Ultra Vires Jurisdiction” Judge Levenson referred to Foster and to his own decision in the VL case, and then proceeded to consider the evidence relevant to the question whether the public sector equality duty had been complied with. He noted in para. 45 that

 

“I am not being asked to consider whether the relevant amendments or the policy behind them led to a difference in treatment which is unlawfully discriminatory contrary to the Human Rights Act 1998 or whether they can be justified in that context. I am being asked to decide whether the Secretary of State complied with the public sector equality duty in section 71 of the Race Relations Act 1976 as amended.”

 

81. Judge Levenson concluded (para 51) that “I am (just about) not persuaded that the Secretary of State was in breach of the public sector equality duty or that the amendments were ultra vires.”

 

82. It does not appear from the terms of Judge Levenson’s decision whether it was argued on behalf of the Secretary of State that the Upper Tribunal had no jurisdiction to decide whether the public sector equality duty had been complied with. It does not appear that it was, because Judge Levenson does not refer to any such contention. In my judgment the Upper Tribunal did not have jurisdiction to consider the contention of the claimant in LS v SSWP  based on breach of the public sector equality duty, because even if such a breach had been established it would not in my judgment have followed that the claimant’s claim for sure start maternity provision ought to be allowed. It might or might not have been considered appropriate to quash the amending regulation, had action been taken in the Administrative Court, but even if it had been, the Minister might have come to the same conclusion on properly carrying out the s.149 duty. The situation was in my view entirely different from one where (as in Foster) the relevant regulations had sought to impose an additional condition on entitlement to benefit which (as the Social Security Commissioner had held) was simply invalid as outside the enabling power and was severable from the remainder of conditions of entitlement. It was also different from a case in which an amending regulation imposes a condition which is ultra vires because it conflicts with some other requirement of primary legislation (as was the contention in the VL case).

 

Was there a breach of the s.149 duty?

83. Although I have concluded that I have no jurisdiction to consider whether the Minister was in breach of s.149 in making the 2012 Scheme, I shall nevertheless go on to consider what conclusion I would have reached had I had jurisdiction to do so.

 

84. There was detailed consideration of equality issues before the 2012 Scheme was made.

 

85. Earlier in 2012 the Ministry of Justice published a consultation paper Getting it right for Victims and Witnesses, in relation to the proposals for the 2012 Scheme. That paper was accompanied by an initial Equality Impact Assessment (“EIA”). The purpose of the initial EIA was outlined in paras. 2, 3, 8 and 27:

 

“2. This is an initial screening of the potential impacts of the policy proposals and policies we propose to retain …………. in relation to equality, based on current available evidence. Work on the policies will be informed by on-going consultation with key stakeholders and interested parties. This will allow us to improve our understanding of potential equality impacts and will inform the future direction of policy development.

 

3. The EIA ………….. is designed to ensure that the Government has due regard to these needs, in accordance with its statutory duties under s.149 of the [2010 Act].”

 

8. This EIA assesses the proposed reforms to the CICS and retained policies which we do not propose to change against each of the limbs of the public sector equality duty and by reference to the protected characteristics………..”

 

27. ……………… This document is for initial screening only and feedback will be used to inform the full EIA that will accompany the response to consultation in due course. The likely impacts described in the EIA ……….should be seen as provisional only.”

 

86. In paras. 166 to 179 of the EIA the effect of what was described as “retained policy 1 – where the assailant may benefit and injuries occurred prior to 1 October 1979” was considered.

 

87. Following consultation, the full EIA was published. It dealt with the effects of proposals in relation to the same roof rule in paras. 152 to 168. In paras. 152 to 154 the history of and the further changes proposed to be made to the same roof rule were summarised. The only proposed change was in fact, in respect of incidents occurring on and after 1 October 1979, to remove the provision that an award would not be made unless a prosecution had been brought (or there were good reasons why not).

 

88. Para. 156 reads:

 

“Due to limitations on the available evidence, we are unable to rule out the potential impacts of these reforms on any of the protected characteristics of age, gender reassignment, marriage and civil partnership, pregnancy and maternity. We have identified potential effects on the following proposed characteristics:  ……”

 

89. The comments which are then made in relation to certain characteristics, including disability and sex, make it clear that the document considers the potential effects not only of the change which was proposed to be made, but also of retaining the exclusion from benefit in respect of injuries sustained before 1 October 1979. Thus, the comments in relation to sex were:

 

“160. We have considered whether retaining existing rules preventing an award where the victims and the assailant were living together in the same household may have a differential effect on women as compared to the general population.

 

161. In the case where injury was sustained before 1 October 1979, we have considered that the majority of cases may involve female applicants who have suffered historic abuse.

 

162. In relation to current victims, who were living with the assailant in the same household at the time of the incident, we considered the effect on victims of domestic abuse (who are mainly female) who may find it difficult to leave the relationship and the household. CSEW data shows where the victim (male and female adults aged 16-59) lived with an abuse partner (23% of victims), 58% did not leave the shared accommodation because of the abuse.”

 

90. The EIA then notes in para. 164 that no equality issues were raised during the consultation in relation to this proposal.

 

91. Then under the heading “Mitigation and justification” the EIA said:

 

“166. However, we will retain our policy in the historic rules relating to injuries prior to 1 October 1979. In these cases, awards will not be made where the victim and assailant were living together as members of the same family. This rule was changed in 1979 to make it easier for victims of crime in their own homes to claim compensation. However, at that time the decision was taken to change the rules prospectively rather than retrospectively. This was a legitimate choice made at the time, and was in line with the general approach that changes are ordinarily made going forward, rather than in respect of historic claims. The rule has therefore been a feature of every Scheme since 1979.

 

167. In the light of the potential impacts of retaining the rule, we have considered whether the Secretary of State should amend the rule in relation to injuries sustained before 1 October 1979. We have concluded that it is justified to retain that rule on the basis that one of the aims of the reform of the Scheme is to reduce the burden on the taxpayer and make the Scheme sustainable in the long term. On that basis, and taking into account the policy reforms to reduce elements of compensation in the Scheme in the future, and restrict its scope, we will not change this rule as it would have the effect of increasing the Scheme’s potential liability in an uncertain way in respect of injuries sustained between 1964 and 1979, more than 30 years ago. To open the Scheme up in this way would also involve a significant administrative burden for CICA and could present difficulties for claims officers in establishing the link between the offence and the injuries.”

 

92. It is contended on behalf of the Applicant that para. 156 of the EIA makes it clear that the authors of the EIA cannot have given had due regard to the need to eliminate discrimination due to age because they considered (wrongly, it is argued) that there was no evidence that there would be any such discrimination. However, the authors clearly concluded that the discrimination which they did identify or assume, by reference to the protected characteristic of sex, was justified, for the reasons which they stated. The clear effect of the EIA is in my judgment that, if and so far as there was any discrimination, by reference to age, arising from the retention of the same roof rule in respect of injuries occurring before 1 October 1979, that was justified for the same reason.

 

93. It is further contended on behalf of the Applicant that in so far as the aim of retaining the same roof rule for injuries inflicted before 1 October 1979 was based on the financial consequences of retrospectively conferring entitlement to claim, it was misplaced in that statistics show that the number of claims disallowed on the basis of the same roof rule between 2010 and 2013 was less than 1% of the total number of disallowed claims. The statistics show that there were 78 such disallowed claims in 2010/11, 67 in 2011/12 and 76 in 2012/13. Miss Kohn submitted that the highest tariff award which can be made in a case of a sexual assault on a child is B13, worth £27,000, and therefore that even if that award was made in 76 cases, the total compensation would only be around £1.8 million per annum. That compares with total compensation paid of £324.6 million in 2012/13.

 

94. However, as Mr Collins points out, the statistics are only for claims actually made and rejected because of the effect of the same roof rule in pre- 1 October 1979 injury cases. There may well have been many persons who did not claim because it was clear that the claim would fail. It seems likely that, if the rule were removed so as to allow claims for pre 1 October 1979 injuries, there would be many more such claims. Further, the compensation could include sums for loss of earnings in appropriate cases. In addition there is the potential administrative burden (albeit that it may be reduced by the effect of the time limit provisions – see below) of investigating facts which occurred a long time ago.

 

95. Were it within my jurisdiction to make any finding in that regard, I would find that the material before me indicates that the only possible conclusion is that the Minister, in re-enacting the same roof rule in the 2012 Scheme, did have due regard to the need to eliminate discrimination in relation to all the protected characteristics, including age, and so complied with s.149 public sector equality duty.  

 

The Human Rights Act 1998

(a) Permission to raise this ground

96. Contentions based on the Human Rights Act (HRA) were not advanced before the FTT, or in the grounds for seeking judicial review by the Upper Tribunal, drafted by Mr Perriman. It follows that the permission to appeal given by Judge Levenson did not include permission to raise any such grounds. Submissions based on the HRA were first included in a skeleton argument provided by Miss Kohn shortly before the hearing before me. At the end of that hearing I directed that further written submissions relation to the HRA be provided by the parties, which was done.

 

97. I consider that CICA has had sufficient opportunity to deal with contentions based on the HRA, which have now been fully argued, and that I should give permission to raise such contentions. I therefore do so.

 

(b) Jurisdiction

98. By s.6(1) of the HRA it is unlawful for a public authority to act in a way which is incompatible with a Convention right. The Secretary of State who made the 2012 Scheme was a “public authority”, and in making it was therefore required to act compatibly with the Convention. (Although, by s.11 of the 1995 Act, the Secretary of State was required to lay a draft of it before Parliament, and was not permitted to make the Scheme until it had been approved by a resolution of each House, it would not appear to be arguable that, in making the Scheme, he was “exercising functions in connection with proceedings in Parliament”, and so is excluded from the definition of “public authority” by the concluding words of s.6(3)).

 

99. If para. 19 of the 2012 Scheme was incompatible with a Convention right, para. 19 was arguably invalid and the FTT was required to decide the Applicant’s appeal on that footing. The position would arguably fall squarely within the principle in Foster that a tribunal deciding an appeal against a refusal of a benefit claim must not give effect to a provision of subordinate legislation which is beyond the powers of the body which enacted it. I would therefore not necessarily accept Mr Collins’ submission that in the event of such incompatibility “no remedy is appropriate beyond the terms of the Tribunal’s judgment identifying the nature of the violation in question.”

 

100. Further, if para. 19 of the 2012 Scheme was incompatible with a Convention right, CICA, also a public authority, was arguably acting unlawfully in refusing compensation by reason of it, and the Applicant would have been entitled to rely on that unlawfulness in her appeal to the FTT, and can rely on it in her judicial review application to the Upper Tribunal: see section 7(1)(b) of the HRA.

 

101. Miss Kohn relies on the interpretative duty in s.3 of the HRA, but in my judgment para. 19 is too clear to admit of its effect being sidestepped by means of some form of favourable construction of it.

 

(c)  A1P1 on its own

102. Miss Kohn contends that para. 19 of the 2012 Scheme is incompatible with the Applicant’s right under A1P1 of the Convention, in that the Applicant’s entitlement to criminal injuries compensation is a “possession”, of which she has been “deprived” by para. 19.

 

103. There is no doubt that an entitlement under the terms of the criminal injuries compensation scheme is a “possession”, and that a deprivation of such an entitlement could be contrary to A1P1.

 

104. However, in my judgment it is clear that Mr Collins is correct in submitting that there has been no actual deprivation of a possession here. The Applicant has no right, apart from the criminal injuries scheme, to payment of compensation by the state in respect of her injury. Her only right is under the provisions of the scheme, and in accordance with its conditions. Until the enactment of the 1979 Scheme she had no entitlement because of the “same roof” provision. Even if the HRA had been in force prior to 1979, the Applicant would not have been able to argue that she had a “possession” of which she had been deprived by the same roof rule. She simply had no entitlement under the then provisions of the scheme. The fact that, as from 1 October 1979, persons injured on or after that date obtained a right to compensation would have made no difference. She still had no “possession” of which she had been deprived. This approach to A1P1 has been confirmed in the jurisprudence of the ECHR. In Roche v UK (2006) 42 EHRR 623 at para. 129 the Court said:

 

“The Court recalls that a proprietary interest in the nature of a claim can only be regarded as a possession where it has a sufficient basis in national law, including settled case law of the domestic courts confirming it.”

 

(d) A1P1 in conjunction with Art 14

105. Miss Kohn submits that there has been discrimination contrary to Article 14, taken in conjunction with A1P1.

 

106. Art 14 of the Convention provides:

 

“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.”

 

107. There is in my judgment now no doubt that the possibility of a claim to compensation under the criminal injuries scheme is sufficiently within the ambit of A1P1 to mean that it can form the basis of a discrimination claim under Article 14. In Stec v United Kingdom (2005) 41 EHRR SE18 the Grand Chamber of the ECHR said (at para. 55):

 

“In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No.1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question ….. Although Protocol No 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.”

 

108. In my judgment the Extra Division of the Court of Session was, with respect, plainly wrong when it said (obiter), in DJS v CICAP [2007] CSIH 49, at [84] that Stec did not undermine its conclusion that, had the HRA been in force at the time when the 1996 Scheme was made, the possibility of a compensation claim within the scheme would not have been sufficiently within the ambit of a Convention right to be capable of founding a claim under Article 14.

 

109. Miss Kohn submits that para. 19 of the 2012 Scheme gives rise to discrimination on the ground of “other status”, namely by reference to age. This is the same or a very similar argument to the one which she puts forward under s.29 of the 2010 Act. However, under the 2010 Act the question is whether there is indirect discrimination within the particular terms of s.19 of that Act. Here the question is whether there is discrimination of a kind which the jurisprudence of the ECHR recognises as falling within the prohibition in Article 14.

 

110. Mr Collins submits that the Court of Session was right in DJS v CICAP when it concluded as follows (at [85]):

 

“The contention made here was that there was discrimination on the basis of ‘other status’. It is that contention which we now examine. In approaching this matter we have regard to what was said in R(Carson) v SSWP, particularly by Lord Hoffmann (para 10) and Lord Walker (paras. 53-58). The conclusion which we reach on this aspect of the case is that the circumstances here do not justify the conclusion that there might have been discrimination on the basis of ‘other status’. It is quite plain, in our opinion, that the effect of para. 7(b) of the 1996 Scheme is to exclude from compensation cases 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. Comparing such persons with persons who were living together with the assailant at the time as members of the same family where the criminal injury was sustained after 1 October 1997, it is evident that the distinction in treatment is based solely upon the time when the criminal injury was sustained. In our view the proper comparator is another person who was the victim in a ‘same roof’ situation. Indeed we accept the submission of the respondents that the only proper comparator is other ‘same roof’ victims. Thus the difference of treatment involved here cannot be seen as falling within any of the kinds of discrimination against which Art 14 is a protection. Accordingly, had it been necessary to do so, we would have held on this ground also that the reclaimer’s petition would have failed.”

 

111. There is a substantial body of case law, both domestic and of the ECHR, on the question of what constitutes a sufficient “status” for the purpose of Article 14, and in particular whether it need be something capable of being described as a “personal characteristic”, and whether that must be something innate, as opposed to acquired. I would refer, in particular, to the discussion by Lord Neuberger in R (RJM) v SSWP [2008] UKHL 63; [2009] 2 ALL ER 556 at [35] to [47].

 

112. I accept that the contention on behalf of the applicant in DJS v CICAP  was not put on the basis of discrimination by reference to age. But in my judgment it is not correct to regard the difference in treatment, as between persons living under the same roof and suffering an offence before 1 October 1979 as opposed to on or after that date, as one giving rise to discrimination on the ground of age, for the purpose of Article 14. The Court of Session was in my judgment right to say that the difference in treatment is really by reference to the date when the offence was committed. In my view that is probably not a discrimination by reference to something which can properly be described as a “status”, for the purposes of Article 14.

 

113. However, if (which, as I have said, was not contended before me on behalf of the Applicant, but had been before the FTT) the case can properly be regarded as one of discrimination (albeit indirect) on the ground of sex (see para. 58 above) that would be a discrimination ground within Article 14.

 

114. Further, it may be possible to frame the case as being one of discrimination, in relation to those suffering injury before 1 October 1979, between people who were then living under the same roof as the assailant and those who were not so living. It is doubtful whether that is sufficient to amount to “other status”, but possible that it may be.

 

(e) Justification

115. A difference of treatment does not constitute discrimination contrary to Art 14 where it has an objective and reasonable justification; that is, where it can be shown to be in pursuit of a legitimate aim and proportionate to that aim. As was said in the judgment of the Grand Chamber on the merits in Stec v UK (2006) 20 BHRC 348 (para 51): a difference in treatment is discriminatory “if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”

 

116. The Grand Chamber went on (in para. 52 of Stec) to explain the ‘margin of appreciation’ enjoyed by the contracting states in this context:

 

“The scope of this margin will vary from case to case according to the circumstances, subject-matter and background……….. As a general rule, very weighty reasons would have to be put forward before the court could regard a difference in treatment based exclusively on the ground of sex as compatible with the convention…. On the other hand, a wide margin is usually allowed to the state under the convention when it comes to general measures of economic or social strategy…. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation.”

 

117. If, contrary to my view, the present case is correctly analysed as a difference of treatment based on age, or if the difference between sustaining injury before and after 1 October 1979, or between living under the same roof as the assailant and not so living, is a difference of “status” for the purpose of Article 14, in none of such  cases is the difference of treatment based on one of the “suspect” grounds which will require “very weighty reasons” by way of justification.

 

118. A difference based on sex would be one of the “suspect” grounds, but it appears that it will not be so regarded in the context of state benefits or where the discrimination is indirect rather than direct. Thus, in Humphreys v HMRC [2012] UKSC 18; [2012] 4 All ER 27 it was accepted that the “main responsibility” test for entitlement to child tax credit discriminated indirectly against fathers, because they were far more likely than mothers to be looking after the child for the smaller number of days in the week. It was held that the normally strict test for the justification of sex discrimination did not apply. Lady Hale said (at [19]):

 

“It seems clear from Stec v UK, however, that the normally strict test for justification of sex discrimination in the enjoyment of convention rights gives way to the ‘manifestly without reasonable foundation’ test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widow’s pensions to men in Runkee v UK [2007] 2 FCR 178 at 189 (para. 36). If they apply to the direct sex discrimination involved in Stec v UK and Runkee v UK, they must, as the Court of Appeal observed [2010] 1 FCR 630 at [50], apply a fortiori to the indirect sex discrimination with which we are concerned.”

 

119. I refer also to the Court of Appeal’s statement in AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634, paras. 16 and 61:

 

“It would severely inhibit a state’s power to legislate if it had to provide weighty reasons for adopting policies which adversely impacted on groups not by reason of status alone, but for reasons unconnected to it.”

 

 

120. In his skeleton argument and submissions Mr Collins contends that the retention of the same roof rule for pre-October 1979 cases “reflects the well established rule that measures taken by government to impose burdens or confer benefits will operate prospectively”.

 

121. In fact that is not a principle which has generally been adopted in relation to amendments to the criminal injuries compensation schemes. The position has generally been that a new scheme applied to all claims made after the entry into force of the new scheme, whether the injury occurred before or after that date. Thus, the 1969 Scheme appears to have contained no transitional provision, and so applied to all applications made after it came into effect. The 1990 and subsequent schemes have contained transitional provisions making clear that they applied to all applications made after the coming into effect of the scheme.

 

122. There have been two major exceptions to that. First, none of the schemes have permitted claims in respect of injuries occurring prior to the coming into effect of the first scheme on 1 August 1964. Secondly, the 1979 Scheme (i.e. the one which modified the same roof rule) provided that it applied only to applications in respect of injuries which incurred on or after 1 October 1979. Applications in respect of any injuries occurring before that date were required to be dealt with under the 1969 Scheme.

 

123. But there nevertheless remains the powerful point that a person whose claim is barred by para. 19 had no entitlement under the relevant scheme when the offence was committed. The decision, consistently taken in relation to schemes enacted from 1979 onwards, not to give retrospective entitlement to such persons is on any view a perfectly defensible one, and cannot be said to be “manifestly without reasonable foundation.” It was in keeping with the policy of not giving entitlement to persons injured before 1964.

 

124. The first scheme which could have been challenged in the domestic courts under the HRA was the 2001 Scheme. Even by 2001 the potential consequences of giving entitlement to claim in respect of same roof cases where the offence took place between 1964 and 1979 must have been considerable, both in terms of cost and adjudication difficulty and administrative inconvenience. In particular, it could be extremely difficult to ascertain to what extent present physical and (in particular) mental health difficulty was attributable to the offence. That difficulty of course potentially subsists in respect of any claim which is made under the 2012 Scheme in respect of an offence committed a long time in the past. However, many such claims would fail by reason of the time limit provisions in paras. 87 to 89 of the 2012 Scheme.

 

125. Miss Kohn contends that those time limit provisions mean that a need to prevent a mass of stale claims is not a justification for retaining the same roof rule. The primary provision in para. 87 requires that an application for compensation be made as soon as reasonably practicable after the incident, and in any event within 2 years. There is a general extension in para. 89 where the claims officer is satisfied that (a) due to exceptional circumstances the applicant could not have applied earlier; and (b) the evidence presented in support of the application means that it can be determined without further extensive enquiries by a claims officer.

 

126. However, if one of the Schemes, enacted since the coming into force of the HRA, had omitted what is now para. 19 of the 2012 Scheme, a victim who until then had been prevented from claiming by the same roof rule would clearly have been able to satisfy the condition in para 89(a). The claims officer might be able nevertheless to reject the claim, owing to the condition in para. 89(b). But it seems to me that it would almost always be at least arguable, on the part of the applicant, that the evidence which he or she had presented in support of the application would enable the claim to be determined “without further extensive inquiries”.

 

127. In my judgment the only conclusion which can properly be reached is that the materials before me sufficiently demonstrate that the reasons for retaining the same roof rule in the case of offences committed before 1 October 1979 constituted a legitimate aim and that the retention of the rule was proportionate to that aim. It is not possible to conclude that the decision to retain the same roof rule for such cases was “manifestly without reasonable foundation.” The considerations which weighed with the authors of the EIA in 2012 were clearly sufficient to amount to a rational and proportionate justification for retaining the same roof rule in respect of pre 1 October 1979 offences.

 

128. Miss Kohn has not contended that, because under s.17 of the Tribunals, Courts and Enforcement Act 2007 I can only substitute my own decision for that of the FTT if “there would have been only one decision that the [FTT] could have reached”, I should set aside the FTT’s decision and remit the Human Rights Act issues to a freshly constituted FTT. She has in effect requested me to substitute my own decision. But that limitation on my jurisdiction nevertheless exists and jurisdiction cannot be conferred by consent. I am, however, of the view that that condition is satisfied, albeit not in favour of the outcome which the Applicant would wish.

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

1 September 2015