Released On 24th Jul 2018
The Same Roof Rule Overturned
Since 1979, the Criminal Injuries Compensation Authority (“CICA”) has operated the “Same Roof Rule”. It has been held to be an unfair, arbitrary and illogical provision of the CICA schemes.
That position has now changed following a landmark decision in the Court of Appeal.
To illustrate, let us suppose that 2 young children who lived side-by-side in adjacent houses were abused by one of the children’s father which started in 1970 and ended in 1978. Let's assume that the abuse was meted out in equal measure to both children. Most right-thinking people would assume that both children would qualify for an award from the CICA. However, under the terms of the same roof rule, the child whose father committed the abuse was unable to succeed in their CICA claim, whilst the child who lived next door received a CICA award. The only difference between the two survivors is one lived under the same roof as the abuser.
To understand why the same roof rule existed it is necessary to examine how it came about. The CICA was set up in 1964. It was a new type of scheme and awards were made ex gratia. At the time it was felt that the difficulties in clearly establishing the facts and ensuring that compensation did not, in the end, benefit the offender was so great that offences committed against a member of the offender’s family living with them at the time should be excluded altogether.
In 1979 a new compensation scheme was introduced which made a substantial change to the same roof rule. Under the 1979 scheme and onwards the same roof rule has only applied to injuries incurred before October 1979. Thus, to an extent the same roof rule has been consigned to the dustbin of history. However, for a number of older survivors who were abused as children before 1979, it remains pertinent and according to CICA figures, 120 potential survivors have been denied compensation because of the continuing application of the same roof rule.
A 2012 consultation paper published by the Ministry of Justice examined the same roof rule. Despite wholesale changes to the CICA scheme, no mention was made either in the new CICA scheme or elsewhere in the consultation paper of the intention to do away with the same roof rule. The same roof rule and the intention to retain it as part of the CICA scheme were, however, mentioned in an Equality Impact Assessment which accompanied the Ministry of Justice consultation paper. It noted the Government intended to retain the same roof rule principally to prevent an assailant benefiting from an award. That said there have been four main reasons for retaining the same roof rule.
1. Benefiting the Assailant
The first reason is that, as noted by the Equality Impact Assessment, the same roof rule prevented an assailant benefiting from award.
2. Ascertaining the Facts
The second reason is that the CICA considered it would be difficult to ascertain the facts of certain offences which were committed against a member of the offender’s family living with him at the time of the offence.
3. Increasing costs and administration.
The third reason is that if the same roof rule were removed, it would have the effect of increasing the CICA scheme’s potential liability in an uncertain way and would also involve a significant administrative burden on the CICA in circumstances where it is Government policy to try and reduce the burden on the taxpayer and make the scheme sustainable in the long-term
4. Changing Legislation
The fourth reason was that when the same roof rule was considered in 1979, the Government decided to change the rules going forward rather than retrospectively. This decision was a legitimate choice made at the time and in line with the general approach that changes in legislation are not retrospective.
JT, a woman now aged 55 was repeatedly sexually assaulted and raped by her stepfather in the family home. The sexual abuse started by the time she was 5 years old and continued until age 17 in 1979. Many years later JT’s stepfather was prosecuted for the crimes, convicted on all counts and sentenced to 14 years imprisonment.
In December 2012 JT applied for compensation to the CICA. Her application was initially rejected on the basis of the same roof rule. The CICA held that JT and her stepfather were living together as members of the same family notwithstanding that as a young child JT had no way of extricating herself from the family or protecting herself from the abuse. By contrast, a relative of JT who was also abused by the perpetrator received an award of compensation from the CICA. These incidents also occurred before October 1979, but she remained eligible for compensation as she had not lived with the abuser under the same roof.
JT appealed the decision of the CICA and it was heard by the First Tier Tribunal and subsequently the Upper Tier Tribunal. The Upper Tier Tribunal agreed with the CICA. JT appealed to the Court of Appeal.
To determine whether the CICA scheme was incompatible with the European Convention on Human Rights the Court of Appeal had to address 3 questions.
1. Whether the difference in treatment of which JT complained concerned her enjoyment of a human right set out in the Convention. In short whether her discrimination fell within the ambit of the Convention right
2. Whether the difference in treatment was found to be on the grounds of a status that was recognised by article 14
3. Whether the difference in treatment amounted to discrimination prohibited by article 14
The decision of the Court of Appeal was handed down on 24 July 2018.
The Court considered whether the difference in treatment complained of constituted discrimination that is prohibited by article 14 of the Human Rights Act. In deciding this point the Court referred to S6 Human Rights Act that states it is unlawful for a public authority such as the CICA to act in a way which is incompatible with a European Convention right unless, it is required to do so by primary legislation. Thus, the appeal turned upon whether JT could show that the difference in treatment of which she complained was “manifestly without reasonable foundation” and violated article 14 of the Convention.
The Court of Appeal looked at the objections raised by the CICA to removing the same roof rule.
1. Benefiting the assailant
The Court recognised that it would be hard to suggest that a rule which precluded any award from being made to any applicant who was living with their assailant at the time of an incident which occurred over 30 years ago, irrespective of their present situation, is rationally connected to the aim of preventing an assailant from benefiting financially. The Court noted under the 2012 scheme the rules have been much more sensibly drafted to provide a general prohibition against making an award if an assailant might benefit from it and a more specific rule which prevents an award being made in cases where the applicant and the assailant are adults living together as members of the same family at the time of the incident, unless the applicant and the assailant no longer live together and are unlikely to do so.
2. Ascertaining the Facts
The Court noted that it might be difficult to ascertain the facts of offences which were committed against a member of the offender’s family irrespective of when the offence occurred. Moreover, the CICA scheme allows awards to be made to applicants where the assailant is not living in the same family even in circumstances in which it is difficult to ascertain the facts. Thus, the cut-off date of 1979 was therefore an irrelevant and arbitrary prohibition.
3. Increasing Costs and Administration
The Court accepted that removing the same roof rule might increase the overall cost of the scheme and its administration. The CICA produced figures showing 120 applicants had been denied an award under the same roof rule for offences committed before 1979 and these may now have to be compensated. However, the Court accepted that the increase in costs and administration was not of itself enough to displace the overriding principle of fairness and justice.
4. Changing the Legislation
The Court noted that other changes to the CICA rules over the years have retrospectively changed the legislation.
The Outcome of the Appeal
The Court of Appeal unanimously upheld the Appeal by JT, setting aside the decision of the Upper Tribunal, quashing the decision of the First-Tier Tribunal and making a Declaration that JT is not prevented under the rules of the CICA scheme 2012 from being paid an award. However, although JT has been granted a declaration, Parliament now needs to make a change to the legislation to enable her claim to compensation, but her Appeal has paved the way for this to take place.
What does the Judgment Mean?
This is a landmark judgment for survivors of family abuse that took place before 1979 in circumstances where they would otherwise have been prevented from making an application to the CICA.
One matter that remains outstanding is under the rules of the CICA, an applicant may not make more than one application to the CICA for the same injury. If an application has been made to the CICA and rejected on the basis of the same roof rule the CICA might argue that a second application cannot be dealt with. These cases may now be the subject of an out of time application for review. It is important to instruct solicitors who understand the rules and can argue on an equal footing with the CICA.
Samantha Robson and Robert Shaw of Robsonshaw Solicitors have a wealth of experience of claiming compensation from the CICA, obtaining six figure awards.