The Court of Appeal have unanimously declared the ‘same roof’ rule incompatible with article 14 of the European Convention on Human Rights (“the Convention”) and opened the way to compensation claims from victims of abuse perpetrated by family members living together before October 1979.
In the case of JT (Appellant) v First-Tier Tribunal (Respondent) & CICA (Interested Party) & Equality and Human Rights Commission (Intervener)  EWCA Civ 1735 – the appellant (“JT”) was a victim of sexual assault and rape by her stepfather between the ages of 5 and 17 years. In 2012, he was charged with eight offences, including rape, convicted on all counts and given a 14 year prison sentence. After the conviction, JT applied to the Criminal Injuries Compensation Authority (“CICA”) for compensation for her injuries. This claim was refused due to the ‘same roof’ rule: as all the offences occurred before October 1979 and as both JT and her stepfather were living together as members of the same family, JT was not eligible for compensation.
JT challenged this refusal in the First-Tier Tribunal and the Upper Tribunal. Both challenges failed. In her appeal to the Court of Appeal, she asserted that the ‘same roof’ rule was incompatible with article 14 of the Convention, as it drew an arbitrary and unfair distinction between victims living with their assailant, and those who were not. On 24 July 2018 the Court of Appeal agreed with JT. Leggatt LJ delivered the leading judgment – see here .
The compensation scheme was first introduced in 1964 with claimants receiving ex gratia payments. These were subject to scrutiny in case of “provocation or otherwise, on the part of the victim”, and to the ‘same roof’ rule: claims were rejected if the offender lived with the victim at the time of the offences. The purpose was to ensure any compensation would not benefit the offender in cases of domestic violence. The scheme was reformed in 1979. The ‘same roof’ rule was removed for injuries sustained on or after October 1979, but the change was not retrospective. In 1995 the scheme was placed on a statutory basis in England and Wales, making it a right to compensation in the case of serious injury. The current scheme, introduced in 2012, kept the ‘same roof’ rule for injuries predating October 1979.
The Court considered three successive questions: (1) whether the difference in treatment concerns the enjoyment of a right protected by the Convention (the ‘test of ambit’), (2) whether the difference in treatment is on the ground of ‘status’ falling within article 14 (the status test), and (3) whether the difference in treatment amounts to discrimination prohibited by article 14, and if so whether it is justified (the discrimination test).
In response to the above questions, the Court of Appeal found that (1) the right to a criminal injuries compensation award could constitute a ‘possession’ within the meaning of article 1 Protocol 1 of the Convention, (2) JT had an ‘other status’ within the meaning of article 14 by virtue of having lived with her assailant as a member of the same family, something she could not change, and (3) that the refusal to pay compensation was discrimination amounting to a violation of article 14. The 2012 scheme paid out compensation to those victims of pre 1979 abuse who did not live with their assailants, which meant there was no justification for the ‘same roof’ exclusion.
The judgment was reached on technical legal grounds about the scope of Convention rights, but it also reflects how our society’s perception of abuse has changed, and how the courts are determined to protect the rights of abuse victims.
Authored by BLM associate Geneviève Rich