The Court of Appeal has recently decided that the ‘same roof rule’ which applies in criminal injury compensation claims is incompatible with the Human Right Act (HRA).

The Criminal Injuries Compensation Authority (CICA) compensates victims of crime for injuries that they suffered if they satisfy certain criteria, which includes victims of sexual assaults. However, the original scheme set up in 1964 specifically excluded a person bringing a claim if they were a family member and living with the perpetrator of abuse, hence the term ‘same roof rule’. This has long been acknowledged as unfair and in fact only applies where the criminal offence took place before 1979.

However the situation remained that where a person was sexually abused before 1979 and the perpetrator of abuse was a family member they were living with, they could not claim. Victims of abuse born in the early 1970s are now only in their mid-forties and it is not uncommon for people of that age to make disclosures about past abuse. In such circumstances, a victim of abuse may report the abuse to the police and assist with the criminal investigation only then to be told that, because they were abused by a family member they lived with, they are ineligible to claim any compensation under the CICA scheme. The intention behind this part of the scheme was to address concerns that compensating such victims could actually end up benefitting the offender, although of course that would not apply where a child only makes the complaint to police once they are an adult and not living with the abuser. There were also concerns about the financial implications of opening up the scheme in such a way.

The CICA scheme was substantially amended in 1979 to allow more people to be able to claim, but it did not apply to offences committed before 1979, which is why there is still an ongoing unfairness in this respect. It was for this reason that the Court of Appeal in JT v First Tier Tribunal and Others  were asked to consider whether the rule in place before 1979 was compatible with the Human Rights Act (HRA), specifically Article 14 on the prohibition of discrimination. The Court of Appeal examined the CICA scheme in detail and came to the conclusion that the ‘same roof rule’ that was in place before 1979 was incompatible with the HRA. The reason was based upon the fact that children living with their family were treated differently and less favourably by the CICA scheme without any good justification.

This decision  is welcome news and comes shortly after the interim report of the Independent Inquiry in to Child Sexual Abuse  (IICSA) recommended that the Ministry of Justice should remove altogether the ‘same roof rule’ and that if anyone was previously rejected because of that rule, they should be allowed to reapply and have their case reconsidered.

Switalskis Solicitors represent many victims of abuse, including for criminal injury compensation claims. We would be happy to discuss past applications that have failed because of the ‘same roof rule’. It is possible that a claim that has previously been rejected will now succeed. We would also encourage the Ministry of Justice to require the CICA to go back through old cases that they have rejected to inform victims that they can now reapply.

To contact one of our specialist lawyers, call 0800 138 4700 or email help@switalskis.com

Disclaimer: The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.