4th Apr 2019
The Same Roof Rule – An Update on its Abolition
The Criminal Injuries Compensation Authority or CICA as it is commonly known is a Government-funded body whose job is to compensate blameless victims of violent crime including sexual abuse.
When the scheme was initially set up in the early 60’s the Government of the day introduced the same roof rule. Under the "same roof" rule, compensation was not paid if the victim and assailant were living together as members of the same family. The same roof rule was designed to prevent the assailant from benefitting financially from CICA compensation paid to the victim. However, the same roof rule often caused huge unfairness for victims of childhood sexual abuse committed by members of the same family.
For example. Suppose two little girls are neighbours. They are both sexually abused by the father of one of the little girls. The neighbour is entitled to receive a CICA award as she does not live with the abuser under the same roof. The daughter is not entitled to a CICA award as she lived with her father under the same roof.
So unfair was the original same roof rule that it was changed in 1979 to allow people to receive CICA awards for being abused by someone they lived with, but it was not made retrospective. Therefore, until now, the same roof rule still applied to violent crimes, including sexual abuse, that took place before 1979. Although this change went some way to redressing the inherent unfairness of the original same roof rule, it did not stop the same roof rule creating some injustices.
To further demonstrate the change in 1979, suppose two sisters are sexually abused at home by their father. One sister is abused in 1978 and one sister is abuse in 1980. Under the amended same roof rule the sister who was abused in 1978 was not entitled to a CICA award and the sister who was abused in 1980 was entitled to an Award.
The amended “same roof rule” did not again change until this year. In July 2018, the Court of Appeal decided that the "same roof rule” had unfairly denied the right to a CICA award to a female victim who was abused before 1979 at home by her stepfather from the age of 4 to 17. The Government and the CICA did not Appeal against the Court Judgment and in February Ministers changed the law to finally abolish the same roof rule.
There are four categories of applicant who may have been affected by the “same roof rule”.
1. Victims who submitted CICA claims after 2012 but were refused an Award under the “same roof rule”.
2. Victims who submitted CICA claims after 2012 and which are on hold pending a decision into the application of the “same roof rule”.
3. Victims who submitted CICA claims before 2012 but were refused an Award under the “same roof rule”.
4. Victims who never submitted CICA claims because they knew or were advised by solicitors the “same roof rule” would prevent them from receiving an Award.
The CICA has not yet published details of how it intends to deal with victims who are now eligible for an award. It is an enormous task, as up to 7,500 victims could now apply for CICA Awards and the CICA may have to pay up to £126m additional compensation. Of 350 CICA claims refused over the past five years because of the "same roof" rule, 94% relate to sexual abuse against a child. The CICA estimate that about 4,000 applications have been refused under the "same roof" rule since 1964, and the CICA expects 70% of those cases to now result in payments being awarded should those people re-apply.
Individual pay-outs in cases of childhood sexual abuse could be considerable. The Tariff Award alone could be anywhere between £1000, and £27,000. On top of this victims may also be entitled to compensation for loss of earnings if they can show that as a result of their sexual abuse they have been unable to work for more than 29 weeks. Of course, there will now be people who will apply to the CICA for the first time knowing that the same roof rule no longer applies to them and this will increase the payments made by the CICA.
Let us consider how the CICA may deal with the above three categories of victim who so far have not been able to recover compensation from the CICA because of the “same roof rule”.
1. Victims who submitted CICA claims after 2012 but were refused an Award under the “same roof rule” .
It is likely the CICA will allow claims to proceed as if the “same roof rule” had never applied and applicants should be compensated in accordance with the 2012 Scheme Tariffs.
However, it is not clear whether the CICA will write to victims whose CICA claim was rejected because of the “same roof rule” or whether it is up to victims to come forward. It is also not clear how long a period such victims will be given to contact the CICA, and what will happen if they no longer have any paperwork.
2. Victims who submitted CICA claims after 2012 and which are on hold pending a decision into the application of the “same roof rule”.
It is estimated there are also more than 200 live cases currently with the CICA that have been awaiting the outcome of a decision on the “same roof rule”. However, it is likely the CICA will allow these claims to proceed as if the “same roof rule” had never applied and applicants should be compensated in accordance with the 2012 Scheme Tariffs.
3. Victims who submitted CICA claims before 2012 but were refused an Award under the “same roof rule”.
It is likely the CICA will allow claims to proceed as if the “same roof rule” had never applied. However, it is not clear which CICA scheme will apply. Successive CICA Schemes have become less generous. Hence applicants who applied under, for instance, the 2008 Scheme would have been much more likely to obtain substantial loss of earnings awards than applicants who applied under the 2012 Scheme as the latest Scheme has now capped loss of earnings to the rate of SSP.
Furthermore, it is not clear whether the CICA will write to victims whose historic CICA claim was rejected because of the “same roof rule” or whether it is up to victims to come forward. It is also not clear how long a period such victims will be given to contact the CICA, and what will happen if they no longer have any paperwork.
4. Victims who never submitted CICA claims because they knew or were advised by solicitors the “same roof rule” would prevent them from receiving an Award.
It is not clear what the CICA will do in relation to this group of people. There could be as many as 3,500 new applicants coming forward now that the rule has been abolished.
It is very unfair to think the CICA will prevent claims from victims who were advised by lawyers or who took the time and trouble to read the Scheme rules themselves and did not submit a CICA claim when they realised they would not be entitled to an Award because of the “same roof rule”. This is especially so if victims who lodged speculative claims in ignorance of the “same roof rule” can now recover an Award.
It is also unclear which Scheme the CICA will apply and this is important bearing in mind that earlier Schemes were more generous that newer Schemes.
Whichever, category you may fall into, time is of the essence and you should contact Robson Shaw Solicitors as soon as possible. Robert Shaw is a solicitor and Director who specialises in CICA claims. He is available for an initial non obligation and free consultation on 01392 345332 or can be contacted by email on robert@robsonshaw.uk.
Category: CICA Claims