A CHILD abuse victim who escaped being strangled by her mother is taking her legal fight for justice to the Supreme Court after she was refused compensation under a bizarre “same roof” policy scrapped 38 years ago.

Monica Allan, now 49, is demanding changes to the Criminal Injuries Compensation scheme after she was time-barred from receiving help from the government agency whose slogan is: "Putting victims first".

She believes her human rights are being breached because she is being deprived of support under an "unfair" rule that dismissed entitlement to compensation for injuries caused by someone within the same family.

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When Ms Allan appealed against the ruling, judges at the Court of Session while accepting her human rights had been breached, said the government was entitled for policy reasons not to backdate changes made to the scheme in 1979 which scrapped the so-called 'same roof' rule.

HeraldScotland:

One of the key issues surrounded the long-term sustainability of the scheme if hit by retrospective claims from victims from before 1979, of which Ms Allan was one.

She was three months old when her mother first attacked her in May 1968. Five years the mother was jailed for 18 months for assault, by trying to strangle her and push her head under a running bath tap.

Elizabeth Fallon was convicted of serious assault for both attacks. She is now taking her appeal to the highest appeal court in the country, the Supreme Court, with the assistance of her solicitor.

Ms Allan from East Kilbride said: "It's basically unfair that if somebody goes into someone else’s home and is not a member of same family and attacks or assaults them, they qualify for compensation. Why is their life any more important than ours?

"I think its more sinister when it’s a member of your own family, especially your mum who is supposed to love you and care for you.

"It makes me feel unimportant. Is our case any less important than anyone else’s? And I hope I speak on behalf of others who are going through this as well. Its just not fair at all."

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Kirsti Nelson, solicitor for Brown and Co, said "There is a similar case in England, and one in Northern Ireland, and the decision of the Supreme Court will affect the access to compensation for these abuse victims and all those affected by this discriminatory rule."

Ms Allan says she had no knowledge of the first assault and did not know full details of the second until 2012, when she obtained her social work records in connection with another matter.

Now a mother-of-four she had been suffering from significant emotional and mental health problems which a psychiatrist attributed at least in part to the child abuse, her legal team says.

However, when she applied for Criminal Injuries Compensation Authority, her application was refused because the incidents had happened prior to October 1979, when scrapped 'same roof' was in force. The rule came into being because of difficulties establishing the facts in domestic cases and the possibility that any payout might benefit the offender.

Ms Allan, who is originally from Hamilton, says it is unfair that she would have been entitled to compensation if her attacker had been her next door neighbour.

She challenged the rule in the Court of Session in 2015 on the basis of discrimination and a violation of her human rights.

HeraldScotland:

And in a judgment last year, Lord Burns admitted that the rule was discriminatory but that the government were "entitled to take a cautious approach and to impose a cut-off date to mitigate the effects of change".

Lord Burns recognised the 'same roof' rule was changed after it appeared to CICA that the exclusion of children who were assaulted by their parents appeared to be unjustified. "The rule does impose a “bright line” rule which excludes claims for injuries occurring before the relevant date. It thus does discriminate. But it was done in that way because it was not thought possible to estimate the cost of abolition," said Lord Burns.

He added: "The petitioner is a victim of violent crime perpetrated when she was a child. Because she was assaulted by her mother in the family home she is denied compensation under the same roof rule.

"If her mother had assaulted a friend of the complainer’s at the same time, that child would be entitled to advance a claim. Both would be child victims of violent crime. That is enough in my view to demonstrate a difference in treatment between persons in 'analogous situations'. "

Ms Allan received another blow when she failed to win a judicial review last year to the Inner House of the Court of Session which held that it was within the government’s discretion not to backdate a change to the scheme in 1979 to allow victims before then to qualify for awards.

HeraldScotland:

The second most senior judge in Scotland, Lady Dorrian, the Lord Justice Clerk, in delivering the judgment said:“The restriction of the scheme was a prudent policy decision concerning the allocation of finite resources in a matter of socio-economic policy. "

Although three judges turned down her legal team says she was granted an appeal to the Supreme Court.

A Ministry of Justice spokesperson said: “We deeply sympathise with anyone who has been the victim of violent crime.

“The Criminal Injuries Compensation Scheme did not previously allow payments to be awarded when the offender and victim lived in the same house as members of the same family.

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"This rule was in place to help prevent offenders from financially benefitting from violent actions committed against family members.

“The scheme was amended in 1979, but it was not made retrospective.”

The decision letter from CICA from three years ago said: "We have looked carefully at the reasons for review and I am sorry that I cannot make a full or reduced award because under... the scheme, we cannot pay compensation if your client was a victim of a crime of violence before October 1, 1979 and was living with the assailant at the time as members of the same family. We have no discretion in this.

"I am sorry to give what I am certain will be disappointing news."

Analysis by  Paul D. Brown, Principal Solicitor at the Legal Services Agency

HeraldScotland:

This case is an important one, for two reasons – the first fundamental and the second legal.

Firstly, the case is based on Human Rights Principles.   It is fundamental to Human Rights that “no-one should be left out”.  

In all societies, everybody has, at times, a tendency to turn a blind eye to people whose circumstances are too awkward or too difficult to tackle.  The assertion of the dignity of everyone, which is behind Human Rights Law, aims to  counter-act the tendency to ignore the weakest.

And who could be weaker than a child under the age of 10 seriously assaulted by their mother?  And how convenient is it that the circumstances were ignored before 1979 in contrast to the circumstances of other victims?

There are not so many people affected by this discriminatory law  and it was many years ago.   It is wrong however that this gap in our system should be allowed to stay given the high level of suffering caused to the victims who, after all, in general suffered life-changing abuse.  They are entitled to the same recognition that anyone else would obtain and will rightly feel aggrieved if they do not.

It’s a matter of principle: and an important one.  And that is what Human Rights arguments are, sometimes, about.

HeraldScotland:

Secondly, as often happens in cases that wend their way through the entire court system (the origins of this one are back in 2012) some significant legal issues have already been clarified. 

For instance, it now seems clear that a person who would otherwise be eligible for a state benefit but for unlawful discrimination may well have a remedy.  

Discrimination for Human Rights purposes is drawn broadly, to some extent depending on the circumstances or “status” of the aggrieved person.  In this  case the unlawful discrimination the applicant suffered was that she was excluded from compensation because she lived  with the same family in the same house as her attacker. 

Had the attacker lived next door she would have been  entitled to compensation.  

Other forms of status that have been held to result in discrimination include, for instance, homelessness.  The law has a creative edge here.  

A legal door is ajar … I hope we can push it open.