The High Court has held that the decision to refuse to grant exceptional case funding for legal aid to a person applying to the Windrush compensation scheme was lawful. The case is R (Oji) v The Director of Legal Aid Casework [2024] EWHC 1281 (Admin).

Background to the compensation scheme

The Windrush compensation scheme was launched in April 2019 to compensate those who had incurred losses because of an inability to prove their immigration status.

The most recently published statistics show that in the period to March 2024, 8,164 applications to the scheme had been made. Of those, 583 (7%) applications have been rejected on eligibility grounds. 6,566 have received an offer of compensation, this figure includes 4,170 (51%) claims that were deemed eligible but to have no entitlement to compensation (tables WCS_02 and WCS_03). The average payment across the 2,382 claims that have been paid to March 2024 is £36,049. At March 2024 the number of claims where a tier 1 review had been sought was 1,817 and a tier 2 review was 351.

The government declined to provide legal assistance for people to navigate the compensation process. Instead they fund a provider “We Are Digital” who provide a maximum of three hours’ assistance.  

Background to the judicial review

The claimant was born in Nigeria in 1985 and came to the UK in 1988 to live with her parents, her father was settled here. She was granted indefinite leave to remain in 2007 and in 2019 was granted a no time limit biometric permit under the Windrush scheme. In 2020 she was naturalised as a British citizen.

The hostile environment caused her various problems including in getting a job and being unable to get homelessness assistance to help her escape domestic violence. The claimant therefore decided to make a claim under the Windrush compensation scheme.

The claimant made an appointment with We Are Digital and this took place on 9 December 2021. She was upset when she learned that those assisting her at that meeting were employed by the Home Office and was also unhappy with the support she received. She made a complaint.

Further appointments were scheduled with the Salvation Army as a provider of We Are Digital services in February 2022. The first meeting was cut short and the claimant did not attend the second one. Instead, she sought legal advice from Southwark Law Centre.

The law centre applied for exceptional case funding for legal aid on behalf of the claimant on 25 July 2022. On 13 September 2022 the application was refused and an internal review confirmed the refusal on 31 October 2022. The refusal was on the grounds that neither article 6 or article 8 of the European Convention on Human Rights were engaged and so it was not necessary to provide funding under section 10(3)(a) of the Legal Aid Sentencing and Punishment of Offenders Act 2012. The refusal also said that legal advice was not necessary to complete the application process.

On 19 December 2022 the claimant’s lawyers submitted the application for compensation on a pro bono basis and this was rejected on 15 December 2023. That decision is undergoing an internal appeal.

On 31 January 2023 the claim for judicial review challenging the refusal of legal aid funding was lodged.

The judicial review

There were two grounds for the challenge. The first was that the defendant had misdirected themselves as to the scope of article 6 and the decision did breach the claimant’s article 8 rights. The second ground was that there had been a failure to consider exercising the discretion available to grant funding under section 10(3)(b) of LASPO.

The claimant relied on several authorities in support of the argument that her case did engage article 6. The defendant argued that it did not, as there needed “to be a dispute that is genuine and serious, and the proceedings must be directly decisive of that dispute” [37].

The court dismissed this ground, concluding that article 6 was not engaged in the application to the compensation scheme, concluding that authorities cited by the defendant “draw a clear distinction between the social security or social welfare cases where benefits are payable as of right, under statute … and schemes designed to provide reparations for a particular historic event or wrong”.

On the article 8 point, the claimant sought to rely on authorities including the recent case of XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin), where Lane J held that article 8 was engaged because a grant of status would enable XY to access public funds and would also relieve his anxiety. The claimant submitted that this meant that “any state action which might alleviate mental anguish or allow access to better financial resources” would engage article 8 [38]. The defendant resisted this argument on the basis that the compensation application was about historic wrongs.

The court also dismissed this ground of challenge, stating at [85]:

In the Claimant’s case the grant or refusal of compensation would not in my judgment have a sufficiently significant impact on the essence of her private and family life to engage Art.8. The outcome of her claim does not dictate if the Claimant would continue to enjoy a family life or a private life. I accept that her life would be made materially better by a significant award, but in my judgment that is not enough.

Despite describing the assistance provided by “We Are Digital” and funded by the Home Office as “time limited and, whilst I accept it is provided in good faith and with care, it appears from the evidence not to have served the Claimant well” and that, with reference to a Windrush Justice Clinic preliminary research report from March 2022 “the process of applying for compensation can fairly be described as complex”, the court held that the claimant could participate in the process without the need for legal assistance.

On the discretion point, the court held that the need to consider the exercise of discretion under section 10(3)(b) only arises where no decision has been made under section 10(3)(a). Where, as in this case, a decision had been made under section 10(3)(a) that no convention right arises, there is no need to make a decision under section 10(3)(b).

Conclusion

It remains to be seen whether or not there will be an appeal, but this case should not have been necessary. As if the published statistics were not stark enough, there is an abundance of other evidence as to the issues with the compensation scheme and the need for legal aid to be provided. To steal this headline from Age UK, a debt is owed to the Windrush generation, and the UK government is still very far away from paying it.