Possibility of legal aid in some Windrush compensation cases opened up by Court of Appeal

The Court of Appeal has upheld a decision of the High Court that a refusal to grant exceptional case funding for legal aid to a person applying to the Windrush compensation scheme was lawful. However the court also gave its non-binding view that a genuine dispute about eligibility for the scheme would engage article 6, disagreeing with the High Court judge who had reached the opposite conclusion. This conclusion is likely to have wider application to other compensation schemes. The case is R (Oji) v The Director of Legal Aid Casework [2026] EWCA Civ 11.

Background

Applications to the Windrush compensation scheme are out of scope for legal aid, despite there being a clear need for the assistance of lawyers to either avoid wrong decisions being made by the Home Office in the first place, or to challenge them once they are made. Exceptional case funding applications for legal aid can be made for work that is out of scope.

Here, the appellant had made an ECF application and said that a grant of legal aid was necessary to help her make the application to the Windrush compensation scheme and argued that refusal would breach article 6(1) of the European Convention on Human Rights.

This was refused on the basis that there was no dispute, that a compensation claim was not a civil right as protected by article 6, and that legal representation was not needed to avoid a breach of article 6. After unsuccessfully seeking review of the decision, the appellant brought a judicial review claim. The judge held that there was no dispute and dismissed the claim, the other points were addressed but not decided.

The Court of Appeal

During the course of the appeal, the appellant accepted the High Court’s finding that there was no dispute in existence at the time legal aid was refused. The Court of Appeal proceeded to dismiss the appeal, stating:

Article 6 applies to, and provides certain procedural safeguards in, the determination of a dispute over the existence or scope of a civil right, or something that it arguably recognised as a right. The process of applying to the Home Office for an award of compensation did not, at that stage, involve the determination of any dispute in the sense that that term is used in the case law of the European Court.

However the appellant wanted the appeal to continue “to determine whether a claim for compensation under the Scheme was a civil right within the meaning of Article 6″. This was said to be necessary because otherwise applications for legal aid would continue to be refused even where a dispute was involved.

The court agreed to give its views, albeit that they would be obiter and not binding. The reason given for adopting this approach was that:

It is an important point that is capable of arising in relation to this Scheme, and quite possibly, in the context of other compensation schemes. The reasoning of the judge is the only considered analysis in domestic law of whether a claim for compensation under schemes such as the present Scheme is capable of being a civil right for the purposes of Article 6. It is likely to be followed by decision-makers and, indeed, by other first instance judges. If that reasoning is, in fact, incorrect, it is appropriate for this Court to express its views

It was argued on behalf of the appellant that “an arguable right to a one-off pecuniary payment under a compensation scheme relating to historic injustice was capable of being a civil right”.  The appellant relied, as she had done in the High Court, on the case of Wos v Poland (2007) 45 EHRR 28 which dealt with the right to compensation under a scheme for victims of Nazi persecution.

The High Court held that Wos was distinguishable from this case, however the Court of Appeal found it to be “instructive”. In Wos, the European Court of Human Rights held that the decision on the establishment of a compensation scheme and the criteria to be applied to awards would not be matters for assessment under the Convention.

However once such a scheme was adopted, issues of compliance with Convention rights could arise. The European Court also considered whether there was a dispute over a right in Wos and concluded that there was, based on the facts of the case, and that the “dispute was genuine and of a serious nature”.

The European Court also held that there was arguably a right to compensation under domestic law and that the disputed right was a civil one. It concluded that article 6(1) did apply to the proceedings.

The High Court had held that that the slightly more recent case of Associazione Nazionale Reduci Dalja Prigionia Doll’Internamento e Dalla Guerra Di Liberazione v Germany (2008) EHRR SE18 (the Italian interns case), which had held that article 6(1) was not engaged, reflected the correct position, rather than Wos. However the Court of Appeal considered that the decisions were not inconsistent as Wos had an arguable right to payment whereas the Italian interns did not.

The Court of Appeal therefore disagreed with the High Court’s judge’s analysis of both Wos and the Italian interns case. The court stated that “It is clear from Wos that a scheme which is intended to provide redress for wrongs suffered, and which affects the financial well-being of the individual can amount to a civil right for the purposes of Article 6”.

In the judgment under appeal, the High Court had held that there was “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”. The Court of Appeal did not agree, saying that the “reality is that the compensation is paid from public funds” and that the fact that the rules are not statutory does not prevent them from giving rise to a civil right.

Applying all of the above to the Windrush compensation scheme, the court concluded that article 6 could be engaged for these reasons:

if there were a genuine dispute about a decision governing eligibility under the Scheme, I would regard that as involving a determination of a civil right within the meaning of Article 6 of the Convention. The Scheme is established by government. It sets out precise, defined conditions which, if they are met, entitles the applicant to an award of monetary compensation in an amount specified by, or determined in accordance with, the rules. Money from public funds is provided to pay such awards. Claims for compensation under such a scheme are in my view capable of constituting civil rights within the meaning of Article 6 of the Convention.

So while the appellant lost the appeal on the decision in her case, this appeal will hopefully help other people to access the scheme.

Conclusion

It would be useful for the Legal Aid Agency to issue some guidance now, explaining to people that they may be eligible for legal aid where there is a dispute with the Home Office about their eligibility for the Windrush compensation scheme. They may instead prefer to wait until they are taken to court again and a decision given by the courts that is formally binding on this point.