The King (on the application of Joyce OJI) v The Director of Legal Aid Casework
| Jurisdiction | England & Wales |
| Judge | Bird |
| Judgment Date | 24 May 2024 |
| Neutral Citation | [2024] EWHC 1281 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-000588 |
[2024] EWHC 1281 (Admin)
His Honour Judge Bird sitting as a Judge of the High Court
Case No: AC-2023-LON-000588
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Buttler KC, Grace Brown and Alex Schymyck (instructed by Southwark Law Centre) for the Claimant
Malcolm Birdling and Aarushi Sahore (instructed by Government Legal Department) for the Defendant
Hearing dates: 20 February 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 24 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
HIS HONOUR JUDGE Bird
Introduction
The Claimant is a victim of the Windrush scandal. She was born in Nigeria on 20 January 1985 and entered the United Kingdom in 1988 to with her father who was settled in the UK and with her brother, to join her parents here. As the Claimant grew up, she encountered various difficulties because she was unable to prove her immigration status. They include not being able to secure work, being forced to live through domestic violence because she was unable to secure homelessness assistance and an inability to leave the country with the confidence that she could return.
She was granted indefinite leave to remain in 2007 but continued to encounter problems. In April 2019 she was granted a no time limit biometric permit under the Windrush Scheme and in May 2020 was naturalised as a British Citizen.
Because of these issues, the Claimant decided to make a claim to the Windrush Compensation Scheme (“WCS”). The application process is not straightforward, and she found that help and assistance provided by “We are Digital” (“WAD”) made very little difference. She wanted lawyers to help with the process. So, on 25 July 2022 with the help and support of her present legal team, she applied to the Director of Legal Aid Casework (“the Director” or “the Defendant”) for the provision of legal aid by way of exceptional case funding (“ECF”). The application was refused on 13 September 2022. The refusal was confirmed on an internal review, and the final decision communicated on 31 October 2022.
On 19 December 2022, without any legal funding but with the voluntary assistance of her present legal team, she submitted a claim to the WCS (comprising a 44-page application form, 30 pages of submissions and 307 pages of evidence). She sought compensation of a little over £127,000. The application required some 40 hours' preparation. The application was refused.
By these proceedings, and with the permission of Sweeting J, the Claimant seeks a judicial review of the Director's refusal to grant ECF. The claim was issued on 31 January 2023, the Acknowledgement of Service was filed on 27 March 2023 followed by a Reply on 18 April 2023. A consent order proposing amended grounds was approved on 17 October 2023. On 15 December 2023, the WCS application was refused in its entirety. Thereafter, the Claimant submitted written evidence from Heidi Bancroft of Justice and from her solicitor Van Ferguson. There is an issue as to how I should treat that evidence.
In summary, the Claimant argues that the Director wrongly concluded that the compensation process did not engage her rights under Art.6 or Art.8 of the ECHR and wrongly failed to consider if the circumstances of the case were such that ECF ought to have been granted. The Director submits that the decision reached was lawful and proper so that there are no grounds to interfere with it.
The WCS Scheme Generally
The scheme was launched in April 2019 to compensate members of the Windrush generation and their families for losses incurred as a result of not being able to demonstrate their lawful immigration status.
To be eligible for compensation an applicant must fall into one of six categories. The category an applicant falls into will determine the period over which they may be entitled to compensation. It appears that the categories are not mutually exclusive. Membership of a particular category does not guarantee compensation, rather each claim has to be made out by a given applicant. There is no “entitlement” to compensation until an award is accepted (see r.8.7). The scheme is not statutory but has its own rules and its own guidance for decision makers. The rules note that there is no “single or consistent picture of the loss suffered by those affected.” and emphasise that compensation is paid voluntarily.
To December 2022 there have been 5,080 applications and 3,025 decisions. Of the decisions 1,309 were awards of compensation. In 1,424 cases, no compensation was offered. Since inception over £71m has been paid to Claimants (around £23k each).
The state provides some assistance to applicants to help them complete the application process. It is 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.
The Claimant's Involvement with the WCS
The Secretary of State for the Home Department is responsible for the scheme but is not a party to these proceedings. I have therefore heard no submissions from the Secretary of State about the scheme. I accept (as the Windrush Justice Clinic preliminary research report in March 2022 concluded) that the process of applying for compensation can fairly be described as complex. To understand what the criteria for awarding compensation are, an applicant would need to familiarise themselves with the scheme rules and in particular the 9 annexes (B to J) which outline the type of compensation that is available and what needs to be established to qualify for it. The application process also refers to specific parts of guidance issued to decision makers. For example, a claim for compensation for lost access to employment (annex D) directs the applicant to 10 pages of the guidance.
The Defendant points out that the scheme rules require only core information for a claim to be registered and progressed. Case workers are told that they should not expect claimants to provide “detailed documentary evidence to support every aspect of their claim” and are required to conduct their own research by, for example, reviewing Home Office records and asking for information from other Government departments before approaching claimants. The Defendant submits that this supports the view that legal advice is not needed at the initial claims stage.
The Claimant made an appointment with WAD for a compensation support session to take place on 9 December 2021 (more than a year before her application). The Claimant was upset to learn at that meeting that those providing assistance were employed by the Home Office. Her recollection is that she “could not get [her] head round [the fact that] the people who had caused me huge problems …and [who had] done damage to me and my family were now the ones saying they were going to help”. The Claimant was unhappy with the support she received and made a complaint. Further appointments were made with the Salvation Army (who are in fact a provider of WAD services) for 3 February 2022 and 24 February 2022. The first appointment was cut short and only lasted an hour and the Claimant did not attend at the second appointment. She felt that she was being “set up to fail”. Thereafter she consulted Southwark Law Centre.
The Claimant's application to the WCS has been refused. She says that she has been put into the wrong category of applicant so that the period over which a claim for compensation can be made results in her having no compensable loss. The rejection is now the subject of an internal appeal.
The Statutory Basis for ECF
The Director's powers are set out in sect. 10 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (“ LASPO”). Section 9 provides that legal aid for civil matters is generally available if those matters are described in Part 1 of Schedule 1 of the Act and the applicant qualifies for assistance. Section 10 provides for the exceptional grant of legal aid for a matter not described in the schedule.
Section 10 Exceptional Cases
(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) …. is satisfied.
(2) This subsection is satisfied where the Director—
(a) has made an exceptional case determination in relation to the individual and the services, and
(b)….
(3) For the purposes of subsection (2), an exceptional case determination is a determination—
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—
(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or
(ii)……., or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
Refusal of Exceptional Case Funding: The Decision Under Review
The Claimant's application for ECF was refused on 13 September 2022. The refusal letter referred to the criteria set out at sect.10(3)(a) and (b). It was found that neither Art.6 nor Art.8 was engaged so that the (3)(a) criterion was not met. From an abundance of caution, the decision maker went on to conclude that legal advice was not needed in order for the application process to be completed. This determination addresses the necessity criterion in (3)(a). The letter ends with reference to the right of review of the decision under reg.69 of the Civil Legal Aid (Procedure) Regulations 2012. It is common ground that the refusal does not address the (3)(b)...
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