The King on the application of Surjit Kaur Acting by her litigation friend Steven Boparai v Adjudicator's Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henshaw |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] EWHC 1052 (Admin) |
| Docket Number | Case No: CO/3626/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 1052 (Admin)
BEFORE THE HONOURABLE Mr Justice Henshaw
Case No: CO/3626/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Buttler KC and James Robottom (instructed by Duncan Lewis) for the Claimant
David Manknell (instructed by Government Legal Department) for the First Defendant
Edward Brown KC (instructed by Government Legal Department) for the Second Defendant
Hearing date: 7 February 2023
Draft judgment circulated to the parties: 24 April 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 05 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
| (A) INTRODUCTION | 2 |
| (B) BACKGROUND FACTS | 2 |
| (1) Outline of the Claimant's claims and decisions made | 2 |
| (2) The Adjudication stage | 5 |
| (3) Evidence about the objectives of the WCS | 7 |
| (C) GROUNDS OF APPEAL | 10 |
| (D) INTERPRETATION OF EX GRATIA COMPENSATION SCHEMES | 10 |
| (E) GROUNDS 1 AND 2: EMPLOYMENT | 11 |
| (1) The decisions and the questions addressed | 11 |
| (2) Reasons | 21 |
| (3) Rationality | 24 |
| (F) GROUND 3: ACCESS TO BENEFITS WITHIN ANNEX E | 27 |
| (G) GROUND 5: ACCESS TO BENEFITS WITHIN ANNEX I | 30 |
| (H) GROUND 4: DISCRIMINATION IN RELATION TO BENEFITS | 33 |
| (I) GROUND 6: LEVEL OF IMPACT ON LIFE WITHIN ANNEX H | 41 |
| (J) CONCLUSION | 43 |
(A) INTRODUCTION
The Claimant applies for judicial review of certain aspects of a decision, made by the Second Defendant (“ SSHD”) and upheld by an adjudicator (“ the Adjudicator”), to offer her £40,000 in compensation under the Windrush Compensation Scheme (“ WCS”). Permission was granted by Cotter J on 16 September 2022.
The Claimant claims that the decision was unlawful to the extent that it:
i) made no award to the Claimant under the categories of the WCS rules relating to: (a) loss of access to employment, (b) loss of access to benefits or (c) the discretionary category of loss; and
ii) placed the Claimant at level 3 in relation to the WCS rules on “ Impact on Life”.
I have concluded, for the reasons set out below, that the decision was lawful and that the claim must therefore be dismissed.
(B) BACKGROUND FACTS
(1) Outline of the Claimant's claims and decisions made
The ‘Windrush generation’ were citizens of the British Commonwealth who arrived in the UK between 1948 (the year in which HMT Empire Windrush docked at Tilbury) and 1973 (the year in which the Immigration Act 1971 came into force and restricted Commonwealth immigration). Many of the Windrush generation faced difficulties in the UK because “[a]lthough [the Immigration Act] 1971 entitled people from the Commonwealth who arrived before 1973 to the ‘right of abode’ or ‘deemed leave’ to remain in the UK, it hadn't automatically given them documents to prove it. Nor had the Home Office consistently kept records confirming their status. So, without making a further application and paying a fee, they had no way to show the UK was their rightful home” (Windrush Lessons Learned Review). See also R (Mahabir) v Secretary of State for the Home Department [2021] 1 WLR 5301 §§ 37–42, noting that many Windrush immigrants encountered difficulties re-entering the country after departing for any period, and those who remained increasingly found themselves subject to a hostile immigration regime which encouraged them to leave by restricting their access to key services and making it more difficult for them to secure accommodation or hold down employment. The Home Secretary at the time the WCS was introduced said there had been “a failure by successive governments to ensure that these individuals have the documentation they need” (Amber Rudd MP, 23 April 2018, a statement which was cited in R (Howard) v Secretary of State for the Home Department [2021] 1 WLR 4651 at §§ 6 and 34). Lack of proof of status could affect individuals' ability to obtain work, claim benefits or access services. The Secretary of State established the WCS to compensate members of the Windrush generation for such losses.
The Claimant arrived in the UK from India in 1963 at the age of 22 and has been resident in the UK since then. She is now 82 years old. Sadly, she lacks litigation capacity because of cognitive impairment. Cotter J appointed her son, Mr Steven Boparai, to act as her litigation friend on 16 September 2022.
The Claimant's entitlement to Indefinite Leave to Enter (“ ILE”) was endorsed in her Indian passport on 23 February 1997. An endorsement of ILE was at all material times sufficient to demonstrate lawful immigration status in the UK. The Claimant initially made, but no longer pursues, a claim for the period after February 1997. Mr Boparai's evidence is that neither he nor the Claimant had any knowledge of the ILE endorsement until it was referred to in the review decision mentioned below, and that the Claimant did not recall having it in her passport from the time in question. However, the Claimant now accepts that the stamp meant that from 23 February 1997 she was not prevented from obtaining work, claiming benefits or accessing services as a result of being unable to prove her immigration status.
On 29 April 2019, the Claimant made an application for compensation pursuant to the WCS. She made the application on a detailed form (which Mr Boparai helped her complete as she is unable to read or write English). In addition, she and Mr Boparai provided further information, at the Home Office's request, in a six-page letter dated 29 December 2019. The Claimant claimed, and claims, that she faced the problem that the WCS is designed to compensate: she lacked proof of her right to live and work in the UK and was unable to work or claim welfare benefits. Mr Boparai has also filed a witness statement in the present judicial review claim, setting out details in support of the Claimant's claims and indicating that the Claimant and her six children lived in abject poverty as a result of these problems.
The SSHD determined that the Claimant was a member of the Windrush generation and eligible for compensation under the WCS, subject to proof of loss. By a decision dated 7 July 2020 (“ the 2020 Decision”), the SSHD rejected the Claimants' claims for loss of access to employment, loss of access to benefits, denial of access to housing services and banking services, and loss of access to a driving licence. The Claimant was offered an award of £3,000 under the Impact on Life category of the WCS, as to which the 2020 Decision letter said:
“You have told us you have been unable to find work your entire life. You were also unable to claim benefits. This caused severe hardship and you had to sell your home after your husband sadly passed away, in order to support your family. You feel that you have not had adequate support from the UK Government and lived your life as an outcast.
Although we have not been provided with or found any information to confirm you were unable to access employment or benefits due to issues with your status, we acknowledge that not having a British passport and being unable to demonstrate your lawful status in the UK, will have caused you difficulties over the years. We also acknowledge the consequence of being unable to demonstrate your lawful status.”
The 2020 Decision was upheld on a Tier 1 Review, i.e. a review by a senior reviewer employed by the SSHD, who was not involved in making the original decision and whose task was to consider whether the SSHD in the initial decision had correctly applied the WCS rules and guidance in assessing the Claimant's claim.
On 8 January 2021, the 2020 Decision was withdrawn following changes to the WCS rules introduced in December 2020, the relevant aspects of which I summarise later.
A new decision (“ the Caseworker Decision”) was made on 24 February 2021 and notified to the Claimant on 8 March 2021. The Caseworker Decision increased the Impact on Life award from £3,000 to £40,000, that higher award being permitted as a result of the December 2020 amendments to the WCS rules. However, so far as material to the present claim, the Claimant was refused compensation under the following heads of the Scheme:
i) loss of access to employment (Annex D to the Scheme): this part of the decision is challenged by Grounds 1 and 2 of the present claim;
ii) loss of access to benefits (Annex E to the Scheme): this part of the decision is challenged by Grounds 3 and 4 of the present claim; and
iii) a discretionary award (Annex I to the Scheme): this part of the decision is challenged by Ground 5 of the present claim.
In addition, the Claimant challenges under Ground 6 the refusal to award a higher tariff level for impact on life (Annex H to the Scheme).
The Caseworker Decision was upheld on a Tier 1 Review (“ the Review Decision”), the outcome of which was notified to the Claimant by a letter of 13 April 2021.
(2) The Adjudication stage
Under the WCS rules, if an individual is dissatisfied with the outcomes reached by the SSHD and has exhausted the Home Office's tiered complaints process, he or she may refer the case to the Adjudicator for review.
On 28 April 2021 the Claimant sought a review from the Adjudicator, whose Office has been made the First Defendant to the present claim. On 23 July 2021 the Adjudicator made her decision, and did not recommend that the SSHD reconsider her decision in respect of the Claimant's claim.
Counsel for the Adjudicator's Office helpfully explained its functions and position in written and oral submissions. The Adjudicator is an...
To continue reading
Request your trial