The claimant was a victim of the Windrush scandal, whereby 600,000 Commonwealth citizens who had come to the United Kingdom between 1948 and 1973 with the right to remain indefinitely had subsequently been refused re-entry to the United Kingdom because they had never been given any documentation to confirm their immigration status. The claimant sought compensation under the Windrush compensation scheme, which was designed to compensate voluntarily individuals (or the estate of deceased individuals) who had suffered loss in connection with being unable to demonstrate their lawful status in the UK, including a tariff award for “loss of access” to welfare benefits, under annex E to the scheme, which was worth a maximum of £4,864. Paragraph E1 provided, inter alia, that an award could be made to a primary claimant if the claimant had applied for the child benefit or child tax credit and the application had been refused because of the claimant’s inability to demonstrate their lawful status in the UK. Her claim was refused on the basis that she had not made an application for benefits, nor had such an application been refused. By judicial review the claimant sought to challenge the Secretary of State’s decision, which was upheld on review by the first defendant, inter alia, on the ground that their interpretation was contrary to the stated purpose of the scheme which had been designed to compensate for the same failure, namely, the Home Office’s failure to provide documents needed to prove immigration status. The issues for consideration included whether (i) an oral refusal to permit an individual to apply for benefits was a “refusal of an application” within the meaning of annex E to the scheme (ground 3); (ii) if not, whether the loss of access to benefits was “not of a kind provided for by annex E”, so as to fall within annex I (paragraph 11 of which provided for a discretionary award if, inter alia, the primary claimant experienced significant impacts, loss or detriment of a financial nature as a direct consequence of being unable to establish their lawful status and (under paragraph 11(c)) the impact, loss or detriment was not of a kind provided for in annexes B–H, whether or not an award had been made under one or more of those annexes.
On the claim for judicial review—
Held, claim dismissed. (1) The natural meaning of “applied for” and “that application was refused” in paragraph E1 of the Windrush compensation scheme was that the individual had in fact submitted a claim for child benefit, child tax credit or working tax credit, using whatever form of application had been required at the time. It was not necessary for the scheme to specify that the application had to have been made in writing, because that was already inherent in the concept of applying for a state benefit. While it could be possible for an award to be made under annex D, in respect of an oral application for employment, that was because such an application could be made orally. Interpreting the scheme in the ordinary way, it did not make it a general feature of the scheme as a whole that claims could be founded on applications that were made orally. The scheme could cover situations that were not documented, one example of which might be where an application for benefits had in fact been made, which the Home Office could verify with the benefits agency even if the applicant no longer had a record of the application. However, it did not follow that no claim could properly fail (a) for lack of documentary support where it could reasonably be expected to have existed or (b) where the scheme by its terms, properly construed, required an event to have happened which would, by its nature, have involved a document having been created (here, an application for benefits) (paras 84–88, 135).
(2) The ordinary meaning and the operation of paragraph 11(c) of annex I of the scheme were fairly simple, making clear that annexes B to H of the scheme set out an exhaustive regime for the categories of loss or harm within their scope: thus, for example, annex B set out comprehensively the circumstances in which an award could be made in respect of immigration fees and legal costs in respect of immigration applications. Equally, annex E comprehensively set out the circumstances in which an award could be made in respect of loss of access to child benefit, child tax credit or working tax credit. The words “of a kind” in paragraph 11(c) were not designed simply to exclude losses which had already been the subject of an award under annexes B–H (an interpretation which would be inconsistent with the words “whether or not an award has been made”); rather, it aimed to exclude losses falling in the categories to which those annexes were directed and for which those annexes provided the applicable criteria. It was inherent in the scheme that some types of loss might fall outside the criteria and hence the scheme. An award could not therefore be made under annex I in respect of loss of access to child benefit, child tax credit or working tax credit, whether or not a claim had been made (successfully or unsuccessfully) for such loss under annex E (paras 97–99).
Chris Buttler KC and James Robottom (instructed by Duncan Lewis) for the claimant.
David Manknell (instructed by Treasury Solicitor) for the first defendant.
Edward Brown KC (instructed by Treasury Solicitor) for the Secretary of State.