Windrush Compensation Scheme Claims Are Capable of “Civil Rights” Under Article 6—But Article 6 Is Not Engaged Absent a “Dispute”
1. Introduction
This appeal concerned the refusal of “exceptional case funding” (ECF) for legal help to make an application under the Windrush Compensation Scheme (“the Scheme”). The appellant, Ms Oji, argued that applying under the Scheme involved the determination of a “civil right” for the purposes of Article 6(1) of the European Convention on Human Rights (“Article 6”), and that legal aid was therefore required to avoid an Article 6 breach.
The Director of Legal Aid Casework refused ECF on the basis that Article 6 was not engaged: there was no “dispute” at the application stage and, in any event, Scheme payments were said not to involve “civil rights.” A reviewer upheld that decision. The High Court (HHJ Bird) dismissed the judicial review primarily because there was no dispute; it also expressed (obiter) the view that Scheme claims were not “civil rights.”
By the time of the appeal, Ms Oji accepted that the “no dispute” finding was not challenged, meaning the appeal could not succeed. Nonetheless, the Court of Appeal addressed (obiter) whether rights under the Scheme are capable of being “civil rights” within Article 6—because the High Court’s reasoning was likely to influence decision-makers and future cases.
2. Summary of the Judgment
- Appeal dismissed: Article 6 was not engaged at the time ECF was sought because the initial application process involved no “dispute” (“contestation”).
- Obiter guidance given: The Court of Appeal disagreed with the High Court’s analysis and indicated that claims under the Scheme are capable of constituting “civil rights” for Article 6, if and when a genuine dispute arises (e.g., at a review stage where entitlement/quantum is contested).
- Scheme must be assessed as a whole: It is artificial to analyse each Annex in isolation for whether it gives rise to a “civil right.”
- Section 10(3)(b) LASPO point went nowhere: Ground 3 was not pursued; in any event, if Article 6 is not applicable, there is no “risk” of an Article 6 breach for section 10(3)(b) to address.
3. Analysis
3.1 Precedents Cited (and How They Shaped the Decision)
(a) The “dispute/contestation” requirement under Article 6
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Le Compte Van Leuven, and De Meyere v Belgium (1981) 4 EHRR 1
Cited for the foundational proposition that Article 6(1) (civil limb) requires a dispute (“contestation”) which is being resolved. This underpinned the dispositive outcome: because Ms Oji accepted there was no dispute at the initial application stage, Article 6 could not apply and ECF could not be required to avoid an Article 6 breach. -
Grzeda v Poland (2022) 54 BHRC 632
Used as a recent statement of general principles: for Article 6 (civil limb), there must be (i) a genuine and serious dispute, (ii) over a right arguably recognised under domestic law, and (iii) the outcome must be directly decisive for that right. The Court used these principles to frame the overall structure: dispute + civil right + (if applicable) procedural unfairness requiring legal aid.
(b) Exceptional case funding under LASPO
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R (Gudanaviciene) v Director of Legal Aid Casework and another (British Red Cross Society intervening) [2014] EWCA Civ 1622; [2015] 1 WLR 2247
The Court restated the LASPO section 10 framework: section 10(3)(a) is mandatory where refusal would breach Convention rights; section 10(3)(b) is a residual discretion where the Director cannot decide whether (a) applies and must consider the risk of breach. This was decisive in rejecting Ground 3 as a practical matter: where Article 6 is clearly not applicable, neither breach nor “risk of breach” arises.
(c) Whether compensation schemes can involve “civil rights” for Article 6
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Wo Poland (2007) EHRR 28
The Court treated Woś as the key Strasbourg authority demonstrating that a compensation scheme can create an arguable “civil right” where a claimant asserts an individual economic right flowing from specific rules. Importantly, Woś was used to rebut over-emphasis on whether a scheme is “statutory” or “welfare/subsistence”: the Court read Woś as focusing on rule-based entitlement and economic character, not formal domestic classification. -
Associazione Nazionale Reduci Dall Prigionia dall' Internamento e dalla Guerra di Liberazione v Germany (2008) 46 EHRR SE11 (the Italian Interns case)
Central to the High Court’s reasoning and the Director’s review decision, but the Court of Appeal clarified its proper role. The Court held that the “Italian Interns case” was not authority that one-off historic compensation schemes can never involve civil rights under Article 6; rather, Article 6 was inapplicable there because the applicants were clearly excluded and had no arguable right to compensation. The Court also explained that passages about “one-off ex gratia payments” were deployed in the context of Article 1 of the First Protocol (A1P1) and Article 14, not as a general definition of “civil rights” under Article 6. -
JT v First-Tier Tribunal [2018] EWCA Civ 1735, [2019] 1 WLR 1313
The Director/reviewer treated JT as supporting a view that schemes like Windrush align with the Italian Interns line. The Court of Appeal corrected this: JT largely addressed A1P1 “possessions” and Article 14 discrimination, and in any event ultimately recognised that statutory footing can convert what was once “bounty” into payments “as of right.” The Court of Appeal therefore rejected reliance on JT as negating potential Article 6 “civil rights.” -
Stec v United Kingdom (2000) 43 EHRR 47
Discussed through the lens of the Italian Interns reasoning: Stec is pivotal to A1P1’s reach over social security entitlements, but the Court of Appeal stressed that analogies drawn in Italian Interns/Stec concerned A1P1/Article 14 analysis, not the autonomous Article 6 “civil rights” question. -
Schuler-Zgraggen v Switzerland (1993) 16 EHRR 405 and Menitto v Italy (2002) 34 EHRR 48
Relied upon by the appellant to support that disputes about individual economic entitlements flowing from rules can fall within Article 6. They reinforced the “economic right flowing from specific rules” logic seen in Woś. -
Salesi (see above at paragraph 49)
Mentioned in the High Court’s discussion as part of the “gradual shift” applying Article 6 to benefits disputes; the Court of Appeal treated the “subsistence/poverty” factor as not determinative for the Windrush Scheme analysis.
(d) Domestic public law enforceability and “civil rights”
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R (A) v Secretary of State for the Home Department [2021] UKSC 37; [2021] 1 WLR 3931 and
R (WL (Congo) v Secretary of State for the Home Department (Justice Intervening) [2011] UKSC 12; [2012] 1 AC 245
Cited to support a key move in the Court’s reasoning: even where an entitlement is not a private law right, a policy/rule-based scheme can generate public law rights to lawful interpretation and application (enforceable by judicial review). That public law enforceability does not prevent the entitlement being a “civil right” under the autonomous Article 6 concept. -
Ali v Birmingham City Council [2010] UKSC 8; [2010] 2 AC 39 and Poshteh v Kensington and Chelsea Royal London Borough Council [2017] UKSC 36; [2017] AC 624
Raised by the respondent, but the Court of Appeal treated them as homelessness-specific and not materially helpful to whether Scheme entitlements are Article 6 “civil rights.”
(e) “Bounty of the Crown” and evolution to legal rights
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R v Criminal Injuries Compensation Board, Ex p P [1994] 1 All ER 80 and
C v Secretary of State for the Home Department [2004] EWCA Civ 234 and
CB v United Kingdom CE:ECHR:2005:0825DEC003551204
These authorities appeared in the discussion (via JT) about how a scheme can move from ex gratia “privilege” to enforceable entitlement. The Court of Appeal used them to caution against treating “bounty” language as decisive in modern public law contexts—especially where Parliament authorises expenditure and the scheme operates through detailed rules.
3.2 Legal Reasoning
(i) Why the appeal had to fail: “no dispute” at the relevant time
The Court treated the appeal as necessarily doomed once the appellant accepted that there was no dispute (“contestation”) when ECF was refused. Article 6 protects procedural fairness in the determination of disputes about civil rights; it is not triggered merely because an application may later become contentious. Therefore, refusing legal aid to help submit an initial Scheme claim could not, in the circumstances of this case, breach Article 6 because Article 6 was not engaged at all.
(ii) Why the Court nonetheless addressed “civil right” (obiter)
Although academic to Ms Oji (who ultimately obtained compensation on review and accepted the offer), the Court held it appropriate to address the High Court’s analysis because it was the only considered domestic treatment of whether Windrush Scheme entitlements are capable of being “civil rights,” and it was likely to influence future decisions by the Director and first-instance judges.
(iii) The Court’s obiter rule: Windrush Scheme entitlements are capable of being “civil rights”
The Court’s central obiter reasoning was functional rather than formal:
- Prescriptive rules: The Scheme sets defined eligibility categories and defined heads of loss.
- Rule-based entitlement (not broad discretion): Decision-makers assess evidence and apply a balance of probabilities; awards are fixed or formulaic/tariff-based in most categories.
- Economic character: The claim is for monetary compensation (an “individual, economic right”).
- Public law enforceability is sufficient: Even if not enforceable as a private law claim, the right to be assessed according to the Scheme rules can be enforced through judicial review; Article 6 “civil rights” is an autonomous concept and is not confined to private law rights.
- “Voluntary/ex gratia” label is not decisive once the scheme exists: While the state had no obligation to create the Scheme, once it does so and sets conditions under which claimants will be paid, disputes about applying those conditions can engage Article 6 (echoing Woś).
(iv) Scheme-wide characterisation (no Annex-by-Annex approach)
The Court rejected the attempt to treat each Annex as severable for Article 6 purposes. The Scheme is a single compensatory framework with multiple heads of loss; whether it generates Article 6 “civil rights” depends on the nature of the Scheme overall, not isolated sub-components.
(v) Clarification of Italian Interns and JT
A key doctrinal contribution is the Court’s correction of category errors: “one-off historic compensation outside social security” language in the Italian Interns/JT line was deployed primarily in A1P1/Article 14 analysis and should not be transposed into the separate Article 6 “civil rights” inquiry. The Court framed Italian Interns as a case about absence of even an arguable right (because of clear exclusion), not as a general bar on Article 6 applicability to historic compensation schemes.
3.3 Impact
- Legal aid decision-making (ECF): While the appellant lost because there was no dispute at the application stage, the Court’s obiter guidance materially narrows the Director’s ability to reject ECF in later, genuinely contentious stages on the blanket basis that Windrush Scheme entitlements can never be “civil rights.”
- Compensation schemes beyond Windrush: The judgment signals a general approach: where a government compensation scheme is rule-based, evidence-driven, and yields monetary awards in defined ways, it may generate Article 6 “civil rights” when disputes arise—even if the scheme is non-statutory.
- Doctrinal clarity: The Court separates Article 6 “civil rights” analysis from A1P1 “possessions” analysis, reducing the risk of misapplication of Strasbourg authority across Convention rights with different tests and purposes.
- Procedure and timing: Claimants and advisers are put on clear notice that Article 6 arguments (and therefore ECF arguments premised on Article 6) are timing-sensitive: the presence of a dispute is a threshold gateway.
4. Complex Concepts Simplified
4.1 “Dispute” / “contestation”
Article 6 does not apply just because a person is filling in a form or making a request. There must be a real disagreement—typically after a refusal (or other adverse decision) which the claimant contests—so that a decision-maker is determining that contested issue.
4.2 “Civil rights” as an “autonomous concept”
Whether something is a “civil right” under Article 6 is not controlled by domestic labels like “public law,” “policy,” or “ex gratia.” Strasbourg asks what the right looks like in substance: is it an individual economic entitlement governed by rules such that the outcome decisively affects the person?
4.3 “Ex gratia” and “bounty of the Crown”
“Ex gratia” often means the government was not legally obliged to create the scheme in the first place. But once it sets detailed rules and promises payment if conditions are met, the claimant may have an enforceable expectation (at least in public law) that those rules will be applied lawfully. The Court treated that as compatible with Article 6 “civil rights.”
4.4 Exceptional Case Funding (ECF) under LASPO section 10
Civil legal aid is mostly limited to listed categories. ECF is the safety valve. Under section 10(3)(a), ECF must be granted if refusing it would breach Convention rights. Under section 10(3)(b), ECF may be granted where it is appropriate given a risk of such a breach—but (as reaffirmed with reference to R (Gudanaviciene) v Director of Legal Aid Casework and another (British Red Cross Society intervening)) this presupposes genuine uncertainty/risk about a Convention breach, not a case where Article 6 is plainly inapplicable.
5. Conclusion
The Court of Appeal dismissed the appeal because, at the time legal aid was refused, the Windrush application process involved no “dispute,” so Article 6 could not be engaged. However, the Court provided significant obiter guidance: Windrush Compensation Scheme entitlements, assessed in the round, are capable of being “civil rights” for Article 6 because they are grounded in detailed, prescriptive rules that generate individual economic entitlements when conditions are met, and are enforceable in public law.
The lasting significance lies in the Court’s doctrinal correction: historic, one-off, non-statutory compensation schemes are not automatically outside Article 6; the critical questions are whether there is a genuine dispute and whether the claimant asserts a rule-based, decisive, individual economic entitlement—rather than whether the scheme is labelled “voluntary” or resembles social security.
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