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Oji, R (On the Application Of) v The Director of Legal Aid Casework
Smart Summary
Factual and Procedural Background
The Appellant applied for legal aid by requesting an exceptional case determination under s.10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to fund assistance in making a claim for compensation under the Windrush Compensation Scheme ("the Scheme"). The Director of Legal Aid Casework ("the Director") refused that request on 13 September 2022, concluding Article 6 ECHR did not apply to the process of making an application to the Scheme. A Reviewer upheld that refusal on 31 October 2022. The Appellant sought judicial review of the review decision; permission was granted, and the High Court (Judge Bird) dismissed the claim, holding there was no dispute and that Article 6 did not apply. The Appellant appealed. During the proceedings the Appellant applied for compensation under the Scheme, was ultimately offered and accepted an award following Home Office review, and sought to add a supplementary issue in the judicial review proceedings which the court treated as misconceived.
Legal Issues Presented
- Whether an application for compensation under the Windrush Compensation Scheme involves the determination of a "civil right" within the meaning of Article 6(1) ECHR.
- Whether Article 6(1) requires a dispute (contestation) to exist at the time in question for the article to be engaged.
- Whether the Director has a discretion under section 10(3)(b) of the 2012 Act to make an exceptional case determination to avoid any risk of breaching Article 6.
Arguments of the Parties
Appellant's Arguments
- The process of applying for compensation involves determination of a civil right under Article 6 because the Scheme contains prescriptive, closely defined eligibility rules and arithmetic/formulaic methods for calculating awards; disputes over application of those rules are justiciable and therefore procedural guarantees of Article 6 should apply.
- Even if the Scheme is voluntary, once adopted its rules create enforceable rights (albeit enforceable by public law); awards flow from specific rules rather than unfettered evaluative discretion.
Respondent's Arguments
- The Scheme is an ex gratia, voluntary scheme established by the Government Department and not statutory; it is a one‑off reparatory scheme for historic wrongs and lacks the characteristics of civil rights as understood for Article 6 purposes.
- Article 6 does not apply to the initial application process because there was no dispute/contestation at the time legal aid was refused; the Director therefore correctly refused exceptional case funding and the Reviewer correctly upheld that decision.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Le Compte Van Leuven, and De Meyere v Belgium (1981) 4 EHRR 1 |
Article 6 requires a dispute/contestation to exist for the article to apply. |
Cited to support the proposition that Article 6 applies only where a dispute is being resolved. |
| Grzeda v Poland (2022) 54 BHRC 632 |
Summarises established Strasbourg approach to applicability of Article 6 civil limb. |
Used to explain that there must be a genuine, serious dispute over a right recognisable under domestic law for Article 6 to apply. |
| R (Gudanaviciene) v Director of Legal Aid Casework and another [2014] EWCA Civ 1622; [2015] 1 WLR 2247 |
Interpretation of s.10(3) 2012 Act: Director must make exceptional case determination if refusal would breach Convention rights; otherwise consider s.10(3)(b). |
Applied to explain Director's duty and the limited scope for exercising discretion under s.10(3)(b). |
| JT v First-tier Tribunal [2018] EWCA Civ 1735; [2019] 1 WLR 1313 |
Distinction between statutory/social-security-like schemes and special one‑off ex gratia schemes in Article 1 Protocol 1 context. |
Referenced to contrast the Windrush Scheme with statutory schemes and to explain relevant authorities on compensation schemes. |
| Associazione Nazionale Reduci Dall Prigionia dall' Internamento e dalla Guerra di Liberazione v Germany (2008) 46 EHRR SE11 |
One‑off ex gratia reparatory schemes for historic wrongs do not necessarily fall within the ambit of Article 1 Protocol 1; eligibility exclusions can preclude Article 6 applicability. |
Relied on by the Reviewer and considered by the Court when assessing whether the Scheme resembles the Italian Interns scheme and whether that indicated Article 6 inapplicability. |
| Wos v Poland (2007) EHRR 28 |
Found that certain foundation compensation payments can be "civil" where an individual economic right flows from specific rules and affects means of subsistence. |
Cited as authority that non‑statutory compensation schemes can, in appropriate circumstances, create civil rights for Article 6 purposes; the Appellant relied on it and the Court analysed its applicability. |
| Schuler-Zgraggen v Switzerland (1993) 16 EHRR 405 |
Principles on when procedural guarantees of Article 6 apply to social/economic rights. |
Referenced in submissions supporting the proposition that disputes over entitlement to economic payments can engage Article 6. |
| Menitto v Italy (2002) 34 EHRR 48 |
Authorities addressing Article 6 in relation to economic/social entitlements. |
Referenced by Appellant's counsel to support applicability of Article 6 to disputes over scheme entitlements. |
| R v Criminal Injuries Compensation Board, Ex p P [1994] 1 All ER 80 |
Historical characterisation of criminal injuries payments as discretionary/ex gratia prior to statutory framework. |
Used in discussion of criminal injuries compensation jurisprudence and its distinction from the Windrush Scheme. |
| C v Secretary of State for the Home Department [2004] EWCA Civ 234 |
Authority referenced in relation to statutoryisation of compensation schemes and Article 6. |
Cited in the context of the Criminal Injuries Compensation Scheme and how statutory footing affects Article 6 analysis. |
| CB v United Kingdom CE:ECHR:2005:0825DEC003551204 |
European Court material on Article 6 and domestic statutory schemes. |
Referenced in the discussion of statutory schemes and Article 6 applicability. |
| Stec v United Kingdom (2000) 43 EHRR 47 |
Non‑contributory social benefits funded by general taxation fall within scope of Article 1 Protocol 1. |
Discussed in relation to whether compensation payments can be analogised to social benefits for Convention purposes. |
| R (A) v Secretary of State for the Home Department [2021] UKSC 37; [2021] 1 WLR 3931 |
Principles on enforceability of administrative rules and public law remedies. |
Cited to support the proposition that public law rights under administrative schemes can be enforced by judicial review. |
| WL (Congo) v Secretary of State for the Home Department (Justice Intervening) [2011] UKSC 12; [2012] 1 AC 245 |
Public law enforcement of administrative schemes and criteria. |
Used to illustrate that Scheme rules can be subject to public law review. |
| Ali v Birmingham City Council [2010] UKSC 8; [2010] 2 AC 39 |
Domestic authorities on statutory homelessness obligations (distinguished). |
Considered and rejected as directly relevant to the Article 6 inquiry for the Scheme. |
| Poshteh v Kensington and Chelsea Royal London Borough Council [2017] UKSC 36; [2017] AC 624 |
Domestic authorities on homelessness/housing statute interpretation (distinguished). |
Not regarded as assisting the Article 6 question for the Scheme. |
| Salesi |
Concurring observations referenced regarding shift to engagement of Article 6 in benefit cases. |
Used in submissions and referred to by the Court in considering Strasbourg trends. |
Court's Reasoning and Analysis
The Court proceeded in two main stages.
First, on the facts at the time the Director refused exceptional funding, there was no dispute or contestation between the Appellant and the Government Department about entitlement; the Appellant accepted that point. As Article 6 requires an existing dispute being resolved, Article 6 did not apply to the application process and the Director was correct to refuse an exceptional case determination. The Reviewer was entitled to uphold that decision and the High Court's dismissal of the judicial review claim was therefore correct.
Second, the Court addressed obiter whether claims under the Scheme can amount to "civil rights" for Article 6 in circumstances where a genuine dispute exists. Having reviewed Strasbourg and domestic authorities (notably Wos, the Italian Interns case and JT), the Court concluded that the judge below had erred in parts of his analysis distinguishing Wos and in treating the one‑off/ex gratia nature of the Scheme as dispositive. The Court reasoned that the Scheme contains prescriptive, closely defined eligibility rules, arithmetic or formulaic methods for calculating awards in many heads, and awards are paid from public funds; where an applicant satisfies the Scheme's conditions and a genuine dispute arises about application of those rules, the disputed entitlement is capable of being a civil right within Article 6. The Court did not, however, decide that Article 6 was engaged on the facts before it (no dispute existed then) nor did it determine whether failure to provide legal aid would amount to a breach of Article 6 in an applicable case.
The Court also addressed the s.10(3)(b) point: the argument that the Director could use a discretion to make an exceptional case determination to avoid a risk of breaching Article 6 was not pursued and, in any event, section 10(3)(b) operates only where the Director cannot decide there would be a breach and must assess the risk; here Article 6 was inapplicable so no such risk arose.
Holding and Implications
APPEAL DISMISSED
Holding: The appeal was dismissed. The Director's refusal to make an exceptional case determination (and the Reviewer's decision upholding that refusal) was lawful because at the material time there was no dispute and Article 6 did not apply to the process of making an initial application to the Scheme.
Implications: The direct effect is that the Director's and Reviewer's decisions stand and the judicial review claim dismissal is affirmed; the Appellant has accepted compensation and the matter is academic for her. The Court gave obiter guidance that, where a genuine dispute exists about entitlement under the Scheme (which contains prescriptive eligibility rules and formulaic calculations and is funded from public money), such a dispute can be capable of being a "civil right" for the purposes of Article 6. That view was expressly obiter and the Court did not create a binding precedent resolving Article 6 applicability in future cases where different factual or legal features may obtain.
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