A & Anor, R (on the application of) v Secretary Of State For Home Department

The extent to which public authorities can be liable in tort for negligence at common law has been the subject of much debate in recent years. The topic arises in these two cases in the context of maladministration by the Home Office which resulted in asylum-seekers or members of their families who had been granted leave to remain in the UK not receiving the statutory welfare benefits to which they were entitled. Since both cases raise the same issues, they have been heard together.

Both sets of proceedings started life as claims for judicial review. On 14 May 2003, Mr Rabinder Singh QC (sitting as a deputy judge of the High Court) ordered by consent that Mr Kanidagli’s claim continue in the Administrative Court as if it had been begun as an ordinary claim for damages. Although a similar order has not been made in Mrs A’s claim, the parties have proceeded as if it had been. On 8 December 2003, Maurice Kay J. (as he then was) ordered that the cases be listed for a preliminary hearing to decide whether the defendant, the Secretary of State for the Home Department (“the Secretary of State”), was liable to the claimants in law on the assumed facts set out in the claimants’ statements of case. The hearing was not merely to determine whether on the assumed facts there was an arguable case that liability should be imposed on the Secretary of State. The hearing was to decide whether on the assumed facts the Secretary of State was in fact liable to the claimants.

Although the order provided for the assumed facts to be those set out in the statements of case, the parties have agreed what facts should be assumed for this purpose. However, that agreement has been expressed to be “without prejudice to any factual or legal argument that the [Secretary of State] might raise in relation to quantum and associated issues such as causation of loss, remoteness or mitigation”. Moreover, the argument before me (leaving aside an associated claim that the Secretary of State abused his power) was limited to whether a duty of care was owed to the claimants. Presumably, the agreement was therefore also without prejudice to whether such a duty of care had been broken. Thus, I have treated the hearing as having been to decide whether, on the assumed facts, the Secretary of State owed a duty of care to the claimants. An anonymity order has been made in the case of Mrs A.

In 1997, Mrs A’s husband arrived in the UK and applied for asylum. On 29 November 1999, the Secretary of State recognised him as a refugee, and granted him indefinite leave to remain in the UK. In due course, the Secretary of State granted Mrs A (and her five children) entry clearance to join her husband. He did so on 4 December 2000. When the Secretary of State grants entry clearance to the family of a person who has been recognised as a refugee, it is his practice to permit the family to enjoy the same benefits as other immigrants are entitled to. In particular, they will be eligible to take employment and to receive welfare benefits. The Secretary of State did not intend to depart from this practice in Mrs A’s case. However, the terms of the entry clearance granted to Mrs A which were endorsed on her passport mistakenly prohibited her from having any recourse to public funds.

Mrs A and her children arrived in the UK on 20 February 2001. She wrote on a number of occasions to the Secretary of State and the Treasury Solicitor asking for the terms of her entry clearance to be amended urgently so as to enable her to claim income support for herself, although her husband was able to claim benefits on behalf of their children and did so. Eventually, on 31 July 2001, she issued her claim for judicial review, seeking a mandatory order requiring the Secretary of State to amend the terms of her entry clearance. In due course, she was given permission to amend the claim form to include a claim for financial compensation.

On 17 August 2001, the Secretary of State acknowledged that the restriction on Mrs A’s access to public funds placed on her entry clearance had been a mistake, but it was not until 14 February 2002 that the Secretary of State wrote to her granting her indefinite leave to remain in the UK and removing the restriction on her access to public funds. From then on, she was able to claim income support. She had therefore not been able to claim benefits for herself from 20 February 2001 (when she arrived in the UK) to 14 February 2002 (when the restriction on her access to public funds was removed). Those lost benefits have been calculated on her behalf as amounting to £1,945.28.

Mr Kanidagli arrived in the UK on 23 August 1999 and applied for asylum. He received income support and housing benefit. In due course, the Secretary of State refused his application for asylum, and Mr Kanidagli appealed. On 4 February 2002, an adjudicator found that it would be a breach of Art. 3 of the European Convention on Human Rights (“the Convention”) to remove him to his country of origin. It is the Secretary of State’s practice to grant exceptional leave to remain in the UK in cases where removing someone from the UK would be incompatible with Art. 3 of the Convention, and to set out the grant of exceptional leave to remain in a document (“a status letter”), which also permits the recipient to take employment and to receive such welfare benefits as other immigrants are entitled to. The Secretary of State did not intend to depart from this practice in Mr Kanidagli’s case. Indeed, on 27 March 2002, the Secretary of State wrote a status letter to Mr Kanidagli granting him exceptional leave to remain in the UK. However, he did not send it to Mr Kanidagli.

Mr Kanidagli wrote to the Secretary of State on a number of occasions asking for his status letter. He also went to an office of the Department of Work and Pensions (“the DWP”) in an attempt to regularise his entitlement to income support, but was unable to do so because he did not have a status letter. On 27 July 2002, the DWP ceased to pay him income support because he had failed to provide a status letter. He was similarly refused a jobseeker’s allowance. Eventually, on 13 November 2002, Mr Kanidagli issued his claim for judicial review, seeking a mandatory order requiring the Secretary of State to provide him with a status letter. That prompted the Secretary of State to issue a status letter to Mr Kanidagli, which he did on 21 November 2002. The Secretary of State subsequently admitted that he had not done so earlier owing to administrative error.

Mr Kanidagli has been receiving benefits since 10 December 2002. He had therefore not received benefits from 27 July 2002 (when income support was no longer paid to him) to 10 December 2002. Giving credit for payments of income support received, and on the footing that the DWP will not seek to recoup any of those payments, the lost benefits have been calculated on Mr Kanidagli’s behalf as amounting to £3,150.77.

It is obvious that the Secretary of State could have made ex gratia payments to the claimants to compensate them for the losses which they suffered as a result of the maladministration which had admittedly occurred. He has chosen not to do that, and it now has to be decided whether he is liable in law to compensate the claimants. Without wishing to suggest that these cases do not have any importance for the orderly development of public law, the claimants’ advisers disavow any intention to establish that there is a general right of reparation for maladministration. Indeed, no such right exists in public law:

“A fundamental tenet of English law is that the failure of a public body to act in accordance with public law principles of itself gives no entitlement at common law to compensation for any loss suffered. Nor does the careless performance of a statutory duty in itself give rise to any cause of action in the absence of a common law duty of care in negligence to a right of action for breach of statutory duty. To recover damages, a recognised cause of action in tort must be pleaded and proved.” (De Smith, Woolf & Jowell, “Judicial Review of Administrative Action”, 5^th ed., para. 19-003).

Indeed, what the claimants’ advisers contend is that these cases fall within the already expanded ambit of actions for negligence against public bodies. A more controversial contention advanced by the claimants’ advisers is that it would be an abuse of power for the Secretary of State not to compensate the claimants for their losses as a result of the maladministration which has occurred.

One other point needs to be made. The proportionality of these claims has not been questioned. However, in view of the criticisms levelled by the Court of Appeal in R (on the application of Anufrijeva) v London Borough ofSouthwark [2003] EWCA Civ 1406 at legal advisers who pursued claims for damages against a local authority and the Secretary of State, it is appropriate to make three points. First, the DWP has no power (subject to para. 21 below) to backdate benefits, and although the DWP has a scheme for compensating those who lose benefits as a result of maladministration by the DWP and its officers, the scheme does not apply to benefits lost as a result of maladministration by the Secretary of State. Secondly, the claimants’ advisers have suggested mediation, but the Secretary of State is unwilling to engage in such a process. Thirdly, cases of this kind could have been dealt with by the Parliamentary Commissioner for Administration (“the Ombudsman”), provided that a Member of Parliament referred the case to him. Mr Kanidagli’s MP refused to refer his case to the Ombudsman. Mrs A’s MP did refer her case, but the Ombudsman declined to investigate it. He took the view that since Mrs A’s claim for judicial review had been issued by then, he no longer had any jurisdiction to investigate the case: see section 5(2)(b) of the Parliamentary Commissioner Act 1967. A claim for judicial review of that refusal would have been unlikely to succeed: see R v Commissioner for Local Administration ex p. H (a minor) (1999) 1 LGR 932 and (on appeal) [1999] JLGL D63 and R v Commissioner for LocalAdministration ex p. Field (CO/880/99).

That is the background against which these claims are made, and the way is now clear for the two issues which the claims address – negligence and abuse of power – to be considered.

The loss which the claimants suffered was caused by immigration officers or officials performing statutory functions in the name of the Secretary of State. It is necessary for those functions to be considered in the context of such policy considerations as informed the statutory scheme under which the functions were performed. That is because, as Lord Hoffmann said in Stovin v Wise [1996] AC 923 at pp. 952E-953D, the policy of the statute is a crucial factor in deciding whether it was intended to confer a right to compensation for a breach of a duty imposed by the statute, and a fortiori for the imperfect exercise of a power conferred by the statute: “If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care.”

The modern scheme of immigration control is contained in the Immigration Act 1971 (“the Act”). Section 1(2) of the Act provides:

“Those not having [the] right [of abode in the United Kingdom] may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act…..”

The mechanism by which that permission may be given for someone who is not a British citizen is set out in section 3(1) of the Act:

“Except as otherwise provided by or under this Act, where a person is not [a British citizen] – …..

(b)

he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited period or for an indefinite period;

(c)

if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely –

(i)

a condition restricting his employment or occupation in the United Kingdom;

(ii)

a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and

(iii)

a condition requiring him to register with the police.”

By section 4(1) of the Act, the power to give leave to enter the UK is to be exercised by immigration officers, and the power to give leave to remain in the UK is to be exercised by the Secretary of State.

By section 3(2) of the Act, the Secretary of State is required to “lay before Parliament statements of the rules ….. laid down by him as to the practice to be followed ….. for regulating the entry into and stay in the United Kingdom of persons [who do not have the right of abode in the United Kingdom] …..”. These rules are the Immigration Rules. There is nothing in the Immigration Rules regulating the grant of leave to remain in the UK in cases where removing someone from the UK would be incompatible with Art. 3 of the Convention. Thus, the practice of granting exceptional leave to remain in the UK in cases like that of Mr Kanidagli was not the product of any particular immigration rule. It was a practice which was, no doubt, intended to give effect to the need for the UK not to act in a way incompatible with the Convention. Similarly with the welfare benefits payable to such persons. There is nothing in the Immigration Rules relating to whether such persons should receive such welfare benefits as other immigrants are entitled to. No doubt the Secretary of State did not wish to make people like Mr Kanidagli worse off than other immigrants.

Mrs A’s case, on the other hand, was covered by the Immigration Rules. She applied for entry clearance as the spouse of a refugee. Rule 352A of the Immigration Rules provides:

“The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse of a refugee are that:

(i)

the applicant is married to a person granted asylum in the United Kingdom; and

(ii)

the marriage did not take place after the person granted asylum had left the country of his former habitual residence in order to seek asylum; and

(iii)

the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right [commission of criminal offences]; and

(iv)

if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”

The policy of granting leave to enter or remain in the UK in such cases was, I assume, to enable a person to join their spouse in the UK in cases where refugee status has been granted. Again, it is not the Secretary of State’s practice to make the leave of such a person to enter or remain in the UK subject to a condition that he or she is not to have recourse to public funds. If it was otherwise, that would have been provided for in rule 352A or elsewhere in the Immigration Rules. Accordingly, a person who has been granted entry clearance as the spouse of a refugee is entitled to receive such welfare benefits as other immigrants. No doubt the Secretary of State did not want to make people like Mrs A worse off than other immigrants.

Two points should be made in the light of these provisions. First, the mistakes which were made in the cases of Mr Kanidagli and Mrs A were administrative failures to implement decisions which had been made pursuant to those practices which the Secretary of State had decided to adopt for determining how he should exercise his statutory power to grant persons who are not British citizens leave to enter and remain in the UK and on what conditions. Secondly, there is nothing in the statutory scheme which shows that it was intended to prohibit a right to compensation for administrative failures of the kind which occurred.

In the interests of completeness, I should add that the provision which governs the payment to immigrants of welfare benefits, including income support and a jobseeker’s allowance, is section 115 of the Immigration and Asylum Act 1999. As a result of subsections (1), (3) and (9), an immigrant is only excluded from such benefits (unless he or she falls within such category or description, or satisfies such condition, as may be prescribed) if he is

“….. a person who is not a national of an EEA State and who –

(a)

requires leave to enter or remain in the United Kingdom but does not have it;

(b)

has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;

(c)

has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or

(d)

has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4 [leave pending appeal].”

This provision therefore did not prevent Mr Kanidagli from being entitled to income support and a jobseeker’s allowance. However, condition (b) prevented Mrs A from being entitled to income support, a condition which would not have applied to her case had an inappropriate condition not mistakenly been applied to the terms of her entry clearance.

An important preliminary point was taken by Mr Sean Wilken for the Secretary of State. The claimants would not have suffered any loss as a result of the mistakes which had occurred if the DWP had had the power to backdate the payment of income support and a jobseeker’s allowance to them. The fact that Parliament has not given the DWP such a power was said to show that Parliament must have intended that liability to pay compensation consisting of the loss of those benefits should not be imposed even if mistakes (whether by officers of the DWP or otherwise) had resulted in those benefits not being paid.

I cannot accept this argument, but to understand why it is necessary to look at the scheme of the relevant regulations – the Social Security (Claims and Payments) Regulations 1987 (SI 1968 of 1987) (“the Regulations”) – in some detail. Income support and a jobseeker’s allowance (along with a number of other welfare benefits) have to be claimed on the first day of the period for which the claim is made: reg. 19(1) and paras. 1 and 6 of sch. 4. The time for claiming these benefits may be extended up to a maximum of 3 months if, as a result of the circumstances referred to in reg. 19(5), the claimants could not reasonably have been expected to make the claim earlier: reg. 19(4). Some of the circumstances referred to in reg. 19(5) relate to physical difficulties which the claimant may have had. Others relate to circumstances outside the claimant’s control, such as a domestic emergency or bad weather. But there is also a set of circumstances which relate to information or advice which the claimant has received. If the claimant was given “information” by an officer of the DWP (reg. 19(5)(d)), or “advice” by a solicitor or other professional adviser, a medical practitioner, a local authority, or a person working in a Citizen’s Advice Bureau or similar advice agency (reg. 19(5)(e)), or “information” about the claimant’s income or capital by his employer or former employer or by a bank or building society (reg. 19(5)(f)), the time for making the claim is extended if the information or advice “led the claimant to believe that a claim for benefit would not succeed”. In none of these circumstances is the claimant required to prove that the person who gave him the advice or information was negligent.

Thus, it would not have been accurate to say that the DWP does not have the power to backdate the payment of income support and a jobseeker’s allowance. These benefits can, in practical terms, be backdated for up to three months in a number of clearly identified circumstances. Moreover, they can be backdated in those cases where the claimant relied on information or advice without the claimant having to prove negligence on the part of the person who gave him that information or advice. What the Regulations did was to acknowledge that there were a number of common situations in which late claims for benefits might be made, but which should not result in the claimants being deprived of those benefits for a limited period. In those situations, such claimants could obtain backdated benefits for a limited period without proof of negligence. That does not mean that the Regulations manifest a Parliamentary intention to prohibit claims of negligence in respect of benefits which were not covered by the circumstances expressly provided for by the Regulations. If such claims were to be prohibited, it would have to because the law of negligence – in particular the need to show the existence of a duty of care – prohibited such claims.

There is no previous case in which the Secretary of State has been held liable in negligence on facts comparable to the claimants’ claims. Accordingly, it is necessary to start with first principles. In Caparo Industries Plc v Dickman [1990] 2 AC 605, Lord Bridge said at pp.617H-618A that what emerged from the authorities which he reviewed was that

“…..in addition to the forseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”

These three criteria – forseeability of damage, proximity of relationship, and fairness, justice and reasonableness – often overlap. As Lord Oliver said in Caparo at p.633B-C,

“…..it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of forseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court’s view that it would not be fair and reasonable to hold the defendant responsible.”

Moreover, the courts are required to evaluate the consequences of imposing liability in a particular situation, and they must be sure that that is what justice requires. As a check against the hasty development of the law, Brennan J. said in Sutherland Shire Council v Heyman (1985) 60 ALR 1 at p.43, “the law should develop novel categories of negligence incrementally and by analogy with established categories”. Phillips L.J. (as he then was) explained this approach in Reeman v Department of Transport [1997] PNLR 618 at p. 625 as follows:

“When confronted with a novel situation the court does not ….. consider these matters [forseeability, proximity and fairness] in isolation. It does so by comparison with established categories of negligence to see whether the facts amount to no more than a small extension of a situation already covered by authority, or whether a finding of the existence of a duty of care would effect a significant extension to the law of negligence. Only in exceptional cases will the court accept that the interests of justice justifies such an extension.”

There are three features of the claimants’ claims which are uncontroversial. First, the Secretary of State would have been aware of the effect which the maladministration in these two cases would have. Both the claimants would be denied the benefits to which they would otherwise have been entitled but for the mistakes which individual immigration officers and officials made. Had an inappropriate condition for entry clearance not been endorsed on Mrs A’s passport, she would have had access to public funds. So too would Mr Kanidagli if the status letter had been sent to him. The mistakes were compounded by the delay in remedying them. It is plain that the losses which the claimants would suffer could reasonably have been foreseen by the Secretary of State. Secondly, the mistakes which the individual immigration officers and officials made were purely administrative in nature. Once the decision had been made to grant Mrs A entry clearance and Mr Kanidagli exceptional leave to remain in the UK, no decision-making of any kind nor the exercise of any discretionary judgment was called for. What was required was merely the operational implementation of practices which were well established: the endorsement on Mrs A’s passport of entry clearance without any inappropriate conditions attached to it, and the issue of the appropriate letter to Mr Kanidagli. Thirdly, in the absence of the imposition of liability, the claimants would be left without a remedy. That is not to say that public policy requires all wrongs to be redressed, but as Sir Thomas Bingham M.R. (as he then was) said in X (Minors)v Bedfordshire County Council [1995] 2 AC 633 at p. 663D, “the rule of public policy which has first claim on the loyalty of the law [is] that wrongs should be remedied”.

As ever, though, there are a number of competing considerations. First, the loss which the claimants suffered is said by the Secretary of State to have arisen as a result of pure omissions on the part of immigration officers or his officials – an omission to remove the inappropriate conditions from Mrs A’s passport and an omission to send Mr Kanidagli a status letter. In Smith vLittlewoods Organisation Ltd. [1987] 1 AC 241, Lord Goff said at p.271B that “the common law does not impose liability for what are called pure omissions”. Secondly, the loss which the claimants suffered was purely economic loss, and the courts have taken a more restrictive approach to the imposition of a duty of care in relation to economic loss than in respect of physical injury or damage. Thirdly, as I have already said, the loss which the claimants suffered was caused by immigration officers or officials performing statutory functions in the name of the Secretary of State. It is said by the Secretary of State that the relationship between those immigration officers and officials and individual members of the public is insufficiently proximate for liability for a duty of care to arise.

I can deal relatively shortly with the first of these considerations, namely that the loss which the claimants suffered is said to have arisen as a result of pure omissions. The omissions which Lord Goff was referring to were omissions where there was no duty to take affirmative action of any kind at all. That is very far from this case. The immigration officers and officials had decided to grant Mrs A leave to enter the UK and Mr Kanidagli leave to remain in the UK, in circumstances in which they were entitled to have recourse to public funds. In each of their cases, attempts were made to enable them to apply for public funds. In Mr Kanidagli’s case, a status letter was written to him which, had it been sent, he could have shown to the DWP to get the income support and jobseeker’s allowance to which he was entitled. The error was in not posting the letter to him. In Mrs A’s case, the grant of entry clearance was endorsed on her passport, which (had it not had the additional words about her not having recourse to public funds) she could have shown to the DWP to get the income support to which she was entitled. The error was to add additional words which the Secretary of State had not intended to include. These were therefore not cases in which the Secretary of State had omitted to take action. The immigration officers and officials had taken action, but their action had been carried out so imperfectly that they had not managed to achieve the results which had been intended.

The second consideration – namely, that the loss which the claimants suffered was purely economic loss – is an important one. But the reasons why the courts have taken a more restrictive approach to the imposition of a duty of care in cases of economic loss alone should not be overlooked. The duty is more likely to be owed to an indeterminate class of people, and liability could be established for an indeterminate amount. Moreover, economic loss usually arises in circumstances where the parties have a greater opportunity to use contracts to determine the level of risk which they need to take and the degree of protection which they require, even though that opportunity was not available to the claimants. Having said that, the fact that the loss which the claimants suffered was purely economic is a factor to be taken into account in applying the second and third of the Caparo criteria – proximity of relationship, and fairness, justice, and reasonableness – to the claimants’ cases.

The third consideration – namely, that the loss which the claimants suffered was caused by persons performing statutory functions – requires more analysis. The authorities show that one of the factors which has been regarded as determining whether the person in whose name the functions are performed owes a duty of care in the performance of those functions is whether the issue which the case raises is justiciable. A duty of care will often not arise when the performance of the function involves the formulation of policy or the making of a judgment or the exercise of a discretion. That is because, as Lord Slynn said in Barrett vEnfield London Borough Council [2001] 2 AC 550 at p. 571F-G:

“….. the ultimate question is whether the particular issue is justiciable or whether the court should accept that it has no role to play …..The greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable so that no action in negligence can be brought.”

However, Lord Slynn did not exclude the possibility of an action in negligence even if there was an element of discretion in the decision which gives rise to the claim. At p. 572B, he said:

“A claim of negligence in the taking of a decision to exercise a statutory discretion is likely to be barred, unless it is wholly unreasonable so as not to be a real exercise of the discretion, or if it involves the making of a policy decision involving the balancing of different public interests; acts done pursuant to the lawful exercise of the discretion can, however, in my view be subject to a duty of care, even if some element of discretion is involved.”

Lord Hutton said much the same thing at p. 583C-D:

“It is only where the decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion.”