Surjit Kaur, R (on the application of) v Adjudicator's Office & Anor.

INTRODUCTION

BACKGROUND FACTS

GROUNDS OF APPEAL

INTERPRETATION OF EX GRATIA COMPENSATION SCHEMES

GROUNDS 1 AND 2: EMPLOYMENT

GROUND 3: ACCESS TO BENEFITS WITHIN ANNEX E

GROUND 5: ACCESS TO BENEFITS WITHIN ANNEX I

GROUND 4: DISCRIMINATION IN RELATION TO BENEFITS

GROUND 6: LEVEL OF IMPACT ON LIFE WITHIN ANNEX H

CONCLUSION

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 have concluded, for the reasons set out below, that the decision was lawful and that the claim must therefore be dismissed.

BACKGROUND FACTS

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:

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:

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.

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 independent and impartial adjudicator of complaints. The Adjudicator’s Office falls within the same legal entity as the Commissioners of Her Majesty’s Revenue and Customs (“ HMRC ”), and the staff in the Adjudicator’s Office are employees of HMRC.

However, the Adjudicator is an office holder, not an employee nor an officer of HMRC, but a person external to HMRC with the independent personal authority to review complaints.

The Adjudicator is also independent from the Home Office, and a Service Level Agreement (“ SLA ”) between the Home Office and the Adjudicator’s Office sets out how the Adjudicator’s Office review services are to be provided, including the scope of the reviews carried out by the Adjudicator’s Office. Paragraph 6.2 of the SLA states that the Adjudicator’s Office is independent or ‘at arm’s length’ from HMRC and the Home Office, and that its decisions are not subject to influence or interference.

Paragraph 4.4 of the SLA states that the Adjudicator will conduct an independent review of decisions made under the WCS, and that individuals can also request a review of a complaint about how the Home Office has handled their claim for compensation under the Scheme. By § 4.5 of the SLA:

Pursuant to § 4.10, the Adjudicator can look at applications for review or complaints about mistakes, unreasonable delays, poor or misleading advice, processes, whether relevant guidance has been followed, inappropriate staff behaviour, and the use of discretion. The Adjudicator cannot consider complaints about eligibility under the WCS, i.e. whether a claimant falls within the scope of the WCS at all (§ 4.11).

As to the Adjudicator’s powers on review, §§ 4.20 and 4.21 provide:

The Home Office is not obliged to accept the recommendation of the Adjudicator, although if it does not do so, it must provide written reasons for its decision, and those reasons must be approved by the Home Office Director, UK Visas and Immigration responsible for the operation of the WCS (§ 4.26).

The Claimant submits that although she has formally challenged the decision of the Adjudicator alongside the decisions of the SSHD, the claim is in substance a challenge to the decisions of the SSHD. That is because the Adjudicator reviewed only the lawfulness of the Home Office’s decisions, as reflected in §4.21 of the SLA quoted above. The Claimant says the position is the same as where an appellate court has before it the decision of a first instance tribunal (which made findings of fact) and the decision of an appellate tribunal (which reviewed the first instance tribunal’s decision for an error of law): the appellate court’s task is to assess whether there was an error of law in the first instance tribunal’s decision. By analogy, on appeal to the Court of Appeal in the employment context, “the question, strictly speaking is whether the ET [Employment Tribunal] made an error of law, not whether the EAT [Employment Appeal Tribunal] did so. …If the ET committed no error of law, then the EAT cannot interfere. Conversely, if the ET's judgment does contain an error of law it does not matter whether the EAT's analysis of that error of the claim as a whole was exactly accurate” (Robinson v Department for Work and Pensions [2020] IRLR 884 § 34, per Bean LJ).

Counsel for the Adjudicator submits that the analogy is not entirely apt. It is possible for there to be an error of law by the SSHD that is not an error of law by the Adjudicator, given the limitations on the Adjudicator’s powers. These include the limitation about eligibility provided for in § 4.11 of the SLA; in addition, the Adjudicator would not have power to determine whether a part of the WCS rules or guidance were itself lawful.

The SSHD too considers that the analogy with appellate tribunals is not entirely apt, but is content to proceed in the present case on the basis that the operative decisions are the Caseworker Decision and Review Decision made by the SSHD. She takes the view that the Adjudicator’s decision corroborates the rationality of her decision, but is not itself the relevant target for review.

The Adjudicator has taken a neutral position in the present case and not sought to make submissions on the substantive issues between the Claimant and the SSHD. In oral submissions, counsel for the Adjudicator made the points that no remedy was sought against the Adjudicator; that remaining neutral assisted the Adjudicator in being seen to be impartial; and that whether the Claimant were right or wrong about the legality of the SSHD’s decision, the contents of the Adjudicator’s decision would not affect the outcome. Counsel also invited the court to consider giving some form of indication as to whether it was necessary for the Adjudicator to be made a party to claims of this kind, bearing in mind the additional costs likely to be involved.

One matter that was not canvassed in argument is whether the Adjudicator has power to make a recommendation (which the SSHD may then follow) whose effect might be to reduce the amount of an award, or whether the terms of the SLA § 4.22 would preclude that. Should such circumstances be possible and arise, then it might be necessary or appropriate for the Adjudicator to be joined. However, in the normal run of cases, where the Adjudicator has merely upheld the SSHD’s challenged decision (as in the present case), it appears to me unnecessary to join the Adjudicator as a party.

Lisa Birtles-Maule, of the SSHD’s Policy Team with responsibility for the WCS, explained the SSHD’s general approach as follows in her witness statement:

The Claimant put forward a witness statement from Mr Martin Forde KC, who is the independent person appointed by the SSHD to design the Scheme and oversee its function. He stated inter alia that:

The SSHD objected to the admission of this evidence on the basis that it appeared to be offered as quasi expert evidence for which there is no permission; further, Mr Forde KC’s statement was essentially commentary and opinion, and its admission would be contrary to the principles summarised in R (Gardner) v Secretary of State for Health and Social Care [2021 EWHC 2946 (Admin) at §§ 3-17.

The parties accepted that I should read this evidence de bene esse and decide on its admissibility as part of the present judgment.

In support of its admission, the Claimant submits that she does not adduce it as expert evidence, and accepts that the interpretation of the WCS is a matter for the court. However, she says it is relevant (a) to show the purpose and scope of the scheme, and whom it was intended to compensate (cf R (Raissi) v Secretary of State for the Home Department [2008] QB 836 §§ 4 and 123-124, a case concerning another ex gratia compensation scheme), and (b) as evidence of the materials and considerations that were before the decision-maker when the WCS was formulated. By way of analogy, an enactment is to be read in its context in the widest sense, including the mischief that it was intended to remedy, as discerned from other provisions of the statute, its preamble, the existing state of the law, and other legitimate means (Attorney-General v Prince of Hanover [1957] 1 WLR 436, 460-461 per Viscount Simonds, cited in Bennion, Bailey and Norbury on Statutory Interpretation, 8^th ed., section 11.2). The Claimant makes the point that it is commonplace in judicial review applications concerned with human rights issues for the court to receive evidence from a civil servant as to the Minister’s thought process. The Claimant must equally be entitled to adduce Mr Forde KC’s evidence as to the Scheme’s objectives.

It is thus common ground that Mr Forde KC’s evidence is not admissible as going directly to the interpretation of the Scheme. The question is whether it is admissible as factual evidence about the Scheme’s objectives and the matters taken into account when it was formulated. Although with some hesitation, I consider that the evidence is admissible insofar as it may shed light on the general purposes of the Scheme, on the basis that Mr Forde KC was one of the persons closely involved in its formulation. However, it has to be borne in mind that Mr Forde KC was not himself the decision-maker. Although he states that the Home Office accepted his view, in my view that is a matter (with respect) to be assessed by reference to the wording of the Scheme assessed in its context as a whole. It cannot simply be assumed that an objective which Mr Forde KC had in mind, or expressed, constitutes the objective of the actual decision-maker, in other words of the Scheme.

GROUNDS OF APPEAL

The grounds of claim, to the extent now pursued, raise the following issues as formulated by the Claimant:

I consider the issues in that order in sections (E) to (I) below.

INTERPRETATION OF EX GRATIA COMPENSATION SCHEMES

The Claimant made the following general points about the construction of ex gratia compensation schemes, which were not controversial between the parties and which I accept.

The SSHD makes the point that the WCS self-evidently is a tool of social and economic policy, involving the ex gratia distribution of public monies in redress for historic injustice; and that in those circumstances, the Government should be given a particularly wide margin, both as to the rules adopted and as to the decisions made applying those rules (see e.g. R (CN) v Secretary of State for Health and Social Care [2022] 4 WLR 73 § 8). I note that the statement at § 8 of CN related to the creation of the scheme there, the issue in the case being whether the exclusion of a category of persons was unlawfully discriminatory. I am not sure that the same approach should necessarily be taken to the interpretation and application of the WCS. Caseworkers making decisions under the scheme are not themselves making judgments as to matter of social or economic policy.

On the other hand, it is elementary that the court’s role is to examine the legality of the challenged decision, rather than its merits. I also see force in the point, reflected to a degree in the evidence of Ms Birtles-Maule quoted above, that decision-makers under the WCS will necessarily need to take a broad and holistic view as to whether or not to accept claims that may (given the span of years involved) be supported by greater or lesser amounts of documentary evidence; and, where little or no documents are provided, to exercise their judgment in the light of the inherent probabilities and their experience of their WCS case work as a whole. That does not mean that an absence of documentary or third party evidence will necessarily be ignored. The inherent probabilities may include, for example, how likely it is that (even after the passage of a long time) a claimant who claims unsuccessfully to have applied for a large number of jobs will be unable to produce any letters or other documentary evidence at all of those applications or their outcome. (The Claimant’s and Mr Boparai’s letter of 29 December 2019 listed 22 businesses whom they said the Claimant had approached for employment.) These are primarily matters for the judgment of the decision maker in the light of their experience of handling cases of this kind.

GROUNDS 1 AND 2: EMPLOYMENT

The Claimant’s evidence in support of her application under the WCS was that she had approached a considerable number of named local companies for work, that Mr Boparai was often present as her interpreter, but that “we were told [by the prospective employers] that unfortunately she could not be considered for employment because she was unable to prove her lawful immigration status due to her Indian Passport” and she was “simply told she could not be considered for employment when we presented her Indian passport and her immigration status was questioned which was subsequently rejected as unacceptable”. The Claimant and Mr Boparai provided a list of the companies/bodies whom she said she had approached. Their letter of 29 December 2019 said:

As the WCS was then formulated, the Claimant did not qualify under the relevant part of the rules, “Annex D: Loss of access to employment”. Prior to December 2020, the relevant part of Annex D permitted an award to be made only if:

The Claimant did not fall into either category because the evidence was that she had never been able to obtain employment in the UK. Accordingly, the 2020 Decision made no award for loss of access to employment, and that was upheld on review on 17 November 2020. A level 3 award was made for “impact on life”, which at the time was worth £3,000.

In December 2020, the WCS was amended in several ways, which included:

The revised Annex D, relating to loss of access to employment, contained the following paragraphs about entitlement to an “Actual earnings award” or a “General award”:

On 8 January 2021, the Secretary of State wrote to the Claimant stating that the changes to the Scheme “increase the value of offers made under the Impact on Life category” and “This means that the amount of money we have offered to you in your full and final offer will increase. We therefore have withdrawn the T1 Review decision and we will make a new offer”.

The Caseworker Decision was taken on 24 February 2021. The internal minute of the decision records includes this:

I agree with the Claimant that, certainly on its face, this reasoning indicated that the caseworker had addressed the gateways set out in § D9(a)(i) and (ii) (and D2(a)(i) and (ii)), but not – in particular – the new gateway in § D9(a)(iv). That gateway arose for consideration because the Claimant’s evidence was that she had actively sought employment but been unable to progress her applications because she was unable to prove her lawful status.

The Caseworker communicated her decision to the Claimant by letter dated 8 March 2021, which said in relation to the claim for loss of access to employment:

The Claimant sought review on 16 March 2021, and the Review Decision was subsequently made. I mention at this point that the documents include two review decision minutes, headed “Windrush Compensation Scheme 1st Tier Review _V1 ” and “Windrush Compensation Scheme 1st Tier Review _V2 ”. The Claimant’s written and oral submissions proceeded (at least initially) on the basis that the first of these was the relevant minute. However, it is clear from the contents of the minutes that it is the second “V2” one that relates to the Review Decision, and that the first minute relates to the Tier 1 review of the 2020 Decision.

The internal minute of the relevant Review Decision summarised the contents of Mr Boparai’s letter, sent on behalf of the Claimant, seeking review. It noted that he had reiterated that the Claimant had provided names of companies and dates when work was applied for with reasons for refusal. Review was sought for the period from 1963 to 1997, rather than the 43-year period originally claimed for. Further:

The minute notes that no further supporting information was provided. Reference is made to Home Office database notes accepting, on the balance of probabilities, that the Claimant arrived in England in 1962 to join her husband, and was present and settled in the UK on 1 January 1973. Reference is made to copies of pages the Claimant had provided from various passports issued in 1975, 1996, 2006 and 2015. The notes indicated that passports had also been issued in 1969 and 1986. The 1996 passport contained an ILE endorsement dated 23 February 1997 and also indicated that the Claimant had previously travelled on the passport issued in 1986. The reviewer was satisfied that on 23 February 1997 the Claimant was able to satisfy the Immigration Officer that she held lawful status for the ILE endorsement to be placed in this passport. Further:

The minute then noted that § D2 did not apply as there was no indication of prospective earnings, so consideration was given to a General award under § D9. The reviewer set out briefly the reasons why §§ D9(a)(i), (ii) and (iii) were not met, which in the case of § D9(a)(ii) (offer of employment rescinded) included the point that “… Mr Bopari clarifies that Mrs Kaur is not able to provide information to show she had been offered employment which was rescinded due to difficulties demonstrating lawful status. He explains this happened decades ago and the refusals were delivered verbally”.

The reviewer then turned to the new gateway, as follows:

The reference to the supporting information requirements on page 54 was to the section headed “Evidence” in the Caseworker Guidance, version 6, dated 16 December 2020. That part of the guidance included the following section relevant specifically to the new gateway:

The Claimant submits that the contents of the Review Decision minute indicate that the reviewer was addressing the wrong question: § D9(a)(iv) does not require an applicant to show that they “had to defer the progression of a job offer …”, as the minute put it. The wording in the minute appears more appropriate for a consideration of § D2(a)(iv), which requires an applicant to show that they were “required to defer the progression of an application for employment which they were subsequently able to secure and [to] demonstrate their earnings in that employment”.

I do not accept that submission. The relevant gateway, § D9(a)(iv)/(b) required an applicant to demonstrate that they “were actively seeking employment and were unable to progress applications for employment”, as well as the reason for their inability to “progress applications for employment”. The reviewer made clear in the minute that they were not considering § D2 at all because there was no indication of prospective earnings. It is therefore very unlikely that they were, in the section headed “D9(a)(iv) not met”, in fact addressing the § D2(a)(iv) requirements to show deferral of the progression of an application for employment which they were subsequently able to secure, and to show their earnings in that employment. Equally, none of gateways D9(a)(i) to (iii) referred to deferring a job offer, and the reviewer had already addressed the lack of evidence of any job offer being rescinded in the context of § D9(a)(ii) (see § 50 above). The most natural reading, in my view, is that the reviewer was, as the section heading indicated, addressing § D9(a)(iv) and used the expression “defer the progression of a job offer” as a way of expressing the concept of being “unable to progress applications for employment”. Moreover, the phrase two paragraphs later in the minute “being denied access to employment” supported the view that the reviewer was not confining him/herself to enquiring whether any a job offer had ever actually been obtained.

The Review Decision was communicated to the Claimant by a letter dated 13 April 2021, which so far as relevant said:

The Claimant submits that this letter contained no reference to the new § D9(a)(iv) gateway, still less any recognition that the caseworker had omitted to address the new category of eligibility in the Caseworker Decision. I agree that the letter does not refer to the error in the Caseworker’s Decision, but do not consider that it needed to. The reviewer’s minute, quoted earlier, which I have concluded was addressing § D9(a)(iv), in its penultimate phrase used the expression “Mrs Kaur’s employment difficulties”. I consider that the phrase “unable to conclude your employment was affected” similarly refers to effect on “employment” as a compendious way of expressing the various types of situation covered by § D9, including inability to progress applications for employment that was being actively sought within § D9(a)(iv).

The Claimant refers to the duty of a defendant to judicial review proceedings “to co-operate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings” (R (Das) v Secretary of State for the Home Department [2014] 1 WLR 3538 § 80, citing Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] Env LR 761 § 86). The Claimant relies, in that context, on the section of Ms Lisa Birtles-Maule’s witness statement in which she says the following about the decisions in the present case:

I agree with the Claimant that the first two sentences of this passage refer only to the gateways in subparagraphs (a)(i) and (ii) of §§ D2 and D9, and make no reference to § D9(a)(iv). However, the focus of this evidence, as I read it, is on the lack of evidence that the problems the Claimant claimed to have encountered resulted from her immigration status, a theme to which Ms Birtles-Maule returned later in her statement:

The Claimant also suggests that the last sentence of quoted § 17 above (“The WCS does not, for example, compensate about matters which were caused by private employers or individuals”) is incorrect if applied to D9(a)(iv). However, I read that sentence as referring to decisions by employers and others independent of immigration status – i.e. to other reasons why the Claimant may have encountered difficulty in any attempts to find a job – and thus as being correct.

The Claimant notes that the reasons set out in the decision letter must explain why the decision maker reached his or her conclusion on the “principal important controversial issues” (South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 § 36, per Lord Brown). Reasons can be briefly stated, the degree of particularity required depending on the nature of the issues (ibid.). Reasons must be sufficient to enable an individual to assess whether the decision makers made any error of law (R (Help Refugees Ltd) v Secretary of State for the Home Department [2018] 4 WLR 168 § 122(iii) per Hickinbottom LJ).

The Supreme Court in R (CPRE Kent) v Dover District Council [2018] 1 WLR 108 noted that public authorities are under no general common law duty to give reasons for their decisions, but that it is well established that fairness may in some circumstances require it, even in a statutory context where no express duty is imposed. The court cited inter alia R v SSHD ex p. Doody [1994] 1 AC 531, where reasons were necessary in order to reveal whether the minimum term imposed on a prisoner by the Home Secretary differed from the penal element recommended by the judges, in which case the reasoning was bound to include (explicitly or implicitly) a reason why the Home Secretary had taken a different view. The Supreme Court found, on the case before it, that the defendant planning committee’s failure to address certain fundamental points raised a substantial doubt about whether it had properly understood the key issues or reached a rational conclusion on relevant grounds (§ 68).

The Claimant submits that in the present case a key part of her application was her claim for loss of access to employment (indeed, it was by far the highest value part of the claim). The decision makers needed to identify what § D9(a)(iv) required and assess whether the Claimant’s evidence on that issue met that requirement. If they thought it did not, they needed to explain why not.

As part of this, the Claimant submits, there needed to be an explanation as to why, if it were the case, her evidence had not been accepted. As a matter of law, uncorroborated personal testimony is capable of proving a fact on the balance of probabilities; see, e.g., Phipson on Evidence (20^th ed.) § 14-01. A report of the WCS Oversight Board in May 2022 made the following comments about evidence:

The Claimant submits that the reasons communicated to her by the letters of 8 March and 13 April 2021 indicate that the new § D9(a)(iv) gateway was not considered at all. Alternatively, they at least gave rise to “genuine doubt” about that CPRE Kent § 42). In any event, the reasons given did not explain why the decision-makers considered the Claimant’s direct evidence about what employers had told her – that that she could not be considered for employment because of her immigration status – was insufficient to establish her entitlement.

In the present case, the essence of the reason given in the 13 April 2021 letter for the decision as regards employment – one of several heads of claim addressed in the letter – was that the information provided was insufficient to enable the reviewer to conclude that the Claimant’s employment had been affected by inability to demonstrate lawful status prior to 1997. In addition, the point was made that the Claimant had been able to travel to and from the UK prior to 1997, and to satisfy the immigration officer that an ILE stamp should be endorsed in her passport in February 1997. It should be borne in mind that caseworkers and reviewers in cases of this kind will often have to form a general view, in cases often involving little documentation, based on a mixture of factors including the extent to which any documentation is available, the inherent probabilities, the decision-maker’s experience of the nature and quality of evidence put forward in other cases, and the light that that sheds on the reliability of the evidence put forward in the case in hand. It is not to be expected that the decision-maker will necessarily be able to conclude that he/she simply disbelieves the claimant’s evidence, or to identify reasons for doing so, in the way that a judge would following a trial: in practice, it seems more likely that the decision will result from an overall judgment as to the whether the materials put forward allow the decision-maker to conclude that the criterion has been met, on the balance of probabilities. As the House of Lords stated in South Bucks DC at § 36D, reasons can be briefly stated, the degree of particularity required depending on the nature of the issues falling for decision. Viewed in the light of the considerations I summarise above, I consider that the letter of 13 April 2021 did state why the decision-maker had found this claim not to have been established.

Further, I do not agree that the 13 April 2021 letter gave rise to genuine doubt about whether the reviewer had considered § D9(a)(iv) at all. The summary it gave of the evidence presented made clear that the issue was whether attempts to obtain a job (as opposed to dismissal from a job or rescission of a job offer) had been hampered by inability to prove immigration status, and concluded that the information provided did not establish this.

In any event, even if inadequate reasons were given, it would be necessary to consider whether the Claimant could satisfy the court that she has genuinely been substantially prejudiced by that failure (South Bucks DC at § 36F-G). The Claimant submits that she lost the chance of an effective 2^nd tier review by the Adjudicator, and has incurred additional costs. Even if, as appears from the Adjudicator’s decision (“We saw, from their papers, that the Home Office concluded …”), the Adjudicator had access to the internal minutes of the Caseworker Decision and the Review Decision, it appears those minutes were not provided to the Claimant until after the present claim was brought. On the other hand, it is unclear what particular points the Claimant could and would have made, had the 13 April 2021 letter given fuller reasoning. There is no indication there is any further evidence that the Claimant could have been able to put forward. Insofar as the Claimant might have wished to object to the point made about her being able to travel prior to 1997 and persuade an immigration officer of her right to enter (or to any inference that might have been drawn about what, if any, light that shed on her ability to obtain employment) the information set out in the letter enabled the Claimant to do so.

In the circumstances, I am not persuaded that the reasons given in the 13 April 2021 letter were inadequate in law, or, in any event, that the Claimant was substantially prejudiced as a result.

The Claimant also submits that the SSHD’s conclusion lacked a rational basis.

The Claimant makes the point, first, that the reference in the minute of the Review Decision to right to work checks being introduced only in 2006 was unfounded. Although certain criminal offences were introduced in 2006, it had still been unlawful previously to work in the UK without leave to remain or other permission (see section 1(2) of the Immigration Act 1971). The whole point of the WCS was that inability to prove status led to disadvantage, and if the employment provisions of the scheme were intended to bite only from 2006, then the scheme would have said so.

I agree that the decision-maker could not properly have rejected a claim on the basis that no employment disadvantage could have occurred before 2006. Nonetheless, the fact that right to work checks were not required before 2006, and (it may reasonably be inferred) were less likely to be widespread before then, is a factor that could properly be taken into account when assessing the Claimant’s evidence as a whole.

The Claimant also refers to certain statements made in the SSHD’s Detailed Grounds of Defence. Paragraph 21 said:

The Claimant submits that (a) there is no indication that the latter point formed any part of the decision-makers’ reasoning (thus it should be treated with caution: see, e.g., Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) § 78), and (b) even if it did form part of the reasoning, it would not justify the conclusion reached. A decision maker could rationally have concluded that it could not be assumed that refusals of employment before 1997 were caused by the lack of proof of lawful status. However, the Claimant’s case did not rest on an assumption: it was her and her son’s direct evidence that she was told in terms by prospective employers that she could not be considered for employment because she could not prove her lawful status.

Further, the Claimant submits, the decision-makers did not question the accuracy of that evidence. The Claimant refers, directly or indirectly, to the following statements in the SSHD’s Detailed Grounds (and similar statements in the SSHD’s Summary Grounds):

The Claimant submits that these passages indicate that the decision-maker accepted the Claimant’s evidence. Since that evidence included the point that employers told her she could not be employed because she could not prove her right to work in the UK, it follows that she had established ‘causation’ i.e. that the reason she could not get work was inability to prove immigration status. Accordingly there was no rational basis on which to reject her claim.

In my view, some of these passages in the SSHD’s Grounds (partly reflected also in her skeleton argument) are somewhat confused and do not accurately reflect the contents of the Review Decision. In particular, the statements in §37 to the effect that “even accepting” the Claimant’s evidence she had not established that any inability to prove lawful status was the reason why she was unable to access employment, and that the decision-maker did not need to decide whether they ‘accepted’ the evidence because it made no difference, are in my view incorrect. The paragraphs from the minute of the Review Decision quoted in § 48 above show that the reviewer understood very clearly that according to the Claimant’s evidence, she had been unable to obtain employment by reason of her inability to prove her right to work in the UK. Equally, it is clear from the reasoning set out in the minute, which I quote/summarise in §§ 49 and 51 above, that the reviewer did not accept that aspect of the Claimant’s evidence. As the last sentence of § 42 of the Detailed Grounds puts it, the Claimant’s evidence was evaluated alongside all other evidence and a conclusion reached for the reasons given. In my view, there was no failure lawfully to assess her evidence and no flaw in the reviewer’s reasoning.

Finally, the Claimant submits that insofar as the review decision took into account her ability to travel and prove her immigration status to immigration officers up to and including the date when the ILE stamp was put into her Indian passport, it was not probative of her ability to prove status to an employer and was an irrelevant consideration. In my view that overstates the position. Ability to satisfy immigration officers of immigration was not directly probative of the position with employers, but it was a factor that could properly be taken into account, alongside other factors, as having some indicative value. It formed part of an overall picture in which there was positive evidence that lack of provable status had not in fact hampered the Claimant’s ability to come and go freely to/from the UK, and an absence of corroboration for the Claimant’s and her son’s evidence about the many times on which she claimed to have applied for jobs yet been rejected due to lack of provable status.

GROUND 3: ACCESS TO BENEFITS WITHIN ANNEX E

The Claimant applied for a tariff award for denial of welfare benefits, under Annex E to the Scheme. The claimed tariff award is worth a maximum of £4,864 (£1,264 for child benefit; £2,500 for child tax credits; and £1,100 for working tax credits). The Scheme does not compensate the value of benefits lost: instead, the Secretary of State refers claim for backdated benefits to the Department of Work and Pensions or HMRC to be addressed under their rules for back-payments. However, the Scheme compensates for “loss of access” to child benefit, child tax credit and working tax credit through a fixed award.

The Claimant’s evidence is that she asked to claim benefits at job centres but, when she showed her Indian passport, she was told that she was not eligible for benefits. She says in her application form:

The Claimant did not provide any documentary evidence of any applications for benefit or any rejections. However, her and Mr Boparai’s letter of 29 December 2019 said that the Claimant repeatedly applied for benefits at two named benefit offices in Birmingham, and was repeatedly told, when she presented her Indian passport for identification purposes, that she did not qualify as she could not prove her lawful immigration status.

Paragraph E1 of the WCS provides:

The Claimant’s claim was refused on the basis that she had not made an application for benefits, nor had such an application been refused, so as to fall within § E1.

On the present judicial review application, the Claimant makes the following points:

I do not accept those submissions. An individual normally has to make a claim in order to become entitled to a social security benefit (Social Security Administration Act 1992, section 1), and it is a matter of common knowledge that almost any state benefit claim requires a form of some kind to be completed. The natural meaning of “applied for” and “that application was refused” in § E1 of the WCS is that the individual has in fact submitted a claim for child benefit, child tax credit or working tax credit, using whatever form of application was required at the time. It is not necessary for the Scheme to specify that the application was made in writing, because that is already inherent in the concept of applying for a state benefit.

It may be possible for an award to be made under Annex D in respect of an oral application for employment. However, that is because such an application can be made orally: something which is not true of applications for benefits. It does not make it a general feature of the Scheme as a whole that claims can be founded on applications that were made orally.

The general purpose of the Scheme is to compensate for demonstrable losses, whilst seeking to ensure that public funds are not paid out unless the basis of claim has been sufficiently demonstrated. For example, by requiring an application to have been made for a benefit, the Scheme enables a check to be made with the relevant benefits agency as to whether an application was made. It will then also be more likely to be possible to establish why the application failed, i.e. whether it was due to inability to prove immigration status. There is a different of substance between a person who has made an actual application for benefits and a person who claims merely to have been discouraged from doing so or told that any application would fail.

The extent to which the Home Office accepted the advice which Mr Forde KC says he gave, to the effect that the Scheme should “cover situations that were not documented”, is to be judged by interpreting the Scheme in the ordinary way, taking account of its terms as a whole, in the context of its overall purpose. The Scheme can apply to cases where documentary evidence cannot be found; indeed, one example of such a case 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 does not follow that no claim can properly fail (a) for lack of documentary support where it could reasonably be expected to exist, or (b) where the Scheme by its terms, properly construed, requires an event to have happened that will by its nature have involved a document having been created (here, an application for benefits).

For these reasons, Ground 3 does not succeed.

GROUND 5: ACCESS TO BENEFITS WITHIN ANNEX I

The Claimant submits that if her claim for loss of access to benefits does not fall within Annex E, then a discretionary award should be made under Annex I in respect of the same matters.

Annex I § 1 states:

The Claimant submits that if her inability to access benefits, as a result of being told by the benefits office that she could not claim benefits because she had an Indian passport, did not fall within the scope of Annex E, it falls within Annex I. Specifically, she submits that it is not a loss “of a kind provided for in Annex E” within § I1(c).

Applying the principles for interpreting policies set out earlier, the Claimant argues that the natural meaning of those words is that a claim for financial loss under Annex I is precluded only if the loss is capable in principle of being claimed under Annex E. In other words, an individual who cannot evidence a loss that (if evidenced) would be covered by Annex E cannot side-step that evidential deficiency by relying on Annex I. Nor can an award whose amount is restricted under another Annex be topped up by an award under Annex I. In that sense, the Claimant accepts that Annex I does not cover ‘near misses’ under other Annexes.

However, the Claimant submits, a loss that in principle falls outside Annex E – here, because the Claimant made no actual application for benefits – can fall within Annex I. She draws attention to the fact that § I1(d) also uses the words “of a kind” in stating that the impact, loss or detriment must not be “of a kind excluded from consideration under paragraph 3.15 of the Scheme”. Paragraph 3.15 states:

The Claimant also notes that the SSHD’s caseworker guidance expresses the § I1(c) criterion in this way:

The Claimant adds that if the Scheme were read so that some demonstrable financial losses caused by a Windrush victim’s inability to prove status are incapable of falling within either (i) Annexes B-H or (ii) Annex I, then the Scheme would fail to compensate victims for some, proven financial losses resulting from the Windrush injustice. That would be fundamentally contrary to the purpose of the Scheme, which is to compensate all identifiable financial losses. Read in light of the overarching purpose of the Scheme, the obvious purpose of Annex I is to pick up any financial losses that cannot in principle be claimed under Annex B-H.

The Claimant cites a hypothetical example where the contents of a letter from the Home Office wrongly led a potential Windrush claimant to believe they that were not entitled to remain in the UK or to claim benefits, with the result that they never visited the benefits office at all. She also points out that the SSHD’s approach could appear to mean that benefits other than those covered by Annex E (child benefit, child tax credit and working tax) might be recoverable, in substance, under Annex I yet claims for those three benefits that did not meet the Annex E criteria would not be.

I am unable to accept those submissions. In my view, the operation of § I1(c) is fairly simple. Annexes B, C, D, E, F, G and H are respectively headed “Immigration fees and legal costs in respect of immigration applications”, “Detention, deportation, removal and return”, “Loss of access to employment”, “Loss of access to child benefit, child tax credit or working tax credit”, “Denial of Access to Services” (with subheadings covering housing, health, education, banking), “Homelessness” and “Impact on Life” (covering specified non-financial impacts). § I1(c) makes clear that Annexes B to H set out an exhaustive regime for the categories of loss or harm within their scope: thus, for example, Annex B sets comprehensively the circumstances in which an award can be made in respect of immigration fees and legal costs in respect of immigration applications. Equally, Annex E comprehensively the circumstances in which an award can be made in respect of loss of access to child benefit, child tax credit or working tax credit. An award cannot 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 has been made (successfully or unsuccessfully) for such loss under Annex E.

I consider that to be the natural meaning of § I1(c). Further, it does not in principle involved giving the words “of a kind” a different meaning in §§ I1(c) and (d), though the overall manner of operation of those two clauses is different. Paragraph I1(d) in substance incorporates by cross-reference a provision (§ 3.15) which itself comprises a series of exclusions, so the words “of a kind” simply denote types of loss falling within the scope of that exclusion. Paragraph I1(c), on the other hand, excludes losses of a kind set out in Annexes B-H, which are provisions that confer entitlements. The words “of a kind” in § I1(c) reflect the fact that the paragraph is not designed simply to exclude losses that have 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 aims to exclude losses falling in the categories to which those Annexes are directed and for which those Annexes provide the applicable criteria.

Further, I do not accept the suggestion that this results in the Scheme failing, contrary to its intended purpose, to compensate for some types of proven loss. Rather, the Scheme sets out, category by category, detailed criteria for use in assessing which alleged losses in each category will and will not be met. It is in that sense inherent in the Scheme that some types of loss may fall outside the criteria and hence the Scheme. On the Claimant’s approach, Annex I would tend to obliterate many of the dividing lines deliberately drawn in the preceding Annexes.

Finally, I do not consider that the hypothetical example referred to in § 96 (1^st sentence) above requires the analysis to be altered. I agree with the SSHD that it is best viewed as a potential ‘hard case’ for which other remedies might be available but which does not justify interpreting the Scheme in a way that would, in my view, depart from its natural and obviously intended meaning.

GROUND 4: DISCRIMINATION IN RELATION TO BENEFITS

The Claimant submits that if Annex E applies only to cases where there was a (written) application for benefits, and losses arising from “unwritten applications for welfare benefits” (as she puts it) fall outside Annex I, then the WPS unlawfully discriminated against her on the grounds of “other status” within Article 14 of the European Convention on Human Rights:

In approaching such a question it is necessary to consider:

The focus in the present case is on elements (iii) (‘other status’) and (iv) (justification).

An “other status” must be “a personal or identifiable characteristic” (Clift v UK, App. No. 7205/07 § 60, cited in Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250 § 22). The Claimant relies on a series of statements about the breadth of the concept:

The Claimant also cites examples of ‘other status’ being construed broadly in benefit-related cases:

In R (SC) v Secretary of State for Work and Pensions (cited above), a 7-person Supreme Court held not to be discriminatory a new rule providing that a new claim for child tax credit for a child born on or after 6 April 2017 would in general not be met if the family was already receiving child tax credit for two or more children. One of the issues was whether being a child with two or more siblings constituted a relevant characteristic or status for the purposes of article 14. The High Court had stated that a relevant characteristic or status had to have an existence separately from the difference in treatment: otherwise, the requirement of a relevant status would cease to be distinct from the existence of a difference in treatment (§ 67). The Court of Appeal and Supreme Court in substance agreed on that point, finding that the words from “on any ground” to the end of Article 14 were intended to add something to the requirement of discrimination. Thus status could not be defined solely by the difference in treatment complained of: it must be possible to identify a ground for the difference in treatment in terms of a characteristic that is not merely a description of the difference in treatment itself. On the other hand, the court said, there is no reason to impose a requirement that the status should exist independently in the sense of having social or legal importance for other purposes or in other contexts than the difference in treatment complained of. Being a child member of a household containing more than two children could be regarded as an individual characteristic or status for Article 14 purposes (§§ 69-70). The Supreme Court went on to say at § 71:

In R (T) v Secretary of State for Work and Pensions [2022] EWHC 351 (Admin), Swift J, following SC, held that being a person in receipt of ‘legacy’ benefits – the predecessors to Universal Credit – as opposed to being in receipt of Universal Credit was not an Article 14 ‘other status’ because there was no meaningful difference between the status relied on and the difference of treatment (which Swift J characterised as “the failure to raise the amount paid as a personal allowance to persons in receipt of a legacy benefit” (§ 24)).

The distinction between cases where a person’s putative status can or cannot be said to be defined solely by reason to the difference of treatment itself is not easy to apply. I was taken to § 17(iv) of Stott, where Lady Black expressed some difficulty in following parts of the judgments in Clift v SSHD [2007] 1 AC 484 where the distinction was set forth, as well as §§ 26, 33 and 72-75 of Stott noting the Strasbourg court’s rejection in Clift v UK of the notion that an ‘other status’ cannot be defined by reference to the differential treatment of which complaint is made. Lady Black observed at § 74 of Stott that even if the distinction is correct in principle, it is difficult to see what it really means.

It is to be expected that when a rule is alleged to be discriminatory, there will be (a) a difference of treatment arising from the rule and (b) a fact or factor that, under the terms of the rule, leads to that difference of outcome. In one case, fact (b) might be something that obviously amounts to a personal characteristic, such as nationality or one of the other characteristics specifically listed in Article 14. In another case, it might be something much further away from a personal characteristic, such as having crossed a local authority boundary (TP) or having applied for a benefit after rather than before a particular date (Stevenson). In both types of case, though, (a) the difference of treatment and (b) the factual difference giving rise to it, would appear to be conceptually different things. In that sense it is difficult to discern in what circumstances an alleged status can be said to be defined solely by reference to the difference of treatment: other than, perhaps, by an elision of the two concepts that, taken to its logical conclusion, would rule out Article 14 status in any case. Further, the rule under challenge may make explicit reference to the alleged ‘status’, whether it be nationality/marital status at one end of the spectrum or movement between local authority areas/date of benefit application at the other end. It does not follow, though, that the alleged status is in some way ‘indistinguishable’ from the difference of treatment for which the rule provides. In each case, the difference of treatment arises by reason of the factual difference. The more pertinent question would appear to be what types of factual difference are to be regarded as constituting a ‘status’.

However, once one dispenses with the idea that the factual difference needs to have any separate social or legal importance in itself, it becomes increasingly difficult to see any workable basis on which the concept of an ‘other status’ can be demarcated. If moving from one local authority area to another, or applying for a benefit before/after a certain date, can constitute an ‘other status’, then it is not easy to see why having made an oral ‘application’ for a benefit rather than a written one should be regarded any differently.

Thus, on the current state of the law, with the concept of ‘other status’ having progressively moved far away from the core concept of personal characteristics (as reflected in the characteristics specifically listed in Article 14), I do not consider it possible to conclude here that the difference of treatment in the present case did not occur by reason of an ‘other status’ within Article 14.

It is therefore appropriate to move on to the question of justification.

For a difference in treatment to be justified, it must satisfy the criteria summarised in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39:

The state generally enjoys a broad margin of appreciation, making a low intensity of review appropriate, in matters of general social policy where there is no difference of treatment on ‘suspect’ grounds (gender, nationality and so on): see, e.g., the discussion in SC at §§ 115, 129, 142 and culminating at §§ 158-161:

The court in SC also made the following observations, relevant to cases such as the present one where a discrimination challenge is made to rules that do not provide for differential treatment on ‘suspect’ grounds:

The SSHD bears the legal and evidential burden of demonstrating that the criteria are satisfied (see, e.g., R (JP & BS) v Secretary of State for the Home Department [2020] 1 WLR 918 § 152).

In In re Brewster [2017] 1 WLR 519 §§ 50-52 and 64-65, the Supreme Court stated that where a measure is sought to be defended on grounds that were not present to the mind of the decision-maker at the time the decision was made, greater scrutiny is appropriate, though even retrospective judgments if made within the decision-maker’s sphere of expertise are worthy of respect provided they are made bona fide.

The Claimant submits that:

I do not accept those submissions.

The WCS is a measure of general social policy, and the challenged rule does not treat people differently based on ‘suspect’ grounds. A broad margin of appreciation applies. The scheme aims to provide compensation where merited, whilst seeking to ensure that public money are distributed only where the claimant has actually suffered loss due to an inability to demonstrate immigration status. Confining paragraph E to cases where a benefit has been applied for, which in effect means that a written application has been made, provides a workable method of differentiating consistently between cases. It is usually possible to verify whether an actual application has been made and why it was refused, by reference to documentary records. If no application has been made, it is likely to be very difficult, if not impossible, to verify the reasons why no application has been made (e.g. whether there was because of oral discouragement and, if so, by whom and when and what precisely they said) and what would have happened if an application had been made.

It is true that some similar problems can arise in employment cases, but those do not provide a true parallel. Unlike State benefits, jobs can be applied for orally, so a rule limiting Annex D to cases where a written application for employment was made would be different in kind and more far-reaching than the rule limiting Annex E to cases where a benefits application was made. In addition, in employment cases different types of evidence might be available (e.g. evidence from the prospective employers themselves) that would not be available in benefits cases.

The SSHD does not, in my view, need to establish that assessing evidence other than that arising from written applications is impractical. Rather, it is sufficient to say that a rule which limits Annex E claims to cases where a benefit application has actually been made is (a) logically coherent in itself (b) liable to improve the prospects of a reliable assessment as to whether loss has in fact occurred and has in fact been caused by inability to prove immigration status.

The evidence from Mr Forde KC, even if admissible, would not establish that a mistake had been made in the drafting of the Scheme. The ultimate decision-maker as to the terms of the Scheme was the SSHD rather than Mr Forde KC.

As to evidence, the remarks quoted above from SC § 162 are relevant here. It is not to be expected that a decision-maker will be able to provide evidence of a deliberate policy choice in relation to each and every dividing line drawn in regulations, any of which might be subject to challenge at some stage. The position would be different if the challenged rule treated people differently on a ‘suspect’ ground, such that weighty reasons would be required in order to justify the rule. Such grounds (marital status) were in play in Brewster and Langford; and JP concerned fundamental rights (the challenge was to a practice of deferring decisions on whether to grant leave pursuant to Article 14 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005, and hence the support required to be given to victims of human trafficking). By contrast, in cases such as the present one, the decision-maker is in my view entitled to justify a rule, if necessary, by reference to arguments of principle of the kind the SSHD advances here.

I therefore consider that the SSHD was entitled to formulate Annex E in terms limited to losses arising from actual applications for benefit. The rule serves the objective of focussing compensation (paid from public money) on cases where a demonstrable and verifiable loss has occurred; it is rationally connected with that objective; no less intrusive measure could be said to satisfy the objective without unacceptably compromising it; and the importance of the objective justifies such effects as it has on the rights of would-be claimants

I therefore consider that the difference of treatment was justified, and do not uphold the challenge based on discrimination.

GROUND 6: LEVEL OF IMPACT ON LIFE WITHIN ANNEX H

Annex H, ‘Impact on Life’ provides for compensation for non-financial impacts of a claimant having been unable to demonstrate their lawful status. If the caseworker is satisfied that there has been at least a marked detriment, he or she must identify the appropriate tariff sum by reference to the severity of the adverse impact.

Level 3 is defined as follows:

Level 4 is defined as follows:

In the decision letter dated 8 March 2021, the caseworker described the Claimant’s account, recording inter alia:

The decision of 8 March 2021 stated:

The review decision letter dated 13 April 2021 stated:

The Claimant submits:

I am unable to accept these submissions. I would not accept the Claimant’s premise that the decision-makers necessarily accepted her account of events in full and without reservation. The decision-makers’ task was to look at the available information (including topics where supporting evidence might be sparse or non-existent) and form a view on where they could, with an adequate degree of confidence, place the case within the various categories. Realistically, the decision-maker would rarely (if ever) be in a position positively to rebut a claimant’s assertion that he or she had (for example) been forced to live in poverty for decades by reason of lack of funds due to inability to prove immigration status. However, when considering an award for Impact on Life (especially having already made adverse decisions on the specific topics of loss of access to employment and loss of access to benefits), the decision-maker was in my view entitled to form a broad view about what conclusions could reliably be drawn about impact in general. Having done so, the decision-maker could reasonably be expected to give brief reasons of the kind given here, but was not in my view obliged to go further. Nor has any particular prejudice been shown in the present case as a result of the brevity of the reasons provided. The Impact on Life award here was in my judgment not irrational nor otherwise unlawful.

CONCLUSION

The Claimant’s claims must therefore be dismissed.

I am grateful to all counsel for their helpful written and oral submissions.