High Court finds government’s reduced financial support for victims of modern slavery unlawful

In PM, R (On the Application Of) v Secretary of State for the Home Department [2023] EWHC 1551 (Admin) the claimant challenged the Secretary of State’s cessation, on 6 July 2020, of support payments (‘trafficking support’) to victims or potential victims of modern slavery in ‘initial’ full-board asylum-seekers’ accommodation (‘the cessation decision’). By her amended claim, she also challenged the re-instatement of financial support on 28 August 2020 at a significantly lower level.

The High Court found -

I conclude that during the period 13 May 2020 to 27 August 2020 the Secretary of State unlawfully failed to make payments of £65 per week to the claimant, as a victim of modern slavery supported under s.98 of the IAA, pursuant to the Guidance. The claimant received £35 per week (recovery support payment) and £5 per week (cash payment towards essential living needs) during that period, and so she was underpaid £25 per week. (paragraph 130)

I agree with the claimant that the Secretary of State unreasonably failed to take any adequate steps to acquaint herself with information relevant to her decision to cut trafficking support. The decision that it was unnecessary to consult, or to make further inquiry, was based on a flawed conception of the nature of the decision.

First, on proper analysis, the decision was to reduce the amount victims had been receiving, and were entitled to receive, in trafficking support. There is no evidence, and no sign in the version of the Ministerial Submission provided to the court, of any recognition that the proposal was a reduction of support. Instead, the Ministerial Submission refers to a gap in support which the introduction of the proposed payment is intended to fill.

Secondly, victims in initial accommodation had been receiving £35 per week. The only reason they were not still receiving that sum was due to the unlawful cessation decision a few weeks earlier. There is no recognition in the Ministerial Submission that what was proposed was a very substantial reduction in support, even taking the figure victims had in fact been receiving prior to the cessation decision, rather than their considerably higher entitlement under the Guidance.

Thirdly, the decision that it was unnecessary to consult was in part based on the interim nature of the guidance. However, although it was introduced at a time when the Secretary of State was undertaking the review, and so intended to publish a further version of the guidance once that review was complete, the decision was not interim in a sense that was of any relevance in deciding whether it was necessary to consult or undertake further inquiry. The reduction of trafficking support for all those victims in initial accommodation who were in receipt of it during the years that the Amended Guidance was in force was not provisional on any decision to be taken following the review. I agree with the claimant that the Secretary of State’s intention to review her policy could not rationally justify a premature decision, taken without consultation or adequate inquiry, to reduce trafficking support substantially prior to the outcome of that review.

Fourthly, the decision that it was unnecessary to consult was also based, in part, on the fallacy that the decision to reduce the trafficking support for this cohort to £25.40 per week involved no change of policy, amounting to no more than a clarification or correction of an error in the Guidance. It cannot be said that it had ever been the Secretary of State’s policy to pay that rate to victims in initial accommodation. She had never done so. Her argument in JB(Ghana) was that her policy, on a proper understanding of the Guidance, was to pay victims in initial accommodation £35 per week, in line with the entitlement of those in catered VCC accommodation, and with the payments she had in fact made. There was a flaw (or flaws) in the design of the Guidance which led to anomalies in the amount of trafficking support paid to distinct groups of victims. But it was not obvious from the Guidance what the substance of the policy would have been if its design had been properly thought through: see JB (Ghana) at [71]. Consequently, the decision to accept the recommendation in the Ministerial Submission and to publish the Amended Guidance self-evidently involved a choice and the adoption of a new policy.

Fifthly, the premise in the Ministerial Submission that there was a “gap” in the Guidance, leaving the cohort of victims in initial accommodation without any trafficking support, and so creating an urgent situation, was misguided. There was no gap: they had an entitlement to support in accordance with the Guidance. The only reason they were not receiving any trafficking support was because of the unlawful cessation decision. The urgent problem could have been remedied by withdrawing the cessation decision. (paragraphs 162 to 167)