K & Anor, R (on the application of) v Secretary of State for the Home Department

A public authority cannot reduce support owed to potential victims of trafficking by disguising a policy change as correction of a contractual mistake. Where a contract provides a specified subsistence sum, its plain meaning governs unless powerful contemporaneous evidence establishes a different common intention. A unilateral variation is unlawful if it exceeds the contractual power, is irrational or procedurally unfair. Under the Trafficking Directive, subsistence is not confined to the minimum needed to avoid destitution; support must reflect the victim’s need to recover and escape exploitation. Article 14 ECHR requires objective justification for status-based discrimination within the ambit of another Convention right, assessed by proportionality and the manifestly without reasonable foundation standard. The public sector equality duty also requires due regard to the statutory equality aims.

The claimants had been recognised as potential victims under the National Referral Mechanism and were receiving £65 weekly under the Adult Victim of Modern Slavery Contract. They also received asylum support of £37.75, which was credited against the contractual sum, leaving a £27.25 top-up. The Home Secretary introduced a Contract Change Notice from 1 March 2018, reducing their overall support to £37.75. The claim challenged the change on contractual, public-law, trafficking-directive, Convention and equality-duty grounds. The central issues were whether the contract contained a mistake permitting correction, whether the variation was rational and procedurally lawful, what level of subsistence the Trafficking Directive required, and whether the reduction was justified discrimination.

The claim succeeded. The Contract Change Notice taking effect on 1 March 2018 was quashed. The decision to reduce support from £65 to £37.75 per week was declared unlawful.

1. Contract and public law. The plain terms of the contract entitled self-catering trafficking victims receiving asylum support to £65 less the asylum payment. With asylum support of £37.75, the contractual top-up was £27.25. There was no contemporaneous evidence of a common mistake. The Home Office had imposed the change unilaterally, although the contract permitted unilateral variation only in an emergency and the contractual procedure had not been followed. The decision was therefore based on a false premise, irrational and perverse, procedurally unfair, and outside the contractual variation power.
2. Statutory guidance. Section 49(1) of the Modern Slavery Act 2015 imposed an immediate duty to issue guidance concerning the identification and support of victims. The failure to issue it for more than three years was unacceptable.
3. Trafficking support. The Trafficking Directive required a standard of living enabling victims to provide for their needs. Read with its recital and contrasted with the Reception Directive, subsistence meant more than the minimum sum needed to avoid destitution. The court respectfully disagreed with the approach in R(ZV) v SSHD [2018] EWHC 2725 (Admin) that the Directive prescribed only modest support as a maximum or normative level.
4. Human rights. An alleged failure to give effect to the Convention on Action against Trafficking was justiciable: R (on the application of PK (Ghana)) v The Secretary of State for the Home Department [2018] EWCA Civ 98. Article 4 ECHR carried positive obligations to provide appropriate support and assistance, and Article 1 of Protocol 1 was engaged by the abatement of the claimants’ pecuniary entitlement. The discrimination was not objectively justified under the proportionality test and was manifestly without reasonable foundation.
5. Equality duty and orders. The Home Secretary failed to comply with section 149(1) of the Equality Act 2010. The claimants were each awarded £981, and affected persons were entitled to repayment at £27.25 per week for the relevant period. The later contract change was to be rescinded or modified, and costs orders were made against the defendant.