What my investigation found – ‘Findings of fact’

What follows are a number of factual findings I have made, based on evidence; the facts; and inferences arising from those facts which I have identified during my investigation. I have used these ‘findings of fact’ as the basis for my findings of maladministration against the MoD and the Agency, and the resultant injustice to Mr A and his siblings that has flowed from that maladministration.

General findings of fact

Basis for the decision of the court

My first general finding of fact is that the basis for the courts’ judgments in the Elias litigation was:

• that Mrs Elias had been subject to unlawful indirect race discrimination because the ‘bloodlink’ criterion was applied to her original claim for compensation;
• that Mrs Elias had suffered a detriment because of that discrimination. The form of that detriment was that she did not receive a payment under the original scheme and that her feelings had been injured by the discrimination she had suffered;
• that damages were due to Mrs Elias for injury to feelings whether or not she would have received a payment under the original scheme had no discrimination occurred in her case; and
• that the calculation of the amount of damages due to Mrs Elias was undertaken on the assumption that she would not have received a payment under the original scheme even absent the unlawful discrimination which had occurred in her case.

Both the High Court and the county court, in their consideration of what detriment Mrs Elias had suffered, focused on the fact that she had not received the £10,000 compensation under the original scheme. In paragraph 57 of its judgment, the High Court found that: ‘It is plain that Mrs Elias has suffered a detriment by not receiving the compensation’. This view – that not receiving the compensation constituted a detriment – was not appealed or otherwise challenged subsequently. When assessing whether damages for injury to her feelings should be paid to Mrs Elias, the county court found that such damages were due – a finding which was upheld on appeal.

The Court of Appeal, however, focused on the detriment Mrs Elias suffered in the form of injured feelings. In the words of Lord Justice Mummery, in paragraphs 241 and 242 of the Court of Appeal judgment:

‘I would not have placed much reliance on what the position would have been, if the compensation scheme did not contain the discriminatory birth link criteria and Mrs Elias had not suffered race discrimination … In my judgment, what would have happened if the birth link criteria had not been introduced and the fact that the [Ombudsman] has found maladministration is of little or no relevance to the assessment of compensation for injury to feelings. What matters is the injury to feelings which Mrs Elias undoubtedly suffered as a result of the indirect racial discrimination which did in fact occur and how that should be quantified.’ (My emphasis)

Whatever the differences between the courts on the detriment that Mrs Elias suffered, they shared the judgment that, absent discrimination, Mrs Elias would not have received the £10,000 payment under the original scheme.¹⁷

The county court judge proceeded on this basis, which informed the level of the award made. As the judge said (in paragraph 5 of his judgment):

‘It is therefore probable that if the unlawful element had not been included in the scheme some other scheme would have been put in place which would still have excluded Mrs Elias … So, on balance, she would not have received the payment in any case.’

The county court judge then set out the factors which he considered led to his making an award towards the lower end of the accepted scale of payments for injury to feelings caused by unlawful discrimination. The first of these considerations was that:

‘once it is accepted that [Mrs Elias] probably would not have received payment in any event, the hurt which she undoubtedly felt is a hurt she would have experienced anyhow.’ (My emphasis)

The High Court took the same view, although it did not prejudge the issue of whether Mrs Elias would be eligible under a scheme revised to remove the unlawful discriminatory criterion. Mr Justice Elias said in paragraph 90 of his judgment:

‘… this may, I fear, prove to be a pyrrhic victory for Mrs Elias, since it does not of course follow that any other unlawful criteria which could be adopted would bring her within the fold. Indeed, if the government continues to choose to require the close link to be established at the time of internment and to ignore links established with the United Kingdom since that time, it is difficult to see how she would be likely to qualify whatever criteria are adopted, unless it is that all those interned because they were British subjects should be compensated after all.’

The basis on which the courts determined that Mrs Elias was entitled to compensation for injury to feelings was therefore unrelated to whether she would have received a payment under the original scheme, absent the discrimination which had caused that injury.

The injury to feelings scheme

My second general finding of fact is that the Minister for Veterans, Derek Twigg, decided to develop an administrative scheme to make payments to people in the same position as Mrs Elias, that is, people whose feelings had been injured by the application of the unlawful ‘bloodlink’ criterion. (Annex B, B83 – 26 January 2007 statement by the Parliamentary Under-Secretary of State for Defence and Minister for Veterans.)

The Minister took the decision to develop a compensation scheme rather than to seek to defend in the courts further legal claims made on an individual basis by each person claiming to have been discriminated against.

My third general finding of fact is that the Minister’s statement to Parliament on 26 January 2007 said that eligibility for the injury to feelings compensation scheme would be based on the individual having had a claim to the original scheme rejected due to the ‘bloodlink’ criterion, and the individual being of non-UK national origins. The Minister did not announce any other criteria for the injury to feelings scheme.

My fourth general finding of fact is that the MoD’s internal guidance to staff on the implementation of the injury to feelings scheme was inconsistent, unclear and misleading and it did not accord with the Minister’s stated intention.

As I have outlined in my third general finding of fact, the Minister’s statement to Parliament on 26 January 2007 was clear – that the injury to feelings payment was to be made on the basis of the Elias judgment. There were no riders or caveats in this statement. However, in practice, the MoD staff reviewing applications to the scheme also required applicants to have been eligible for the original scheme but for the ‘bloodlink’ criterion. The actions of MoD staff were neither consistent with the Elias judgment, nor in-line with the Minister’s statement. The guidance that the MoD issued to staff implementing the injury to feelings scheme stated that:

‘To qualify for compensation, the claimant must also meet the other requirements of the scheme (i.e. that they were a British subject at the time of internment and that they were held in a specially designated camp controlled by the Japanese).’ (My emphasis)

This criterion – which was additional to those of having had a claim rejected on birthlink grounds and being of non-UK national origin – was additional to those announced by the Minister and, in effect, thwarted the Minister’s intention.

The guidance also contained some worked examples to help staff identify people who would qualify for the compensation, using hypothetical family trees to illustrate the national origins of potential applicants.¹⁸ At least one of these examples appears to be at odds with the rest of the guidance.

The first example depicts a hypothetical claimant born in China, whose father had also been born in China and whose mother had been born in Russia. The paternal grandfather had been born in China, the paternal grandmother was possibly born in the UK, and both maternal grandparents were born in Russia. The document states that:

‘the claimant would qualify for payment of compensation on the basis of ancestors’ birth alone. The birthplace history on the maternal side gives a clear part-Russian national origin.’

The claimant in this example could not have been a British subject, and would not have fulfilled the requirements of the original scheme, but for the introduction of the ‘bloodlink’ criterion. No part of China or Russia was a British colony, although parts of China were under British influence or protection. The claimant, his father and paternal grandfather were all said to have been born in places that would not have qualified them or their children for British subject status at the relevant time. This claimant would – had the MoD followed the Minister’s statement – have been entitled to compensation, but that was not consistent with what the MoD said elsewhere in their guidance. This is clear evidence that the MoD was in a complete muddle about the criteria to be applied.

Three other examples of hypothetical cases were given in this document. In all four of the examples, the guiding criterion used in determining whether the claim would succeed for an injury to feelings payment – assuming that their claim had been rejected due to the ‘bloodlink’ criterion – was whether the claimant was of non-UK national origins in whole or in part. These examples were, therefore, consistent with the Minister’s announcement but not with other elements of the MoD’s internal guidance.

Another example of the confused approach within the MoD as regards eligibility for an injury to feelings payment is found in Key points regarding claims for compensation, annexed to a document sent on 17 August 2007 by the MoD to the solicitors acting for Mrs Elias.

While stating that ‘compensation is not available for simply being rejected under the “birthlink”’ criterion, the document went on to explain that the MoD would consider claims:

‘for injury to feelings resulting from discrimination on national origins grounds from any person of non-UK, or non-exclusively UK, national origins whose claim was rejected as failing to meet the “birthlink”.’

This was in line with both the Elias judgment and the Minister’s statement. But the next point stated that:

‘Those who applied for an ex-gratia payment but were rejected because they were not interned by the Japanese or were not British subjects at the time of internment will not be entitled to compensation on this basis.’

This confusion and inconsistency was further reflected in the template letters which were devised and approved by the MoD for issue to those individuals whose claims to the original scheme had been rejected on the grounds of the ‘bloodlink’ criterion, inviting them to apply for injury to their feelings that this discrimination had caused.

It can be seen from the full copies of these template letters at Annex C that, when discussing potential eligibility for a payment under the injury to feelings scheme, those template letters made no mention of any requirement that applicants had to satisfy all of the other eligibility criteria for the original scheme. That was in line with the Minister’s statement, but not with what the MoD was telling its staff to do. The letters were misleading for the recipients who were given the impression that they would be entitled to injury to feelings payments when, in fact, the MoD was applying additional, unannounced, criteria.

The definition of ‘British at the time of internment’ and British protected person status

My fifth general finding of fact is that it was not until 2006 that the MoD recognised for the first time that there was any difference between British subject status and British protected person status with regard to any of these three schemes. The first time the MoD asked about the nationality status of British protected persons was in May 2006 and it was still clarifying the position in July 2006. Therefore, it is clear that this could not have been a factor in the decision making in the original or the revised scheme.

Prior to this, the category of British protected person was apparently not known or recognised by those administering the original scheme. Claims from those former civilian internees holding British protected person status at the time of their internment, would have been treated as ‘British’ at that time for the purposes of determining eligibility for a payment under the original scheme. The very fact that Mr A received the £500 apology payment in January 2006, after the Agency had ticked the ‘yes’ box on an internal document in Mr A’s file to say that it had ‘proof of British Citizenship on file’, is strong evidence of this. (Annex B, B52 – 24 October 2005.)

Perhaps this finding can best be summed up in the words of the previous Permanent Under-Secretary of State at the MoD, Sir Bill Jeffrey, in his letter to me when he commented on the complaints made by Mr A:

‘when these [original] payments were being made, the distinction between individuals born in a British Colony and a Protected State and the resultant effect on their nationality status had not been recognised.’

In July 2006 the MoD decided, retrospectively, that having the status of British protected person excluded a former civilian internee from eligibility for a payment under the original scheme – and also therefore precluded eligibility for the £500 apology payment. In other words, the MoD effectively imputed to itself knowledge which it did not possess in 2001 when deciding claims under the original scheme – and substituted what in its much later view was a more accurate basis for its decisions than that which had in fact informed those decisions. This approach would govern how the MoD would treat any issues which arose after this date in relation to the original claims made by former internees who had held this status, regardless of how those claims had in fact been handled when they were first made, and regardless of the actual basis of the resulting decision on each claim.

Specific findings of fact

The handling of Mr A’s claims

My first specific finding of fact is that Mr A’s application to the original scheme was rejected on the basis of the ‘bloodlink’ criterion.

The papers on Mr A’s file record that, when the Agency reviewed his case in January 2006 to establish whether he met the new 20 year residency criterion under the revised scheme, his original claim was said to have been rejected – in a section of a form entitled Why was claim rejected? – because the ‘birthlink [was] not met’. (Annex F, F2 – 9 January 2006.)

The email sent by an MoD official to Counsel on 6 November 2006, explained that the Agency had confirmed:

‘that, when the birthlink was in operation, some claims were rejected because they did not meet the birthlink without checks first being made to see whether the applicants met the other criteria … and in the period following the introduction of the birthlink this probably happened in the majority of cases.’

There are no papers on Mr A’s file showing that the Agency checked if he had actually been interned in a designated camp run by the Japanese before 24 October 2005, when they were deciding if he was eligible for the £500 apology payment. This is the date when there is the first evidence that Mr A’s internment in Sime Road camp was verified. (Annex F, F1 – ‘Stage 6 Action sheet compensation authorisation civilian nationality claims’, completed 28 November 2005.)

My second specific finding of fact is that until at least as late as 23 May 2006 the Agency considered Mr A to have been British at the time he was interned.

On 24 October 2005 (and confirmed on 28 November 2005) the Agency completed its Stage 6 action sheet: compensation authorisation to approve the £500 ‘apology’ payment for Mr A. In response to the question ‘Have we proof of British citizenship on file?’, the ‘yes’ box on the form was checked, with the evidence to support this assessment said to be Mr A’s British passport (which had been submitted with his original application). This was despite the clear evidence on Mr A’s file – not least his passport itself – which referred to him as a British protected person at the time of his internment.

On 23 May 2006 the Agency completed another internal form to determine if Mr A was eligible for the £10,000 ex gratia payment under the revised scheme. The Agency recorded on the form that Mr A might be eligible because he had received the £500 apology payment. On the form there were two options to check which identified that ‘Evidence on file [exists] that claimant was not British at internment’ and/or that he had been ‘Rejected as not eligible to claim’. (My emphasis)

Neither of these options on Mr A’s form were ticked (Annex F, F3 – 23 May 2006), which indicates that the MoD still accepted at that time that Mr A met the criteria for being ‘British’.

My third specific finding of fact is that, between 21 June and 14 July 2006, the Agency decided that Mr A no longer fell within its definition of ‘British at the time of internment’ – solely because he had been a British protected person.

As can be seen at Annex B, B69, on 21 June 2006 an internal note was put on Mr A’s file by an Agency official which suggested this view and set out the writer’s view that, as a result, the £500 apology payment had been paid in error to Mr A. This view was confirmed on 14 July 2006 by another Agency official (Annex B, B70).

My fourth specific finding of fact is that even though the Agency appears to have decided in June 2006 that Mr A did not fall within its definition of ‘British at the time of internment’ (as outlined in my third specific finding of fact, paragraph 134), on 1 March 2007 the MoD invited Mr A to apply for a payment under the injury to feelings scheme. (Annex D, D7 – March 2007 MoD letter to Mr A.)

The invitation sent to Mr A was based on one of the standard template letters (see my fourth general finding of fact at paragraph 111) which made no mention of the need for a former civilian internee to satisfy all of the original scheme eligibility criteria in order to qualify for this new payment. Mr A responded to this invitation by making an application to the injury to feelings scheme on 1 July 2007.

My fifth specific finding of fact is that, on 30 August 2007, the Agency rejected Mr A’s application for payment under the injury to feelings scheme because he had not been a British subject at the time of his internment. At the same time the Agency told him that it considered the earlier £500 apology payment he had received had been made in error. (Annex D, D9 – 30 August 2007.)

The Agency did this, while in possession of a letter from Mr A in which he said that the way in which his earlier correspondence had been handled had ‘given me many traumas’, that ‘each occasion has not just been mental anguish but torture’, that his health had suffered as a result, and that ‘the misery you have made me undergo these past seven years is indescribable and impossible to adequately recompense’.

My sixth specific finding of fact is that the Agency’s rejection letter of 30 August 2007 (with further detail given in subsequent related correspondence) was the first occasion when the full eligibility criteria for the original scheme – and the criteria used by the MoD to operate the injury to feelings scheme – were outlined to Mr A by the Agency or the MoD.

17. As noted in paragraph 27 of this report Mrs Elias did subsequently become eligible for the £10,000 payment following the introduction of the 20 year rule under the revised scheme.
18. These illustrations are set out in Annex B in the entry for 19 July 2007 (paragraphs B88 to B92).