Justice report raises significant concerns about Windrush Compensation Scheme

  • The UK based human rights charity Justice which works to reform the UK justice system with a focus on the most vulnerable and marginalised in society issued a report on 15 November 2021 on the Windrush Compensation Scheme for victims of the Windrush Scandal.
  • The Scheme has come in for serious criticism since it was first launched in 2019, readers of this blog will be aware that we previously wrote about these difficulties in our blog on 12 July 2021.

The report make 27 recommendations to improve administrative and procedural aspects of the Scheme to ensure that it is properly accessible, fair and efficient for those who it was intended would benefit from it.

The report also says that one of the reasons why there have been low numbers applying to the Scheme is a lack of trust. When the Scheme was established it was estimated that 15,000 would be eligible for compensation. Despite this, at the end of September 2021 only 864 people have received compensation pay-outs.

The report finds that the Scheme is perceived as lacking in independence as it is operated by the same government department that was responsible for the losses and difficulties that people suffered as a result of not being able to demonstrate their lawful immigration status.

There are issues also with consistency in terms of decision making, awards made not taking account of the losses claimed and a sense that the case workers administering the scheme lack the requisite skillset and cultural understanding of the people that are applying.

The application process is perceived to be overly complex with many people applying requiring legal assistance/support to do so, even though the costs of this assistance/support is not met by the Scheme. As a result, they are paying between 20% and 30% of their compensation to meet the costs of their legal fees. The Home Office said the compensation scheme was designed so that people should not need to seek help from lawyers. For those who want support, the department funds a claim assistance provider. However, the report raises concerns over the scope of this support. Justice says the time allocated to claimants under the Scheme is insufficient, that all writing must be done by the claimant personally, support generally ceases following submission of the claim, and the nature of the services provided exclude advice on the merits and substance of an application. A survey of lawyers providing support to claimants found that most cases required more than 20 hours of work.

The report is also critical of the appeal process provided in the Scheme which is described as ineffective.

Key recommendations of the report, which has been prepared by an independent Justice working group led by Robert Thomas, professor of public law at the University of Manchester, include:

  • The need for independence and accountability: this includes the scheme being moved from the Home Office, preferably to an organisation independent of the government; and greater accountability and transparency of the publication of findings from independent reviewers.
  • Funded legal representation for claimants: funding should be made available for legal representation for all successful claimants via (a) legal aid and/or (b) funding provided under the scheme.
  • Training and quality assurance for caseworkers: further training and guidance to be provided to caseworkers on decision-making, communication with vulnerable people, mental health, and cultural understanding of people from different communities. In addition, better quality assurance is required to prevent errors.
  • Improved communication with claimants: including use of video guides, correspondence which is easier to understand, regular progress reports on the progress of a claim, and claimants to be treated with humanity, dignity and respect.
  • Calculation of losses: rules to be amended to ensure that the compensation received by claimants reflects all the losses they have suffered; pension losses to be included in the loss of earnings category; an increase in compensation for homelessness; and a further level to be considered for the impact on life tariff.
  • Raising awareness of the scheme: a targeted publicity campaign to reach out to affected communities and grass roots organisations should be commissioned to raise awareness of the Scheme and help build trust with claimants.
  • A more coherent and efficient appeals and complaints system: including the right of appeal against compensation decisions to a Tribunal; a complaints mechanism to the Independent case examiner; and powers to enable the ombudsman to investigate maladministration by the Home Office.

Justice’s acting legal director, Stephanie Needleman said: “The Windrush compensation scheme should provide a valuable lifeline for those who have suffered losses and hardships, however, there are concerning weaknesses in the Scheme’s current administrative and procedural processes. Through these recommendations, we hope to see structural changes to improve processes, ensuring that who have suffered are treated with dignity and receive the compensation they are due.”

A Home Office spokesperson said: “Many of the issues raised in this report are already being addressed and several recommendations have previously been considered. For example, we continue to firmly believe that moving the operation of the scheme out of the Home Office would risk significantly delaying vital payments to those affected. However, we are always open to making further improvements and will reflect carefully on the report’s findings.”

There are many lessons to be learned from the establishment of the Windrush Compensation Scheme, not least that time should be taken in advance of setting up such compensation/redress schemes to ensure that they actually deliver on their underlying objectives and rationale. This includes providing compensation in an accessible and timely manner, while also at all times taking into account the individual and unique circumstances of the people it is intended to benefit.

It is often better to wait and consult with the people such schemes are intended to benefit rather than produce a unilateral scheme which does not take account of their needs and circumstances.

The success of such schemes almost always depends on them being independent, as even the perception of a lack of independence can be fatal in terms of the overall success of such schemes.

This report and the earlier report by the National Audit Office in May 2021 have made reasonable and practical recommendations in terms of how the Scheme can be improved to deliver on its underlying objectives; it is not too late to make the Scheme a success. However, to do so the Home Office will need to take stock of its position, consult with claimants and other stakeholders and be brave enough to embrace the changes needed to deliver a Scheme that is fit for purpose.

Sharon Moohan, Partner, BLM

The National Association for People Abused in Childhood is a national charity offering support to adult survivors of all types of childhood abuse, including physical, emotional, sexual and neglect. As well as advocating on behalf of survivors in the media and elsewhere, NAPAC also trains professionals who have frequent contact with survivors of child abuse as part of their working environment. If you have been affected by the issues raised in today’s blog, or would like additional support, please use the links above.

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