Written evidence submitted by Duncan Lewis (WCS0020)

Introduction

1. Duncan Lewis Solicitors welcomes the opportunity to contribute to the Committee’s inquiry into the Windrush Compensation Scheme (WCS). Duncan Lewis operates the largest legal aid practice in the UK. Immigration and asylum forms a significant portion of our work, and our expertise in this area is well-established.

2. Since 2018 and the emergence of the Windrush scandal, we have represented (and continue to represent) a number of people who are members of the Windrush generation, and their relatives. Our work for these clients has typically included:

1. Advising on their rights in relation to the Windrush Immigration Scheme and the WCS;
2. Seeking legal aid to enable substantive work to be done on their Windrush/WCS submissions;
3. Developing and submitting representations to the Secretary of State for the Home Department (SSHD) requesting that clients are granted leave to remain and/or citizenship under the Windrush Scheme;
4. Making fully evidenced applications to the WCS supported by detailed legal representations;
5. Conducting pre-action work and issuing judicial review claims challenging unlawful acts of the SSHD in her implementation of the Schemes.[1]

3. In relation specifically to the WCS, we wish to register serious concerns about the Scheme’s design and its operation. These concerns are significant because they go to the two fundamental objectives of the WCS, as expressed by the SSHD herself: to ensure access to justice and to ‘right wrongs’, including by enabling timely redress for victims who are in many cases highly vulnerable.

4. We have set out our key concerns below with reference to the Committee’s Terms of Reference. We have answered those questions where our expertise can assist the Committee.

5. On 14th December 2020, the SSHD announced various changes to the making of payments and the implementation of decisions under the Scheme. In an announcement[2], the SSHD outlined that:

1. Individuals affected by Windrush will now receive a minimum of £10,000 compensation through the Impact on Life category ((under Annex H of the WCS Rules) once their claim has been approved; this will be paid as a preliminary payment as soon as someone applying on their own behalf or on behalf of a deceased relative can show any impact on their life under the terms of the Scheme. They won’t have to wait for their whole application to be assessed;

2. The SSHD has increased payments at all levels within the ‘Impact on Life’ category with the maximum available rising from £10,000 to £100,000 for eligible cases, and with an option for payments to be higher in exceptional circumstances. These higher level awards will be made once the whole application has been assessed;

3. The SSHD will start to issue some offers of preliminary payments in the week of 14th December, and will begin making payments under the new rules from 1st  January 2021;

4. Individuals directly affected who have a pending application will be considered for either a preliminary or final payment in the first 3 months of 2021;

5. The SSHD is removing the 12-month cap on compensation for lost earnings meaning that people will be compensated for the actual period that they were out of work in all circumstances;

6. In all cases where an offer or payment has already been made, increases will be made;

7. A new scheme makes £500,000 available to community organisations to spread awareness of the Scheme;

8. A new ‘claimant assistance provider’ has been selected, namely We Are Digital;

9. Full details on eligibility, and guidance on the changes, are still to be published.

6. In further correspondence received by Duncan Lewis – exhibited here – the SSHD set out further details, as follows:

1. Claimants who have not received a final offer will be considered for a preliminary payment of £10,000, or a full and final offer based on the amount requested in the claim under the ‘impact on life’ category;

2. That decision will be made based on where the application is in the process, with the aim of sending payments to claimants asap;

3. Preliminary payment offers will start to be made this week with the aim of making all offers before end March 2021;

4. Any claimant who has received an offer but not accepted or rejected it will have that offer revised;

5. Anyone who has been offered a payment under the ‘Impact on Life’ category will have their payment offer revised, and will be contacted before January 2021;

6. Anyone who has requested a Tier 1 review will have the same changes applied, and a new decision and response will be made by end March 2021. All impact on life offers made to those in this situation will be increased;

7. Anyone who has requested a Tier 2 review will be contacted separately about next steps. All impact on life offers made to those in this situation will be increased;

8. All cases where people have accepted an offer and received payment will be reviewed, and all impact on life offers made to those in this situation will be increased. People will be contacted directly for further information.

9. For those who receive monthly updates (including clients of Duncan Lewis), they will receive more detail within those updates.

7. We welcome the commitment to supporting claimants with urgent payments, and to resolving claims more quickly than previously. These changes appear to be broadly positive, and will benefit those claimants who have been waiting a long time for claims to be resolved; particularly those who are struggling financially, of whom we believe there are many.
8. However, we note that there is no amended guidance available, and that a close reading of any changes to both the Scheme Rules and the accompanying guidance to caseworkers will be needed to determine their full impact and benefit.
9. Notwithstanding any new guidance or changes to the Rules, our initial analysis raises a number of concerns.
10. Firstly, we believe that preliminary payments are necessary for other heads of loss, beyond ‘impact on life.’ The Scheme Rules already contain provision for the making of interim payments (at sections 7,8 and 9); in Duncan Lewis’ experience, when such payments have been requested, the SSHD has applied the existing provisions questionably. This is discussed in more detail below.
11. On the basis of the announcement, it is unclear how the new preliminary payments provisions interact with the interim payments. We would urgently recommend that preliminary payments be made available for all heads of loss and/or that the SSHD commits to applying the existing provisions for interim payments already within the Scheme rules. Further, we invite the SSHD to clarify that accepting a preliminary payment of £10,000 or more does not amount to full and final settlement of that element of a claim.
12. We explain in more detail below how the high evidential bar created by the Scheme is a serious barrier to claimants’ ability to put forward effective claims, and to get the compensation they deserve. The SSHD’s changes to the Scheme above do not address this; in particular, we are concerned that she is not doing enough to ensure that expert evidence is available to people to evidence losses in the categories that allow for higher payments (such as Impact on Life).
13. More broadly, the changes above do not address fundamental issues with the Scheme; namely, that the Scheme is not independent, as the SSHD remains the main decision-maker over claims against her own Department; that payments available potentially fall far short of those that would be available in comparable civil claims; and that there is a lack of independent, properly funded legal advice available to claimants. These issues are discussed in more detail below.

Is the Home Office managing to “right the wrongs” experienced by the Windrush generation through this Compensation Scheme?

(Are you confident that the Windrush Compensation Scheme is fair?

Is the level of compensation being offered by the Home Office adequate? If not, in which

particular areas is it inadequate?)

14. We are concerned that as it is presently operating, the Scheme is failing to right the wrongs that have been suffered by the Windrush generation. 

Fairness

15. We believe that the terms of the WCS do not meet the basic demands of natural justice. We take issue with a central premise of the scheme, which is that the public body responsible for the breaches of our clients’ rights has appointed itself as the arbiter of assessing losses and determining applications for compensation.

16. This is particularly concerning in light of the numerous assessments of the SSHD’s conduct with respect to Windrush, which have concluded that systemic issues at the Department have prevented proper administration of fairness to individuals. For example, the Windrush Lessons Learned Review – released in March 2020 – outlined a “culture of disbelief and carelessness” and “institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation”. That review was based on a comprehensive review of evidence from victims (including clients of Duncan Lewis) and others.[3]

17. More recently, the Equality and Human Rights Commission (EHRC) found that the Home Office breached its Public Sector Equality Duty in the Department’s failure to assess how the Windrush generation would be affected by ‘hostile environment’ policies.[4]

18. Notwithstanding ongoing attempts to change the culture at the Department – an effort that we note appears to be troubled[5] – we suggest that the Scheme is structurally unfair. The SSHD, as the perpetrator of alleged abuses, has a direct interest in minimising her own culpability and losses; this conflicts directly with her role as the adjudicator of compensation claims, as envisaged by the Scheme. Decision-making on claims rests largely with the SSHD, with a ‘stage two’ review only available after an initial decision and a stage one review by SSHD officials.
19. The clear risk is that claimants will, as a result of this structure, be denied a fair and independent assessment of their losses. Moreover, this arrangement means that individuals without representation are forced to engage with the Department responsible for their ill-treatment; as we mention in more detail below, this can be retraumatising.

Compensation level

20. We are concerned that the amount of compensation available under the Scheme falls far below the standard necessary to provide proper redress to victims for the losses they have suffered.

21. Many of the losses that are able to be claimed under the Windrush Compensation Scheme have no ceiling. The most notable example of this is that mental and physical health impacts are dealt with under the ‘impact on life’ head of loss.

22. The highest category of award in this area, an award of £10,000+ (now revised to an upper limit of £100,000), is described as follows:

Profound impacts on a claimant’s life which are likely to be irreversible. This is expected to involve major physical or mental health impacts, where the claimant has been permanently affected or where recovery or return to a relatively normal life is likely to take (or has taken) several years.

23. This category is extremely broad, and is likely to encompass a great many Windrush victims in different ways. However, the guidance provided to decision-makers under the WCS Rules on what constitutes losses is unclear and non-prescriptive. We are concerned that there is considerable range in relation to the interpretation and implementation of these guidelines by staff at the Department. This has led to concern that the guidelines are being interpreted stringently by the Secretary of State, without a thorough and detailed consideration of the scale of losses involved. We note that, reflecting this, recent figures revealed to the BBC under Freedom of Information law showed that fewer than five people have been offered the top level of ‘impact on life’ payment.[6]

24. We have taken expert legal advice from counsel on the extent to which the WCS, and in particular the ‘impact on life’ head of loss, is able to compensate victims for their (often considerable) losses. That advice has concluded that:

-          The Scheme is a “crude system that in many ways, expressly or impliedly, fails to compensate adequately or completely the losses and damage that [victims have] suffered […]”;

-          The Scheme “requires to be supplemented by review of wider common law and human rights standards in order to adequately compensate [Windrush victims].”

25. In particular, our advice notes, the ‘impact on life’ element of the WCS compares very unfavourably with the typical compensation that is available in civil damages claims for pain, suffering and loss of amenity. To take some examples:

-          An award of £10,000 – the starting point in the highest bracket under ‘impact on life’– is “on the low side” when compared to the Judicial College Guidelines (JCGs) on psychiatric injury (Chapter 4: Psychiatric and Psychological Damage).[7]

-          The same award compares poorly in comparison to the JCGs on physical injury. For example, a JCG-based claim for ‘Injuries to Internal Organs’ – in circumstances where a person may have had a stress-induced heart attack – would attract a minimum payment of £56,100 to £85,880.

26. In another example, claims for homelessness apply to many individuals claiming under the Scheme. Under the Scheme Rules, an award of £250 per month of homelessness may be granted, up to a maximum of £25,000. We estimate that in a comparable civil claim, on the basis of case law,[8] such a loss would attract some £130-150 per day in damages for suffering/loss of amenity; additionally, there may be further potential damages over the State’s interference with the right to a private and family life under Article 8 of the European Convention on Human Rights (ECHR).[9]

27. Finally, we note that the award available for denial of access to NHS services – a one-off award of £500 – is extremely low. This is concerning given that for some claimants, a refusal of access to NHS services had a potentially life-threatening impact. We note that for these claimants, they will need to include this aspect of their claim within the ‘impact on life’ head of loss; this throws into even sharper relief the issues relating to award amounts under that category.

Wider concerns with compensation

28. In consideration of the above, it is unclear to us whether the WCS as it is currently interpreted by the Secretary of State is adequate to compensate our clients for their losses.

29. We note that the latest figures released by the Department on the Scheme, on 26th November 2020, show that:

-          To date, 1,641 claims had been received (of an estimated 15,000 potential claimants);

-          Of all claims made, 226 had received payment;

-          A cumulative amount of £2,185,785.84 had been paid out under the Scheme;

-          89 claims had been rejected on eligibility grounds (we note that August 2020 saw a peak of 64 such decisions recorded);

-          100 claims were rejected on grounds that applicant was assessed as having ‘zero entitlement’:

-          A ‘Tier 1’ review was sought in 509 cases, of which 153 had been decided;

-          A ‘Tier 2’ review was sought in 44 cases, of which 20 had been decided;

-          Of all claims received, 531 had been referred by the SSHD’s helpline.[10]

30. These figures appear to suggest that an average of £9,672 has been paid per claim. Such an amount grossly undervalues the level of award that we believe is available to our clients.

31. As a reference point, one Windrush victim who is represented by Duncan Lewis has a WCS claim pending for over £300,000. That figure is based on a reading of the Scheme Rules, application of those Rules to the severe losses to our client, and independent advice from counsel on the amount claimable to reflect the client’s experience.

32. We submit that the high numbers of reviews sought demonstrates that the individuals do not consider that the awards offered adequately reflect their losses. Our own experience and reading of the Scheme Rules is that it is unclear how the SSHD assesses losses under the WCS. This gives rise to concerns that it may be difficult for claimants to challenge decisions effectively using the review process.

Access to the Scheme

33. We believe that the failure to provide funding for applicants to obtain independent legal advice is a serious shortcoming in relation to the Scheme, and a barrier to access to justice.

34. On 23rd April 2018, then-Home Secretary Amber Rudd MP made a commitment to the Windrush generation that “where people have suffered loss, they will be compensated.”[11] The Scheme was launched on 3rd April 2019 following consultation with a promise that it would be “accessible and fair.” [12]

35. In subsequent statements, ministers made clear that legal aid would not be available to support the development of legal claims. The SSHD defended this decision by claiming such funding would not be necessary; for example, Home Office minister Caroline Nokes told the Commons on 10th June 2019 that “we have set up a contract with Citizens’ Advice so they can get independent advice without having to resort to using lawyers.”[13]

36. Since then, the SSHD has maintained this position, and has made much of the resources available to support take-up of the Scheme; namely, a helpline, the contract with Citizens’ Advice, and the provision of some £500k in public funds towards awareness-raising activities through community organisations. (We note that this has been renewed through the changes announced in December 2020.)

37. We submit that – even considering the changes made in December 2020 - these efforts are inadequate in light of the scale of the Windrush scandal and the losses suffered.[14] Clients including those represented by Duncan Lewis have typically suffered multiple interacting losses as a result of the SSHD’s failure to recognise their lawful status. 

38. We are concerned that many individuals will be unable to access the Scheme – and unable to claim fully and effectively for their losses – because they found the process too complex and onerous.

CASE STUDY:

Duncan Lewis client X travelled overseas to visit family in the mid-2000s. When he attempted to return on a flight to the UK, he was refused re-entry. His attempts to apply for a returning resident visa were refused. As a result, X was stranded abroad for over a decade, in a legal limbo where he thought he had the right to return home, but the SSHD insisted he did not. During the time he was unable to return to the UK, our client became street homeless and suffered serious physical and mental health issues. He attempted suicide at least once. In 2018, X made an application under the Windrush Scheme; the SSHD subsequently recognised his lawful right to return to the UK, and he was able to fly home. He is now settled again in the UK. X’s life, his physical and mental health, and his relationships with his family and friends have all been permanently affected by his ordeal. He has been assessed as unfit to work, and requires regular treatment for his health conditions. In July 2020, Duncan Lewis submitted a substantial claim for compensation under the WCS on X’s behalf; shortly after this, we submitted an additional request for an early or ‘interim’ payment to be made, to cover X’s immediate financial needs. X is still waiting for the SSHD to make a decision on both his compensation claim and on the interim payment request.

39. This example is not atypical. We suggest that these types of losses – life changing, overlapping and covering several years – are common to many Windrush victims.

40. The building of evidence and development of representations in relation to these losses is not straightforward. We note that Ms Nokes herself conceded, in her June 2019 statement above, that the process involves “a complicated claim form, because there are 13 different heads of claims under which people are able to claim compensation.”

41. In a letter sent to the SSHD on 18th August 2020, several law firms – including Duncan Lewis – explained that in our experience, the preparation of compensation claims under the Scheme was comparable in terms of complexity to preparing other specialist legal submissions. In a response to that letter received in November 2020, Mr Daniel Hobbs – director of Windrush, Asylum, Immigration and Citizenship – set out that the Scheme and application were designed “with the independent oversight of Martin Forde QC, to be as clear and simple as possible, so that people do not need legal assistance in order to make a claim.” Mr Hobbs pointed to the claimant assistance contract that had initially been awarded to Citizens’ Advice as an example of the support available.[15]

42. While we appreciate the efforts made to ensure the application process is clear, such statements from the Department do not address the inevitable complexity of both making and assessing claims. The WCS Rules include detailed provisions and criteria on having to evidence losses, double recovery, criminality, and eligibility. It is not enough for claimants simply to submit a simple claim; it is clear from any examination of the Rules and the guidance that claims will not all be treated equally if they fail to meet the requirements. It is an extremely difficult prospect for individual claimants to make representations with reference to these Rules without proper legal advice.

43. To add to the difficulty, the Scheme’s design fails to account for the extent to which claimants’ trauma affects their ability and willingness to interact directly with the SSHD. As was pointed out to the SSHD in the law firms’ letter of 18th August 2020, many claimants will be wary of making claims without access to legal advice, especially in view of their past negative experiences in dealing directly with the Department. This is compounded by the fact that – as above – the WCS again casts the SSHD as the decision-maker over the circumstances of these individuals.

44. This factor is reflected in the relatively small numbers of people making claims as a result of being referred by the SSHD’s own helpline, which can be discerned from the Department’s own figures (above).

45. Our own experience also bears out the problem. At least one client of Duncan Lewis instructed that he felt unable to use the SSHD’s customer service helpline to seek advice on how to make his claim for compensation. His instructions to us were that he had no confidence in the Home Office as the perpetrator of the abuses for which he seeks compensation, and that he simply would not trust any advice given to him through that helpline. Indeed, directing people like our client to the SSHD for ‘advice’ risks compounding the trauma they have already experienced while trying – often over several years – to engage with the SSHD to resolve their immigration status.

46. This element is, we suggest, a serious barrier to the accessibility and effectiveness of the scheme. The reality is that without public funding, very few claimants will be able to secure effective support to develop claims which result in awards that adequately reflect the losses that they have suffered. In our view, this is unacceptable; particularly when taking into account the ordeal many have already faced, and the Department’s promises to ensure easy access to the WCS.

Funding

47. Duncan Lewis and several other legal practitioners have sought to find ways to support clients where legal aid provision has been inconsistent or non-existent. In some cases, we have obtained funding from the Legal Aid Agency (LAA) where it was necessary to investigate the merits of a claim for judicial review; for first-time applications under the scheme, the LAA has refused funding and we have undertaken substantial work for which we may never be paid. In some of its decisions, the LAA has echoed the position of the SSHD, which is that legal aid is not necessary, because support is available elsewhere.

48. The lack of clear provision of funding naturally hinders the ability of our firm and other firms to take on and effectively represent claimants; this, in turn, affects the

extent to which claimants can access the WCS. For those individuals that do submit

claims, the lack of legal assistance available affects their ability to put forward detailed, evidenced claims, and therefore reduces the likelihood that they will receive payments that adequately reflect their losses.

Do you, or does someone you know, have experience of contacting the Vulnerable Persons Team and/or the Windrush Help Team? If so, what did the team do well and what could they do to provide better support?

Do you, or does someone you know, have experience of interacting with the Home Office generally since the Windrush Compensation Scheme was established?

49. In our experience, the SSHD has given somewhat contradictory advice to clients who have contacted the Windrush Help team and the Department more generally seeking support in making Windrush-related claims.

50. In relation to the WCS specifically, our own interactions with the SSHD have been characterised by delay. This has been felt most starkly in relation to urgent requests for interim payments to support clients who are in immediate serious financial difficulty.

51. One client’s compensation claim was submitted to the SSHD by us in July 2020. We requested a response within 28 days. Two weeks after submission, having heard nothing, we enquired as to when the SSHD expected to make a decision. In August 2020, we submitted detailed representations asking the SSHD to make an interim payment to our client. We pointed out that our client was in a difficult financial situation, and that – in view of his advancing age and poor health – he was desperately keen to have funds soon in order to visit family overseas.

52. To date, we have not received a timeline from the SSHD as to when a decision may be made even in respect of the requested interim payment, nor to when a decision may be made on the whole claim. We have ‘chased’ for this information repeatedly over several months. We have also pointed out to the SSHD our client’s ill health. Put simply, our client is afraid he may die before his claim is resolved. This fear has been exacerbated by the current pandemic.

53. We have had scant responses from Departmental officials in relation to these questions. Those staff members with whom we have interacted have been courteous, but have not been able to answer our concerns. In September 2020, we received a phone call from an official who set out that there is no set timeline for consideration of claims. This staff member explained the reasons for delays, pointing out – reasonably – that each claim was different. The same official told us that in relation to interim payments, the SSHD would only consider claims made under Annex B of the Scheme Rules, which relates to immigration and legal fees. No other heads of claim would be considered eligible for the making of an interim payment, we were told.

54. We note that there is no provision in the Scheme Rules for limiting interim payments in this way.

55. The same official also noted that an update would be provided to us within one month. Within the month, we had received a request for further information, to which we responded. Since this date, we have received no updates on the specific progress of our client’s claim. In November 2020 and again in December, we received short letters from the WCS team confirming that our client’s claim was still “under active consideration”, and that we would be contacted when the SSHD had an update.

56. While we appreciate the efforts to provide an update, and we accept that each case demands careful consideration, we believe that the submission of very clear representations, with evidence and advice on damages, alongside evidence of our client’s advanced age and poor health, demands a more urgent and considered response. In particular, we believe that a swift, detailed decision on an interim payment is necessary. The lack of an early payment has exacerbated our client’s distress, while ensuring that he continues to suffer financially. Given the delay faced by our client already in having his claim considered, we believe that such a limitation is unfair, and the decision-making so opaque as to make it difficult to challenge.

57. In a separate case, we submitted a compensation claim in September 2020 on behalf of a client who was rendered homeless and denied access to NHS treatment as a result of the SSHD’s failures to recognise his status. Within that claim, we included a request for interim payment to be made swiftly, pointing out that our client was in a very difficult financial situation, had no income beyond benefits payments (which were recently reduced), and was extremely keen to travel overseas in order to attend the funeral of a much-loved relative. In October 2020, we received a ‘triage letter’ from the SSHD requesting further information from the SSHD, to which we swiftly responded. In our response, we also requested that the SSHD provide funding for a medical report to be conducted which may help to evidence our client’s claim. We have, to date, received no update on this, nor on when our client might receive either an interim payment or a decision on his claim. We have requested such an update repeatedly.

58. We submit, again, that the refusal to take a more considered and communicative approach in relation to interim payments is particularly alarming in light of the age and poor health of many Windrush claimants.

Is it easy to use the scheme application forms and the accompanying guidance?

Are the Windrush Compensation Scheme rules and the guidance for caseworkers working well?

59. Over and above the problems described above in relation to the amounts claimable under the Scheme, Duncan Lewis has identified additional issues in relation to the Rules and the accompanying guidance to caseworkers.

Evidence

60. The evidential requirements placed on claimants continue to be a source of confusion. This is particularly regrettable in view of the fact that most claimants would not be in their current position if they had initially had access to certain documents. Many claimants are now extremely vulnerable, and may find it difficult to gather the documents required. We acknowledge and welcome developments on the evidential requirements following initial criticism, but believe more clarity is needed to build confidence in the Scheme.

61. Firstly, the level of evidence needed has been expressed somewhat vaguely. For example, the guidance for a discretionary award to primary claimants lists the need for ‘clear and compelling evidence’, but does not define what may be considered as evidence. Such lack of precision carries the risk the Departmental staff will misinterpret the WCS Rules, or interpret them very narrowly, to the detriment of individual claimants.

62. Secondly, we note concerns over the standard of proof needed. At first, the guidance to the WCS included a requirement that, under some heads of claim, the evidence submitted must meet the standard of proof in criminal cases (“beyond reasonable doubt”), instead of the standard in civil claims (“on the balance of probabilities”).

63. On 9th October 2020, the SSHD released updated guidance for caseworkers.[16] In a welcome development, this guidance updated the evidence requirements so that only one head of claim – Loss of Access to Employment: Actual Earnings – now requires a criminal standard of proof. According to the guidance, the standard of this head of loss is under review; the guidance contains an explicit commitment that “the whole scheme will operate on the balance of probabilities.” However, there is no indication of when this review may conclude. Therefore, at present, claimants wishing to claim under the Employment category (including at least one client of Duncan Lewis) must ensure that their evidence meets the criminal standard of proof, or risk having this part of their claim refused.

64. The imposition of the criminal standard of proof onto any part of the claim is problematic in a number of ways. Firstly, it is unfair, as it imposes a higher standard of proof on Windrush claimants than in other, comparable civil claims. Second, it compounds the difficulty for claimants of compiling adequate evidence to demonstrate the strength of their claims, particularly given the lack of legal aid in place. Finally, in view of the ordeal suffered by this group – with many having been wrongly treated as immigration offenders – the use of the criminal standard of proof is grossly insensitive. These elements show that the use of this standard of proof is contrary to the aims of the Scheme. It should be revised urgently.

65. The October 2020 guidance also contains the following updated provisions:

-          More stringent requirements are in place for claims relating to immigration applications (p37 of the guidance), and detention, removal and deportation (40).

-          The SSHD can request more information as needed from claimants (p85); this section notes that the SSHD will meet the costs of commissioning further evidence if it considers this evidence necessary.

66. Again, we must express concerns at the imposition of a varied set of evidential requirements for different heads of claim. This is confusing and burdensome for claimants, and breaches the promise of clarity made when the WCS was launched. Claimants who are not represented are unlikely to appreciate the distinctions between different sets of evidential requirements; as a result, claims are likely to be refused unfairly.

67. We welcome the commitment to commissioning further evidence, and take no issue with reasonable requests from the SSHD for further information to evidence claims; however, we note that the scope of such requests should be clearly limited, and should not – as far as possible – delay the resolution of claims. We note that in at least one claim that Duncan Lewis has submitted, we have requested that the SSHD commission and fund further expert evidence that may inform the Department’s decision on the claim. This request was made in September 2020; we have yet to receive a response to the request, nor any invitation to discuss it.

68. Finally, we note with concern that Rule 10.6 of the Scheme prevents additional information from being submitted as part of the review process if that information should reasonably have been submitted for the initial claim. This rule shuts out claimants who are unfamiliar with and confused by the initial claim form – a form that the SSHD has conceded is “complicated” – and who may have been unaware of the importance of submitting information at first through no fault of their own.

Interpretation

69. As mentioned above, there are concerns that the provisions of the Scheme are not being applied consistently by the SSHD. In particular, it appears to us that the rules on interim payments – set out under parts 7, 8 and 9 of the Scheme Rules – are not being applied consistently.

70. The Rules allow for the SSHD to determine any part of a claim on an interim basis, in full and final settlement of that part of the claim (Rule 8.5). There is no limitation on the extent of interim payments.

71. In view of the serious financial difficulties faced by our clients – coupled with the current known delays in resolving claims under the WSC – we have made a number of requests for interim payments to be made while clients await the final outcome of their wider claim. However, these requests have seemingly not been progressed at a faster pace to the wider claims; and, as above, Departmental staff have informed us of limitations being placed on the processing of interim payment requests. This, we suggest, amounts to an arbitrary interpretation of the rules which has not been made transparently.

What changes could make the Windrush Compensation Scheme as a whole, and/or the support in exceptional circumstances policy, work better for those affected by the Windrush scandal?

72. Our experience shows that the WCS is simply not operating in a way that provides fair and effective access to justice for Windrush victims. The shortcomings described above have the shameful effect of adding to the trauma of those affected, and compounding the many practical difficulties they have already experienced.

73. We believe that the SSHD is able to make a number of changes that would improve the effectiveness of the WCS and bring it into compliance with ministers’ original intentions.

74. We present the following recommendations, and suggest they are considered as an urgent priority:

1. Widen access to specialist legal support for claimants, including by making a clear commitment that public funding will be available for applications for compensation by victims and their relatives, and requests for reviews under the scheme – including evidence-gathering and legal representations in support. This could include one of two options:
1. Extending the current legal aid arrangements set out under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to work done under the Windrush Compensation Scheme, and waiving means testing for such claims;
2. Setting up a separate funding scheme with an approved panel of acting firms, akin to schemes set up by local authorities for former children in care homes.
2. Amend the evidential requirements for claims to be as clear, transparent and consistent as possible across all areas of claims:
1. Drop the criminal standard of proof for all of the WCS;
2. Impose clear limitations on the evidential requests that may be made by Departmental staff to claimants.
3. Amend the Rules in order to allow for higher amounts to be claimed, with rough parity to the standards for personal injury set out in the Judicial College Guidelines;
4. Set out a service standard for dealing with applications in a timely way, including a reduced time-frame for decisions on applications for interim payments;
5. Provide concrete time-frames for all those applications which have been submitted over six months ago;
6. Provide regular updates to Parliament and to practitioners on the Comprehensive Improvement Plan underway which aims to reform the culture of the Home Office. As part of this, clarify the guidance that is being made available to Departmental staff on assessing claims, and the training that is being made available to staff to ensure fair, and consistent decision-making.

We are grateful for the opportunity to contribute to this inquiry, and are happy to discuss this submission further with the Committee as needed.

December 2020

Annex 1:WCS customer update letter from the SSHD, received by Duncan Lewis 14/12/2020

                                                                                                                                               FREEPOST,                         

                                                                                     WINDRUSH COMPENSATION SCHEME

14 December 2020

Changes to the Windrush Compensation Scheme

We are writing to you to let you know about some important changes to the Windrush Compensation Scheme and how they will affect you.

The Home Secretary has announced a number of immediate changes to the Windrush Compensation Scheme. How you will be affected depends on where your case is in the process.

If you have not yet received a final offer, we will firstly consider whether you are entitled to a preliminary payment of £10,000 or make you a full and final offer which will be based on the new impact on life payment levels. We will make that decision based on where your application is in the process, with the aim of getting payment to you in the quickest possible way.  Preliminary or final payment offers will start to be made from this week, and we will process as many as possible over the coming weeks and before the end of March 2021.

If you have already received an offer but have not yet responded confirming you wish to accept or reject it, we will now revise that offer to take into account the changes that we have made today. Please wait to receive an updated offer from us. If you have already been offered a payment under the impact on life category this will mean you will receive more compensation. You do not need to take any action, and we will contact you with the revised offer before the end of January 2021.

If you have already requested a Tier 1 review, we will apply the new changes when conducting that review, and you can expect to receive a new decision and response by the end of March 2021.  If you have already been offered a payment under the impact on life category this will mean you will receive more compensation.

If you have requested a tier 2 review, we will contact you separately about what to do next. Again, if you have already been offered a payment under the impact on life category this will mean you will receive more compensation.

For those people who have already accepted an offer and received payment, we will now review your case. If you have already received a payment under the impact on life category this will mean you will receive more compensation. We will begin reviewing cases immediately. If we need any further information from you, we will contact you. Reviews and offers of payment will begin from now but please bear with us as we work to process claims as quickly as possible. 

For those who already receive monthly updates, we will include more detail on when you can expect to have your revised decision if we have not already contacted you about it.

If you have already received a nil award, then I am sorry to say that these changes will not affect the outcome of your case. You are still able to proceed with a Tier 1 or Tier 2 independent review of your case and should that result in you being awarded an impact of life payment it will be made under the new scale.

We are sorry that for many of you it has taken too long for us to deal with your application. We hope that the above will give some reassurance of our commitment to improving the Compensation Scheme and speeding up payments as far as possible.

Yours sincerely,

Windrush Compensation Scheme

Annex 2: Letter to the SSHD from law firms dated 17/08/2020 (response from the SSHD has been sent to the Committee in pdf form)

The Right Honourable Priti Patel MP

The Home Secretary

The Home Office

2 Marsham Street

London SW1P 4DF

Our Reference :- MJ/Windrush Compensation Scheme

17th August 2020

Dear Secretary of State, 

The Windrush Compensation Scheme

This letter is sent jointly by the undersigned solicitors’ firms to express our serious concerns about the operation of the Windrush Compensation Scheme and its failures to ensure access to justice.

Each of the undersigned firms are currently representing applicants to the Windrush Compensation Scheme. Between us we have prepared a number of applications.

We are all recognised as leading solicitors’ firms with considerable expertise in personal injury, human rights and applications to statutory compensation schemes including the Criminal Injuries Compensation Authority, the Lambeth Children’s Homes Redress Scheme and the Diffuse Mesothelioma Payment Scheme. All firms hold contracts with the Legal Aid Agency.

Based on our common experiences over the past year in preparing our clients’ applications to the Windrush Compensation Scheme, it is clear to us that the Windrush Compensation Scheme is not currently operating in a way that provides fair access to justice for members of the Windrush generation. This further adds to the national scandal. In our view, if applicants are to have fair access to the Scheme then they need access to publicly-funded independent legal advice and this should be made available without further delay. 

Background

On 23 April 2018 Amber Rudd MP made a commitment to the Windrush generation that “where people have suffered loss, they will be compensated.”

In July 2018 the Defendant opened a formal consultation on a proposed compensation scheme. Analogies were drawn with the many other statutory compensations schemes which have sensibly provided for applicants to receive legal support and advice in making their claims.

The Windrush Compensation Scheme was launched on 3 April 2019. The Scheme was said to be simple enough that applicants would not need legal assistance, and so public funding would not be made available.  

Access to Justice

The Windrush Compensation Scheme has now been open for over a year. We have grave concerns regarding the operation of the Scheme, in particular the failure to provide funding for applicants to obtain independent legal advice, which we strongly believe is required to ensure the members of the Windrush generation have access to justice.

We raise the following points:

1. Principles of natural justice – it is perverse that the public body responsible for assessing losses and determining applications for compensation is the same body which caused the losses in the first place.

This is particularly so given the Home Office’s “culture of disbelief and carelessness” and “institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation” (Windrush Lessons Learned Review).

If applicants are to have trust and confidence in the Scheme, then as a matter of principle, they require independent legal advice to ensure that applications are determined fairly and lawfully.

2. Complexity of the application process - members of the Windrush generation have lost jobs, homes, benefits and access to basic public services including healthcare and education. Some people have been detained and deported. Almost all have suffered significant impacts to their daily lives over many years. This includes stress and anxiety, humiliation, loss of income, high levels of debt, breakdown of relationships, addiction problems, and degrading treatment. Some individuals been denied access to healthcare for serious physical and mental health conditions.

These losses are not straightforward to identify, evidence and quantify. The Scheme Rules are also complex. They run to 46 pages, with complex provisions on (for example), eligibility, mitigation of loss, double-recovery and criminality, which make it difficult for the Claimants to apply without legal advice. Some applicants are still suffering from the effects of the hostile environment and struggling to rebuild their lives. Some will never be able to rebuild their lives.  Other applicants are elderly, in ill-health or lacking capacity.

In our experience, preparing applications to the Windrush Compensation Scheme is no less complex than preparing evidence and statements of case in legal proceedings and without specialist legal advice, applicants would be at significant disadvantage.

3. Delay - Furthermore, our experience of the scheme is that applications appear to be lost in a kind of bureaucratic “limbo.” We use the word “limbo” deliberately, because once again part of the trauma suffered by these British citizens was suddenly finding themselves in the middle of an immigration maze, from which there seems to be no escape.

Our experience is that months pass between any contact made between applicants and caseworkers. Applicants are requested to provide evidence already submitted or to provide onerous levels of detail or evidence. Requests for updates made by applicants or their representatives are responded to in standard and unilluminating terms (“the application is being considered”) and no timescales are ever available. Applications submitted over a year ago remain outstanding.

This is not a simple process of completing a form and being awarded compensation. Applications are lengthy, detailed and are taking over a year to be decided.

4. Evidence – applicants are required to provide supporting evidence to substantiate their losses. Unrepresented applicants will have great difficulties in obtaining evidence of losses, which could extend back for decades, and are therefore likely to fail in their claims. They are likely to receive awards that do not adequately reflect their losses. This is particularly harsh on applicants whose problems were caused by not having the “right” documents, now confronted with the same problem, when they come to apply for compensation. By way of example:

• Loss of earnings from employment must be evidenced “beyond reasonable doubt”, i.e. the criminal standard of proof (page 80 of the “Guidance for decision makers considering cases under the Windrush Compensation Scheme” issued in March 2020). Applicants and Citizens Advice Bureau advisors are particularly likely to miss the distinction as it is not mentioned in the Scheme Rules or Guidance for Claimants. The solution is not to amend the guidance as applicants would still be unlikely to fully appreciate the importance of the distinction.  This is extremely worrying. Unrepresented applicants are unlikely to realise that crucial legal distinction, and many meritorious claims will fail on that basis. It also compounds the applicants’ experience of the Home Office’s obstructive and disbelieving attitudes towards them. In many cases it could be near impossible to evidence harm and losses over many years to this standard. There is also an issue around loss of access to banking, which also carries the same standard of proof: the nature of losses sustained arising from loss of access to banking such as debts with friends and family, and money being stolen from applicants, make the losses difficult or impossible to evidence. Once again, this is particularly so for a lay person or CAB advisor who does not appreciate the distinction between the two standards of proof being applied and the evidence required to satisfy the standard.

• Medical evidence from a “suitably qualified practitioner” can only be obtained by commissioning a report at the Home Office expense (paragraph 6.6 of the Scheme). We are concerned by the lack of transparency as to how experts will be selected and instructed, which could be crucial in quantifying very high value claims. The lack of a funding mechanism makes it impossible for individuals and their legal representatives to instruct, independently, a suitably qualified practitioner to comment on impacts on health arising from historic breaches committed by the Home Office.

• Mitigation of loss: applicants must explain the steps they took to resolve their immigration status and to mitigate losses and impacts, failing which their claim may be reduced or refused. Unrepresented applicants may not know what steps might have been taken and may struggle to explain this crucial aspect of the claim. Understandably they may be fearful of having to justify themselves to the Home Office having previously been disbelieved and fearful of any repercussions, particularly those applicants who have not yet been granted British citizenship. We would say that the mitigation of loss requirement really has no place in the scheme in light of the findings of the “Lessons Learned Review” that:

• Commonwealth citizens in the UK before 1973 were not given proof of their status or asked to provide any (p. 56), and
• UK Government messaging at the time explicitly stated that people’s rights would not be affected by not registering their status (p. 59)

5. Low numbers of applications – to the end of March 2020, only 1,275 claims for compensation had been received, out of an estimated 15,000 potential claimants.

Of the 1,275 applications, only 60 offers have been made, which appear to include partial offers and emergency payments. 23 applications have been rejected, because applicants were assessed as having “zero entitlement”, presumably due to lack of evidence. 27 applications for review had been submitted demonstrating a high proportion of applicants being dissatisfied with decision making.

In our view, a key reason for this is the lack of legal assistance available due to the lack of public funding. Applications for compensation are complex, requiring detailed information about sensitive matters and high volumes of evidence. Unrepresented applicants may have been delayed or deterred from making these applications. Many applicants will be fearful about submitting applications to the Home Office without legal advice, based on past experiences of being disbelieved and suffering the consequences.  This is exacerbated by Rule 10.6 of the Scheme, which prevents additional information from being submitted as part of the review process if that information should reasonably have been submitted for the initial claim 

6. The failure to accept future loss of income and pensions in claims, items that are not included in the Scheme.  We understand that issue is being examined by those administering the Scheme.

Current arrangements

The Home Office’s position is that the Scheme is so simple that legal assistance is not required. As such, the resources made available are extremely limited. From April 2019, a support contract was provided by Citizens Advice. That contract was re-tendered on 22 April 2020 and the outcome of that process is currently unknown. Funds have also been put towards raising awareness of the Compensation Scheme, including £500k for grassroots organisations and the Windrush Justice Fund, which works in partnership with the Mayor of London, providing small grants and support to community groups and projects working with those affected by the Windrush Scandal.

These arrangements are wholly inadequate given the nature and magnitude of the Scheme. It is estimated that 15,000 people eligible for compensation of between £200m and £500m. It will be a further scandal if individuals are unable to secure fair access to this Scheme because it was too complex and they were not able to obtain legal assistance.

Without the provision of public funding, very few applicants will be able to secure independent legal representation. Some solicitors’ firms are acting on a pro bono basis. Others are acting under heavily discounted conditional fee agreements. Such firms (including our own) will be extremely limited in the number of clients they can represent as they will be running applications at a financial loss.

To date, the Legal Aid Agency has provided contradictory information to different providers as to whether legal aid may be available for the preparation of compensation applications. Decisions have been made by the LAA on individual cases which state that legal help is not available because legal advice and assistance is not required to enable an individual to gather the requisite evidence and complete an application for compensation. Other providers have been informed that it may be possible to provide legal help in this area as a claim against a public authority. The LAA has not made any clear public statements confirming whether or not applications may be in scope of legal help. Firms offering legal aid are therefore doing so at risk that they will not be paid. We also remain concerned that vulnerable applicants might agree to pay significant amounts of their compensation to advisors in order to secure assistance.

Some firms have been told it is an assessment for the provider to make as to whether funding is available.

To date, the Legal Aid Agency has provided contradictory information to different providers as to whether legal aid may be available for the preparation of compensation applications We also remain concerned that vulnerable applicants might agree to pay significant amounts of their compensation to advisors in order to secure assistance.

The inclusion of funding for lawyers within the Scheme would also mean that Home Office caseworkers would be presented with claims set out in a coherent fashion, accompanied by the right evidence. At present, we have reports that clients are receiving requests from caseworkers to provide evidence, which simply adds further to the delay. Failure to provide legal advice at the application stage could be a false economy, increasing the costs of processing the applications, internal reviews and judicial review challenges from dissatisfied applicants. To date, only 60 offers of compensation have been made on 1,275 applications, likely because the processing of these claims is not straightforward.

Our requests

As a first step, we suggest that a meeting be held between Mr Daniel Hobbs, Director Windrush, Asylum, Immigration and Citizenship at Home Office and the Home Secretary.

We would also ask the Home Office to set out a service standard / time-frame / commitment to dealing with applications in a timely way, and providing concrete time-frames for all those applications which have been submitted over 6 months ago.

We would also ask for a meeting to take place between ourselves and Mr Hobbs.

We urge the Home Secretary to give immediate consideration to this issue.

It is clear to us that the Windrush Compensation Scheme is not currently operating in a way that provides fair and effective access to justice for members of the Windrush generation. This further adds to the national scandal. In our view, if applicants are to have fair access to the Scheme then they need access to publicly funded independent legal advice and this should be made available without further delay. 

There are various ways in which this could be implemented. The signatories of this letter suggest two possible options:-

1. The current legal aid cover set out under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 should be extended to work done under the Windrush Compensation Scheme and means testing should be waived.

2. There should be a separate funding scheme, akin to the scheme set up by the London Borough of Lambeth for former children in their care homes.  In this event the quality of the legal support and advice would be secured through establishing a panel of approved firms.

Please confirm within 14 days what action you propose to take in response to the issues raised in this letter.

We look forward to hearing from you.

Yours sincerely,

Malcolm Johnson – Hudgell

Jamie Beagent and Stephanie Hill – Leigh Day

Wilson Solicitors LLP

Jeremy Bloom and Toufique Hossain – Duncan Lewis

Irene Nembhard – Birnberg Peirce

Connie Sozi - Deighton Pierce Glynn

Imran Khan and Partners Solicitors

Jacqueline (Jacqui) McKenzie - McKenzie Beute and Pope

Bhatt Murphy Solicitors

cc. Daniel Hobbs – Windrush Compensation Scheme