(WCS0023)

Written evidence submitted by Windrush Lives (WCS0023)

Introduction

1. Windrush Lives is an advocacy group which began operating in June 2020. The group was initially founded to raise funds for an individual who was severely affected by the Windrush scandal and had been waiting for an award from the Windrush Compensation Scheme (“Scheme”) for over a year. Within a short space of time, other claimants and established activists made contact, and the group’s work expanded to focus on advocacy in relation to the Scheme as a whole. The name ‘Windrush Lives’ refers both to the small group of activists who initially set up the group, and to the broader claimant network which is now both the majority of the group and its driving force.
2. The evidence contained in this statement is based on the experiences of members of the claimant network. The substantive points of criticism and arguments as to reform reflect the views of both the claimants and the activists in the group.
3. The Home Affairs Select Committee has heard individually from many of the claimants in the network in meetings held in early December 2020. It has also been copied into detailed correspondence between the group and senior management at the Home Office.
4. For that reason, and in the interest of limiting the length of this document, specific case examples are not reproduced here. Case examples and points on which extended explanation may be required are instead denoted with markers “(M#)” – if you are interested in seeing these, please contact us.
5. This evidence has been significantly revised in light of the updates to the Scheme announced by the Home Secretary on Monday, 14 December 2020.
6. The evidence below is structured as a set of answers to the questions (shadowed in grey) set out in the Committee’s Terms of Reference. We hope this aids in your consideration. As indicated above, we are more than happy to provide specific examples from individual cases if required, or expand on any other points.
7. In addition to answers to the questions set out in the Terms of Reference, we include a category entitled ‘Policy Update’ at the end of this document, which sets out some additional views on the changes announced on 14 December.
   

Evidence

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

8. The Home Office’s use of this phrase in response to substantive questions on the details of the Scheme is disingenuous. It is meaningless to apply the phrase ‘righting the wrongs’ to the Windrush Schemes in isolation, because correcting the injustices suffered by the Windrush generation requires deep and substantial work to dismantle the hostile environment as a whole.
9. It is necessary, in our view, to treat the hostile environment as the overall ‘wrong’ that needs to be ‘righted’. This was alluded to in Wendy Williams’ Windrush Lessons Learned Review, with which Committee members will be familiar.
10. A non-exhaustive list of types of Home Office behaviour the consequences of which Windrushers have suffered, and which continue to affect Windrushers and others alike, would include:

10.1.                  Disdainful and at times illegal treatment of minorities, in particular but not limited to Black people (see also par 10.7 below);

10.2.                  Disdainful and at times illegal treatment of asylum-seekers, former prisoners who have served their sentences, and non-citizens with residency rights, such as holders of indefinite leave to remain. The latter form a significant part of the Windrush cohort (see also par 10.7 below). A deportation flight[1] to Jamaica that took place in early December 2020 is a particularly relevant example, and one that had personal and community-wide resonance to many Windrushers;

10.3.                  A predisposition to disbelief of the accounts of individuals affected by its policies;

10.4.                  Inhumane treatment of individuals, including but not limited to legal detainees. Examples of poor and Covid-non-compliant detention conditions which have recently come to light include an asylum detention centre in Penally[2]; the Home Office has also proposed to house asylum seekers, who are by definition legally present in the UK, in Yarl’s Wood[3];

10.5.                  A presumption against the sufficiency of evidence submitted to support claims and applications, combined with an unhelpful attitude to aiding claimants and applicants to prove their status or eligibility for various schemes;

10.6.                  Repeated attempts to suppress or remove the rights of individuals to challenge its actions by publicly denouncing legal practitioners[4] and activists; and

10.7.                  Following from par 10.6, flippancy towards the rule of law and the rights of individuals, especially those of migrants and Black and minority ethnic communities. A particularly relevant recent example of this is the Home Secretary’s proposal to reduce the term of custody triggering deportation of individuals with leave to remain from 12 to six months. This was leaked with ancillary press briefings specifically referring to Jamaican[5] nationals. The proposed policy gives the lie to the Home Secretary’s previous statements that deportation of released prisoners to Jamaica in December was not only justified, but necessary on grounds of the serious, violent threat they posed to society. As you are aware, six-month custody terms are commonly given summarily in magistrates’ courts, and in the superior courts for minor and non-violent offences. This policy would therefore appear to be an extension of the hostile environment.

11. While the hostile environment endures, it cannot be said that the Home Office has ‘righted’ any of the substantive ‘wrongs’ which gave rise to the Windrush Scandal. At best, it can, in theory, alleviate some of the symptoms of the wrongs that were perpetrated – it cannot cure the underlying disease.
12. That being said, it is our position that the Home Office has so far failed at the limited task of alleviating the symptoms of the wrongs committed to Windrushers, through its mismanagement of the Scheme. This will be the focus of the remainder of the answers.

Are you confident that the Windrush Compensation Scheme is fair?

13. Following the policy update of 14 December, we would argue that these aspects of the Scheme remain unjust and unfair:

13.1.                  The descriptions of harm suffered in the Impact on Life tariff table are vague and subjective to the point of meaninglessness. This is unfair because claimants (and those assisting them) refer to these tables when drafting their applications. The Casework Guidance containing the tariff table should guide claimants as to the types of events that need to be evidenced, and what they need to explain. Claimants also need to be able to understand these descriptors in order to evaluate if their awards have been made correctly.

13.2.                  The Home Office has repeatedly ignored suggestions that it furnish examples of cases and types of harm, matching them to the tariff levels under which they would fall. We believe that the cumulative effect of this and the vagueness of the descriptors is to allow caseworkers to make awards at the lowest possible level. This criticism has been put directly to the Home Office. We have not received a concrete response.

13.3.                  The following examples, taken from version 6 of the Casework Guidance as published on 16 December 2020, may help to illustrate the point:

13.3.1.                                    The level 2 descriptor for Impact on Life opens: “Moderately severe impact on some aspects of the claimant’s life over an extended period of time (weeks or months) or where multiple cumulative impacts were suffered for a relatively short amount of time.” This single sentence requires the following clarifications:

13.3.1.1.                                      What is “moderately severe”?

13.3.1.2.                                      What type of harm that lasted weeks rather than months would allow an award at level 2, rather than at level 1, which is designated for harm suffered “up to a few weeks” only?

13.3.1.3.                                      What might constitute “cumulative impact”?

13.3.1.4.                                      With respect to cumulative impacts, what is a “relatively short period of time”?

13.3.2.                                    The description of level 3 impact states: “More than one area of the claimant’s life may have been affected and the overall impacts were significant. Cumulative impacts will have been experienced for an extended period (several months) with recovery or a return to normal life having taken a reasonable amount of time. Short period of focussed medical treatment may have been necessary.”

13.3.2.1.                                      What is the difference between “cumulative impact,” which is also mentioned in level 2, and impacts on more than one area of a claimant’s life?

13.3.2.2.                                      With respect to recovery, what is “a reasonable amount of time”?

13.3.2.3.                                      The term “short periods of focussed medical treatment” appears to refer either to treatment for new medical conditions, or conditions where symptoms re-emerged after the loss of status. Why are pre-existing conditions, for which there was ongoing treatment, but which worsened as a result of the loss of status, absent in this description?

13.3.2.4.                                      What is the definition of “return to normal life”? There are no claimants of whom we are aware who consider their lives have returned to normal whilst their fight for compensation continues. The open-ended nature of this trauma is only captured in the level 5 description, which refers to “profound impacts” where resumption of “a relatively normal life is likely to take (or has taken) several years.”

13.3.3.                                    The reality is that while claimants continue to battle with the Scheme, their lives are placed on hold, and they experience ongoing trauma. Therefore, in the majority of cases, claims ought to fall under level 5, as that is the only level that covers a multi-year period, profound impact, and irreversible effects. The Home Office does not take this view.

13.3.4.                                    A related problem is the requirement for medical evidence. As you have heard in individual testimony (M1), many claimants have developed new mental health problems as a result of their battles with the Home Office, including the fight for compensation. Relatively few sought medical diagnosis or treatment for these problems from the outset for reasons including cultural dispositions to view mental health issues as not being serious medical problems, embarrassment, shame, and/or lack of access to the relevant resources. Scheme architect Martin Forde QC referred to this in his evidence to you in early December.

13.3.5.                                    The Impact on Life table is descriptive not of the experiences of claimants, but of the evidence they can provide to illustrate those experiences. The effect of this is to gloss over the debilitating and life-altering mental health effects that most claimants experienced and continue to experience, because they do not have medical reports that would stand as evidence.

13.3.6.                                    Campaigners and advocates are now working to enlist professionals in the fields of psychology and psychiatry to assess claimants on a pro-bono basis. However, many claimants’ claims are at an advanced stage, and there remains every possibility that the Home Office will refuse to accept retrospective medical evidence, or re-evaluate claims it considers closed. Further, the fact that this work is being done pro-bono by campaigners, without any recognition, funding or support from the Home Office, is in itself remarkable. It raises the question of why the Home Office is not involved itself, or at least paying to support these efforts, given the psychological trauma in question is of its making.

13.4.                  Moving on from the contents of the tariff table, there is no scrutiny of the way in which Home Office caseworkers apply the Impact on Life descriptors to arrive at their decisions. Caseworkers have been unable or unwilling to substantiate their decisions beyond repeating stock phrases such as the commitment to ‘righting [the] wrongs’ and that they are engaged in ‘careful consideration of individual cases’. This tends to suggest the criticism at par 13.2 above, i.e., that the descriptors themselves are overly subjective and unusable, is accurate.

13.5.                  It also suggests that training of caseworkers may be of poor and/or uneven quality. The Home Office has ignored repeated requests for further information on how caseworkers are trained. We are aware that caseworkers on the Scheme include entry-level employees. Given the Home Office’s own position that this work is extremely complex, we query the use of entry-level employees rather than employees at grades SEO/HEO and above.

13.6.                  Employees on the telephone helpline (referred to as the Windrush Help Team) are of no real use, and have at times been rude and dismissive. For example:

13.6.1.                                    Following the announcement of fast-tracked £10,000 payments to all primary and estate claimants with an Impact on Life award assessed at least at level 1 – which the Home Secretary told Commons[6] would begin the same week – several claimants called the helpline, between 15 and 22 December, to ask when they would receive the payment. In all cases, helpline employees were unable to give an answer. In at least one case, the employee was not aware of the policy at all. In most cases, employees told claimants that no information could be offered, and they should wait to be contacted by email at some point in January – which has not yet happened. In at least two cases, employees were described by claimants as rude and seemingly unwilling to deal with questions.

13.6.2.                                    These are not new problems – we are not aware of any claimants or prospective claimants who have reported a helpful encounter with the helpline at any point (although most helpline employees are not unpleasant in demeanour).

13.6.3.                                    One particularly concerning case (M2) relates not to the main helpline, but to the helpline for the Vulnerable Persons Team, a specialist unit set up for vulnerable individuals or those in immediate crisis, homelessness being the most common problem of which we are aware. (We understand this team no longer exists.) A member of this team advised two individuals, separately and at different times, that they should not take legal advice with respect to their compensation claim or request for urgent support.

13.6.4.                                    One of the two individuals became homeless (M3) and was forced to live in a vehicle they owned for an extended period over the winter months of 2019. The Vulnerable Persons Team did no further work after an initial telephone call to this person, and did not revisit the case until the matter was escalated to the highest level of management at the end of 2020.

13.7.                  The Scheme awards only £250 per month for homelessness, subject to an overall cap of £25,000. Whilst some of the impacts of homelessness are intended to be captured under the Impact on Life head of claim, given the seriousness of homelessness and the fact that it can have an impact on third parties who may support the claimant (but who are not eligible to make claims as close family themselves), the capped monthly sum is wildly inadequate. As a corollary to the problems set out with respect to the assessment of Impact on Life awards in pars 13.1 to 13.4 inclusive, it is important that awards under the other heads of claim are at least sufficient on their own terms, and recognise the gravity of the harm and loss that has been inflicted upon claimants.

13.8.                  The Home Office tends to use only the General Award to compensate for loss of access to employment, on the ground that evidence provided to support claims seeking an Actual Award is insufficient. The type of evidence demanded is often not available (M4), which has meant caseworkers apply the General Award as a default position.

13.8.1.                                    Prior to the policy update, the General Award was capped at £13,764, which was grossly inadequate and well below national salary averages in any part of the relevant period. A key aspect of the 14 December update was removal of the time-cap applied to this award – the Home Office will now offer £1,147 per month for the actual period of unemployment, where it was previously offered for a maximum of 12 months. While that is a step in the right direction, the monthly amount remains capped at a sum less than half the median monthly income reported by the ONS[7] in 2020.

13.8.2.                                    Actual Awards for loss of access to employment are extremely rare. The reason given for this has typically been that the evidence submitted was insufficient to support a claim for actual losses (M5), when that has been an unfair judgment, and the claimant submitted the best evidence available to them. As the Committee has heard in oral evidence from experts including Jaqueline Mckenzie and Holly Stow, demands for evidence that cannot be obtained and rejection of evidence that has (often at great effort) been collected has the effect of re-traumatising and gaslighting applicants.

13.9.                  The Scheme does not recognise losses of pensions and savings. This is a significant failing. These are direct losses arising from the Home Office’s conduct. Viewed through the lens of tort law, these are losses that would not have occurred “but for” the actions of the Home Office. Whenever this is challenged, Home Office staff are unable to provide any justification beyond stating that it is a feature of the Scheme Rules. That is a misleading defence as this is an ex-gratia scheme, and the Home Secretary retains full discretion as to modifying the Scheme Rules. As above, this is another form of gaslighting of claimants, who may not be aware that this is not an adequate response to a reasonable complaint.

13.10.             The Scheme caps recovery of legal costs at £500. This is patently absurd. Many claimants, including several within our network, have incurred legal fees into the thousands fighting the effects of their denial of status. These costs include fees incurred fighting deportation, appeals and representations in respect of immigration detention, repeated applications for various types of permit or leave to remain, and general legal advice. As at par 13.9 above, Home Office staff cannot provide justification beyond stating that this is a feature of the Scheme Rules. That argument is rejected for the same reason as at par 13.9.

13.11.             The Rules allow the Home Office to reduce an award by up to 50% where a claimant has been convicted of an offence and received a sentence of at least four years, and the offence was of a nature rendering it inappropriate to make an award. The examples given in the Casework Guidance are murder, rape, and sexual assault crimes.

13.11.1.                               Whilst no claimant questions the seriousness of these offences, we question the relevance of criminality – which has been dealt with under the separate criminal justice system – to compensation for wrongs perpetrated by the Home Office. The sitting Home Secretary has demonstrated a general interest in double punishment – see footnote 5. We make two points in relation to this: firstly, and as noted above, the Home Secretary’s predilection for double punishment in this context is a clear extension of the hostile environment; secondly, the notion that the Home Office can in effect give itself a discount on account of matters outside the Scheme’s purview, and which have been independently adjudicated and deemed resolved, is staggering. We see no nexus between criminality and the Scheme.

13.11.2.                               Home Office officials have briefed stakeholders that the criminality discount is rarely used. That is appreciated. This is however a matter of principle. The existence of this rule jars with the department’s declarations that it is serious about making amends to Windrushers and correcting the hostile environment.

13.12.             The appeal mechanism for the Scheme is fundamentally flawed. First-tier review is conducted by the Home Office itself. Second-tier review is conducted by the Adjudicator’s Office, which is a government body. Prima facie, there is no independence or external oversight (being external to government as a whole) of the process.

13.12.1.                               This is doubly frustrating because at least one external and independent body – the Parliamentary and Health Service Ombudsman (“PHSO”) – has publicly expressed dismay at being excluded from the primary appeal stages. At present, the PHSO can only be drawn into the process if a claimant is unsatisfied following second-tier review. You will appreciate from the review timescales implied by the available data[8] that this means adding up to a year to the compensation process.

13.12.2.                               Time is of the essence for many claimants due to age. Time is also of the essence because claimants’ lives remain on pause whilst waiting for the compensation process to be concluded. Many claimants are heavily in arrears and continue to incur debts whilst waiting to receive compensation.

13.12.3.                               Further, we have now seen evidence indicating that second-tier review is conducted in a cursory and amateurish manner, with significant gaps in detail, deficiencies in explanations offered, and instances of incompetence. We believe we can provide this evidence confidentially under separate cover to the Committee. However, that is not clear as the document in which it is contained is, inexplicably on the face of it, marked with a government security classification (M7).

13.13.             It is held, apparently without consideration, that the harm suffered by claimants and for which they are being compensated ended at the date on which their status was regularised. That is untrue.

13.13.1.                               The Scheme has become a fresh source of depression, anxiety, trauma and post-traumatic stress. The process of making an extremely complex application, receiving a derisory award, having to challenge it, and waiting for it to be resolved all have significant physical and mental health effects on claimants, should they survive to that stage. For claimants who have been waiting (some over a year – M8) to hear back, the lack of reply and mounting debts are a constant source of worry and fear; for claimants who have received a poor offer, the difficulty of mounting a challenge and/or securing legal representation is a source of worry and fear. At every stage of their dealings with the Home Office, most claimants are gaslighted, denied, made to feel foolish, and made to feel they should be thankful for whatever little they can get.

13.13.2.                               It is important therefore to reiterate that the Home Office is not doing claimants a favour. It is, through the Scheme, supposed to be making amends for the corrosive damage inflicted by it onto innocent civilians. It is supposed to be accounting for its shameful past behaviour, i.e. the hostile environment and institutional racism that led it, a government agency, to systematically target minority ethnic citizens in order to achieve political goals. We feel the Home Office needs to be sternly reminded of this – none of its conduct in administering the Scheme to date suggests it is even aware that these are the reasons for which the Scheme exists.

13.13.3.                               With that in mind, the process of obtaining compensation should itself be reflected in the compensation awarded. At the bare minimum, claimants should be compensated up to and including the date on which an award in made (which may have the desirable side-effect of incentivising the Home Office to work faster).

Is the level of compensation being offered by the Home Office adequate? If not, in which particular areas is it inadequate?

14. For the reasons set out above in par 13, no.
15. The areas in which deficiency is greatest have tended to be Impact on Life and Loss of Access to Employment. This is because those are the categories under which the majority of most awards are made. They are also the categories under which the Home Office has the most room for manoeuvre.
16. The policy update of 14 December will have the effect of increasing the quantum of any awards already made because of the substantial increase to the amounts payable for Impact on Life. However,

16.1.                  The Home Office has indicated that where claimants have already received an offer, the overhaul will not change the level of the Impact on Life award they are made (however, see par 44 below);

16.2.                  It will not change the fact that the majority of applicants are not made an Actual Award for loss of access to employment; and

16.3.                  It will not address the other serious deficiencies particularised in par 13.

17. It may be helpful to consider what the changes will actually achieve by looking at the following three examples:

17.1.                  Claimant 1 (M9) was originally offered £22,264. Their claim was in respect of losses from unemployment for over 10 years, prior to which they had been employed in the NHS as a practice administrator; impact on life including multi-year trauma, evidenced deterioration of mental health including suicidal ideation and complete withdrawal from social life and normal activities; immigration fees; legal fees; loss of benefits; and housing.

17.1.1.                                    The majority of the initial award to Claimant 1 was made up of the maximum General Award for loss of access to employment at the time it was made, being £13,764; and a level 5 Impact on Life award, being £7,000 at the time it was made.

17.1.2.                                    The policy update of 14 December will have the effect of increasing the amount paid for Impact on Life substantially.

17.1.3.                                    However, Claimant 1 had to undergo two stages of appeal stretching over more than a year and requiring substantial pro-bono legal resources, and mount a significant media campaign, in order to obtain an Actual Award for loss of employment. This is clearly untenable, bearing in mind that there are, by the Home Office’s own estimates, anything between 10,000 and 14,000 claimants still to come.

17.2.                  Claimant 2 (M10) was offered £18,764. Their claim was in respect of losses from unemployment for over 5 years; impact on life including multi-year trauma, evidenced deterioration of mental health and complete withdrawal from social life and normal activities; significant and irreversible impact on physical health caused by loss of access to health services; and loss of benefits.

17.2.1.                                    The award was made up of the maximum General Award for loss of access to employment at the time it was made, being £13,764, and a level 5 Impact on Life award, being £5,000 at the time it was made. The Claimant received nothing for loss of benefits or loss of access to health services, bearing in mind that the latter had significant and irreversible physical health consequences.

17.2.2.                                    The policy update of 14 December will significantly increase the quantum of the Impact on Life award.

17.2.3.                                    However, the category under which the Impact on Life award was made was, and remains, insufficient to compensate for the harm caused to Claimant 2, who became a recluse, living in constant fear between 2013 and 2019, when their status was finally resolved. Additionally, there has been no indication that any other aspects of this claimant’s award (including loss of access to employment and health services) are being increased.

17.3.                  Claimant 3 (M11) was offered £7,588. Their claim was in respect of immigration fees; legal fees; losses from unemployment for over 4 years; impact on life including multi-year trauma, evidenced deterioration of mental health and complete withdrawal from social life and normal activities; loss of benefits; and denial of banking services.

17.3.1.                                    The award was made up of £4,588, being the monthly capped General Award for loss of access to employment for just four months, and a level 3 Impact on Life award, being £3,000 at the time it was made.

17.3.2.                                    The policy update of 14 December will increase the quantum of the Impact on Life award.

17.3.3.                                    However, Claimant 3 has already been told that the category under which they were awarded for Impact on Life – level 3 – will not change. Claimant 3 has been unemployed since 2015 and struggled to gain any employment at all for the five years prior to that because of the question marks over their status; they have submitted medical evidence confirming that they developed a new mental health condition directly as a result of losing their status and becoming long-term unemployed; they have only been awarded indefinite leave to remain, and still have not been returned their passport; and they have, and continue to accrue, significant arrears while the compensation process has inched along. These facts conform to the descriptors for levels 4 and 5 of the new Impact on Life tariff much better than they do level 3.

17.3.4.                                    Claimant 3 will not benefit from the removal of the time-cap to the General Award for loss of access to employment because their claim has already been assessed as worth only 4 months of the General Award.

17.3.5.                                    The headline policy update does nothing to recognise the substantive inaccuracies and unfairness of the Home Office’s determination of Claimant 3’s case.

How good is the Home Office at sharing information about the Windrush Compensation Scheme? What could the Home Office do better to make sure people know about the scheme, and about the support that is available?

18. We note that the Home Office regularly sends representatives to engagement events, which certainly has the effect of creating and/or increasing awareness as to the existence of the Scheme. It is not clear how effectively the Home Office is reaching potential claimants outside the UK.
19. We acknowledge that the ongoing pandemic prevents face-to-face engagement events. There is anecdotal evidence suggesting that a broader demographic, crucially including older and more vulnerable members of the Afro-Caribbean community, was served by the face-to-face events. These individuals are less likely to have access or the necessary skills to take part in online-only events.

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?

20. Please see par 13.6 above, with specific reference to the Vulnerable Persons Team at pars 13.6.2 to 13.6.4.

Do you, or does someone you know, have experience of interaction with the Home Office generally since the Windrush Compensation Scheme was established? If so, have you noticed a change in the way the Home Office has responded to you?

21. As above, please see par 13.6.
22. Claimants in our network have not noticed any change in the way the Home Office has responded to them. While there has been increased engagement with staff at the policy-making level, caseworkers remain difficult to get hold of, and unable to deal with basic requests. Policy staff, whilst outwardly appearing keen to engage, have been very slow to respond to the criticisms and suggestions set out in these answers.

Do you believe the culture in the Home Office is changing?

23. No – please see pars 10 and 13 above, in particular par 13.13.2 and 13.3.3.

Is it easy to use the scheme application forms and the accompanying guidance? Is it easy to get help with an application, if this is needed?

24. Staff are able to guide applicants to the forms and guidance, but we are unaware of any instances in which staff have aided with completing the application form.
25. As set out below at par 51 there is an urgent need for funding for legal practitioners to support both first instance applications and appeals. It is unclear why the funds earmarked for promoting the Scheme cannot be applied to this crucial task.

If you or someone you know has had contact with the Home Office about an application, what was that contact like?

26. In addition to the examples set out at par 13.6, claimants report perfunctory levels of engagement when caseworkers have finally returned their calls or responded in writing, often after weeks of delay. Conversely, when assessing claims, caseworkers have sent letters seeking vast amounts of information and documentation, the relevance of which is not always clear – for example, a close family applicant whose own status was never in question was required to submit evidence of all the schools they had attended in connection with their own claim.
27. We are aware of at least one case where a claimant was sent multiple requests for information that they fulfilled in accordance with the caseworker’s specifications. This claimant was then contacted via telephone and interrogated harshly about their criminal history. They then received a number of confusing letters with a variety of different claim numbers when they had submitted only one claim (M12). One of these letters contained misrepresentations as to the telephone conversation.

How could the Home Office have communicated better about your application?

28. There is still no commitment from the Home Office as to a maximum time limit for responding to acknowledge receipt of an application and allocating a caseworker. That must be remedied. From that point, the same caseworker, or someone else with access to the same file containing clear and accurate notes, should always be accessible to the claimant.

Are the Windrush Compensation rules and the guidance for caseworkers working well? Are people being compensated fairly under these rules for the losses they have suffered, such as – but not limited to – actual financial losses?

29. No – please see par 13, and for specific reference to actual financial loss, pars 13.9 and 13.10.

If not, what changes would make the rules and guidance work better to give people fair compensation?

30. We have stated, most recently in an open letter to the Home Secretary, that the Scheme has to be taken away from the Home Office and administered by an independent external third party. This is because the slate of shortcomings set out above is substantial, and the pace of change has been glacial. The Home Secretary does not appear to possess the will to make the underlying political changes that would allow a fairer and more competent version of the Scheme to be designed and delivered by her civil servants. Her civil servants are therefore hamstrung, and able to effect only superficial changes at the margins. The policy update of 14 December is a perfect example of this, for the reasons set out in pars 15 to 17 inclusive. Moreover, confidence in the Home Office among claimants has eroded even further due to the mismanagement of the Scheme, and continued engagement with the Home Office is re-traumatising for many claimants.
31. That being said, if the Scheme cannot be administered by a different entity, we would suggest the following changes (which variously affect the Scheme Rules and the Casework Guidance):

31.1.                  Deadlines for acknowledging applications and offering interim payment of under one month; a deadline for a full assessment of claim and first offer of under three months, with a full explanation offered in writing with revised timeline if an extension is necessary;

31.2.                  Provision of legal aid or funding for independent legal practitioners to assist claimants in making applications and launching appeals;

31.3.                  Full reimbursement of lost pensions and savings;

31.4.                  Full reimbursement of all legal costs incurred;

31.5.                  Compensation for time spent on the compensation process;

31.6.                  A significant increase to the amount offered for homelessness – this should at the minimum reflect the real living costs including rent that an individual would have incurred based on their location. The ONS produces a wide variety of data that can be used to achieve reasonable estimates;

31.7.                  Clarification of the descriptors in the Impact on Life tariff table with case examples such that claimants can assess which levels their cases would fall into;

31.8.                  Revision of the evidential requirements demonstrating Impact on Life - bearing in mind that it was always intended that the Scheme would take a ‘light touch’ approach to evidentiary burdens[9]. In particular, the need for medical evidence must be reviewed bearing in mind the fact that such evidence may not exist, as set out in pars 13.3.4 to 13.3.6 inclusive;

31.9.                  Independent psychological/psychiatric assessment for claimants, both to help them make their claims, and to enable them to seek further medical help;

31.10.             An urgent review of the meaning of “loss of access to employment” – claimants need to be compensated for the fact that the Home Office’s actions made them unemployable, rather than solely for jobs that they actually lost;

31.11.             Revision of the standards of evidence required for an Actual Award for loss of access to employment, in line with the above;

31.12.             Removal of the rule on criminality and acknowledgment that the existence of this rule amounted to a form of double punishment;

31.13.             An external review process – both tiers of review should be conducted by non-government organisations if possible, but at the bare minimum, the final appellate stage must be carried out by a non-governmental agency, and its ruling must bind the Home Office[10];

31.14.             Greater transparency into the process of claims-handling, including some indication of how caseworkers are trained;

31.15.             Better statistics, including the numbers of offers rejected, the median offer made, and where there have been appeals, the amounts offered originally, and following each stage of appeal. These details are vital for scrutiny, and can easily be published without revealing the identities of claimants; and

31.16.             Full written apologies – none of the claimants in this network has received a substantive written apology acknowledging their specific circumstances and the damages inflicted upon them.

Is the review process working well? If not, what changes could make it work better?

32. No – please see par 13.12 above.

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?

33. We believe the preceding answers address the substance of this question, particularly at par 31.

Policy Update

34. This evidence was re-drafted following the policy update of 14 December 2020.
35. As a preliminary matter, we note that much of the policy update was leaked to the Sunday Times published the day before the official announcement and the Home Secretary’s remarks to Parliament. In our view, the practice of leaking policy to preferred newspapers, and particularly those operating with paywalls, is discriminatory – in this instance, the majority of the cohort directly affected by the policy was forced to wait in uncertainty until the following day. Given the gravity of the matter and the potential impact of the changes, this was frustrating.
36. We note that the Home Secretary is, as a result of s. 149 of the Equality Act 2010, bound by the public sector equality duty. The Government Equality Office’s guidance[11] on satisfying the duty states that the governmental body must have the duty in mind not only when it develops a policy, but also when the policy is reviewed. It is not clear if this obligation was discharged; the policy update itself is limited to two areas of the Scheme, and it is not clear that there was a systematic review of the problems raised with respect to those two areas because the tariff descriptors in the Impact on Life section remain ambiguous, and only one of the two caps on the General Award for loss of access to employment has been removed.
37. We question whether the update represents a sincere attempt to overhaul the Scheme, as the Home Office has stated, or whether the announcement was mainly intended to generate positive press coverage.
38. As set out above (see footnote 6), the Home Secretary announced that the £10,000 fast-tracked payment would be rolled out beginning the week of 14 December. As of the week ending 8 January 2021, no one in this network of claimants has received this payment. Indeed, we are not aware of any claimants having received this payment, which amplifies the concern set out at par 37.
39. This was a central point of an open letter to the Home Secretary[12] dated 1 January 2021. No acknowledgment or response has yet been received.
40. Close family applicants are not eligible for the fast-tracked £10,000 payment. We question the fairness of this. It is correct that the Scheme does not offer payments for Impact on Life at level 1 to close family applicants, i.e. a close family applicant would need to be assessed at level 2 of the tariff at least in order to receive an Impact on Life award. However, it is unclear why a close family applicant who has been assessed as having an Impact on Life award cannot obtain the fast-tracked £10,000 payment, since an award at level 2 or above by definition exceeds level 1, which triggers the £10,000 payment.
41. As noted at par 13.6.1, it does not appear that all staff working on the Scheme have been apprised of the policy update. This is disappointing, given how stressful this process is for claimants – the department should at the very least be able to present a consistent front.
42. The update was followed by version 6 of the Casework Guidance, containing the amended Impact on Life tariff table. As mentioned above, the amounts payable have been increased, but the tariff level descriptors remain vague and impractical.
43. To further confuse matters, levels 3 and 4 of the previous iteration of the table have been combined – the new table has five levels as opposed to six. Stakeholders have been briefed that this was intended to simplify the table, as caseworkers were having difficulty distinguishing between levels 3 and 4 of the previous iteration, which tends to prove the criticism set out at pars 13.2 and 13.4.
44. Claimants who already have Impact on Life offers have been told they will not be ‘downgraded’ – i.e., if a claimant had a level 4 award before the policy update, they would still have a level 4 award (M13). This is inaccurate prima facie – a claimant who previously had a level 4 award will now have a level 3 award because the two levels have been combined; claimants previously at level 5 will now have a level 4 award; and claimants previously at level 6, will now have a level 5 award.
45. It is extremely frustrating that claimants have already been misled in this way. This further amplifies the concern that these changes have not been properly devised, assessed or communicated internally.
46. As part of the overhaul, the Home Office said[13] the Windrush Community Fund had been opened. This fund was first announced on 4 May 2020[14]. It is unclear, in light of the urgency of the matter, why the Home Office took over seven months to open this fund[15]. It is also interesting to note that the fund extends to “producing and distributing marketing materials”, and “securing support from partners”, but appears to exclude independent application support or advice, from which claimants would most directly benefit.
47. We draw that inference on the basis that “projects that involve working with an organisation whose objectives conflict with those of the Windrush Community Fund” are specifically excluded. An additional guidance document[16] explains that one of the objectives of the Windrush Community Fund is to “ensure that individuals and communities have accurate information about the schemes, how to apply, and that any myths surrounding the schemes are addressed. This could involve, for instance, promoting example cases.”
48. Given that the department’s most common rejoinder to the various criticisms raised above is that they are not an accurate representation of the Scheme (see official comment in response to the open letter at footnote 12), we question how the Home Office will apply that particular objective in assessing applicants to the Windrush Community Fund. We note in particular that “promoting example cases” is likely to mean promoting individual cases where the Home Office has made a generous settlement whilst ignoring the deep systemic problems affecting the majority of applicants.
49. This inference is based on precedent – in May 2020, the Home Secretary announced that £360,000 of payments had been made, with one payment in excess of £100,000[17]. The latter fact was then used to suggest that the Scheme was making generous payments on the whole, when in fact there were 60 claims paid altogether in that period, meaning that the other 59 claims received a maximum of £259,999, which yields a mean average of £4,407.
50. Whilst this may appear to be nit-picking on a relatively trivial matter, we feel it is important to point out that a series of seemingly minor misrepresentations can be woven together such that the overall impression is significantly inaccurate. It is vital that Parliament maintains close and granular scrutiny of the conduct of the Scheme, given the injustices and humiliations Windrushers have already suffered.
51. The Home Office maintains that applications can be made by claimants and legal support is not required. As is clear based on the preceding, that is inaccurate. The Home Office has been informed of this repeatedly by victims, lawyers acting for victims and advocates. There is a steadfast refusal to recognise that the Scheme requires expert legal advice and application support. Viewed in the context of the amount of money set aside to celebrate Windrush Day[18], and the £500,000 now earmarked for promoting the Scheme and effectively providing the department with public relations services, denial of funding for legal assistance is yet another reason claimants remain sceptical as to the sincerity of the Home Office’s claims as to ‘righting the wrongs’ and commitment to fixing the Scheme.

January 2021