HOR0003

 

Written evidence submitted by the London Borough of Hackney

 

 

  1. Background and context

1.1.            The London Borough of Hackney has a rich history of migration which makes it the special place it is today. About 8% of Hackney’s population is of Black Caribbean ethnicity and the Borough is believed to be home to 100s, if not 1,000s, of the Windrush generation who came from other Commonwealth countries across the globe. They and their children have, and continue to, contribute a huge amount to Hackney and are at the heart of the Borough’s rich diversity and vibrant culture.

1.2.            Hackney Council has been at the forefront of the campaign calling for justice for the Windrush generation. In August 2018, Hackney was the first council in the UK to pass a comprehensive motion regarding the Windrush generation (1), pledging to oppose the criminalisation of Windrush families, calling for an end to the ‘hostile environment’ policies and for support for those who have been affected by them, agreeing to celebrate annual Windrush Day, and press central Government for a public inquiry into the scandal.  In 2019, Cllr Carole Williams was named Hackney’s Lead Member for Windrush, becoming the first Lead member for Windrush across the country.

1.3.            Since then, the Council has continued to lobby the Government to overhaul the way it has responded to the Windrush scandal, end the ‘hostile environment’ immigration policy and to start a public inquiry (2).

1.4.            Following conversations with partners and wider consultations with residents who have been affected, the London Borough of Hackney is extremely concerned about the Home Office’s handling of the Windrush Compensation Scheme as it is systematically flawed. The key issues that have been identified by the Council include the fact that it is the Home Office that administers the scheme, the inaccessibility of legal aid, the misleading  name of the scheme itself, the lack of compensation for lost pensions and the exclusion of some formerly incarcerated people. These issues are outlined in further detail below.

 

  1. The Home Office

2.1.            Through conversations with partners and stakeholders, the single biggest issue with the Windrush Compensation Scheme is that it is administered by the Home Office. There is no confidence from the community or from any community organisation supporting applications that the Home Office is the appropriate body to run the scheme. Trust in the Home Office is very low and the experiences of people calling or applying have not been positive; when those affected engage with the Home Office, they encounter a 'culture of disbelief', a phrase which recurs in the vast majority of people’s stories.

2.2.            Wider evidence of the Home Office’s unsuitability to administer the compensation scheme is available. The Equality and Human Rights Commission's report of November 2020 found that the Home Office had failed in its duty under equality law  whereby “negative consequences were repeatedly ignored, dismissed, or their severity disregarded at crucial points of policy development. There was limited engagement with representatives of the Windrush generation, even as the severe effects of hostile environment policies began to emerge” (3). A Home Office official resigned over the design of the scheme’s failure to appropriately support victims or acknowledge the trauma caused by the Home Office’s own policies (4).

2.3.            In addition, in order to apply one has to obtain the appropriate documentation through the Windrush Scheme, also administered by the Home Office. There is a reluctance from those affected even to engage in this stage, due to fears that if they cannot secure their ID card they may be deported. It states on the Home Office website that details are not shared with enforcement, nevertheless, this process continues to cause significant worry and concern for potential claimants, which is understandable given past events and the Government’s continuing ‘hostile environment’ policies. Some eligible residents feel they have no choice but to live in destitution, so fearful are they of being deported at a later stage of life, leading some to adopt a fatalistic view that “we’ve lived this long without support, and we’ll die soon anyway.” Reassurances that the administrators of the Windrush Scheme will not pass on details to Immigration Enforcement are not trusted.

2.4.            The Government must acknowledge that to have the same public body administering this scheme as the one which was responsible for the initial injustice, is inherently problematic. Not only does this lead to the ineffective administration of the compensation scheme - exemplified by processing times which can extend beyond 18 months and only 400 claims out of almost 2,000 applications resulting in payment as of the beginning of May this year - but it also has the effect of re-traumatising those who were previously victimised by the Home Office. Hackney Council recommends that the Compensation Scheme should be run by an independent body to rectify the issues noted above; this should be done as a matter of urgency.

 

  1. Legal Aid

3.1.            The application process, the decision-making process and the appeals process present significant barriers to the effective rollout of the Windrush Compensation Scheme. In order for claimants to submit a successful application and to receive the proper compensation, it is necessary for them to gain advice from experienced and qualified legal professionals. This independent legal advice is a resource which many cannot afford and which to date the Government has not provided funding for. The Citizens Advice Bureau, although helpful, is unable to provide sufficient guidance for applicants as a result of the specific expertise required by the Scheme’s processes. “We Are Digital”, the organisation commissioned by the Government to provide additional support to claimants, has been criticised by Hackney residents as not understanding the community in need of support. Hackney officers and councillors as well as external stakeholders such as campaigners and those directly affected by the scandal, have concurred with this assessment following attendance at Home Office information sessions. Effective support for eligible claimants would be significantly more impactful if funded to be delivered locally and by trusted community-based organisations. While the Windrush Community Fund offered some organisations the opportunity to carry out this work, the application criteria that barred organisations who provide immigration advice from applying was unnecessarily limiting.

3.2.            The Government must consider how the application, decision-making and appeals process itself prevents claimants receiving proper compensation. A key element of this is the inaccessibility of legal aid for claimants. A further issue which needs to be rectified is that the burden of evidence lies solely with the claimants, the people to whom a wrong was committed, rather than with the institution which committed the initial injustice. It must be noted that the evidence requested by the Home Office from claimants has been described by community organisations supporting applications as ‘excessive’.

 

  1. The name of the Compensation Scheme

4.1.            A wider issue is the name itself which is a barrier to people applying. There are two different schemes with the name "Windrush", both of which are open to far more people than just those related to the Windrush itself. One is the "Windrush Scheme," which helps Commonwealth citizens settled in the UK before 1973 or people who arrived in the UK before 1988 from any country who are now settled to get legal documentation to confirm their status. The other is the "Windrush Compensation Scheme," which has slightly wider criteria whereby those impacted by not having documentation can make a claim. This is unnecessarily confusing and, in the Council’s view,  misrepresents the schemes.

 

  1. Shortcomings of the Scheme in fully compensating for the devastating impact the scandal has had

5.1.            The Windrush Compensation Scheme is a woefully inadequate response to this scandal that has resulted in people being wrongly detained, denied legal rights, threatened with deportation and wrongly deported, as well as the significant emotional toll on those affected. The length of time those affected have been out of work and without a home, and the level of compensation offered as well as the length of time it takes to receive a reasonable offer, demonstrates this inadequacy. Furthermore, the Scheme does not recognise losses of pensions and savings that are solely due to the actions of the Home Office. When this is challenged, Home Office staff are unable to provide any justification beyond stating that it is a feature of the Scheme Rules. A more recent response is that it is difficult to quantify or evidence a pension loss. Given the age of the cohort, and how many found themselves locked out of work up to pension age, this is a significant issue for eligible claimants and should have been addressed in the Scheme Rules.  Given the age of the cohort, the loss should have been possible to model. The exclusion of formerly incarcerated people fails to take into account the socio-economic impact on those who find themselves unable to work legally, and demonstrates a lack of compassion and humanity towards those who have served their time within the Criminal Justice System. The Scheme should be open to all who qualify and not bar access to those who may have been convicted or incarcerated.

 

  1. The design, promotion and delivery of the Compensation Scheme creates a barrier to people applying

6.1.            The National Audit Office report published in May 2021, cites poor caseworking operations and management systems and recommends that “The Department needs to sustain its efforts to improve its caseworking operations and management systems to ensure it fairly compensates members of the Windrush generation in acknowledgement of the suffering it has caused them.”

6.2.            This, and the issues noted in this response, would suggest that lessons have not been learnt and there has not been a reset moment when the leadership, culture and mindset that led to this scandal have been  challenged and scrutinised. Indeed, it seems that from the issues noted, the same leadership, culture and mindset remain in place. A clear break from the past way of working in the Home Office was needed  and leadership that was restorative, humble, trauma informed and culturally competent.

6.3.            The complete lack of cultural competence has meant that no part of the Scheme’s design, promotion or delivery has been based on any understanding of the key groups impacted, taking account of their history, past traumas and experience of racism and, therefore, their unsurprisingly lower levels of trust in the state, even before the Windrush Scandal. To expand on this, the process does not take into account the multiple intersections of a person’s identity, which in turn disadvantages those who are impacted. In this case, we are referring to an older age group of first generation immigrants, who have experienced life in the UK before any equality legislation was in place and who have then seen their children and grandchildren continue to experience prejudice and disadvantage, culminating in this scandal. Claimants report that the process of applying to the Scheme was itself re-traumatising, a number of claimants reported feeling suicidal due to the process. As a consequence, some applicants are far more likely to be vulnerable, experience digital exclusion, and be less vocal and also far less likely to engage with the state or with organisations such as the Citizens Advice Bureau or We Are Digital.  Such applicants are far more likely to necessitate being reached through trusted routes. It is also important to note that such intersections of vulnerability have been compounded by the Covid-19 pandemic and lockdown, a factor which again has not been taken into account by the Home Office. The overarching issue related to this and all of the issues noted in this response, is the failure of any part of the system to understand how these are examples of institutional racism and that recent actions by the Government serve only to further erode trust.

 

  1. The impact of eligible people not applying for the Windrush Scheme or for the Compensation Scheme

7.1.            The major impact overall is that the design of the schemes, and the administration thereof, actively dissuades people who are eligible to apply. This is evidenced by the low application rate and in the multiple submissions from community groups to the previous inquiry which overwhelmingly had the same message: if a scheme's design itself dissuades eligible claimants, it needs significant change.

7.2.            The impact on residents who are reticent to apply to the Windrush Scheme in order to obtain documentation (due to the fear of being deported as they do not trust that their details will not be shared with immigration enforcement) is that these people are living on the margins of society and are unable to live as full British Citizens - they would rather to struggle in this way rather than risk the attention of the Home Office.

7.3.            The impact of eligible residents not applying to the Windrush Compensation Scheme is that people continue to struggle financially, placing significant strain on their own lives and impacting the resources of local and central government. The impact of the delays in correcting the Scheme, when many claimants are elderly, is resulting in people passing away before a claim is approved (5).

 

  1. Other issues to note

8.1.            The lack of link-up between the compensation communications fund and who is eligible to apply inconveniences and makes it more difficult for organisations to engage with the communities affected.

 

 

              References

 

(1)   Hackney passes Windrush motion at full council meeting, Hackney Council, August 2018

(2)   Windrush generation and support for undocumented migrants, Hackney Council, May 2021

(3)   Home office failed to comply with equality law when implementing ‘hostile environment’ measures, ECHR, November 2020

(4)   Black official quit ‘racist’ Windrush compensation scheme, The Guardian, November 2020)

(5)   Windrush sandal: 21 people have died before receiving compensation, The Guardian, May 2021

 

June 2021