The operation of the compensation scheme for victims of the Windrush scandal must be independent of government over concerns about ‘fear and mistrust’ of the Home Office, according to leading lawyers and campaigners. A new report from the law reform group JUSTICE has drawn attention to the present scheme’s ‘inherent lack of independence’, suggesting that its original intent to compensate victims of Home Office ‘failings’ had been ‘seriously undermined’ .

The Windrush Compensation Scheme was launched in April 2019 when, according to the Home Office, around 15,000 people were reckoned to be eligible for compensation. According to the new report (Reforming the Windrush Compensation Scheme), at the end of August this year 2,761 claims had been made and 837 people received compensation payments. JUSTICE is concerned about ‘both the low take up of the scheme’ (less than 20% of those eligible making claims) and ‘the difficulties and delays experienced by those who have made a claim’.

‘This report provides an informed and critical analysis of the way the Windrush Compensation Scheme is operating,’ explained Professor Robert Thomas, chair of the JUSTICE working group. ‘We have real concerns about its operation that can mean people who have suffered real harm because of the Windrush scandal are not able to get compensation.’

JUSTICE argues that routes to challenging Home Office offers were ‘unsatisfactory due to a lack of independence and narrow remit’. The group recommends that an independent tribunal hear appeals from claimants and that, if dissatisfied, they have direct access to the Parliamentary and Health Service Ombudsman without having to be referred by an MP, as under the present arrangement.

Elsewhere, JUSTICE welcomed increases made to ‘impact of life payments’ in the scheme in December last year, raising from a minimum payment of £250 to £10,000, as well as amendments to the test for considering evidence – based on ‘the balance of probabilities’ rather than a ‘satisfied so as to be sure’ approach. The group also made a number of recommendations to the scheme – for example, the report argues that employment and pension losses are calculated ‘in a simplistic way which does not reflect actual losses and is at odds with the process that is normally adopted to calculate such losses in personal injury or employment cases’. JUSTICE also call for lawyers to be funded for representing clients either under legal aid funding or via funding provided under the scheme itself.

Recommendations

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