Reforming the Windrush Compensation Scheme

In 2018, news of the Windrush scandal reached the public domain, when it emerged that hundreds of Commonwealth citizens had been detained, deported and denied legal rights after wrongly being classified as illegal and/or undocumented immigrants.

Hundreds of individuals were placed in immigration detention, lost their jobs and homes and were threatened with removal, with many others deported to countries they hadn’t resided in since childhood.

Reforming the Windrush Compensation scheme was launched on 15 November 2021.

The challenge

The Windrush Compensation Scheme was launched in April 2019 by the Home Office to compensate members of the Windrush generation and their families for the losses and hardships they suffered as a result of not being able to demonstrate their lawful immigration status.

When the scheme was set up the Home Office estimated that 15,000 people would be eligible for compensation. As at the end of August 2021, only 837 people have received payments.

A Windrush Working Group was set up in March 2021. Chaired by Robert Thomas, Professor of Law at Manchester University, the group aims to ensure that people claiming compensation have their claims adjudicated fairly, accurately and in a timely manner; and that the complaints process is efficient, accessible and fair.

Members include pro bono lawyers and advisors, the Independent Adjudicator, the Parliamentary and Health Services Ombudsman, the Independent Advisor to the scheme, academics, claimants with ‘lived experience’ and and Dechert LLP.

The Working Group

Members of the Working Group
Chair: Professor Robert Thomas, Professor of Public Law at the University of Manchester
Rob Behrens, Parliamentary and Health Services Ombudsman
Nicola Burgess, Legal Director, Joint Council for the Welfare of Immigrants
Tim Bowden, Partner, Dechert LLP
Glenda Caesar, Claimant and member of Windrush Lives
Professor Naomi Creutzfeldt, Professor in Socio-Legal Studies, Westminster University
Marion Edge, Pro Bono Counsel, Dechert LLP
Martin Forde KC, the former Independent Advisor to the Scheme
Christian Hayibor, Claimant and member of Windrush Lives
Bishop Desmond Jaddoo, Windrush National Organisation
Franck Kiangala, Director, North Kensington Law Centre
Caroline Lawless, Windrush Policy, Home Office (Observer)
Helen Megarry, the Independent Adjudicator to the Scheme
Jacqueline McKenzie, Partner, Leigh Day
Ravi Nayer, Partner, Quinn Emanuel Urquhart & Sullivan, LLP
Sibon Phiri, United Legal Access
Anna Steiner, Solicitor and Senior Lecturer, Westminster University and Windrush Justice Clinic
Heidi Bancroft, JUSTICE

Reforming the Windrush Compensation Scheme was generously supported by Dechert LLP.

The Report

Having sat since March 2021, the Working Group made 27 recommendations designed to improve the administrative and procedural aspects of the Compensation Scheme to ensure the scheme is accessible, fair, and efficient for those who need it. Key recommendations include:

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.

A lack of trust was identified as the underlying factor in the low number of claims and this report examines how the Scheme can be improved to build trust in potential Claimants to ensure they receive the compensation they are entitled to.