Mr. Nigel Hills
Deputy Director, Customer Operations Support Services
Dear Mr Hills,
Re: Windrush Compensation Scheme Violates Claimants’ Right to Effective Remedy
I am writing on behalf of Human Rights Watch to share the findings of research carried out by our organisation on the Home Office Windrush Compensation Scheme (WCS) in order to provide the Home Office with an opportunity to comment on them prior to publication of our research. We also have a number of questions about the operation of the scheme which I would be grateful if you or your Home Office colleagues could answer.
Human Rights Watch is conducting research into human rights issues from the operation WCS including the extent to which the scheme provides a right to an effective remedy. To do this, we have interviewed people who have or are attempting to access the WCS, analysed publications including the Wendy Williams review and the Home Affairs Committee report, and spoken to lawyers who are providing pro bono assistance to claimants, academics, campaigners and journalists.
Overall, our research finds that the WCS fails to provide an effective remedy for the human rights harms suffered by victims of the Windrush scandal. The right to an effective remedy is protected by the Human Rights Act. We note that as January 24, 2023, only 12.3 percent of estimated 11,500 eligible applicants have accessed the scheme since its inception in April 2019.
Specifically, we find the following defects with the scheme:
1. The fact that the WCS operates out of the Home Office means that the scheme lacks independence. Claimants told us they lack confidence in the WCS because of the Home Office’s administration of it and in some cases are fearful of the Home Office. The scheme should be administered by an independent body as recommended by Martin Forde QC.
2. The application process for the WCS is extremely complex including a 44-page application form. This is compounded by a lack of legal aid for claimants. Home Office “We Are Digital” is not comparable to assistance by a lawyer, as advisors under the scheme cannot give legal advice or help claimants put together strong applications that will result in compensation that reflects the losses and impact on life that they have experienced.
3. The WCS suffers from arbitrary and inconsistent decision-making and delays by Home Office officials, including in relation to decisions about which level to categorise claims.
4. The burden of proof on claimants is too high which places an undue, and in certain circumstance insurmountable burden on claimants establishing the full extent of the losses they suffered as a result of being wrongly deemed to lack the UK citizenship or otherwise to have a right of residence in the UK. This is compounded by the exclusion of pensions and future earning loss from the WCS, a decision that ignores the fact the majority of the Windrush Generation is of a pensionable age.
5. The Tier-1 Home Office and Tier-2 reviews to HMRC adjudicators do not provide for an adequate right of appeal. In the instance of a Tier-1 review, the decision maker is not independent, and Tier-2 reviews are not decided by an arbiter that has the power to make a binding decision nor relevant expertise. A right of appeal to the Tribunal Service, which has the necessary expertise in matters relevant to the WCS, could be an effective and lower cost alternative to appeal to the courts.
Human Rights Watch is committed to fair reporting and seeking information from a variety of sources to inform our research. Accordingly, we hope that in addition to commenting on our research findings above the Home Office can kindly provide us with written responses to the following questions, with an understanding that those responses may be reflected in our forthcoming research:
1. Please share statistics and other information in relation to the implementation of the WCS:
a. Updated numbers on claims submitted as well as Tier-1 and Tier 2 reviews since January 2023;
b. How many Tier-1 reviews are in relation to dissatisfaction with the initial offer and how many are based on rejection of claims;
c. A breakdown of claims categorised by the Home Office as Level 1, 2, 3, 4, and 5 ‘impact on life’ claims and the average compensation awards offered since the WCS’ inception;
d. How many people received advice under the Home Office’s “We Are Digital” scheme;
e. How many cases did the Parliamentary and Health Service Ombudsman and Tier-2 adjudicator recommend a reconsideration of a determination by the Home Office? In how many of those cases did the Home Office change its initial decision?
2. Please provide information on any plans to reform the WCS and if these reforms will involve:
a. Inclusion of pension and future earning losses;
b. Lowering the standard of proof for claims;
c. Granting access to legal aid to claimants;
d. Consideration of giving the WCS to an independent body for administration or at the very least increasing independent oversight that would involve detailed, quarterly assessment reports by the 2021 appointed ‘Independent Person for the Windrush Compensation Scheme’ that includes updates and reporting on proper case processing and on recording of information by caseworkers.
3. What is the timeframe for and plan to ensure full compensation to all estimated 11,500 eligible claimants by the Home Office?
4. Will the Home Office publish the report that was commissioned by the Home Office as part of a commitment to educating civil servants about the causes of the Windrush scandal and analyses the colonial roots of the Windrush scandal?
5. We understand that the abovementioned report was intended to serve as a basis for trainings. How many such trainings have occurred and what was the content of these trainings?
We look forward to receiving a written reply from you to the information requested by March 29, 2023, so that your responses can be reflected in our reporting. We also welcome any opportunity to discuss this matter further, via conference call. Please do not hesitate to contact me, or Almaz Teferra, the researcher leading this project, at firstname.lastname@example.org with any questions regarding this letter.
We thank you for your consideration.
Yasmine Ahmed UK Director Human Rights Watch