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King’s College London identifies failings in Windrush Compensation Scheme, including low success rate and lack of legal aid


Comparative research concludes urgent reform is needed for scheme to compensate Windrush scandal victims

Date of Publication:
19 February 2024

A new report released last week by the King's Legal Clinic at King's College London (KCL) has identified significant structural failings in the Government's compensation scheme for victims of the Windrush scandal.

Report coverYou can download the 64-page report here. It was authored by Shaila Pal and Elly Nowell of KCL's Dickson Poon School of Law.

Among those offering support and contributions for the report were Southwark Law Centre, Grace Brown of Garden Court Chambers, the Greater Manchester Immigration Aid Unit (GMIAU) and GMIAU's Nicola Burgess.

The report examines and evaluates the performance of the Windrush Compensation Scheme (WCS) against three other contemporary schemes providing compensation for harm caused by the British State. The schemes used to provide a comparison are the Lambeth Children's Home Redress Scheme, the Horizon Shortfall Scheme, and the Infected Blood Compensation Scheme.

KCL's report finds that the WCS has a range of structural weaknesses and failings compared to other compensation schemes, including:

  • Complex initial eligibility requirements;
  • An elevated standard of proof;
  • A lack of independence and an adversarial approach to decision making;
  • An absence of legal funding;
  • Limited independent redress.

Among the four schemes examined, the WCS was the only one where the perpetrator of the original harm, the Home Office, is solely responsible for the initial decision making and subsequent first level review decision. The three other schemes used (or proposed to use) external lawyers and independent experts in the decision-making process.

The WCS had a significantly lower statistical success rate and higher refusal rate than the other schemes evaluated. The report states: "Statistically the WCS has the lowest success rate for applicants, with only 22% (1,641) of those applying receiving compensation and 53% (3,986) of initial applications being refused. In comparison, under the Lambeth Children's Home Redress Scheme 79% of applications were successful, with 8% being refused. Under the Horizon Shortfall Scheme 73% of applications were successful with a 17% refusal rate. The low success rate of the WCS raises concern as 16,744 applicants have had their immigration status confirmed though the Windrush Scheme. This suggests that only 10% of applicants who have secured declaratory immigration status have received a payment under the Windrush Compensation Scheme."

KCL notes that the WCS has no provision for legal aid funded independent legal advice or representation at any stage of the process, contributing to the low success rate.

The report explains: "This significant impact of the application of an enhanced standard of proof, complex eligibility requirements, onerous application process, decisions makers lacking competence, coupled with the absence of government funding for legal advice and representation appear likely to be key factors in the high refusal rate for the WCS."

KCL's report concludes that urgent reform of the scheme is needed.

Garden Court Chambers reported last week that an upcoming judicial review in the High Court will consider the refusal of the Legal Aid Agency (LAA) to grant legal aid to a WCS claimant. Garden Court's Grace Brown and Alex Schymyck are acting for the claimant, instructed by Southwark Law Centre.

Van Fergusson, solicitor at Southwark Law Centre, said: "The judicial review is important for the reason that for many victims of the Windrush scandal, effective access to meaningful and fair compensation, and access to legal representation, are one and the same. Without the latter, the exercise in restorative justice in the form of the Windrush Compensation Scheme, will remain an empty one for far too many victims, some of whom have now already passed away."

The case will be heard in the High Court this week on Tuesday and Wednesday.

1 Crown Office Row's Martin Forde KC told BBC News last month that the WCS "cries out for legal aid" and people still aren't getting the assistance that they need. Forde said the process for Windrush victims to claim compensation is very slow, very document heavy and legally complex.

Earlier this month, Leigh Day solicitors reported that a member of the Windrush Generation had been granted permission to bring a judicial review of the Home Office's decision to refuse him compensation under the WCS.

Leigh Day's Stephanie Hill said: "Like so many members of the Windrush Generation, my client has experienced ill-treatment from the Home Office for many years. Firstly, he was denied entry to the UK and sent to Jamaica, despite having first arrived in the UK as a child in the 1970s. To compound this unfairness, he has since been denied compensation for the impact this had on his life. Our client will argue that the Home Office has failed to apply its own immigration law correctly and has taken an unreasonable approach to the evidence in this case. Our client is pleased to have been granted permission for a Judicial Review in the High Court."

Meanwhile, the University of Leicester said last week that the Home Office has requested the help of the University of Leicester Law School to raise awareness of the eligibility for the WCS.

The Law School runs a free legal advice clinic offering assistance for people affected by the Windrush scandal. The Home Office has provided £10,000 in funding to the clinic to raise awareness of the Windrush Compensation Fund to non-Caribbean communities.

Laura Bee, director and supervising solicitor of the clinic, said: "This funding will enable us to go into other communities and raise awareness of the Compensation Scheme, then help potential claimants. We have created a paid administrator role for our current students to apply for, and are also recruiting a part-time solicitor, to give us the capacity to run this project. It will enable us to develop closer collaborations and links with community organisations."

According to a BBC News article published last month, the Home Office says it has so far paid more than £75 million to victims of the Windrush scandal and it is improving the WCS in order to pay compensation as quickly as possible.