New research by JUSTICE, University of Sussex, and Dechert LLP highlights value of legal representation in the Windrush Compensation Scheme
The law reform charity JUSTICE has published a major new report finding that survivors of the Windrush scandal are receiving significantly lower levels of compensation than they may be entitled to.
You can download the 88-page report here.
Research for the report was conducted by JUSTICE in partnership with the University of Sussex's Jo Wilding and the international law firm Dechert LLP. It is based on detailed analysis of 17 Windrush Compensation Scheme (WCS) case files and interviews with both claimants and lawyers. The report is further informed by a Working Group with expertise in providing legal advice to those applying to the WCS.
"The aim of the research was to identify exactly what lawyers do in WCS applications, which claimants could not do unaided and which non-lawyer support could not have done, that makes a difference to the outcome of the claims," the authors explained.
Overall, the report finds that that access to independent legal advice makes a substantial difference in the outcomes of claims made through the WCS, improving both the amount of compensation awarded and the overall experience of navigating the scheme.
JUSTICE noted that claimants who apply to the WCS without legal advice are frequently offered little or no compensation. The claimants in the cases studied for the report received an average of just over £11,000 if they applied for compensation by themselves. When claimants had access to legal advice, however, the average amount awarded increased significantly to over £83,000.
While the WCS currently funds advocacy support, the report notes that this cannot replace the need for expert legal assistance. The research identifies specific areas where lawyers add critical value. These include resolving complex eligibility issues related to historical immigration law, identifying and obtaining necessary evidence, and preparing detailed witness statements. Lawyers were also found to provide a vital buffer between claimants and the Home Office, especially important given the widespread mistrust among those affected by the scandal.
Given the complexity of immigration law, the report's expert Working Group highlighted the necessity of having immigration lawyers to understand the issues. Some of the reviewed cases raised complicated issues around historic immigration status under statute and the Immigration Rules, and whether a procedure to vindicate an immigration right existed on specific dates in the past. "These eligibility issues cannot be resolved by anyone other than an immigration lawyer," the report stresses.
Legal professionals, the report notes, are uniquely positioned to interpret missing or overlooked evidence, assess whether compensation offers are legally sound, and challenge decisions that may be unlawful or irrational. The research highlights that without such representation, many claimants - particularly those who are unwell, elderly, or otherwise vulnerable - may be unable to make a claim at all.
In all of the 17 reviewed cases, the Home Office did not commission the necessary evidence despite rules allowing it to do so, even when specifically requested by lawyers or caseworkers. The report highlights: "The WCS is an evidence-based compensation scheme so the absence of documents often greatly impacts a claimant's chances of a successful claim. As part of its rationale for consistently refusing to make fully-funded legal advice available to claimants, the Home Office insists that there is no need for lawyers, because WCS caseworkers will look for evidence on claimants' behalf. Our research demonstrates that this did not happen adequately on the files we reviewed. Where the WCS did seek evidence, their efforts fell far short of what was needed and what experienced legal representatives were able to do. This is because, unlike lawyers, WCS caseworkers are not experts in identifying, collating and interpreting evidence."
While the authors acknowledge that the cases studied may not represent the full spectrum of WCS outcomes, they argue that the evidence clearly demonstrates the irreplaceable role of legal expertise in achieving justice for survivors of the Windrush scandal. Based on their findings, the authors urge the Government to make funded legal representation, including the costs of obtaining necessary evidence, available for the WCS as soon as possible.
Dr. I. Stephanie Boyce, former President of the Law Society of England and Wales, endorsed the report's findings, emphasising that the right to compensation is meaningless if people cannot properly access it. She stated in the report's foreword: "The 17 case studies featured here demonstrate that funded, independent legal advice and representation are essential for claimants to access the scheme and secure fair compensation. Legal representation can also provide psychological support, acting as a buffer between claimants and the Home Office, an institution many understandably distrust and are reluctant to engage with directly. Additionally, claims prepared by legal professionals are more likely to be complete and are processed more quickly, benefiting both claimants and the Home Office by reducing delays and resource demands."
Tim Bowden of Dechert LLP commented: "The Windrush Compensation Scheme is undeniably complex. It requires an understanding of over 200 pages of rules, guidance and application forms in order to make an informed claim. This prevents claimants, especially the many elderly and vulnerable people damaged by this scandal, from being able to effectively present their cases and obtain the compensation they are entitled to. Funded legal advice under the scheme would be a huge help to claimants, but would also make the scheme more efficient, improve the quality of decision-making so that more claimants are offered the correct compensation first time around, and enable the government to deliver on the promises it has made to Windrush survivors."