Independent report

Independent Person report on the Windrush Compensation Scheme oversight and performance

Updated 1 November 2023

Summary

The Windrush Compensation Scheme has drawn criticism from a variety of quarters. There is also criticism of a burdensome approach that people have raised with me.

The reform of the scheme in 2020 and the improvements made have been welcomed. This, particularly pertaining to increasing the minimum award from £250 to £10,000 on the making of a partial payment on the ‘Impact on Life’, the introduction of preliminary payments and the removal of the scheme end date have all been well received. In addition, the Employment Category has been overhauled and supportive efforts have been seen in granting of probate on the deceased’s estate.

The Windrush Scheme and the Windrush Compensation Scheme appear to be reaching across British Commonwealth nationals that have been affected by the Windrush scandal, however there is still more to be done and better data capture would provide improved intelligence.

Greater use of flow charts would aid scheme understanding to internal and external stakeholders and remove any misunderstanding.

Whilst there are some structural weaknesses in the Scheme, I have observed that the department is diligently working to refine processes that will lead to greater efficiency and productivity. I have outlined my key recommendations below:

1. It is recommended that there be clearer linkage between the Windrush Scheme and Windrush Compensation Scheme thereby reducing administrative lags, removing documentation fatigue on the side of the claimants, and improving overall confidence and trust amongst stakeholders. The key here is to reduce the length of time taken for partial/ interim payments on ‘Impact on Life’ approvals and when payment is made. Adopting this approach at the point that ‘status’ is granted may be preferable to requiring claimants to make a fresh application under the ‘non-financial’ impact eligibility criteria.

2. It is recommended that an approach of triaging, prioritisation and grouping of applications where there are close family links, is established so creating a fast-track approach to case work.

3. It is recommended that additional support and signposting should be made available to claimants should they wish to avail themselves to it. This resource would help to facilitate the management of the quality of applications coming in and afford protection to vulnerable claimants.

4. In light of the report by JUSTICE, ‘Reforming the Windrush Compensation Scheme,’ it is recommended that the independent person consult with JUSTICE, supported by law firms Dechert LLP and Quinn Emmanuel Urquhart & Sullivan LLP, to obtain expert guidance on the practical implementation of appropriate recommendations. The consultation will occur with a view to enabling the Home Office to take forward and implement those agreed recommendations in a structured, timely and considered way.

Overall, the Home Office has robust procedures, systems, and checks and balances in place. By ensuring the full and effective implementation of these designed processes, and supplementing with a few refinements, the Scheme could be made to exemplify best practice ‘In-Service’ Delivery.

Improved fluidity into the system should increase traction to deliver at pace and scale when wrapped around the existing frameworks of governance and legal accountability. However, the acid test for the Scheme will largely be dictated by the volume of applications and the measure of claimant satisfaction and confidence it receives.

The Home Office should not be afraid to make best use of Information Communication Technology (ICT) to improve the claimant’s experience and enable claimants to self-track application progress for themselves.

Introduction

As the Independent Person for the Windrush Compensation Scheme appointed in March 2021, the remit has been to provide oversight and reassurance on the Windrush Compensation Scheme, and to report to the Home Secretary on its operation, policy, and effectiveness. As the Independent Person, a key role is on advising on the delivery of the scheme, scrutinising performance, and measuring how well it is achieving its objectives. This includes reviewing risk management processes; taking reports from internal and external organisations to consider governance arrangements and monitoring recommendations for any improved management controls. As the Independent Person, I liaise with the appointed Independent Reviewer of the Windrush Compensation Scheme, a role which is undertaken by the Adjudicator (Adjudicator’s Office, HMRC).

Due to the multiple complexities of potential claimants’ personal situations and the structural mechanisms of the Compensation Scheme, the last 10 months have been spent taking a deep dive into the Scheme’s operation, ascertaining factual information as distinct from perception, reviewing areas that may be undermining the overall performance and integrity of the Scheme, and ensuring that value for money (VfM) to the public purse is being achieved in compensating eligible persons whom have suffered as a result of the ‘Windrush scandal’.

This first Independent Person report seeks to provide both internal and external stakeholders with transparent assurance on the Scheme’s performance and effectiveness from April 2021. Whilst not in scope of this report, the Independent Person wishes to acknowledge that there have been constraints arising from what may be best termed the ‘innovative steps’ of the product life cycle, that have allowed for a degree of negative perceptions to be generated and perpetuated. These perceptions are completely understandable at the initial phase of any product delivery. I, however, make observations on the Scheme as I have found it from April 2021.

The Home Office continues to work with grassroots groups across the country to win trust and gain their confidence. However, only through good case studies will current perceptions be changed or diminished. I extend my approbation to Martin Forde QC for undertaking the design of this important Scheme, and to the Home Secretary for her repeated public resolution that the wrongs done by the ‘Windrush’ scandal are to be put right; the task now is to achieve the confidence and satisfaction of those wronged.

Any recommendation contained within this report takes an objective base approach to achieving measurable improvements and looks to build confidence in the Scheme at pace.

Background

The Windrush scandal that emerged in the spring of 2018, revealed the huge injustices and hardship faced by members of the Windrush generation who had been denied their lawful immigration status because of Home Office policies and practices over very many years. Successive Home Secretaries have subsequently promised to right the wrongs experienced by members of the Windrush cohort, and to recognise the financial loss and emotional distress that Government actions caused. The Home Office established the Windrush Compensation Scheme in April 2019 [House of Commons Home Affairs Committee; The Windrush Compensation Scheme Fifth Report of Session 2021– 22].

Many thousands of people suffered the consequences of having their lawful immigration status wrongly denied through the design and operation of government policies. But four years after the Windrush scandal broke, the Government does not have a confirmed figure for the total number of people affected [Wendy Williams, Windrush Lessons Learned Review, HC 93, 19 March 2020, pp23–25].

Whilst attention has been initially focused on people from the Caribbean Commonwealth countries, particularly the ‘Windrush generation’, people from other Commonwealth and non-Commonwealth countries have also been affected. The children and grandchildren of people who could not evidence their lawful status have faced difficulties.

Many external stakeholders are deeply concerned that as of the end of September 2021, only 20.1% of the initial estimates of 15,000 eligible claimants have applied to the scheme and only 5.8% have received any compensation.

Further, that twenty-three individuals have died without receiving compensation for the hardship they endured [House of Commons Home Affairs Committee; The Windrush Compensation Scheme Fifth Report of Session 2021–22, pp3].

Independent Person’s Primary Findings

1. Between April 2019 and September 2021 8,714 people have been granted some form of ‘In Country’ status through the Windrush Scheme. 3,916 were male, 4,795 were female, whilst three did not have a gender recorded. It was not possible to establish from which UK region their applications had been made.

Source: Home Office Management Information produced using the data for 2021 Q3 Windrush Taskforce Data Transparency publication.

2. Currently there is no data capture to determine the number of status applicants that may be related by way of a family connection.

Year of birth	Age category	Number of people granted status in the UK	% of Commonwealth people
	0 to 4	1	100%
2018		1	100%
	5 to 9	2	0%
2013		1	0%
2014		1	0%
	10 to 14	1	100%
2007		1	100%
	15 to 17	4	50%
2004		2	50%
2005		2	50%
	18 to 24	36	58%
1996		3	100%
1997		8	50%
1998		5	40%
1999		6	83%
2000		1	0%
2001		6	67%
2002		5	20%
2003		2	100%
	25 to 29	55	51%
1991		3	33%
1992		14	43%
1993		12	58%
1994		10	50%
1995		9	78%
1996		7	29%
	30 to 34	105	52%
1986		6	50%
1987		31	48%
1988		26	54%
1989		16	56%
1990		11	55%
1991		15	53%
	35 to 39	152	51%
1981		7	57%
1982		25	64%
1983		46	48%
1984		30	57%
1985		24	29%
1986		20	60%
	40 to 44	143	71%
1976		5	80%
1977		31	68%
1978		27	67%
1979		33	61%
1980		29	83%
1981		18	78%
	45 to 49	193	66%
1971		11	82%
1972		41	76%
1973		34	59%
1974		58	69%
1975		35	57%
1976		14	57%
	50 to 54	371	54%
1966		24	58%
1967		86	42%
1968		88	55%
1969		74	53%
1970		59	73%
1971		40	50%
	55 to 59	733	54%
1961		55	64%
1962		191	64%
1963		166	49%
1964		133	57%
1965		102	44%
1966		86	41%
	60 to 64	1381	69%
1956		58	69%
1957		283	66%
1958		272	72%
1959		301	69%
1960		281	70%
1961		186	66%
	65 to 69	1558	68%
1951		58	69%
1952		283	65%
1953		300	68%
1954		348	68%
1955		316	69%
1956		253	70%
	70 to 74	1329	56%
1946		59	54%
1947		257	48%
1948		252	53%
1949		273	56%
1950		266	61%
1951		222	61%
	75 to 79	1060	46%
1941		49	43%
1942		175	47%
1943		219	46%
1944		241	42%
1945		179	47%
1946		197	49%
	80 to 84	809	37%
1936		28	50%
1937		129	36%
1938		147	35%
1939		167	34%
1940		204	40%
1941		134	36%
	85 and over	781	21%
1919		1	100%
1921		4	0%
1922		4	0%
1923		5	0%
1924		10	20%
1925		15	13%
1926		12	17%
1927		36	6%
1928		35	20%
1929		54	19%
1930		46	15%
1931		71	17%
1932		66	18%
1933		89	16%
1934		115	23%
1935		113	35%
1936		105	25%
Grand total	Grand total	8714	54%

Table 1

In this data, the nationalities included in the Commonwealth are:

Antigua & Barbuda, Australia, Bahamas, Bangladesh, Barbados, Belize, Brunei Darussalam, Canada, Cyprus, Dominica, Fiji, Gambia, Ghana, Grenada, Guyana, India, Jamaica, Kenya, Lesotho, Malawi, Malaysia, Malta, Mauritius, Namibia, New Zealand, Nigeria, Pakistan, Papua New Guinea, Seychelles, Sierra Leone, Singapore, South Africa, Sri Lanka, St Kitts & Nevis, St Vincent & the Grenadines St Lucia, Swaziland, Trinidad & Tobago, Uganda, United Rep of Tanzania, Zambia, Zimbabwe

Table 1 source: Home Office Management Information produced using the data for 2021 Q3 Windrush Taskforce Data Transparency publication.

3. For the two years (2019-21), the average number of British commonwealth individuals likely to be eligible for compensation were 2,425. As such, the revised planning assumptions of the Home Office of 4,000-6,000 (2021) would appear to be robust on the current data.

4. The number of applicants that transition to the Windrush Compensation Scheme following successful status application were 1,516 (of 3,025 applications in total). As such, 50.1% transitioned to Compensation, of which 215 applications were not eligible for compensation resulting in 85.8% progressing towards a final decision.

5. To September 2021 the Home Office had paid the cumulative amount of £31.6 million in compensation. We had offered £37.1 million. Source: Windrush Compensation Scheme data, 30 November 2021.

6. 484 Primary individuals, 63 secondary individuals received a paid value final offer. Source: Windrush Compensation Scheme data, 30 November 2021.

7. 369 individuals received over £36k in compensation. Source: Windrush Performance and Data Team.

8. The end date of the Scheme has been removed and there is no cap on the amount of compensation the Home Office will pay out.

9. The Home Office has a firm aim and commitment to ensure that any eligible applicant receives the maximum compensation that they are entitled.

Independent Person’s Secondary Findings

10. In several cases there were more than one application for compensation being made by the same individual.

11. When considering Tier 1 and Tier 2 Review, the current procedures and decisions were mostly consistent. There does appear to be an appropriate and robust mechanism in place, with independence of the Adjudicator’s Office demonstrated and evidenced. 90% of cases that were referred to the Independent Reviewer (Adjudicator) were upheld and in the 10% of cases that were not upheld by independent scrutiny, the Home Office has accepted the recommendations. The Independent person took an anonymised sampling across several cases and found that the process at Tier 1 and Tier 2 Reviews were compliant.

12. Processes for conducting a triage of applications are now in place, but these do not group primary and secondary claims where there is clearly a close family connection and duplication of effort may be encountered.

13. A lighter touch on evidence gathering appears to be required.

14. Where a partially considered case is passed to another caseworker who has left the team, it should be made clear that the new caseworker should not re-start the case work process from scratch but should continue from the point the case was left. Applicants should not be asked to provide information already submitted.

15. Caseworkers when making decisions surrounding the health of an applicant have relied on historical information rather than the most up to date information. This is not particularly useful or helpful when determining compensation based upon the person’s health, especially when this pertains to the mental health of an applicant.

16. In July, the Home Office published a new and simpler claim form, designed in consultation with stakeholders; at this time customer feedback is being ascertained to allow for evaluation.

17. In July, the Home Office also launched a package of support to help those making claims on behalf of relatives who have passed away. Impact of this change is yet to be evaluated.

18. Caseworkers’ recruitment had increased by 80 full time equivalent. The total will be added to by 34 new hires over the next three months.

19. For applicants requiring more support in applying to the Scheme, the Home Office has funded an organisation ‘We Are Digital’ to provide free, independent claimant assistance to individuals.

20. Communication with applicants on progress of their applications is problematic, there is no simple interface provided by the Home Office that enables the applicant to self-track progress of their application.

Independent Person’s Observations on the Windrush Compensation Environment

21. Whilst many individuals have now heard of the Windrush Schemes, confusion remains around precisely the difference between ‘The Windrush Scheme (i.e., Status)’ and ‘The Windrush Compensation Scheme,’. Until recently the Home Office did not effectively and clearly communicate to inform potential applicants how each Scheme operated. The confusion in the public mind may have hardened certain perceptions regarding the availability and access.

22. There is no natural transition pathway from completed successful status application to the compensation scheme.

23. The confusing landscape has meant potential applicants do not always understand the compensation eligibility criteria and exactly where they may fit, which is leading to abandoned applications or applications not being made.

24. Distrust in the Scheme has been exacerbated by negative, and occasionally inaccurate reports in the press, which have also contributed to an increased politicisation of the issue. This has not served the public good.

25. The Scheme branding ‘Windrush,’ has meant that many British Commonwealth individuals that may have been affected, feel disenfranchised and discouraged from coming forward. As a result, a disproportionate amount of media attention has been focussed solely on the experience of the Caribbean community at the detriment of other British Commonwealth Communities, e.g. Ghana and Bangladesh etc.

26. There is a lack of trust from certain quarters in the ability and appropriateness of the Home Office delivering the scheme.

27. I have observed that the Home Office has motivated staff in place, from wide and diverse backgrounds, keen to ensure the effective delivery of the compensation scheme.

28. There is a significant amount of emotional labour being expended within the Home Office that is not sufficiently acknowledged, and the Home Office has been slow to publicly communicate the positive impact the award of compensation under the Scheme has had on vulnerable individuals affected by the ‘Windrush scandal.’

Conclusion

29. No systems or schemes are entirely perfect and only through collaboration and co-production can we ensure progressive changes that embed knowledge and retain institutional memory.

30. There is a real opportunity for the Scheme to make effective change and restitution to peoples’ lives, but this can only be achieved through improved communication channels between Home Office and claimants, expressed concerns being dealt with at the earliest opportunity, and clear explanations given if there are any inconsistencies in opinions between parties.

31. Overall, the Scheme is delivering, and lives have been changed but the Scheme now needs to become more efficient and effective through appropriate reforms.

32. My observations have not persuaded me that it is necessary for there to be a complete redrafting of the Compensation Scheme, nor for the Scheme to be removed from the Home Office. Moving the operation of the Scheme out of the Home Office would risk significantly delaying payments to those affected and in certain respects diminish effective scrutiny.

Recommendations to improve Scheme

33. It is recommended that the Windrush Scheme and Windrush Compensation Scheme be automatically linked, thus providing a more streamlined and convenient approach to claimants especially when considering any ‘Impact on Life.’

34. It is recommended that any claim for eligibility on ‘Impact on Life’ should be automatically linked into the status application: thus, if an individual is deemed eligible both on status and Impact on life, that an immediate partial payment of £10,000 be triggered within 60 days of the granting of status. This would provide confidence to claimants and improve transition rates from the Windrush Scheme to the Compensation Scheme should a fuller compensation application be pursued, whilst also improving application traceability processes.

35. It is recommended that further consideration be given – in addition to ‘We Are Digital’ – as to what additional support and signposting can be offered to claimants, particularly to support vulnerable claimants.

36. Caseworkers should continue to have enhanced training on the use of the ‘Balance of Probability (BOP)’ including the use of case studies available to caseworkers and the wider public to grow confidence in both quarters.

37. It is recommended that greater use and understanding of BOP throughout the casework process should ensure a lighter touch on the burden of documental evidence.

38. It is recommended that an approach of triaging, prioritisation and grouping of applications where there are close family connections, is established and consideration be given to a fast-track approach being made available to claimants.

39. In light of the report by JUSTICE, ‘Reforming the Windrush Compensation Scheme,’ it is recommended that the independent person consult with JUSTICE, supported by law firms Dechert LLP (Mr Tim Bowden) and Quinn Emmanuel Urquhart & Sullivan LLP (Mr Ravi Nayer), to obtain expert guidance on the practical implementation of these and, where appropriate, future recommendations. The consultation will occur with a view to enabling the Home Office to take forward and implement the recommendations in a structured, timely and considered way.