Independent report

Second Independent Person report on the Windrush Compensation Scheme: oversight and performance one year on

Updated 1 November 2023

Summary

This second report produced by the Independent Person (IP) for the Windrush Compensation Scheme (WCS) reflects upon progress and achievements made to the WCS following the publication of the first IP Report in March 2022. The report seeks to provide both internal and external stakeholders with transparent assurance on the Scheme’s performance and effectiveness.

Improvements to the Scheme and the increased numbers of trained case workers deployed has meant that to the end of December 2022 the total amount paid or offered to claimants through the Scheme had increased to over £64.08 million.

In August 2022, the Home Office made significant changes to the Scheme; these being on Homelessness and close family members. The changes for close family members went a significant way to addressing Recommendation 2 (applications where there are close family) in the first IP’s report. The Homelessness policy change by the Home Office and its implementation should not be underestimated. As such the IP wishes to commend the Home Office on its approach and the openness to scrutiny in this area.

The Home Office is working to identify a workable and efficient method to address Recommendation 1 (clearer linkage between Windrush Scheme and Windrush compensation Scheme).

Since the last IP report, the Home Office’s transparency data has significantly improved^{[footnote 1]} as compared to March 2021, thus enabling better insight, and evidencing that the Home Office is taking an inclusive approach with its treatment of British Commonwealth Nationals that may have been affected by the Windrush Scandal.

Observations from the past 12 months, via attendance at community engagement meetings, department meetings with staff, and scrutiny of process has allowed me to be assured that the Home Office continues to diligently listen to all concerns and taking the appropriate guidance to make constructive improvements where possible. The approach of placing a face behind the process is seen by and large to be positive with most stakeholders.

Overall, the WCS remains robust, and any deficiencies identified having plans in place to improve.

Summary recommendations:

1. That the Home Office makes greater use of its Digital Transformation and Performance Unit’s personnel skills and talents to improve the time it takes for case workers to extract data subject information between databases. This journey will better inform learning, improve insight, and start to enable a more ‘One Home Office’ system approach that would aid streamlining the Windrush Status and Windrush Compensation Scheme.

2. Applications that are received by the Home Office and upon initial inspection prove to be evocable (without doubt) not suitable for compensation should be immediately rejected and the applicant informed at the earliest opportunity, but no longer than within 30 days. This would remove false expectations and reduce WIP (Work-In- Progress) for case workers by ensuring their efforts are focused only upon applications where compensation are likely to be granted.

3. Eligibility and entitlement are not the same thing. The public often believes that being eligible does simultaneously mean being entitled. This confusion leads to unmanageable expectations. As such the Home Office should make clear its definition of the two terms in a manner that removes public confusion in respect to the Compensation Scheme.

4. Applicants that do not provide sufficient evidence or are uncontactable after a period of 6 months should have their applications taken off the department’s work in progress. Guidance and rules should reflect any amendments.

I extend my thanks and gratitude to Nigel Hills and his Team during my scrutiny visits and their responsive engagement with me during the past 12 months.

Introduction

The Windrush Status and Compensation schemes have effectively been in place since 2019, approximately 4 years. Changes to the Compensation Scheme in December 2020 informed the public that applicants that have yet to receive a final offer, would firstly be considered whether they are entitled to a preliminary payment of £10,000 within six weeks of eligibility for the Scheme being confirmed or make them a full and final offer which will be based on the new impact on life payment levels. The Home Office decision will be based on where the application is in the process. By the end of March 2021, the Department had paid £14.3 million^{[footnote 2]} with a further £12.3 million offered (a cumulative amount of £26 million).

The commitment made by the Home Secretary and the Home Office has seen further progress as demonstrated in the published data of December 2022 that showed a total amount paid of £53.9 million, representing 258% increase (£39.6 million) upon a year ago and an overall cumulative change of 140% (£64.08 million).

The figures are somewhat impressive but on their own do not truly reflect the effectiveness and utilisation of resources in achieving the WCS’s goal. Thus, any assessment of progress must be kept clearly under the lens of how the objectives are being achieved by the Home Office in meeting the Scheme’s goal.

Let us reminder ourselves, that the WCS came about because of the terrible injustices faced by some people commonly termed the Windrush generation and the wider Commonwealth, which happened under successive governments and enforced by the Home Office as a result of being unable to demonstrate their ‘lawful’ status. As such there was the need to have a mechanism inside the Home Office to put right the past and be accountable for any possible future errors.

The Home Office has set itself seven goals. Goal 3 is to protect vulnerable people and communities.

Thus, the WCS’s goal; “compensation scheme (“the Scheme”) is designed to compensate individuals who have suffered loss in connection with being unable to demonstrate their lawful” status in the United Kingdom (this was also opened to close family). Thus, the WCS’s goal provides a clear direction to the Home Office and aligns itself to the Department’s priorities.

Independent Person’s Primary Findings

Table 1 below shows that reasonable assurance is given against the delivery of the Department’s seven objectives. Substantive assurance was not provided at this time, whilst there remain some elements within the objectives that require improvement.

	WCS objectives	Is the objective being meet	Evidence
1.	Seeks to compensate eligible individuals for certain financial losses they have experienced as a result of difficulty in demonstrating their immigration status.	≥√	Total amount paid to claimants £53.98 million (Dec 2022) to 1,417 applicants. Total intake of applications 5,080, number of zero entitlement claims 1,424 and Eligibility refused/withdrawn 292 = 237.4% confidence level. This is in-line with HOAI planning assumptions.
2.	Provides for the possibility for payment in recognition of non-financial losses including emotional suffering and other categories of non-financial loss.	√	Windrush Compensation Scheme Rules Annex H: Impact on Life covered within H2, H6. 100% confidence level.
3.	Is quick and easy to navigate for claimants, with assistance available for claimants to make their claims, with an onus on those operating the Scheme to, with the consent of the claimant, collect evidence from other public bodies or government departments in the first instance.	≤√	Claimant Assistance provider total 2,206. Number of zero entitlement claims total 1,424, numbers rejected on eligibility grounds 277. Overall, 43.4% confidence level 33.48% = No. zero entitlement & ineligibility claims = waste on resources[footnote 3].
4.	Minimises the likelihood of ineligible or fraudulent claims.	≥√	Process aspects: Total intake of applications 5,080, proceed to WIP 2,055, Eligibility refused/withdrawn 292, Number of zero entitlement claims 1,424 and value offers (includes zero entitlement claims that have had a payment on review) 1,085. Total Final Decisions 3,025 = 167.9% confidence level.
5.	Minimises the risk of litigation	≥√	Cumulative number of claims seeking a review: Tier 1 792, cumulative number of claims seeking review: Tier 2 207, Total intake of applications 5,080 = 508.5% confidence level. In total, there have been technically four Judicial Review judgments against the Home Office, these judgments have been entirely focused on the Windrush Scheme and policy issues connected to British citizenship and acquiring status in the UK. They do not directly engage compensation at all.
6.	Achieves maximum support and advocacy from external (and internal) stakeholder groups, through consultation on design and transparency of operation.	≤√	Number of people referred by the Windrush Compensation Scheme to the Claimant Assistance provider total 2,206. Accumulative number of applications received 5, 080 = 43.2% assist.
7.	Operates as cost effectively as possible while meeting the above objectives.	√	Compensation outturns range from £20.5 to £301.3 million (PV) based on the volume range of 3,000 to 15,000 eligible claims. Operational costs related to staffing are estimated to be approximately £4-6m per year.

Table 1 Confidence level percentage is derived via published to determine the likelihood of the Department being able to achieve its stated objectives.

1. The Home Office in parts is exceeding on several of its objectives of the Scheme. However, there is a need to consider ways of improving performance and efficiencies within Objective 3 that is affecting Objective 6.

2. At the time of writing this report, the IP was unable to consider the current run rate of costs to be able to offer any commentary as to how Objective 7 was performing.

3. The is a need to tease out the reasons in Objective 3 for the lags being generated and the Department should attempt to take a pragmatic approach to resolve.

4. Objective 6 is primarily a function of Objective 3. An improvement by a third^{[footnote 4]} at Objective 3 would it is anticipated bring about a 29% improvement at Objective 6.

5. As a result of a function of people with a greater entitlement applying earlier in the Scheme and more recently due to the misinformation on social media, an increased number of zero awards has been recorded as shown in Chart 1.

Chart 1

6. Casework performance has achieved above target outcomes over the past 6 months because of a greater number of caseworkers and streamlining processes leading to higher productivity – the output uplift has exceeded the proportionate increase in caseworker resource. Chart 2 demonstrates that case work performance is performing well against forecast.

Chart 2

^{[footnote 5]}

The Quarter 4 2022 target was set at 424 full and final decisions. This was exceeded by the Department:

October – 138

November – 174

December - 150

Total = 462

7. In terms of data^{[footnote 6]}, new safeguards in the system have been introduced to prevent or alert the Home Office if someone has incorrectly been subject to the measures of the compliant environment. This includes a series of changes to improve the quality and handling of personal data, and the development of three safety mechanisms.

8. A triple lock mechanism has improved protection in the data sharing process, which involves increased data quality checks before sharing the data, and manual immigration status checks being undertaken on cases.

9. The Windrush Compensation Scheme, Digital Transformation & Performance Unit must be commended on the accuracy of data being stored and compiled from the several databases to produce quality information. Examination of the anonymised data and discussion with officers allows for substantial assurance that data held meets the principal of FAIR (Findable, Accessible, Interoperable and Reusable)^{[footnote 7]}.

10. The Policy change in respect to homelessness with the removal of the £25k cap is viewed as appropriate. Compensation to individuals who suffered homelessness because of an inability to demonstrate lawful status are now compensated in the amount of £250 a month^{[footnote 8]} consistent with the Local Government Ombudsman Guidance on Remedies. The Homelessness category has been expanded to allow awards to be made to people who became homeless for other reasons provided that they continued to be homeless due to an inability to demonstrate lawful status. The change is seen has being beneficial and proportionate. Every person will be compensated for the full period they were homeless and all cases which are currently under consideration and those cases already concluded by the Home Office are applying these changes retrospectively.

11. Close family members policy change (designed to compensate partners, children, parents, or siblings of primary claimants) now allow a claim from a close family member under the Immigration and Legal Fees, Impact on Life and Discretionary categories with a fourth category of ‘Living Costs’ added to the Scheme. This category aims to compensate close family members for certain contributions to a primary claimant’s living costs following the primary claimant’s loss of access to employment or benefits due to an inability to demonstrate lawful status.

12. Medical reports have now had an agreed operational process implemented whereby the Home Office can request expert medical reports on behalf of customers, and the guidance has been updated to reflect how this can be done. The Home Office will work with representatives, and those customers without representation to obtain independent medical evidence in support of their claims, particularly where it will likely lead to an increase in the Impact on Life category.

Independent Person’s Secondary Findings

1. Over 15,700 people have been issued with documentation confirming their status or British citizenship up to Quarter 3, 2022.

	Q3 2022
Jamaica	3,353
Caribbean	1,855
Pakistan	175
India	2,188
Bangladesh	146
Ghana	151
Nigeria	434
EU	4,640
Rest of world	2,771
Table 2	15,713

2. Individuals from a wide range of nationalities have been granted documentation after applying to the Windrush Scheme from within the UK, including a wide range of Commonwealth countries. To determine how accessible the scheme is to potentially affected individuals residing outside the UK, it would be helpful for the Home Office to provide a similar comparison table in future reporting.

3. As of December 2022, the total cumulative number of claims in progress stood at 2,055 compared to 5,080 of total applications received. 59.5% of all applications were not compliant for the scheme. There were still 185 cases that were over 18 months in the system. Chart 3 indicates that cases beyond 12 months were falling, however a total of 758 (36.8%) cases were still in WIP beyond 12 months.

Chart 3

There has been satisfactory progress in reducing the length of time it takes for applications to receive a full and final decision or offer.

Chart 4

^{[footnote 9]}

Chart 4 indicates that the bulk of applications are now being cleared within 1 to 6 months, and those that were taking 6 to 9 months have been consistently declining.

4. Tier 1 (T1) reviews were the biggest area of challenge in the system and is an area of a risk. Those individuals in T1 review at all aspects of a case makes it quite resource intensive and a significant amount of WCS Home Office’s resources is being moved in this area to support the exiting team. Chart 5 shows the level of increasing numbers of T1 reviews being requested from July 2020 to December 2022.

Chart 5

Chart 6

5. Chart 6 shows that for the same period as that of Chart 5 there were sizable number of applications that had been rejected based on eligibility and zero entitlement. It is suspected that these numbers of applicants are requesting Tier 1 reviews, as such creating delays within the system.

6. A proportion of nil awards (43%) seems to be related to people who have suffered racial detriment and had an impact on their life, but this is not something that is within the scope of the WCS. There is a need to improve the Home Office explanation of the Scheme and the process as well as to identify nil awards earlier and remove from WIP.

7. The Department is looking at how it can coordinate and join up close family members claims to avoid duplication. There may be different circumstances with these claims i.e., siblings having different awards due to slightly different circumstances.

8. The Home Office currently has a customer contact strategy in place, it is looking at establishing an engagement strategy that runs end to end i.e., before people apply to the WCS, entering the WCS and up until after having a claim decided and receiving feedback. The Department wants to communicate with claimants at each major point as well as providing an update throughout any wait periods.

Independent Person’s Observations on the Windrush Compensation Environment

1. The Home Office is primarily an enforcement arm of Government, and as such it faces an uphill struggle in gaining confidence and trust from within certain quarters. However, as a result of community engagement, barriers are slowly breaking down.

2. The Department’s position is not aided when misinformation on the WCS is spread on certain platforms. Such material only goes to undermine its efforts. Misinformation of the nature that has been seen is confusing, frustrating and delays the process significantly, as such wholly unnecessary.

3. The language used when communicating with applicants, such as eligibility and entitlement, remains a cause of confusion. In the general public’s mind, eligibility and entitlement are interchangeable, however from a departmental perspective, they are completely distinct i.e., whilst an individual might meet the criteria to be eligible for status this does not automatically convey a right to entitlement for compensation.

Chart 7

This denotes the process flow an application will go through to achieve full and final decision.

4. For the avoidance of doubt, an application into the WCS can only be truly accepted for processing once it receives notification of eligibility via Windrush Status. The WSC is entirely dependent on WS, whilst the converse cannot be said to be the same.

5. There is no common application reference between WS and WCS databases. Currently the process for validation is undertaken manually and this takes a considerable amount of time. It is worthy of note, that when applicants obtain status, the Department will accordingly write to them to the effect “that they may be entitled to compensation and should apply via WCS”.

6. The Department’s wording in letters may generate further confusion. To prevent any confusion, the wording in WS letters should be precise and not ambiguous.

7. It is considered that the largest foreign-born population groups in the UK have lower than expected claimant volumes. Harms are dependent on circumstances and some harmed communities do not identify themselves as the Windrush generation.

8. From direct examination of material and engagement with Home Office staff, I can draw the conclusion that the Department remains firmly committed to ensuring that all eligible applicants receive the maximum compensation that they are entitled.

9. 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.

10. The term ‘hostile environment’ has been fashioned around the reason the Windrush generation and the wider Commonwealth faced terrible injustices. To put right the wrongs and to ensure the situation is not repeated in the future, the Home Office had commissioned Wendy Williams to undertake her review and to provide recommendations.

11. The ‘compliant environment’: the UK has a combination of laws and processes in place to regulate access to employment, benefits, and services. This is to ensure those that are entitled to them, have access, while also preventing access to those who are not in the UK legally or have conditions attached to their permission to stay which limits their entitlements. The Department has gone someway in addressing Recommendation 7 in Mrs Williams’ report.

12. However, the recent leak in January 2023 from within the Department on changes or amendments to three of the recommendations put forward by Mrs Williams, highlights the ongoing risk that was mentioned in her report. Quoting from Wendy’s report “Ministers and senior officials must provide staff with a clear understanding of what effective public administration looks like by establishing an organisational culture and professional development framework that values the department’s staff and the communities it serves. Anything else risks not only exposing the department, its staff, and leaders to further reputational damage, and harm to individuals and communities; it also risks further undermining public confidence”^{[footnote 10]}.

13. A ‘Freedom to Speak Up Guardian’ internally appointed within the Department to provide an additional route to support workers to speak could reduce such risks. The Freedom to Speak Up Guardian, should ensure those who speak up are thanked, that the issues they raise are responded to, and make sure that the person speaking up receives feedback on the actions taken.

14. The Freedom to Speak Up Guardian must be a named individual who provides an impartial and confidential service to employees who wish to raise concerns.

15. The ‘compliant environment’: aims to deter immigration offending; discourage those who may be thinking of coming to the UK unlawfully from doing so; secure compliance and support the enforcement of UK immigration laws; protect taxpayers’ money; and protect vulnerable migrants from the risk of exploitation by unscrupulous employers and landlords. As such the current work and communication pertaining Chagossian descent^{[footnote 11]} demonstrates the learning being implemented by the Department and the ‘One Home Office’ approach be taken to prevent a repeat of the Windrush scandal.

Conclusion

16. The quantum of compensation of £64.08 million that had been paid or offered as at the end of December 2022 demonstrates the improvements made to the system are now being realised for claimants.

17. There is still some way to go to ensure a fair and restorative mechanism for loss of pension entitlement.

18. Inconsistencies in case workers’ decisions is being reduced due to improved quality assurance and quality checking.

19. Overall, the Scheme remains compliant and is meeting its objectives.

20. I remain unpersuaded that it would be in the interests of the public or the public purse to move the operation of the Scheme outside of the Home Office.

Recommendations to improve the Scheme

21. It is recommended that the Windrush Scheme and Windrush Compensation Scheme be assisted to allow for better alignment using a Common Reference Thread, i.e., common documentation reference number.

22. Applicants should be able to avail themselves to an electronic self-serve process whereby they can track progress of their applications, receive appropriate communications from the Department and be able to submit suitable evidence.

23. Applications that upon initial inspection prove to be evocable (without doubt) not suitable for the Compensation Scheme should be immediately rejected and the applicant informed without delay.

24. An applicant that cannot provide sufficient evidence or is unable to be contacted after a period of 6 months, should have their application suspended off the system and the Department should inform such party within a reasonable timescale.

1. https://www.gov.uk/government/publications/windrush-compensation-scheme-data-december-2022 ↩

2. Source: https://www.nao.org.uk/reports/investigation-into-the-windrush-compensation-scheme/#:~:text=By%20the%20end%20of%20March%202021%2C%20the%20Department,making%20preliminary%20payments%2C%20rather%20than%20finalising%20more%20claims. ↩

3. https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F1130687%2FWCS_Data_-December_2022.ods&wdOrigin=BROWSELINK ↩

4. Nahmias, A. H., Crawford, L., & Combe, M. (2010). Factors that influence and are influenced by change projects. ↩

5. Quarterly WCS Oversight Board Update ↩

6. https://www.gov.uk/government/publications/developing-an-evaluation-strategy-for-the-compliant-environment-review-of-internal-data-and-processes/developing-an-evaluation-strategy-for-the-compliant-environment-review-of-internal-data-and-processes ↩

7. https://www.go-fair.org/fair-principles/ ↩

8. https://www.lgo.org.uk/information-centre/staff-guidance/guidance-on-remedies ↩

9. https://www.gov.uk/government/publications/windrush-compensation-scheme-data-december-2022 ↩

10. Windrush Lessons Learned Review page 14. ↩

11. UK government support for Chagossians - GOV.UK (www.gov.uk) ↩