Windrush Compensation Scheme

Baroness Williams of Trafford Excerpts

Wednesday 6th May 2020 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the Virtual Proceedings do consider the Windrush Compensation Scheme.

The Motion was considered in a Virtual Proceeding via video call.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I am grateful to be able to return and have a full debate on the Windrush compensation scheme. I know that many noble Lords, including the noble Baronesses, Lady Benjamin and Lady Hamwee, were unable to participate at Second Reading of the Windrush Compensation Scheme (Expenditure) Bill on 21 April. I hope that today’s virtual debate gives them, and other noble Lords who wish to speak on this matter, the occasion to do so.

I hope that noble Lords will have received my letter of 30 April providing an update on the Windrush compensation scheme. As we discussed this matter two weeks ago, I will keep my opening remarks to a few important points to give noble Lords a chance to participate in this time-limited debate.

I place on record again the Government’s commitment to ensuring that members of the Windrush generation are properly compensated for the losses and impacts they suffered as a result of being unable to demonstrate their lawful status. That is why, in April 2019, we launched the Windrush compensation scheme, with the first payment made within four months of its operation. I take this opportunity to remind noble Lords that there is no cap on the amount of compensation an individual can receive, nor a cap on the total amount of compensation that we will pay out.

We are doing all we can to make payments to individuals as quickly as possible, and to raise awareness of the scheme. To date, the Home Office has attended or hosted over 100 engagement and outreach events and task force surgeries throughout the UK. The Home Office is working with community leaders on a digital engagement programme, to ensure that outreach can continue despite the current lockdown. The number of claims submitted to the scheme so far is, however, much lower than expected and we recognise that there is more to do.

In March, my right honourable friend the Home Secretary announced a £500,000 community fund to enable grass-roots organisations to promote the Windrush compensation scheme and the Windrush scheme. We are committed to working with members of the community to shape the principles of the fund and intend to work with stakeholders to co-design it. The Home Secretary also announced that we will launch a national communications campaign, which will build on existing communications activities to raise awareness of the schemes and ensure that people know how to apply. We recognise that no amount of money can undo the injustice that some members of the Windrush generation have faced. We are committed to tackling those wider injustices as well.

As the Home Secretary said on publication of the Windrush Lessons Learned Review, despite the diverse and open nature of this country, too many people still feel that they may be treated differently because of who they are or where their parents came from. That is why we are launching an expanded cross-government Windrush working group, to develop programmes to improve the lives of those affected. That may be through employment support programmes, dedicated mental health support, and specialist education and training schemes. We will continue to listen to stakeholders as we take forward establishing this group, and we are committed to ensuring that the Home Office, and wider government, protects, supports and listens to every single part of the community it serves.

Members of the Windrush generation have given so much to this country, often working in the sectors at the forefront in the fight against Covid-19. I put on record again my gratitude to all those members of the Windrush generation, and their descendants, who are working tirelessly to tackle this dreadful virus. Many people in this country owe them their lives. As the noble Baroness, Lady Bull, noted at Second Reading of the Bill, it is extremely worrying that BAME individuals appear to account for a disproportionate percentage of those affected and who have sadly died during this pandemic.

On 22 April, the National Institute for Health Research and UK Research and Innovation published a highlight notice requesting research to understand emerging evidence of an association between ethnicity and Covid-19 incidence and adverse health outcomes, and to respond to concerns that health, care and other key workers who belong to BAME groups may be particularly at risk. This call is designed to complement and add to existing work already being done by academic groups and Public Health England, which is also looking at wider inequalities.

The Windrush compensation scheme is only one aspect of a broad range of matters to be discussed in relation to the Windrush generation and the challenges that they have faced. We know that there is more still to do, and we will work with every part of government to tackle inequality and ensure justice for the Windrush generation. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I thank all noble Lords who have spoken in this debate for some really powerful and thoughtful contributions. Picking up on the last point from the noble Lord, Lord Rosser, the Government’s will to right the wrongs of the Windrush generation is not diminished. The scheme is just one part of a broader range of matters to be discussed in relation to the Windrush generation and the challenges they have faced and, in some cases, continue to face.

As the noble Baroness, Lady Lawrence—the first Back-Bench contributor to this debate—said, the Windrush generation were invited here to rebuild this country. Not only that, but they have contributed so much to the current battle against the coronavirus. I also refer to the noble Baroness, Lady Benjamin, and my noble friend Lord Bourne. I was delighted to hear that he had helped her set up Windrush Day, and I am delighted about the Windrush monument that the noble Baroness, Lady Benjamin, helped set up.

There is no back-tracking or back-pedalling in our will to right the wrongs of this generation. I hope that, in some of the remarks I will make now in closing, I can demonstrate some of that. I also apologise to the noble Lord, Lord Rosser, and the noble Baroness, Lady Hamwee, for their not having received my letter. I will recirculate it so that all noble Lords who have not seen it can have sight of it.

The right reverend Prelate the Bishop of London and the noble and learned Lord, Lord Woolf, asked about the design, scope and funding of the scheme. This goes to the point made by the noble Lord, Lord Rosser, as well. We are absolutely committed to making sure that everyone who is due compensation can receive it. There is no cost cutting or penny pinching. We want everyone to have the compensation they are due. To that end, as I will demonstrate, we are helping them in their applications to achieve just that.

In designing the scheme, 650 responses to the call for evidence and nearly 1,500 responses to the public consultation informed the approach. We also held several public events, and Martin Forde QC, who is a very experienced barrister on all aspects of health law, was appointed by the previous Home Secretary to advise on the design of the compensation scheme.

Despite its name, the scheme is not limited to men and women who originally came to the UK from the Caribbean Commonwealth who have struggled to demonstrate their lawful status, and the eligibility criteria are clearly set out in the published scheme rules. The scheme covers a broad range of losses, and compensation is awarded according to both actual losses and tariff-based awards. To answer the point made by the noble Lord, Lord Rosser, the award levels take into account existing precedents and ombudsman-recommended payments. While some categories of awards have an upper limit, there is no overall cap on the amount an individual can receive in compensation under the scheme. There is also an uncapped discretionary category, which is for significant impact or loss not necessarily identified within the scheme in order to make it as flexible as possible.

The noble Lord, Lord Rosser, mentioned the impact assessment. It was published in February and outlines the Home Office estimate that the Windrush Compensation Scheme will cost between £90 million and £250 million based on 11,500 eligible claims. It is clearly a very wide range. It has reduced since the previous impact assessment due to lower than anticipated claims to date, which a number of noble Lords mentioned. There remains a high degree of uncertainty around the likely volume of compensation claims and the level of claims against the different categories. As a result, the impact assessment uses a number of different volume scenarios with a wide range of possible costs.

That is why we announced earlier this year that we are extending the scheme until 2 April 2023, so we are doing all we can to raise awareness of the scheme. As I said previously, there is a balance to be struck between having a date far enough in the future to enable people to feel confident that they have time to make their claim, but soon enough to encourage people to put in their claim. We feel that the two-year extension provides this, but there remains the option to further extend the duration, if that is required—to answer noble Lords’ questions.

The noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Hamwee, asked about the evidential requirements. The noble and learned Lord, Lord Woolf, talked about the benefit of the doubt. We have made the evidential threshold as low as possible, but we ask applicants to provide as much information and evidence as they can so that the best assessment of their claim and personal circumstances can be made. We want people to get the maximum compensation to which they are entitled and will work with claimants to support them in this, for example by contacting other government departments. To this end, a couple of individuals have already been awarded compensation for elements for which they did not originally claim, which demonstrates our commitment to working closely with claimants to ensure that they receive the compensation to which they are entitled.

However, I am sure noble Lords will agree that it is important that we are spending taxpayers’ money appropriately, and therefore we require that minimum level of information and evidence. Where awards are for actual losses, it is right that we seek to obtain an appropriate level of assurance that the losses were incurred in order to fulfil our duty properly to manage taxpayers’ money.

The aim of this approach is to fully reimburse those who can evidence their actual losses. For those who cannot meet the evidential requirements for an award based on actual loss, a tariff award may be made. Our approach is comparable with the employment tribunal’s approach to calculating loss of earnings, where an award to cover actual losses generally would be paid where the claimant is able to sufficiently evidence what those losses could have been.

There were some opposing views on claimant assistance and legal advice, from my noble friend Lord Blencathra, the noble Lord, Lord Mann, and the noble Baronesses, Lady Wilcox of Newport and Lady Bull. We have designed the compensation scheme to be as clear and simple as possible, so that people do not need legal assistance to make a claim. My noble friend Lord Blencathra outlined very eloquently the pitfalls of needing legal assistance, the lawyers scooping up all the money and the actual claimants not getting the money that they deserve. To that end, claim forms have been designed to be simple and easy to understand, and they were tested with users. Claimants need to complete only the sections of the form that are relevant to their claim, as my noble friend Lord Blencathra pointed out. However, for those who want or need support to make a claim, the Home Office has funded Citizens Advice to provide free independent advice and support, to answer the points raised by the noble Lord, Lord Mann, and my noble friend Lord Bourne. This advice is available to individuals in the UK and overseas. A tender is currently open to select an organisation to provide free independent advice and support to claimants for the duration of the scheme. To provide that continuity of service, the contract with Citizens Advice will be extended until the tender process is complete.

Some have suggested that we should allow applicants to recover legal costs incurred in applying to the scheme, but as my noble friend Lord Blencathra said, to do so might serve to encourage organisations to take advantage of people who are potentially very vulnerable, and charge them for unnecessary support to complete a claim. We have already heard of such terrible stories of no-win no-fee approaches. All we want is for the compensation to go to those who are entitled to it.

We aim to award compensation as quickly as possible. However, the time it takes to process each claim will depend on the complexity of individual cases, and it is right that we deal with cases properly. Where we can resolve part of a claim more quickly than other parts, we are making interim payments to ensure that claimants receive their awards as quickly as possible. The noble Lord, Lord Taylor of Warwick, pointed out that up to the end of December, only 36 payments had been made, totalling £62,198. I share the strength of feeling about these numbers, but many of these payments are interim payments, meaning that claimants may receive further awards later. Many more payments have been made since then. Further statistics will be published later this month.

As a comparator, the Criminal Injuries Compensation Authority, mentioned by the noble Lord, Lord Mann, suggests that claims under that scheme take 12 to 18 months to conclude. We may also be able to consider a payment under the support in urgent and exceptional circumstances policy, to provide support to members of the Windrush generation who have an urgent and exceptional need.

The noble Lord, Lord Foulkes, asked about the cap. Again, I assure noble Lords that we will pay whatever compensation is due. The noble Baroness, Lady Kennedy of Cradley, talked about negative outcomes. We are continually monitoring the operation of this scheme, making amendments based on feedback, as changes to the rules earlier in the year, such as changing the date to 2023, demonstrated.

The department continues to work extensively with communities and stakeholders to raise awareness of both the Windrush compensation scheme and the Windrush scheme. To date, the Home Office has attended or hosted more than 100 engagement and outreach events and surgeries throughout the UK. We have used social media in a very targeted way to reach those who may be eligible to receive compensation and to encourage them to come to our events. Some 20,000 information cards have been distributed to affected groups and communications toolkits have been sent to almost 200 stakeholders.

The noble Baroness, Lady Kennedy of Cradley, suggested moving the operation of the scheme out of the Home Office. This was also suggested at Second Reading. I can understand the concerns of those who think that the department that caused the problem in the first place should not be dealing with this. However, moving the operation of the scheme out the Home Office would risk significant delay and I do not think that anyone wants that to happen.

The first stage in deciding a claim for compensation is to confirm an individual’s identity and eligibility; this is linked to the immigration status of the individual. It would be difficult to decouple this from the Home Office without increasing the time taken to process an individual’s claim and issue payments.

The right reverend Prelate the Bishop of London talked about external scrutiny, as did the noble Baroness, Lady Benjamin. We have put in place a number of measures to ensure that the scheme has an appropriate level of external scrutiny. To answer the question posed by the noble Lord, Lord Kennedy, we have an independent review process for those dissatisfied with their compensation offer. This is conducted by the HMRC Adjudicator—a non-departmental public body. The noble Lords, Lord Kennedy and Lord Rosser, both asked whether a compensation award is a full and final offer or whether it can be revisited. The award is always an offer. The claimant can accept it, at which point it becomes final, or they can request a review, as I have outlined. I hope that that helps answer the noble Lords’ questions.

The noble Lord, Lord Kennedy, also asked about help with housing and jobs in addition to monetary payment. Where people are in immediate need, we have put in place measures to give them the support needed, such as a dedicated vulnerable persons team, which has helped more than 1,400 people, including with access to benefits and housing. Financial compensation gives claimants the freedom to choose how they wish to proceed. On 19 March, the Home Secretary announced an expanded cross-government Windrush working group, which will take a strategic view of a range of issues relating to Windrush and wider race inequalities. It will aim to develop initiatives to improve the lives of those affected by bringing together government and community stakeholders to co-design and deliver the response. That might be through employment support programmes, dedicated mental health support and specialist education and training schemes.

The noble Lord asked whether we paid for the flights of people who have been repatriated. I can tell him that 35 payments have been made under the support in urgent and exceptional circumstances policy. The total value of the payments approved is £46,795. In addition to these payments, three exceptional payments for flights to return to the UK were made before the official launch of the policy on 17 December. In addition to the three payments made for flights before the launch of the urgent and exceptional scheme, a further four payments had been made under the scheme to return individuals to the UK.

In addition, as interim independent adviser to the scheme, Martin Forde continues to provide external scrutiny and challenge on its operation and implementation. We continue to listen and respond to feedback received from stakeholders, including through the Windrush stakeholder advisory group which was launched last September, to ensure that the scheme is operating effectively and delivering for those whom it is designed to compensate. The changes announced by the Government earlier this year demonstrate our commitment to this and build on changes made to the rules last October.

I want to place on record again that no information provided by individuals as part of a claim for compensation will be used for immigration enforcement action.

The noble Lord, Lord Hastings of Scarisbrick, asked about reputational damage and where that would come in under the compensation scheme. It would be considered as part of the “Impact on Life” category, as would grief, which the noble Lord, Lord Foulkes, asked about.

The noble Baroness, Lady Kennedy of Cradley, asked about posthumous awards that might go to somebody’s estate. There absolutely is scope for that, and I think that posthumous awards have been made.

I think that it was the noble Baroness, Lady Benjamin, who asked about an annual conference. I am very happy to take that idea away. In her report, Wendy Williams recommends reconciliation events, so we will certainly consider that suggestion.

To go back to the compensation scheme, all the elements mentioned by the noble Lord, Lord Rosser, would qualify for compensation.

My noble friend Lord Randall talked about pensions. This is not my expert area, so, if he is amenable, I will write to him.

I want to come to the lessons learned review, and I ask noble Lords to indulge me if I go a little over my time. The noble Baroness, Lady Lawrence, asked whether we will agree to all the recommendations in the review. Wendy Williams was really clear that we should resist the temptation to respond rapidly and suggested that we instead undertake a period of reflection, to engage staff at all levels to identify what should change. The Home Secretary has therefore committed to publishing the department’s response to the report within six months of publication. To address the point from the noble Lords, Lord Hastings and Lord Rosser, that would be on 19 September, if we are talking about six months from 19 March.

Noble Lords talked about various points in history when the Home Office failed the Windrush generation. Wendy Williams was clear that the injustices spanned 70 years. I would like to put on record at this point that we all need to look to ourselves and to the part that successive Governments played in how the Windrush generation was let down. Rather than the blame game, we all have our part to play.

The Windrush lessons learned implementation team has been set up to lead the response to the report, working with teams across the department and externally to take the steps needed to create a department that we can all be proud of.

The noble Lord, Lord Hastings, the noble Baroness, Lady Benjamin, and my noble friend Lord Sheikh talked about trust and culture. That is at the heart of what the Home Secretary will reflect upon.

The noble Baroness, Lady Kennedy of Cradley, and the right reverend Prelate the Bishop of London talked about education and empathy. Wendy Williams made a number of points about training and education, which we are looking at very carefully. Outreach events that the department is currently running allow civil servants the opportunity to hear the stories of those who have been impacted. I can confirm that people working in the Home Office have asked me personally not to forget about the Windrush report. Yes, the Home Office has been institutionally thoughtless, but there are a lot of people working there who do not want us to forget about the Wendy Williams report, or our reflection on it and response to it.

We have already announced that we will launch an expanded cross-government Windrush working group to develop programmes to improve the lives of those affected. We will continue to listen to stakeholders as we take forward establishing this group and are committed to ensuring that the Home Office and the wider Government protect, support and listen to every single part of the community they serve.

Finally, I will talk about the EU settlement scheme and EU citizens. The EU settlement scheme has been designed to make it easy for EU citizens and their family members who want to stay in the UK to get the UK immigration status that they need. It is designed precisely to avoid another Windrush. We think that the constitutive system that we have introduced is the best approach, because it provides EU citizens and their family members with clarity about what they need to apply for, and when, and the secure evidence of their status that they need. We now have over 3.4 million applications, of which over 3.1 million have been concluded. People have until 30 June next year to apply.

I have gone over time, as usual. I am very grateful to noble Lords for the contributions that they have made. I thank everyone who has taken part in the debate.

Motion agreed.