Windrush Compensation Scheme

Lord Rosser Excerpts

Wednesday 6th May 2020 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I have not yet seen the Minister’s letter of 30 April either, so I hope it does not impact on what I want to say. This has been an important debate on an issue that will surely always be regarded as a stain on our country’s reputation for decency and humanity.

The independent Williams review into the Windrush scandal stated that it was “foreseeable and avoidable.” The compensation scheme is intended to compensate claimants for the losses and adverse impacts suffered. The impact assessment indicates that there will be a policy review in October 2024. Against what criteria, and with what objective, will the policy be reviewed?

The impact assessment says:

“There is significant uncertainty surrounding the volume of claims and associated costs. Compensation and operational costs are estimated in line with the 11,500 eligible claimants planning assumption … Total compensation costs range from £20.5 to £301.3 million … based on the volume range of 3,000 to 15,000 eligible claims”,


with a best estimate of £160.9 million. The impact assessment also has a paragraph headed “Description and scale of key monetised benefits by ‘main affected groups’”, which starts by saying:

“Benefits (compensation payments) relate to righting the wrongs suffered by those from the Windrush generation.”


It is no wonder that concerns have been raised about ownership of the scheme being with the Home Office if the Government regard these payments under the scheme as benefits—for which, presumably, the recipients should be grateful

It may also explain why the compensation payments appear to be modest, bearing in mind that the Government have accepted that lives were ruined and families were torn apart. Taking the Government’s best-estimate figure of costs under the scheme of £160.9 million and dividing it by the 11,500 assumed eligible claimants gives an average compensation award per claimant of approximately £14,000. That is not a lot, bearing in mind that compensation payments are intended to cover losses ranging from detention and removal, loss of employment, loss of housing, loss of access to healthcare, loss of education, loss of access to banking and what is described as

“impact on normal daily life”,

which apparently includes such things as

“missed key family events or inability to travel”.

Included in that must also be the feelings of rejection, humiliation and injustice; of suddenly being told, wrongly—utterly wrongly—that you have no status and no right to remain in the country you have lived in for much if not all of your life, the country you proudly regarded as your home in the same way as Members of your Lordships’ House do. Is all that worth compensation—or perhaps, in the Government’s eyes, a benefit payment—of, on average, £14,000?

The Prime Minister once infamously described payment of £250,000 per annum for his newspaper column as “peanuts”. He now heads a Government who are offering, at an average of £14,000 per head, just one eighteenth of “peanuts” as compensation to the Windrush generation and others. The Government have said that the compensation scheme allows those who have suffered to avoid court proceedings in pursuit of justice. Can the Government say whether accepting compensation under the scheme does or does not then preclude an individual from taking legal proceedings if that is a step they wish to explore?

The scheme provides for awards that are tariff-based and awards based on actual loss. Tariff-based awards are determined on the balance of probabilities, but for awards for actual losses the Government require firm evidence that the losses claimed were actually incurred. One can envisage that being a major hurdle for many claimants after so many years have elapsed. There is provision for an independent review by an HMRC adjudicator where a claimant is not satisfied with the outcome of their claim. However, the Home Office can then reject, as I understand it, the recommendation of an independent reviewer.

The tariff awards provide for a maximum of £10,000 plus for deportation; awards for detention based on the length of that detention; awards for loss of access to employment up to a maximum of £1,147 of actual monthly net pay; denial of access to child benefit, child tax credit or working tax credit at £1,264, £2,500 and £1,100 respectively; denial of access to housing services at £1,000; denial of access to free NHS care at £500; denial of access to higher education at £500; denial of access to banking services at £200; and homelessness at £250 per month, up to a maximum of £25,000.

Then we come to the tariff awards under the heading “Impact on Life”. These are meant to cover injury to feelings, including anxiety, distress and reputational damage; family separation; immigration difficulties when attempting to return to the UK; and deterioration in physical or mental health. However, only one award can be made under the “Impact on Life” heading and there are six levels of award, ranging from just £250 at level 1 to £10,000 plus at level 6. Qualification for level 6 requires

“profound impacts on a claimant’s life which are likely to be irreversible”.

The Home Office, under the appeal arrangements, will still ultimately be the judge of whether the award—even if it decides the strict criteria are met—is £10,000 or moves into the £10,000 plus bracket, and by how much. The Government say there is no cap on compensation. In practice, it is clear that there are many caps.

There is provision for discretionary awards under the scheme, but it does not look as though that discretion is going to be exercised too often, since the impact assessment says, under the “Discretionary Award” heading,

“Due to lack of data, this loss category has not been included in the analysis.”


In the impact assessment, under the heading “Benefits” of compensation, it is revealed that:

“The Government will also mitigate the risk of litigation and associated legal costs, which is likely to be more expensive than compensation through the scheme.”


Under the heading “Objectives”, the impact assessment says that the scheme

“minimises the risk of litigation”

and

“operates as cost effectively as possible while meeting the above objectives”,

one of which is that it

“seeks to compensate eligible individuals for certain financial losses they have experienced as a result of difficulty in demonstrating their lawful immigration status.”

If the scheme is to compensate only for “certain financial losses” experienced, can the Government spell out the kind of financial losses experienced that are not covered by the scheme?

The scheme has obviously been drawn up in part with a view to saving money on costly legal proceedings. When it comes to the level of compensation, we are not talking about some relatively minor event in which some got hurt; this was much more than that. As the Williams review said:

“The many stories of injustice and hardship are heartbreaking, with jobs lost, lives uprooted and untold damage done to so many individuals and families … They had no reason to doubt their status, or that they belonged in the UK. They could not have been expected to know the complexity of the law as it changed around them.”


Can the Government indicate the benchmark against which they determined that the levels of compensation we are talking about—with the average of around £14,000 per claimant—are fair and reasonable in the light of the words of the Williams review to which I have just referred?

The Williams review also stated quite clearly that the Home Office “must change its culture”. We do not want a similar situation arising over citizenship rights in the light of our withdrawal from the EU.

In March the Government said that they would bring forward a detailed formal response to the Williams review recommendations in the next six months. Does that timetable still stand in the light of the impact of the Covid-19 pandemic?

A large number of points have been raised in this debate, and I hope that the Minister will respond as soon as is reasonably possible to any she is not in a position to respond to today. Subject to the Minister now persuading me otherwise, I just wish the levels of compensation that it is projected and intended will be paid matched the sincerity and genuineness of the Home Secretary’s Statement to Parliament in March, including the immediate apology, and I just wish the Government would now agree to reflect further on their compensation scheme.