Windrush Compensation Scheme

Stuart C McDonald Excerpts

Thursday 3rd March 2022 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I congratulate the Chair of the Home Affairs Committee, the right hon. Member for Kingston upon Hull North (Dame Diana Johnson), on securing this vital debate and on the eloquent and comprehensive way she introduced it. Like her I will start by placing on record my thanks to all who contributed to our inquiry and report. I particularly thank the witnesses she mentioned, who gave evidence of their direct experiences as victims of the disgraceful Windrush scandal, and those who have been working on their behalf to secure justice for them.

The right hon. Member for Hackney North and Stoke Newington (Ms Abbott) spoke powerfully about what this issue means for the Windrush generation—more powerfully than I would be able to. In short, they came here in good faith and had to battle against hostility when they arrived. Decades later, they and their descendants had to battle the hostile environment. As the hon. Member for Strangford (Jim Shannon) said, it is heartbreaking that they still have to battle for justice today through the Windrush compensation scheme. Of course a compensation scheme was required, and it is good that it is there, but there was no other option. It is a tragedy that that compensation scheme is now also a source of controversy and difficulty, rather than a trusted and reliable means of ensuring redress for those who have suffered so much already.

As the Committee Chair highlighted at the outset, the Home Office initially reckoned that around 15,000 people would be eligible for the scheme. It has twice revised its planning assumptions downwards, and the number now stands at between 4,000 and 6,000 eligible claimants, so a vital first question for the Minister is why those downward revisals have taken place. Why does the Department think that far fewer people will apply? Given that almost 14,000 were issued documentation or citizenship through the Windrush scheme and could be described as victims of this scandal, why are so few seeking compensation?

In our report, the Committee put forward a number of reasons that we believe are at the heart of this issue. First and foremost, is it not blindingly obvious that people who have had their lives destroyed by a Government Department will be reluctant, or even terrified, to engage with the same Department again? That is what we argued when the compensation scheme legislation was passing through Parliament, and the argument remains just as strong today. I absolutely appreciate that, having come this far, there is a concern that moving the scheme away from the Home Office could cause yet further delay. There has indeed been far too much delay already, but is it not the case that there is no other option? Surely it is better to have a scheme that has the full trust of Windrush victims and to which they will therefore apply, even if that takes a bit longer. Far rather that than pressing on with the current arrangements, which provide little confidence that the scheme will reach all the victims we need it to reach.

I acknowledge again the work that has been done on outreach, but I echo calls from the witnesses and the Committee that more should be done. I urge the Home Office to listen to the detailed ideas for how further publicity and attention can be given to outreach work. At the end of the day, however, that does not address the fundamental problem of people being asked to contact a Department they feel has destroyed their lives and humiliated them.

Another issue that I have highlighted before, and which has been highlighted by our Committee, Wendy Williams, the Public Accounts Committee and others, is the failure to seek out victims in non-Caribbean Commonwealth countries through historical case review in the way the Home Office did for Caribbean countries. The Home Office has said, pretty vaguely, that that would require too much in the way of time and resources, so will the Minister undertake to set out exactly what the Home Office estimates it would cost to conduct such a review? Otherwise, it is impossible to assess whether the Home Office position is remotely reasonable, and we are left with victims across the globe who will have no idea that they can now seek redress and right the wrongs that were done to them. Again, I welcome the new campaign to target people from some non-Caribbean Commonwealth countries, but we fear that it does not go far enough.

Another reason why people will struggle to apply is, as has been said, the complexity of the scheme. Again, it is only fair to recognise and welcome the efforts that have been made to simplify the forms and guidance. We also welcome the change to the standard of proof required for some claims—something that we raised during the passage of the Windrush Compensation Scheme (Expenditure) Act 2020. That said, we need assurance that the standard of proof is actually making a difference in practice. What steps is the Minister taking to assure himself of that, given that the Home Office refused our recommendation that Ministers and senior officials should examine a sample of cases to understand how the standard of proof is working in practice? As has been said, much of the evidence that we heard suggested that people will still be required to provide incredibly detailed documentary evidence of events that happened a long time ago, which would not be necessary in a normal civil claim for damages.

Even when taking into account the changes that have been made, quantifying loss, damage and suffering is an inherently challenging process. Every day up and down this country, people employ lawyers to litigate the amount of compensation that they are due—whether that is because they have been unlawfully dismissed, because they have been injured in an accident at work or a road traffic accident, or because somebody has breached a contract. People employ lawyers because documenting and calculating loss is difficult. Legal aid is available to people on a means-tested basis, so I cannot for the life of me understand why it is not available to people who are seeking to access the Windrush compensation scheme. That is the only way in which we can be confident that people are claiming and securing what they are entitled to as quickly as possible.

Even when people come forward and navigate the scheme, it takes too long to process, as we have heard. New caseworkers have been taken on, and that is welcome, but why has it taken so long, and why does the number of outstanding applications continue to rise? As has been said, it is a tragedy that at least 23 individuals have died before compensation was paid to them. Too many cases are still taking too long, with significant numbers of people having to wait more than a year.

Even if someone comes forward, successfully navigates the system and qualifies for compensation, their problems do not end there. I was startled to read that at the end of December 2021 35% of the final decisions issued had been zero awards. People who met the scheme’s criteria were actually being deemed not to be entitled to compensation. Have I understood that correctly? Has the Minister looked into that, and what is his explanation for it?

As the right hon. Member for Kingston upon Hull North set out, the Committee made detailed recommendations on certain heads of claim that are not being properly compensated or are not compensated at all. The Home Office has promised reviews on those claims, which is just about better than nothing, but as the right hon. Member for Hackney North and Stoke Newington said, we need more than that—we need action quickly.

The rejection by the Home Office of other recommendations, such as compensation for impact on life, for loss of employment, for loss of pension and for legal fees, is particularly disappointing. At the end of the day, that means that people are simply not being reimbursed for the actual losses they have suffered, and that is just indefensible. People who spent thousands of pounds battling deportation will not get that money back; people who lost occupational pension rights will not get them back. That is not righting the wrongs of Windrush.

There is still a long way to go in delivering meaningful justice for the victims of the Windrush scandal. I pay tribute again to the victims and the campaigners who continue to push for justice and to colleagues on the Select Committee for continuing to press the Home Office on their behalf. We must and will keep doing so, because the Home Office has to go further and it has to go faster.

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[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

It is a pleasure to serve under your chairship, Dame Angela. I thank the right hon. Member for Kingston upon Hull North (Dame Diana Johnson) for securing this debate and all hon. and right hon. Members for their contributions. This is an important subject and I am pleased we have been able to discuss it today.

The victims of the Windrush scandal suffered terrible injustices, and this Government are determined to ensure we do everything in our power to right those wrongs. This was a shameful episode in our history; as the right hon. Member for Hackney North and Stoke Newington (Ms Abbott) powerfully outlined, it was not just about people losing a job, suffering an inconvenience or not being able to travel; it was about feeling that their very identity had been taken away. For many, it was even harder than that: it was about being reminded, in our modern society, of exactly the type of prejudices they had met when they first came here back in the 1950s. At that time it was, shamefully, still lawful to act in ways that have now rightly been banned for many years.

We fully understand that this is not just about getting a cheque or some financial recompense; this is about something that struck people very deeply as individuals, beyond whatever financial impact it had. While it is hard to respond to that, compensation—making sure we recompense people where we can—is obviously part of the response, but the hurt felt is very much recognised, and we apologise for it and look to recognise what was done.

The right hon. Member for Hackney North and Stoke Newington spoke powerfully about how this is not just a debate about facts and figures on a spreadsheet. These issues had a very personal impact on people, including people whose parents, who brought them over, had fought for this country. Only a few years before their arrival here as migrants, they had been serving in the military, the then imperial forces, at a time when this nation had made a desperate call for people to serve in its defence. Many had stepped forward, particularly those from Caribbean communities and other communities across the Commonwealth, to defend a country they had never seen, but whose values they believed they shared.

I understand very much why this goes beyond being just an issue about an ordinary claim for compensation—for example, where someone’s car has been damaged or a contract has gone wrong. This really struck people quite deeply, which goes beyond what we can do, but paying compensation is an important part of this.

When I visited a community group recently, I was struck by people’s commitment to the community and this country. One individual said thank you for the compensation we had paid—they were very grateful for it. I said, “I am pleased you are grateful, but it should never have been necessary for you to have to go through that. It is what you are owed and entitled to, and not something that you should feel you have to thank us for.”

The situation we are discussing went on for a number of years. I am sure other hon. Members will have noticed, as I did, that the case on the cover of the Wendy Williams’s lessons learned review dated back to 2009. This is not a matter of a particular Government at a particular time—it happened over many years—and the Home Affairs Committee report touches on that.

We are determined to ensure that everyone who suffered because they could not demonstrate their lawful status in the United Kingdom—let me be clear that these people had lawful status in the UK—receives every penny of the compensation to which they are entitled. We are making some significant progress towards achieving that aim and have now paid a total of more than £43 million in compensation.

We remain open to areas for further improvement and welcome some of the constructive challenge we have had from Members across the House. To give credit where it is due, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) referenced his comments in a previous debate, where he highlighted that some of our wording implied a criminal standard of proof—beyond reasonable doubt—when clearly, in this instance, it should be on balance of probabilities, rather than having to reach that threshold. As a result, as he acknowledged, we changed the guidance. We remain open to looking at what needs to be done when such issues are highlighted.

[Stuart C. McDonald]

I am grateful that that change was made; I thank the Minister for that. What has he done to assure himself that that is actually making a difference in practice? There was a recommendation in the report about looking at a sample of cases, because there is still evidence coming to us that it has not changed much in reality.

[Kevin Foster]

I am always happy to further consider evidence. Certainly we have seen higher awards being made, partly because of the quite significant changes we made to the scheme last year but also, unsurprisingly, due to the increase in the number of applications to the scheme, which I will touch on in a minute. The change appears to be having an effect, but, as more cases come to a final decision, particularly as reviews in other areas are done, we are open to making sure that it has made a difference. I am genuinely grateful to the hon. Gentleman for the constructive spirit in which he approached the debate on the Windrush Compensation Scheme (Expenditure) Bill, as did the then shadow Home Secretary, the right hon. Member for Hackney North and Stoke Newington, which helped produce a better outcome all round.

I am keen for Members to see for themselves the work being done in this area. Now that covid restrictions are behind us, I am happy to welcome any parliamentary colleagues who wish to visit the compensation scheme casework team to see for themselves the progress we have made. They can talk to the team working to resolve cases to get people the compensation they deserve. The team is based up in Leeds, separate from some of the other work. For many this is their only role in the Home Office; they are not working on wider immigration matters, although some have experience in those, given the nature of the issues that they deal with. I am certainly happy to welcome people to visit and meet the teams, talk to them and see the work being done. We had hoped to arrange visits at an earlier stage, but with the understandable restrictions during the covid period, it was something we had to consider very carefully. Now that the restrictions are behind us, a visit by the Select Committee would be welcome as well. We would be happy to arrange that.

Although we do not agree with every recommendation, overall we welcome the Home Affairs Committee’s report on the scheme, and we are already making significant progress in respect of several of the Committee’s key recommendations. However, some of the recommendations are complex and we need to consider those carefully to address the issues raised. I anticipate that Members might say, “Let’s have an example, then, of a recommendation you think is complex.” We are committed to ensuring that an individual’s national insurance position is corrected where an inability to demonstrate status has impacted their entitlement to the state pension. For example, someone may have been unable to have employment and therefore unable to make national insurance contributions, meaning that there are missing years when it comes to the calculation of state pension.

We continue to work with the relevant Departments to resolve this complex issue. We are making progress, although unfortunately I cannot give a specific date today as to when we will be able to bring that change into effect.

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[Kevin Foster]

That is a very fair question. The £36.3 million that has been paid—I must say that £43.3 million has been offered, but I will stick to the figure that I used for payment—is across a total of 940 claims, out of the 3,490 received. Obviously, the sums vary, but the largest we have paid recently is over £260,000 to one individual, and there have been a number of payments in excess of £100,000.

It is worth remembering that there is not a cap; there is not a maximum compensation amount that someone can hit. That figure gives Members an impression of the scale of the payments now being made to individuals. As I said, I am sure that people will understand why I will not go into the details of that particular case, given that doing so could divulge the identity of an individual who has just received a significant amount of money.

[Stuart C. McDonald]

Have I understood correctly that there has been an increase recently in the number of people who have been offered zero compensation? Is the Minister aware of why that might be happening?

[Kevin Foster]

There have been a number of people whose cases have concluded with a nil offer. Part of that is because we are processing more cases and getting more cases towards a final decision. However, with each case, we believe that we have come to the right decision, and decisions can be reviewed and challenged if people feel that they are inappropriate.

Sometimes, people have just been looking for a formal apology for what happened to them, which is absolutely right. However, in other cases, the impacts may not be linked directly to someone’s inability to prove their immigration status. For example, someone may have lost their job due to a criminal conviction rather than because they were not able to demonstrate their immigration status. That would not be covered by the compensation scheme; someone must have lost their job due to not being able to prove their immigration status. That is where a number of the biggest awards have come.

[Kevin Foster]

The hon. Member hits on the point that making people aware that significant amounts of compensation can be received is one of the ways of promoting the scheme. I am aware of at least one other compensation claim that resulted in an offer of more than £270,000. The figure that I gave was not a one-off; it was a recent payment made last month, which is why I used it as an example.

We certainly take on board the hon. Member’s point that making it clear to people that there are opportunities to receive significant amounts of compensation is part of the way to bring people in, although he will of course understand that, at the same time, we wish to ensure that the scheme is paying those who were affected; it is not simply a way of accessing large amounts of money. We continue to offer preliminary payments of £10,000 as soon as we have identified that an individual will be entitled to an award, ensuring that affected people receive compensation as quickly as possible and do not need to wait for their claim to be finally concluded.

Rightly, a lot of Members have asked how we are going to increase the pace of progress. The biggest way in which we are doing that is by rapidly increasing the size of our casework team. We have recruited more caseworkers, expanding the number in post to 90, with 55 in training or in mentoring roles—experienced caseworkers mentoring new caseworkers being trained. That shows the scale of the increased resource that will soon be brought to bear, increasing the number of decisions. We have also recruited a further 30 staff who are going through security clearance. By spring, therefore, we expect to have a total of 120 case-workers in post and to be training them towards all being on the frontline making decisions.

Aside from taking steps to increase our size and the speed at which payments are made, we continue to look closely at any further improvements that can be made to the design of the scheme itself. We are ensuring that it remains responsive to the needs of those making claims.

In the report, the Committee rightly stressed the importance of ensuring that claims are looked at empathetically and that individuals are not required to meet an unreasonable standard of proof—a point well made by my SNP shadow, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. The Department is firmly committed to ensuring that individuals receive the compensation to which they are entitled in all cases, including those where, understandably, there is limited documentary evidence given the timescales we are talking about—the time over which a claim is spread.

As I have touched on, the scheme operates entirely on the balance of probabilities, and decision makers receive in-depth training to ensure that that approach is applied fairly and consistently. We have a quality assurance team and an independent review process in order to ensure that all decisions are subject to a high degree of internal scrutiny. I also confirm that we are reviewing— as suggested by the Committee—the definition of homelessness within the scheme, to ensure that any losses are looked at in as wide a context as possible and are appropriately reflected in compensation awards.

In the light of that, we will ensure that all individuals who were left without a home or suffered a detriment due to poor standards of accommodation receive the full amount to which they are entitled. However, I stress that under the current scheme rules, claimants are not precluded from receiving an award for homelessness if they were forced to stay with friends or family. This is not just about someone not having a roof over their head.

Our efforts to promote new applications to the scheme and to engage with and gain the trust of affected communities continue. We will relaunch our face-to-face work imminently—I am sure that those present in the Chamber realise why over the past two years we have, unfortunately, been able to do a lot less face-to-face engagement than we might have liked, given the covid restrictions and the potential impact of hosting events during that period.

We have, however, worked with other groups. In November, for example, we worked with Bangladeshi communities through the Birmingham Commonwealth Association. That links to a point rightly made by hon. Members: while Windrush is associated mostly with the Caribbean, many other communities were also affected. I checked the records during the debate and, to give an idea of the impact on communities from outside the Caribbean, the Windrush taskforce has made nearly 2,000 grants of documentation to those with Indian nationality. There are also, by the way, small cohorts of European economic area nationals who qualify for documentation but, given the impact of free movement over the past few years, would not have been caught up in the incidents that led to the Windrush scandal.

[Stuart C. McDonald]

One of the recommendations that the Committee made—I think Wendy Williams recommended this too—was that the historical case review process that was conducted for Caribbean countries should also happen for non-Caribbean countries. The Home Office said that that would require too much in the way of time and resources. So that we can assess that, will the Minister write to us after the debate with a little more detail on why he thinks that exercise would be too difficult?

[Kevin Foster]

I will take that intervention in the constructive way in which it was presented. I think that it would be impossible to put an exact timescale, cost and things on it, but I am happy to set that out in writing. Given that I have said it in this forum, I will place a copy of my letter in the Library of the House for other Members to refer to and, of course, I will send a copy to the Chair of the Committee.

We are focused on what we can do. I have held meetings with Caribbean high commissioners to discuss how we can better promote this to those communities and we are keen to reach out, via diaspora groups from across the rest of the Commonwealth, to make it clear that this is not just about the Caribbean, even though I recognise that Windrush is very strongly associated with those communities.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East highlighted the difference between the numbers of people who have received documentation versus the numbers who have then gone on to apply for compensation. That has been of interest to us as well, so we are writing to individuals who have been provided with documentation under the taskforce scheme but have not yet applied for compensation. Our goal is to highlight to them the opportunity to apply.

Some people, such as EEA nationals, who were potentially entitled by the taskforce to documentation and who were here before free movement applied rather than since, would be very unlikely to have a compensation claim, given the impact of free movement rules and their nationality, yet we are interested to highlight to individuals the opportunity to apply. We have written to 4,500 individuals so far and we will continue to encourage people who have received documentation to consider applying. Again, we make it very clear that this has no bearing on their ongoing status. That matter has been resolved; this is merely about looking to see whether there has been an impact on their life and to bring them forward. We will certainly analyse the response. At a later stage, I would be happy to share some appropriate data in a way that does not identify individuals who may or may not have replied.

A couple of Members mentioned the second phase of our national communications campaign, which is under way. In partnership with our community media partners, we have launched promotional videos and radio adverts, reaching an audience of over 1 million across priority communities. We are keen to target and work with communities. We are conscious that simply taking out adverts in national newspapers or putting things on TV may not be the best way of getting through to those who were most affected by the Windrush scandal—those who were not necessarily the biggest followers of current affairs or the media, who may well have been affected. So we have been thinking about the best methods of outreach, such as community groups, to reach out to some of those people. That work is now under way and we believe it is starting to have an impact, given the impressions and views that we believe people have had of it.