How to apply to the Windrush compensation scheme By Nick Nason

Almost a year after it first broke, the Home Office has opened a compensation scheme for those affected by the Windrush scandal (the Scheme). It expects to pay out up to £310 million to victims.

We provide in this post a brief outline of how the Scheme works, who can claim and how. There are significant concerns about how the Scheme will operate, its evidential requirements and questions of fairness for claimants, and these are explored in a separate post.

The Scheme

The overview page on GOV.UK is a good place to start. It contains links to most of the information Windrush victims will need to make a claim. This includes the following key documents:

• Scheme rules (pdf)

• Guidance (pdf) for those making claims

• Internal Home Office guidance (pdf) for Caseworkers

• Claim forms (vary depending on type of claimant)

Claims for compensation under the Scheme will be considered for two years until 2 April 2021, and then after this for six months if there are exceptional circumstances for missing the deadline.

Claims must be made on a prescribed form, and then sent by post or email. The Home Office has set up a free post option for submitting the form and evidence, and will reimburse reasonable expenses for sending in documents where this is not available.

Applications for compensation under the Scheme are free.

Who can claim?

The individuals who are eligible to claim largely mirrors the categories of people able to apply for documents under the Windrush scheme, and will include almost everyone originally from a Commonwealth country who arrived in the UK before 1 January 1973. In addition, as stated on GOV.UK:

If you have a right of abode or settled status (or are now a British citizen) and arrived to live in the UK before 31 December 1988 you will also be eligible to apply regardless of your nationality when you arrived – even if you are not a Commonwealth citizen

Importantly, the Scheme is also open to:

children and grandchildren of Commonwealth citizens in certain circumstances

the estates of those who are now deceased but who would have otherwise been eligible to claim compensation

close family members of eligible claimants where there has been a significant impact on their life or where there is evidence of certain direct financial costs

What will claimants receive?

Successful claimants can expect (i) an apology and (ii) financial compensation.

The amount individuals can claim will be decided on a case by case basis, according to guidance set out in the Scheme rules.

Eligible individuals can claim under a number of different categories listed as follows:

• Home Office and legal fees (in narrow circumstances)

• Detention, removal and deportation

• Loss of access to employment

• Loss of access to benefits

• Inability to access services: housing, health, education, driving licences and banking

• Homelessness

• Impact on life

• Discretionary payments

• Non-financial remedies

In relation to each of these categories there is an appendix with specific guidance on how much can be claimed and in what circumstances.

For example, for an individual who was wrongly deported, the Home Office guidance confirms in Appendix C that it will pay a fixed amount of £10,000 in relation to this.

A person who was unable to access housing services can claim £1,000 as confirmed in Annex F. A person who is detained will be able to claim for an amount worked out based on the length of the detention.

Compensation for these events will not necessarily limit an individual’s ability to make claims on other grounds (e.g. losing a job as a result — see Appendix D — or for the general impact this had on the individual’s life — see Appendix H).

Claimants will be expected to provide evidence of any losses suffered.

Mitigation requirement

Claimants must provide evidence that they took reasonable steps to “resolve their lawful status” and mitigate the losses that they experienced. Otherwise the Home Office may decline or reduce an award.

The following is a flavour of the caseworker guidance on what evidence might be sufficient to demonstrate that appropriate steps were taken to resolve their lawful status:

Normally, the claimant will need to evidence this by providing either:

a letter from the Home Office in response to an enquiry about their lawful status

confirmation from the department’s records that such contact was made

Home Office caseworkers are instructed to consider the following factors:

whether the claimant says that they took mitigating action

what action they took — a contact from a claimant’s representative will count as contact from the claimant

who they contacted — you should expect claimants to have raised an enquiry direct with the Home Office, either in writing (including email), in person or over the telephone

when they contacted the Home Office — for example, an enquiry which is made some considerable time after a claimant says they lost access to employment may make you question the reason for this delay and whether such an enquiry was made; you may wish to try to find out any reason for the delay

you may also accept a claimant saying that they asked a friend to make enquiries on their behalf if the claim seems plausible and supported by relevant evidence

the existence of relevant correspondence with a claimant’s representative or with an MP as well as correspondence between the claimant and their representative or an MP

an enquiry to Citizen’s Advice about a claimant’s passport will of itself be unlikely to meet this test

As explored in our critique of the Scheme, this tends to raise concerns about whether or not the Home Office has really learned the right (or any) lessons from this episode.

The process for making a claim

Individuals who wish to make a claim should complete the prescribed form, explaining what has happened to them. There are different forms depending on if you are

• A primary claimant (that is, a direct victim of the Windrush scandal)

• A close family member of an affected Windrush individual

• A representative of the estate of an affected Windrush individual who has passed away

Claimants will need to provide evidence of their claims to the extent possible. There may be some issues with this, and the Home Office appears to have rowed back on some of the flexibility it promised earlier in the process.

Note that the Home Office has its own process for arranging mental health assessments which it promises to do at its own expense. Presumably this would happen if a claimant alleges serious mental health issues.

Offer and review

Following receipt of the form, the Home Office will decide whether or not to make an offer of compensation. No time frame is given for this offer to be made.

If a decision is made to offer compensation, this will be communicated to the claimant, who must then decide whether to accept the offer, or challenge the determination within two months.

If a decision is made to challenge a first instance decision, this will go to a different (senior) Home Office decision-maker for what is referred to as a “Tier 1 Review”.

It is possible to challenge the decision of the Tier 1 Review by requesting a “Tier 2 Review”. This will be conducted by a person outside of the Home Office.

As mentioned above, we cover some criticisms of the Scheme in a separate post.

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