Briefing: a guide to applications to the Windrush Compensation Scheme

This post is for those who are new to the area of Windrush compensation claims, or who would like to submit their own claim, and is designed to be a beginner’s guide to the application process.

Background to the scheme

In April 2018, the news that long-term lawful residents, including the Windrush generation and their descendants, had wrongly been denied access to healthcare, housing, benefits and employment, and in some cases had even been detained and deported from the UK was front page news. There was an outpouring of public support and the Government set up the Windrush taskforce to urgently issue documentation confirming lawful status. Following a public consultation, in April 2019, there then followed the establishment of the Windrush Compensation Scheme.

Despite the passage of time, there are still many individuals who are yet to obtain confirmation of their status, there are previous lawful residents who remain stuck abroad, and turning to the focus of this article, there are thousands who are yet to apply for compensation to which they are entitled.

There are numerous barriers driving this, including the fear and distrust of the Home Office, the well-documented delays in the system, the sheer length of the process, resulting in far too many dying before receiving compensation and the lack of access to legal representation. The latter is perhaps the most acute as the High Court has recently ruled that legal aid in the form of exceptional case funding is not available for compensation claims.

The Home Office’s position is that legal representation is not even required as application forms have been simplified using easy to understand language, their caseworkers will take a light touch approach, and their aim is to maximise the amount of compensation to be paid. The limited support provided through the We are Group is insufficient as acknowledged by the High Court who also noted the complexity of the application process.

In practice, the process is legally complicated as it often requires specialist immigration law knowledge to unpick a claimant’s history and eligibility and to be able to properly advise about the level and extent of evidence required to substantiate a claim. This post should be read in conjunction with the Windrush Compensation Scheme Rules and the Windrush Compensation Scheme Guidance. To date, mainly due to the delays in decision making and lengthy review process, documented below, there has only been a smattering of case law for further guidance.

Eligibility criteria

It is possible to apply under the scheme as a primary claimant, on behalf of the estate of a primary claimant or as a close family member of a primary claimant.

Primary claimant

To meet the eligibility criteria as a primary claimant, you must be:

(a) a Commonwealth citizen who was settled in the United Kingdom before 1 January 1973 and has been continuously resident in the United Kingdom since their arrival (or who satisfied this provision and is now a British citizen)
(b) a Commonwealth citizen who was settled in the United Kingdom before 1 January 1973 whose settled status has lapsed because they left the United Kingdom for a period of more than 2 years, and who is now lawfully in the United Kingdom (including as a British citizen)
(c) a Commonwealth citizen who has a right of abode and was ordinarily resident in the United Kingdom on 1 January 1973 (or who satisfied this provision and is now a British citizen)
(d) a child of a Commonwealth citizen parent, where the parent either:
(i) was settled in the United Kingdom before 1 January 1973; or
(ii) has a right of abode and was ordinarily resident in the United Kingdom on 1 January 1973 (or did satisfy this provision and is now a British citizen)
(including a citizen who satisfied one of those requirements and is now deceased), and where the child either:
(i) was born in the United Kingdom or arrived in the United Kingdom before the age of 18, was not automatically a British citizen or a citizen of the United Kingdom and Colonies from birth, and has been continuously resident in the United Kingdom since their birth or arrival;
(ii) was born in the United Kingdom or arrived in the United Kingdom before the age of 18, is a British citizen, and automatically became a citizen of the United Kingdom and Colonies/British citizen at birth
(e) a grandchild of a Commonwealth citizen, where the grandparent either:
(i) was settled in the United Kingdom before 1 January 1973; or
(ii) has a right of abode and was ordinarily resident in the United Kingdom on 1 January 1973 (or did satisfy this provision and is now a British citizen)
(including a citizen who satisfied one of those requirements and is now deceased), where either:
(i) the grandchild and their parent were born in the United Kingdom or arrived in the United Kingdom before the age of 18, were not automatically a British citizen or a citizen of the United Kingdom and Colonies from birth, and the grandchild has been continuously resident in the United Kingdom since their birth or arrival;
(ii) the grandchild was born in the United Kingdom or arrived in the United Kingdom before the age of 18, is a British citizen, and automatically became a citizen of the United Kingdom and Colonies/British citizen at birth
(f) a person of any nationality who arrived in the United Kingdom before 31 December 1988 and who either is lawfully in the United Kingdom or is now a British citizen
(g) a Commonwealth citizen outside the United Kingdom who was settled in the United Kingdom before 1 January 1973 and who has a right of abode or settled status or who is now a British citizen, or whose settled status has lapsed because they left the United Kingdom for a period of more than 2 years.

Application on behalf of a deceased’s estate

To apply on behalf of an estate you must show that you have authority to do so by being a representative of the estate, ie. by providing a copy of the grant of probate if the Primary Claimant left a will, or by providing the grant of letters of administration if the Primary Claimant died without leaving a will.

You can receive help in applying for this documentation before submitting a claim for compensation, or after the claim has been submitted.  The Home Office are able to reimburse the probate application fee and any associated legal costs (up to £1,500).

Close family member

To apply as a close family member you must be the claimant’s spouse or civil partner, or unmarried partner (having lived with the claimant for at least two years), or their child, parent or sibling.

Eligibility alone isn’t enough

To recover compensation, it’s necessary to show that you meet the eligibility criteria and you have experienced financial loss and/or an impact on your life due to your inability to prove your lawful status. There has to be this causal link.

In practice we have seen a large number of unrepresented claimants who have unsuccessfully applied to the scheme where they meet the eligibility criteria but cannot show that their losses flow directly from their inability to prove their lawful status. This has exacerbated the delay in decision making by the Home Office.

Heads of loss

For primary claimants and estate claims, there are eight main heads of loss:

Immigration application fees and associated legal costs

The actual immigration fees are paid but are limited to a prescribed list, which does not include passport applications. Payment is only made for an unsuccessful application where the claimant did have lawful status when the application was made. The associated legal fees are capped at £500, regardless of the actual cost.

Detention, deportation, removal and return

Compensation is available where a person has been deported from the UK or removed, with payment for detention made on a tariff basis depending on the length of detention.

Loss of access to employment

To recover under this head, the claimant must have been in employment which was terminated, or offered employment which was rescinded, or unable to find employment, or forced to defer employment due to their inability to demonstrate their lawful status.

Where evidence of the salary is available, the actual amount can be recovered. Where such evidence is unavailable then a general award will be made. This is set at a monthly figure of £1,147.

Loss of access to child benefit, child tax credit or working tax credit

This is a capped sum per benefit, where it can be shown that the benefit was terminated due to the person’s inability to prove their lawful status.

Denial of access to services

This includes:

Housing: a total figure of £1,000 will be paid.
NHS: £500 payment.
Reimbursement of private medical fees incurred abroad: total paid recoverable.
Reimbursement of private medical fees incurred in the UK: the lesser of the amount the NHS would have charged and the actual amount incurred.
Access to higher education as a home student: £500.
International student fees: the difference between the international student fee rate and the home student fee rate for the relevant period will be paid.
Banking services: £500 and where losses have been incurred as a result, the direct financial losses will be reimbursed.

Homelessness

Applies where a person became homeless or continued to be homeless due to their inability to prove their lawful status. This is paid at a sum of £250 per month the claimant was homeless.

Impact on life

This is the head of loss designed to compensate for distress, physical and emotional impact, family separation and the inability to travel to family events. The list is not exhaustive and when preparing a claim, this is where a witness statement with a detailed personal account can really add value. It is the way to express on a human level to the decision maker exactly how the claimant’s daily life was impacted and the ongoing effects which resonate long after a person’s status has been confirmed.

This is a sliding scale with a level 1 award payable at £10,000 up to a level 5 award of £100,000, with discretion to pay more where a claimant’s circumstances are so compelling or severe.

Discretionary

For claims not covered elsewhere in the rules, where the significant impact, loss or detriment of a financial nature is a direct consequence of being unable to establish their lawful status.

Living costs

Significant financial living costs paid by the close family member on behalf of the primary claimant can be recovered and include rent, utilities (gas, water and electricity), contributions towards food and household essentials, travel, prescription fees and council tax. Losses up to the full amount claimed will be paid.

Evidencing your claim

Where you meet the criteria and can demonstrate the causal link, the next important stage of the process is evidence gathering. Despite the Home Office’s protestations that they want to maximise compensation paid, in practice they do expect to see a paper trail to support the claim. This of course can be impossible where the loss was incurred years ago or where papers have been destroyed or lost over the years.

A starting point to try and plug this evidential gap is by way of subject access requests. A useful list would include:

• Home Office: to show applications made and fees paid. This also helps unravel a person’s immigration history to ensure they are eligible to apply under the scheme;
• Local authorities – for housing and homelessness;
• Government departments such as HMRC for evidence of employment;
• Health services including hospitals and GPs;
• Schools, colleges and universities;
• Banks – for historic statements; and
• Previous employers.

Where there is documentation in support of the loss experienced, you are more likely to recover compensation.

Standard of proof

The test applied is the civil standard of the balance of convenience. As explained in the Home Office guidance:

This means you can award compensation if you are satisfied it is more likely than not that what has been claimed for occurred, that is, you are more than 50% sure.

Application process

A well-prepared application should include:

The completed application form

The application forms are lengthy, repetitive and do not have sufficient space for claims to properly be ventilated, so the use of additional statements and a cover letter are highly recommended. If applying as a primary claimant you should make it clear which eligibility criteria you are applying under to make sure your claim is properly considered.

Proof of identity and proof of address

They are mandatory documents. The acceptable documents are listed on the application form.

Witness statement

This should detail the Claimant’s immigration history and the impact on their life of their inability to prove their lawful status, explaining the immediate and longer-term effects in order to recover at the highest tariff possible. It should also explain any gaps in documentary evidence and really be as comprehensive as possible as where there is a lack of a paper trail, the individual’s account may be the only available evidence.

Supporting evidence

This is likely to take the form of relevant extracts from the primary source – eg. confirmation from the relevant local authority that a person was refused housing due to their inability to prove their lawful status. This is where the evidence derived from the actual source who denied the service is crucial, as detailed above this can be obtained by way of a subject access request.

However, many documents are only retained for a certain period and this reinforces the importance of a detailed witness statement where other corroborative evidence is lacking.

Expert evidence

Expert evidence can play a significant role. The Home Office’s position is that this is not required, but their position is also that legal representation isn’t required. Both are flawed.

A compelling psychological report can make a real difference for recovery under the impact on life head of loss. This underpins the impact on a person’s life of their inability to prove their lawful status, it very much goes to causation.

To recover at the higher end of the tariff for impact on life, the claimant must be able to show the following:

Level 4 – £70,000

Significant impacts to the extent that the claimant’s ability to live a relatively normal life was seriously compromised. Cumulative impacts will have been experienced for a prolonged period (months or years). The claimant’s life will have undergone change of some description, such as having regular medical treatment, care visits or other therapeutic intervention, with recovery taking a significant amount of time.

Level 5 – £100,000

Profound impacts on a claimant’s life which are likely to be irreversible. This is expected to involve major physical or mental health impacts, where the claimant has been permanently affected or where recovery or return to a relatively normal life is likely to take (or has taken) several years.

This is a high threshold to meet, and considerable discretion is afforded to the decision maker, as unlike in a damages claim or a personal injury claim there are no legal precedents or Ogden tables to follow. 

Despite the Home Office’s intransigent position that expert evidence isn’t required, in my experience it really can make the difference between a level 3 and level 4 award. The problem is that in the absence of legal aid, such reports are expensive and the Home Office are slow to commission their own. 

We also work with forensic accountants to prepare a full schedule of loss, encompassing heads of loss not covered by the scheme, such as loss of pension. Survivors and campaigners have called for the scheme to be expanded to reflect the real-life losses experienced.

The Home Office are just starting the process of reviewing the exclusion of occupational and private pension losses so it is hoped that the scheme might be expanded in the not too distant future.

Representations

Finally, a detailed cover letter is recommended explaining how the individual meets the eligibility criteria, outlining the heads of loss, amounts claimed and drawing on the salient parts of any supporting witness statement, medical evidence or other documentation to make it as persuasive as possible.

The application can be sent by email to WindrushCompensationScheme@homeoffice.gov.uk

From a purely practical point of view, there is a maximum limit for attachments, anything larger than 15mb should be compressed or sent over several emails to avoid bounce backs.

Next Steps

The Home Office will acknowledge receipt of the application, this can take several weeks. They will provide a reference number with the prefix WCS and ending with the year of submission.

The next part of the process is for the Home Office to confirm in writing that the claimant is eligible to apply under the scheme. This is not indicative that the claimant will receive compensation as this is dependent upon the individual having experienced loss attributable to their inability to prove their lawful status.

Preliminary payment

Within six weeks of the eligibility letter, a decision whether a preliminary payment of £10,000 will be made should be communicated. This is awarded where the Home Office accept that there has been an impact on the claimant’s life to at least the level 1 threshold:

Marked detriment such as inconvenience, annoyance, frustration and worry, where the effect on the claimant was fairly shortlived (lasting up to a few weeks). Family events may have been missed.

This figure is subsequently deducted from the final award.

There are no service standards for the time it should take an application to be considered. Our recent experience shows that it is currently taking around six to seven months from submission to notification of the final award.

During this period, even where applications are front-loaded with evidence, we often receive requests for further information from the Home Office. Frustratingly, this often includes requests for information and evidence already provided.

There is limited provision to seek expedition of an application, the guidance states:

Exceptionally, it may be appropriate to begin the consideration of a claim out of date order. This may include where an individual has a critical or life shortening illness that means there is a substantial risk they will not receive the outcome of their claim if it is considered in date order.

This is rigidly applied in practice. Greater success in having a claim promptly resolved can be achieved by involving the claimant’s MP or even through media involvement.

To mitigate any detriment during the decision-making process, it is possible to apply for an urgent exceptional payment if the criteria is met or help with ancillary matters such as housing, access to healthcare can be provided via the vulnerable person’s team.

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Decisions

Where an award is made, that the claimant is happy with and wishes to accept they have two months from the date of the decision to formally accept the award. The case of R (Vernon Vanriel) v The Adjudicator’s Office [2023] EWHC 925 (Admin) makes it clear that where an award is accepted it is in full and final settlement of the claim and so proceedings cannot later be reopened or litigated.

Where the claimant is unhappy with the award, they have two months from the date of the decision to challenge it.

The decision letters are brief, the rationale behind this is that they are designed to be understood by those without legal representation. In practice, this means claims are refused or low awards offered with very little justification or reasoning.

Where there is a dispute as to evidence, reasons aren’t given as to why one account is accepted over another. Decisions are repetitive, parroting that an award will not be made under a particular head of loss as no information has been provided or is available that an event occurred owing to the claimant’s inability to prove their lawful status. This is often the case where the evidence the claimant is seeking to rely on is their own testimony in the absence of an official documentary trail.

Challenging decisions

The decisions routinely contain classic public law errors but there is a long review process before a claimant can challenge the decision by way of judicial review.

Tier 1

The first stage of the process is an internal review, so a different Home Office caseworker reviews the decision and gives reasons why the initial decision is maintained or increased. It is possible to submit further evidence at the tier 1 stage and in my view should be encouraged where it becomes available to address a point of concern.

Again, there are no published timeframes by which the tier 1 review must be concluded. This part of the process is currently slower than the initial decision making as greater resources have been invested at the front-end and more experienced caseworkers are required to make tier 1 decisions.

We have recent examples where the claimants have been waiting for 9-10 months for tier 1 decisions.

Tier 2

The claimant can accept an offer made at the tier 1 stage within 2 months of the decision, or within 2 months submit a review to the independent adjudicator. They will conduct an independent review into the Claimant’s entitlement to compensation and can investigate complaints about how the Home Office handled a claim.

If more time is required at either the tier 1 or tier 2 stage in order to submit a review, an extension of time can be sought under rule 7.7 and should be given where there are reasonable grounds for the delay.

Where a decision is reached by the Home Office that a claimant is not eligible for compensation, the tier 2 remedy is not available.

Following the outcome of the adjudicator’s review, judicial review is the final remedy.

Other points to note

Under rule 4.5, the Home Office may reduce or decline to make an award to a claimant who has been convicted of an offence in respect of which they received a sentence of imprisonment of four years or more and their offending was of such a nature that it makes it inappropriate to make an award in whole or part. This applies to the impact on life head of loss only.

In January 2023 we submitted a freedom of information request to obtain more detail as to how the criminality exception was operating in practice. On 7 February 2023 we were informed that 11 claims had been denied compensation for impact on life and none had been reduced.

It therefore seems that the Home Office are taking a hard line approach with the application of this exception, such that where a claimant has received a sentence of four years or more they are unlikely to be awarded compensation under this head. Whether such an approach is lawful may be tested in due course.

The statistics show a large number of claims to the scheme which have received a £0 award. In my view, such claims either have no prospect of success as although the claimant meets the eligibility criteria, they have not experienced loss due to their inability to prove their lawful status, so fail the causation test; or they come within the cohort of having left the UK for a period of two years or more and so their indefinite leave to remain lapsed. The latter is a tricky line of case, and when preparing such applications, a firm understanding of the person’s immigration history is key.

Following the case of R (Milton Vivian Thompson) v Secretary of State for the Home Department [2023] EWHC 2037 (Admin) such applications can succeed where the claimant can show that they were entitled to leave to enter but had been wrongfully refused it, then for the purposes of the scheme they are to be treated as having that status and so will be able to recover for losses experienced.

Conclusion

The scheme is far from perfect, compared to other compensation schemes it is woefully lacking in the support provided to survivors and the amounts of compensation recoverable. The ways in which the scheme could be improved have been raised by campaigners.

If Labour are in power come 5 July, they have pledged to make improvements. There is also an ongoing review by the National Audit Office whose 2021 review made for impactful reading.

In the absence of legal aid there are a number of pro bono providers who are specialists in making these applications and for those who are new to the area ensure that applications are frontloaded and that expectations are managed as to processing times and the likely amount of compensation to ultimately be awarded.