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August 27th 2020

Malcolm Johnson

Law firms call for change as ‘unfair and ineffective’ Windrush Compensation Scheme is ‘adding to national scandal’

Malcolm Johnson

Malcolm Johnson

Senior Solicitor, Abuse

Law firms call for change as ‘unfair and ineffective’ Windrush Compensation Scheme is ‘adding to national scandal’

Solicitors supporting people affected by the Windrush Scandal have jointly written to Home Secretary Priti Patel warning that the Government’s dedicated compensation scheme is ‘not fair or effective’ and only serving to ‘add to the national scandal’.

Solicitors supporting people affected by the Windrush Scandal have jointly written to Home Secretary Priti Patel warning that the Government’s dedicated compensation scheme is ‘not fair or effective’ and only serving to ‘add to the national scandal’.

The Windrush Compensation Scheme was formally announced by the Government last year.

It was established to compensate people who were invited to the UK from Commonwealth countries between 1948 and 1971 and granted indefinite leave to remain in the UK, only to find themselves wrongly classed as illegal immigrants following a change to immigration laws in 2012.

As a result people lost their jobs, homes, benefits and access to basic public services including healthcare and education. Some were wrongfully detained and deported because of the Government’s failure to keep a record of who had been granted legal status years ago.a

Now, as reported in The Guardian newspaper today, lawyers, including Malcolm Johnson of Hudgell Solicitors, say it is not fit for purpose and too complicated for applicants to apply.

They have also criticised the lack of progress on claims, saying that months pass without any contact between applicants and caseworkers.

Thousands still to apply to ‘complex’ compensation scheme

Mr Johnson is one of the legal representatives calling for a face to face meeting with Daniel Hobbs, the civil servant who heads the Windrush compensation scheme, and Mrs Patel.

The group of lawyers say applicants must be granted publicly funded independent legal advice if the scheme is to serve its intended purpose, and that this should be made available without further delay.

“When this scheme was launched Amber Rudd MP made a commitment to the Windrush generation that where people had suffered loss, they would be compensated,” said Mr Johnson.

“It was also pledged that the scheme would be so simple that applicants would not need legal assistance, and therefore public funding was not made available. That has not been the case.

“As of the end of March 2020 only 1,275 out of an estimated 15,000 potential claimant applications had been submitted and just 60 offers of compensation had been made. It is the collective view of a number of lawyers and firms that the lack of legal assistance available due to the lack of public funding is a reason for this.

“Applications for compensation are complex, requiring detailed information about sensitive matters and high volumes of evidence. Unrepresented applicants may have been delayed or deterred from making these applications.

“Many eligible applicants will probably also be fearful about submitting applications to the Home Office without legal advice, based on past experiences of being disbelieved and suffering the consequences.

“Some are still suffering from the effects of the hostile environment and struggling to rebuild their lives. Some will never be able to rebuild their lives. Others are elderly, in ill-health or lacking capacity.

“The losses people have suffered are far from straightforward to identify, evidence and quantify. Almost all have suffered significant impacts to their daily lives over many years.

“This includes stress and anxiety, humiliation, loss of income, high levels of debt, breakdown of relationships, addiction problems, and degrading treatment. Some individuals been denied access to healthcare for serious physical and mental health conditions.

There are also complex rules over eligibility which make it difficult for the Claimants to apply without legal advice.

“Indeed, it is our view that preparing applications to the Windrush Compensation Scheme is no less complex than preparing evidence and statements of case in legal proceedings. Without specialist legal advice, applicants are at a significant disadvantage.”

Calls for legal aid to be granted to ensure ‘fair access to justice’

Mr Johnson says some solicitors, including Hudgell Solicitors, are currently acting on behalf of claimants using contingency fee agreements.

Under these agreements, claimants are supported to make applications knowing that they will pay nothing if their case is unsuccessful, but have to pay their lawyers an agreed percentage of their damages if they are awarded.

Mr Johnson says that, due to the limited number of clients willing to go down this route, firms are running such cases at a loss, and that is also preventing the access to justice the scheme set out to deliver.

“We are collectively calling for public funding for work done under the Windrush Compensation Scheme, and for a new scheme to be established whereby legal support and advice is provided by a panel of approved firms,” said Mr Johnson.

“It is clear to us that the Windrush Compensation Scheme is not currently operating in a way that provides fair and effective access to justice for members of the Windrush generation. This only serves to further add to the national scandal.

“In our view, if applicants are to have fair access to the Scheme then they need access to publicly-funded independent legal advice and this should be made available without further delay.

 “It is estimated that 15,000 people eligible for compensation of between £200m and £500m. It will be a further scandal if individuals are unable to secure fair access to this Scheme because it was too complex and they were not able to obtain legal assistance.”

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