11 Apr Windrush Compensation Scheme
Last Wednesday the Secretary of State for the Home Department finally announced the launch of the long awaited Windrush Compensation Scheme stating up to £200m will be available to victims affects by the scandal.
Although it is a very positive step in the right direction, on considering the newly released scheme guidance, solicitors at Matthew Gold & Co query whether long awaited scheme will it be fit for purpose?
The aim of the scheme is to compensate those affected by the Windrush scandal who suffered a detriment due to being unable to demonstrate their lawful right to live in the UK.
Despite a call for evidence that received responses from over 650 individuals and organisations as well as a lengthy consultation process, there appears to be very strict and rigid elements of the scheme that may operate to narrow its function.
It appears that in general the scheme is likely to pay out awards lower amounts than what might be expected to be awarded by the Courts in a civil claim for damages. For example, the scheme suggests that if a victim was taken into detention, they will be awarded exactly £500 per hour and that no award would be given for detention lasting less than 30 minutes. This is clearly much lower than Thompson and Hsu guidelines used as a benchmark in civil claims for false imprisonment.
There are set rates of compensation for various types of loss and an opportunity for the Home Office to make a “discretionary award” where the loss falls outside of the specified losses on the proviso that this loss is adequately evidenced.
However, there is little guidance as to what evidence is required to support claims for compensation and as many victims will have previously been caught up in a continuous back and forth battle with the Home Office in an attempt to prove their legal status, one can anticipate this process, without any clear guidance, will cause further confusion and distress for victims.
An additional cause for concern is the power for the Home Office to reduce or decline entirely to make an award under the scheme where it considers the victim has failed to mitigate his or her loss. Again, there appears to be very little guidance relating to the evidence that is required to prove mitigation.
This is particularly worrisome and appears to operate as a punitive measure for those victims who had every right to be in the country but perhaps did not take the steps to identify themselves to the Home Office for fear of deportation and/or detention.
A positive element of the scheme which may serve to provide a non-monetary sense of vindication to victims, is that where one receives an award of compensation under the Scheme, the determination that makes that award will be accompanied by an apology by the Home Office, acknowledging what has happened to the victim and acknowledging any role that the Home Office may have played in the impact or loss suffered.
Ultimately, although the compensation scheme is welcomed after such a long consultation process, how it will work in practice remains to be seen.
MG & Co are currently working with a number of clients who have been affected by the Windrush scandal and will be considering all available options going forward including the compensation scheme as well as potential civil claims.
If you think you have been affected by the Windrush scandal and would like advice on obtaining compensation from the Home Office, please contact our office on 02084459268 or email firstname.lastname@example.org