Expenditure on the Windrush Compensation Scheme

Part of Windrush Compensation Scheme (Expenditure) Bill – in the House of Commons at 6:00 pm on 24th March 2020.

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Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department 6:00 pm, 24th March 2020

I hear the hon. Gentleman’s point. That was one of the areas covered when I met the independent adviser, and his advice is clear: he believes that the system is set up in a way that means people do not need specialist legal support to make a claim. The compensation team will work with the claimant to look at things such as HMRC data on past employment and to access Government records—for example, on immigration fees that may have been paid in the past when someone should not have needed to pay them. At the moment, we are satisfied that this gives people the opportunity to engage, and we are keen that this is about working with the person to find out how they were affected, rather than getting into the type of adversarial legal process that could have been the alternative to the approach that we are adopting.

New clause 6 seeks to prevent the Home Office from reducing compensation awards due to criminality or the timeliness of actions to resolve status. In response to direct feedback from claimants and stakeholders, the Home Office has already made changes to the scheme’s mitigation policy. Individuals are no longer expected to show that they took immediate steps to resolve their status, and that was clarified in new guidance published on 5 March.

While it is reasonable to expect individuals who encountered difficulty in evidencing their lawful right to be in the UK to have taken some steps to try to resolve that, the Home Office will now consider any evidence of steps that someone took to resolve their situation, even if those steps were not taken as soon as reasonably practical when an individual lost their job or took place before an individual encountered difficulties. For example, that could include writing to a Member of Parliament rather than approaching the Home Office directly. That change means that some people may qualify for higher awards, particularly where it relates to loss of employment.

With regard to criminality, those with criminal convictions are not precluded per se from making a claim for compensation. However, being mindful of the Government’s obligations towards taxpayers’ money, we may reduce or decline an award if a claimant has a record of serious criminality. I was asked to explain why we would do that. There may be a claim for loss of employment due to a person not being able to show their migration status. If that claimant then had a serious criminal conviction shortly afterwards or during that period, it would not inherently flow that their employment would have carried on but for the migration status issue, because that serious offence would almost certainly have cost them their employment. But as I say, that does not preclude, and it is not a bar. We are always open with this process, as we work with stakeholders and the independent adviser in particular, but that explains why that would be done—because it seems unfair to compensate with taxpayers’ money when that employment may well have been lost anyway following a particular type of conviction.

New clause 7 seeks that no requirement be made of claimants to demonstrate a level of proof beyond the balance of probabilities for claims for actual losses under the scheme. The scheme awards compensation according to both actual losses and tariff-based awards. Evidential requirements have been designed to be straightforward and not too onerous. However, we do ask claimants to provide as much evidence as they can, so that the best assessment can be made. Caseworkers will work with applicants and contact other Government Departments, such as Her Majesty’s Revenue and Customs, on their behalf where there may be evidential gaps. Where awards are tariff-based, caseworkers will make decisions on the balance of probabilities. Where awards are for actual losses, it is right that we seek to obtain an appropriate level of assurance that those losses were incurred, in order to fulfil our duty to properly manage money.