Rt Hon Yvette Cooper MP

Chair
Home Affairs Committee

Rt Hon Meg Hillier MP

Chair
Public Accounts Committee

BY EMAIL ONLY

2 October 2020

Dear Ms Cooper and Ms Hillier,

RE: Oral evidence of the Permanent Secretary at the Home Office before the
Public Accounts Committee on 10 September 2020

Thank you for your work on behalf of victims of the Windrush scandal. We are an
independent group of campaigners who scrutinise the Windrush Compensation Scheme
(“Scheme”) and the conduct of the Home Office in administering it, with the aim of
ensuring victims are fully and justly compensated. We do this by reviewing the rules
governing the Scheme (“Full Scheme Rules”1) and accompanying Casework Guidance2;
reviewing and analysing the Windrush Compensation Scheme data (“Scheme data”); and
consolidating claimants’ experiences and the problems they face in dealing with the
Scheme. We publish commentary, at this stage primarily through our Twitter handle,
based on this work3.

We were dismayed by the superficial, imprecise and scant nature of the evidence
tendered to the Public Accounts Committee by the Permanent Secretary at the Home
Office, Matthew Rycroft CBE, in his appearance on 10 September.

Mr Rycroft promised to write to either or both of you with crucial information of which he
was not apprised prior to his appearance no fewer than nine times in the exchanges
documented at pages 13 to 21 of the official transcript4 of the hearing (being the section
which covered substantive questioning on the Scheme). We understand this letter has

1
https://www.gov.uk/government/publications/windrush-compensation-scheme-full-rules
2
https://www.gov.uk/government/publications/windrush-scheme-casework-guidance
3
We do not act directly for claimants in their compensation claims or perform any other legal function.
4
https://committees.parliament.uk/oralevidence/820/pdf/

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not materialised over three weeks after the fact, despite your follow-up letter5 to Mr Rycroft
of 21 September.

We write to you now for the following reasons:

a. to answer some of your questions based on the data published by the Home Office;
b. to seek clarification on some of the answers Mr Rycroft gave;
c. to draw attention to further issues and context on several of the points raised;
d. to make it clear to the Home Office that we and a large network of claimants are
dissatisfied with its cavalier approach in dealing with specific criticisms and queries;
and
e. to make it clear to the Home Office that claimants are focussed on detail; that they
will resist attempts to dismiss them and their complaints with broad brush policy
statements that do not engage meaningfully with the relevant matters; and that they
recognise attempts to frustrate the process of dealing with their queries and
awarding compensation.

We hope that this letter will aid in your review of the Home Office’s written responses,
whenever they are received.

(i) Question 39: The Chair asked how many applicants to the Scheme were non-
Caribbean Commonwealth citizens. The answer can be found in the Scheme
data, in worksheet WCS_03. We were therefore puzzled as to the inability of
Mr Rycroft and his colleagues at the hearing to supply the numbers on the spot.

Assuming the dataset is both accurate and complete, as of end-August 20206,

primary claimants came from 46 birth countries; of that, 33 were non-Caribbean
countries (including one category marked ‘Other’). There were 1,296 primary
claims altogether, of which 156 (~12%) came from non-Caribbean
Commonwealth countries excluding the UK (including 1 from ‘Other’). A further
866 (~67%) claimants were from the UK, leaving 274 (~21%) primary claimants
of Caribbean birth countries.

There were 197 close family claimants from 7 countries, the majority (158,
~80%) being UK-born. Of the remainder, 2 claimants were from Jamaica (~1%)
and the remaining 37 (~19%) came from non-Caribbean Commonwealth
countries ex UK.

There were 65 estate claimants: 47 (~72%) from the UK; 15 (~23%) from
Jamaica; and the remaining 3 (~5%) from Bangladesh, India and Nigeria.

5
https://committees.parliament.uk/publications/2712/documents/27149/default/
6
https://www.gov.uk/government/publications/windrush-compensation-scheme-data-september-2020

2
 (ii) Questions 42 and 43: Ms Cooper queried the discrepancy between the
amount that has so far been paid out and the original Scheme estimate –143
claimants had received ~£1 million which, on the basis that 143 claimants
represented 10% of the total, would put the Scheme on track to pay out in the
region of £10 million. She noted that this fell far short of £200 million estimate
announced by the previous Home Secretary in April 2019.

We were surprised Mr Rycroft was unable to address this question despite the
amount of time spent on it and the numerous opportunities Ms Cooper afforded
him.

The premise of Ms Cooper’s question was incorrect because 143 is not 10% of
the total number of claims, but of the total number of claims received as of the
hearing date7. The majority of prospective claimants have yet to submit their
claims. The £200 million estimate set out by the previous Home Secretary
relates to an expected number of up to 15,000 claimants, as Mr Rycroft states
in his answer to Question 42. That would mean that on the basis of the total
paid out as of end-August 20208, being £1,343,408.43 for 168 claims, the
Scheme would be on track to pay out £119,947,181.25 for 15,000 claimants.

This would still be a little over £80 million short of the previous Home
Secretary’s estimate.

Using Mr Rycroft’s revised estimate (see (iii)) of 11,500 claims, the Scheme is
currently on track to pay out £91,959,505.62, i.e. less than half the total the
previous Home Secretary promised. Even in merely recalibrating the original
estimate to the new expected total number of claims, the Scheme ought to be
on track to pay out £153,333,330, which is £61,373,828 short of what it is
currently on track to pay out.

Notwithstanding these estimates and the deeply worrying shortfall upon which
they shed light, we suggest caution in relying exclusively on extrapolated
estimates and mean averages for the reasons set out at point (v) below.

(iii) Mr Rycroft’s reply to Question 42: As stated above, Mr Rycroft said current
Scheme estimates are based on a total number of eligible claims that has been
“reduced slightly” from the previous Home Secretary’s figures.

Firstly, we question his characterisation of a reduction of 3,500 - ~23% - as

“slight”.

7
This was based on the July dataset, which has been superseded by the August 2020 dataset as referenced in the
next footnote.
8
The file ‘Windrush_Compensation_Scheme_August_2020.’, published on 28 September 2020 under the website
heading ‘September 2020’

3
 Secondly, leaving aside the blithe attempt to portray it as insignificant, Mr
Rycroft attempted no explanation or justification for this reduction. We hope
you agree on the need for a clear, evidence-based explanation for this
reduction.

WCS_06 of each instalment of the dataset covers ‘negative outcomes’; these

are said to be claims that either fail to meet the eligibility criteria in the Full
Scheme Rules, or which satisfy those tests, but fail at the next step, calculation
of entitlement. As of end-August, 68 claims have been rejected on grounds of
eligibility, and a further 63 have been judged zero-entitlement. We make two
observations:

1. The statistical exercise by which these numbers might correspond to an

overall reduction in claims of 3,500 is not clear. The Home Office must
explain this, with reference to any models or formulae it uses to make
these calculations, if necessary.

2. On the basis of the numbers set out above, the total number of claims
that have had a ‘negative outcome’ is 131. The total number of claims
that have been paid out in the same period is 168. The Home Office
must urgently explain this.

(iv) Question 45: We were encouraged by Ms Cooper’s references to partial

payments. The lack of clarity on this is symptomatic of broader problems in the
way the Home Office collates and presents its data.

Firstly, the Scheme data do not include any figures on partial payments. This a
crucial metric. Without evidence on partial payments, the Home Office is
afforded the opportunity to publish headline figures alone, which are misleading
as to the success of the Scheme – as shown in the Notes page of the dataset,
in the explanation for WCS_05, the Home Office counts interim payments as
“claims paid”. Both the number and quantum of part payments ought to be
shown, beginning with the next dataset.

Secondly, there remains confusion as to what exactly is meant by partial

payments. The Notes refer to “interim payments”. Paragraph 9.1 of the Full
Scheme Rules states that an interim payment is a payment in full and final
satisfaction of a discrete part of a claim. Separately, on 11 October 2018 the
previous Home Secretary announced a scheme of payments to provide support
in “urgent and exceptional” circumstances; these have been referred to as
“emergency” payments. It is not clear if these are counted as a type of
partial/interim payment, and we would welcome clarification.

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 A related issue is the treatment of emergency or hardship payments as
advances on the full, final compensation amount. We are in contact with one
claimant who was offered a small sum as a hardship payment because their
spouse was, and remains, critically ill. A condition of this offer was that the sum
would be deducted from the final award. We question the fairness of this: the
need for a hardship payment at all arose from the untenable delay in awarding
full compensation. To then deduct it from the full award is another injustice to
this claimant. The Home Office should clarify how it determines
emergency/hardship payments, and whether it is treating all of them as
advances on the final sum in this way; if so, an explanation as to why that is so
would be helpful.

(v) Question 46: Ms Cooper asked for an average payment amount. As of end-
August 2020, the mean payment is £7,996.40.

We ask you to consider this figure in the broader context of:

1. the Home Office’s recent publicity efforts, promoting what the Home
Secretary has termed its more “compassionate” approach; and

2. the publication, with much fanfare, of its ‘Comprehensive Improvement

Plan’9, being the department’s putative response to the Windrush
Lessons Learned Review.10

Notwithstanding the above, as stated at point (ii) above, we would urge caution
in heavy reliance on mean averages. On 28 May this year, the Home Office
published an article11 accompanying the release of the May Scheme data12.
Par 8 of that article notes that one payment was in excess of £100,000.

The impact of an outlier of that magnitude on the mean of the rest of the
payments made is significant. At that time, £362,996.92 had been paid to 60
claimants, giving a mean of £6,050. Assuming the Home Office paid a single
claimant £100,001, the mean for the other 59 claimants drops to £4,457.50.
That is a significant difference, particularly when the amounts are that small.

For this reason, we would ask you to consider compelling either or both of
following suggested revisions to the Home Office’s dataset:

9
https://www.gov.uk/government/publications/windrush-lessons-learned-review-response-comprehensive-
improvement-plan
10
https://www.gov.uk/government/publications/windrush-lessons-learned-review
11
https://www.gov.uk/government/news/windrush-compensation-scheme-pays-out-360000-within-first-year
12
https://www.gov.uk/government/publications/windrush-compensation-scheme-data-may-2020

5
 1. Full offer amounts, with claimants’ names and other identifying details
redacted or withheld. This has the added advantage of reassuring
claimants that their claims are being treated even-handedly. We assume
the Home Office will not be worried that releasing these figures might
give rise to complaints from claimants who feel their offers are too low,
as it will be able to fully justify its decisions to each individual claimant
with reference to the Full Scheme Rules and Casework Guidance;

2. Median offers, which will provide a more meaningful average payout

figure.

(vi) Question 48: Discussing the case of Anthony Williams, Ms Cooper noted that
Mr Williams’ award (which he is appealing) for loss of employment amounted
to only one years’ lost earnings, as opposed to the five years of income he
actually lost because of the Home Office’s actions.

This is a feature of the Scheme’s design. Annex D of the Full Scheme Rules
contains the rules on compensation for Loss of Access to Employment. Lost
income is in fact compensated through one of two alternative heads – an ‘actual
earnings award’ or a ‘general award’.

Actual earnings

The period for calculation of actual earnings begins on the later of:
- the date on which the claimant took reasonable steps to resolve their lawful
status; or
- the date on which the claimant’s employment was terminated.

The end date for that calculation is the earliest of:

- Three months from the date on which documentation proving lawful
residency was received;
- The date on which employment was (re)commenced;
- For deceased claimants, the date of death;
- For non-UK based claimants, the date on which UK residency ceased.

The premise is that the award compensates for actual lost income within these
parameters, based on the evidence supplied as to employment and income.

General award

The general award uses the same rules for start dates as given above.

However, the end date for the calculation is the earliest of:

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 - Three months from the date on which documentation proving lawful
residency was received;
- The date on which employment was (re)commenced;
- For deceased claimants, the date of death; or
- 12 months from the date upon which the period of loss began.

Further, rule D15 sets a cap of £1,147 per month for this calculation.

The effect of these rules is that if only a general award is made for lost
employment, the maximum a claimant can receive is £13,764.

We have not encountered a single case of in which an actual earnings award

has been made. In all cases of which we are aware, including that of Mr
Williams, only a general award has been made.

The Home Office attributes this to deficiencies in the evidence supplied.

The 51-page Casework Guidance gives no substantive instructions or

requirements as to the type of evidence required for the making of an actual
earnings award. Claimants have been supplying the Home Office with
everything they can get hold of in order to support their claims, only to have
their actual earnings claims rejected – but there is no published standard for
the evidence required on this point. In other words, there is no way to scrutinise
the accuracy, fairness or consistency of the Home Office’s decision-making as
to evaluating employment evidence.

What claimants are left with is a situation in which:

- The Home Office says claimants are failing to provide the right evidence of
employment;
- There is no publicly known standard for such evidence;
- The Home Office takes a manifestly unreasonable position on the evidence
it requires – see, in addition to Mr Williams’ case, the case of Mr Ivan
Anglin13;
- In the absence of an actual award, only a general award is made;
- That is itself capped at a maximum of £13,764.

As you know, Mr Williams was unemployed for more than five years; other
claimants have been barred from employment for up to twice that duration.14

13
https://www.northamptonchron.co.uk/lifestyle/family/northampton-windrush-victim-criticises-insulting-red-
tape-after-more-year-without-apology-or-compensation-2915043
14
https://www.theguardian.com/uk-news/2019/dec/17/windrush-victim-rejects-insulting-offer-of-22000-payout-
compensation

7
 The Office for National Statistics publishes annual median salary data, which
are regularly used as average indicators by government departments,
academic institutions and the media. Per that data,15 the median salary in 2010
was in the region of £22,300-24,325 for adults between the ages of 30 and 59.
Failing that, the national minimum wage in 201016, around the time many
claimants began to face problems, would have yielded gross annual income of
roughly £10,502, assuming 7 hours/day over 253 working days. Both the
minimum wage and median salary have increased since 2010; these figures
are therefore on the low end of what an adult in full-time employment might
have lost.

We invite an explanation from the Home Office, perhaps with the assistance of
Scheme architect Martin Forde QC, as to why the assessment of income lost
by Windrush victims compares quite so unfavourably to both the ONS median
and the minimum wage.

We would also welcome clarification as to the type of evidence that the Home
Office would like in order to make actual earnings awards. We would expect
that explanation, if it is forthcoming, to acknowledge some of the inherent
difficulties in obtaining written evidence of salary and employment stretching
back ten or more years, especially in circumstances where claimants have
been deported, made homeless, or otherwise displaced, given the impact that
is likely to have on maintenance of this type of documentation.

(vii) Question 49: In addition to loss of employment, Mr Williams also claimed

under the heads for lost benefits, lack of access to services, and distress. As
you are likely aware, the Home Office’s actions had a drastic impact17 on Mr
Williams, culminating in significant health issues. His total award was under
£19,000.

We mention this not to single out Mr Williams’ case, but to point out that the
assessment of his award was defective on the other heads of compensation as
well as lost employment. This applies equally to other claimants of whom we
are aware.

15

https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/earningsandworkinghours/datasets/agegro
upashetable6
16
https://www.nibusinessinfo.co.uk/content/national-minimum-wage-previous-rates
17
https://www.theguardian.com/uk-news/2020/jun/21/i-feel-targeted-windrush-victim-decries-compensation-
delays-as-racism

8
 We ask therefore that you consider compelling the Home Office to publish
schema setting out the types of evidence required to substantiate each head
of claim.

(viii) Mr Rycroft’s reply to Question 50: Mr Rycroft said that the Home Office is
“seeking… to be as generous as possible on the basis of the facts as far as we
can establish them (emphasis supplied)”.

We think the preceding paragraphs, taken together with that statement, clarify
why the awards that have been made are paltry and insulting.

One further aspect of the Scheme’s design that lays bare the indignity
claimants are subjected to through a process that is supposed to make amends
is the tariff table setting out payments for Impact on Life. This can be found at
Annex H of the Full Scheme Rules.

o The tariff begins at £250 (Level 1), for “inconvenience, annoyance,

frustration and worry… lasting up to a few weeks.”

In order to be eligible for the Scheme, claimants (or their close family,
whether living or deceased) must have had their residency revoked
or denied. We ask you to consider whether it is possible that even
the least upsetting, least impactful version of such an event could be
characterised as an inconvenience of the type that might be
compensated with £250. We make this point to challenge the Home
Office’s assertions as to its compassion and generosity.

o We ask you to consider the following anecdotal evidence:

1. One claimant received £3,000 for Impact on Life. He had been

separated from his father for 30 years. The award he was made
corresponds to Level 3 of the tariff.

2. The claimant referenced at paragraph (iv) above received £3,000

for Impact on Life, corresponding to Level 3 of the tariff.

He was terminated following a 40+ year career as an engineer,

forced to miss his spouse’s chemotherapy appointments, and
forced to liquidate his pension to survive. As stated above, his
spouse was (and remains) critically ill, and the award for Impact
on Life will only offset the hardship payment for which he was
forced to apply.

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 3. You are familiar with Mr Williams’ story. He received £5,000 for
Impact on Life, corresponding to Level 4 of the tariff.

4. You may be familiar with the case of Glenda Caesar18. Ms Caesar

received £7,000 for Impact on Life, corresponding to Level 5 of
the tariff.

(ix) Question 52: Ms Cooper asked when the Scheme might be expected to have
compensated 50% of claimants, noting that time is of the essence given the
average age of claimants.

As of end-August, the Scheme has received 1,531 claims. Of that, it has paid
168, leaving 1,363 claims which are some combination of unresolved, under
offer or under appeal.

The rate of resolution has increased markedly since last year, as might be
expected with an exercise of this nature – resources have been added and
experience is gained as time passes. The best rate of resolution to date was in
July 202019, when 33 claims were paid. At that rate, it will take 41 months (3
years and 5 months) to resolve the existing claims. If there are 11,500 claims
altogether, subtracting the claims paid, it will take some 28 years and 7 months
to resolve all claims; with 15,000 claims, that rises to 37 years and 5 months.

As the dataset does not contain the number of offers or distinguish between
claims paid before or after appeal, this calculation is necessarily crude and
exaggerates the low rate of resolution; further, as more resources are added
and expertise gained, it is reasonable to expect the rate of resolution to
increase (but see fn 19). Nevertheless, it should be clear that exponential
growth to the rate of resolution is necessary in order to bring those timescales
down. As you have already noted, many claimants are in their 60s and beyond
– it is manifestly unjust for such individuals to have to wait even a few years,
given what they have already endured and what the Home Office continues to
put them through.

Mr Rycroft will undoubtedly be able to provide a more accurate estimate as to

the speed of resolution, which we look forward to seeing.

(x) Mr Rycroft’s reply to Question 57: In response to the Chair’s question on

housing for claimants made homeless as a result of the Home Office’s actions,

18
See fn 13 above.
19
Although the rate has broadly increased over time, it declined in August, when only 25 claims were paid,
compared to 33 the previous month. This shows that it is not safe to assume that the rate will only increase as time
passes.

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 Mr Rycroft said “the Home Office cannot magic out of thin air a solution to an
issue that is not under [its] control.”

With the greatest respect, this makes no sense. The Home Office is a
government department. It is not bound by the same pecuniary and
administrative constraints as are private individuals. We do not understand the
broad point argued by Mr Rycroft – that the Home Office is somehow incapable
of securing housing for claimants that it made homeless. We understand of
course that housing is not generally within the department’s purview; however,
it within the ambit of other departments, all of which are part of the same
government.

It would be helpful if you could require the Home Office to rectify this, or at the
very least, provide a fuller answer as to why it cannot be done along with
monetary compensation in lieu.

Thank you for interrogating the Home Office’s conduct in administering this Scheme. Your
work is a source of hope for a vast number of private citizens who, through the actions of
the Home Office, have been victimised, marginalised, and led to question their worth and
place in the United Kingdom today.

We believe it is vital to hold the Home Office to account, not just so that it compensates
its victims, but so that it never contemplates repeating any of the litany of errors and
injustices that culminated in the Windrush scandal. We hope you agree. Do not hesitate
to contact us if you require any further information, or if we can help in any other way.

Yours sincerely,

WL
@windrushlives
windrush.lives@gmail.com

CC:
FAO Matthew Rycroft CBE c/o Daniel Hobbs
Director, Windrush, Asylum, Immigration and Citizenship
Home Office

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