Needleman: Funding would be a win-win
Compensation awards secured by Windrush claimants are up to eight times higher when they have lawyers, a report has found, urging the government to fund legal representation.
One claimant was refused any compensation when he applied on his own to the Windrush Compensation Scheme (WCS), but with the help of a lawyer was eventually awarded £295,000.
The government decision earlier this year to spend £1.5m on advocacy support for victims of the Windrush scandal could not be a substitute for “independent, funded, expert legal representation, which is absolutely necessary for fair decision making”.
Researchers said that in the 17 cases they studied, the WCS “failed to secure relevant evidence, made superficial enquiries (especially in relation to other government departments), failed to properly assess how much weight should be placed on responses to its enquiries, and drew unreasonable conclusions” from responses to enquiries.
“These issues have often been material to the determination of claimants’ claims and have tended to result in a nil award or low offers.”
Claimants received an average of £11,400 in compensation when they applied by themselves but, once they had legal advice, this went up to £83,200.
“One claimant went from being refused any compensation to being awarded £295,000 with legal assistance; another had her award go from £20,000 to £170,000 once she had charitable legal support.”
Researchers from JUSTICE, Sussex University and the law firm Dechert reviewed 17 WCS cases for the report People need legal help: The value of legal representation in the Windrush Compensation Scheme.
They said that by March 2025, the WCS had made 9,314 decisions, with just over £109.6m paid out in compensation, a figure “at the lower end of the latest estimate of £60m to £260m”.
Instead of funding legal advice, the Home Office funded the ‘We Are Group’ (formerly We Are Digital) to help claimants.
“We Are Group offers three-hour appointments for support with filling in the application form – a far cry from the 45 hours or more that lawyers spend on assisting claimants with their applications.”
In the absence of legal aid, some law firms offered services to WCS claimants under damages-based agreements.
“These usually require claimants to pay a percentage, often 20-30%, of their compensation to their legal representatives if their claim is successful.
“A lawyer with experience advising WCS claimants has reported knowledge of such an agreement where 67% of the award was to be paid to legal representatives.”
Although medical evidence “should not be routinely required” by the WCS, it was relevant to at least 10 of the 17 cases reviewed.
Meanwhile, “people with terminal illness, dementia, other severe physical and mental health conditions, and people who have been street homeless or long-term sofa surfing cannot be expected to make evidence-based claims (or indeed any claims) to the WCS without the benefit of both legal advice and funding to support access to medical and other evidence”.
Researchers recommended that the government provide funding for representation and disbursements in WCS claims at all stages of the process, recognising that “a claimant’s lawyer is the person best placed to decide whether medical or other expert evidence is required”.
Stephanie Needleman, legal director of JUSTICE, commented: “Claimants need access to funded legal advice at every step – from making sense of the Home Office’s overwhelming paperwork to appealing when their claim is wrongly rejected.
“The home secretary herself previously called for funded legal assistance, recognising that this would benefit claimants and improve Home Office efficiency – a win-win.”
Tim Bowden, a partner at Dechert, added: “The WCS is undeniably complex. It requires an understanding of over 200 pages of rules, guidance and application forms in order to make an informed claim.
“This prevents claimants, especially the many elderly and vulnerable people damaged by this scandal, from being able to effectively present their cases and obtain the compensation they are entitled to.”
Dr Jo Wilding, associate professor in law at Sussex University, added: “This research enabled us to show exactly what lawyers do in these cases, acting as a buffer between the victim and the Home Office, finding creative ways to access long-lost documents and making legal arguments about how the evidence meets the rules, which claimants clearly couldn’t do themselves.”
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