Lawyers are today challenging in the High Court the government’s refusal to grant legal aid to a claimant under the Windrush Compensation Scheme amid fresh academic research that reveals ‘structural failings’ in the scheme.

The scheme is designed to compensate Commonwealth citizens or family members - the 'Windrush generation' - who suffered losses because they could not show they had a right to live in the UK.

In today's High Court challenge, Garden Court Chambers’ Grace Brown and Alex Schymyck, instructed by Southwark Law Centre, are representing a claimant who was refused legal aid under the exceptional case funding regime. 

The judicial review is taking place days after a King's College London report called for applicants for compensation to receive funded legal advice and representation.

The authors contrasted the Windrush scheme with three other compensation schemes: Lambeth Children’s Home Redress, Horizon Shortfall and Infected Blood Compensation. According to the report, only 22% of Windrush claims have been successful, compared with 73%, 79% and 100% success rates respectively in the Horizon, Lambeth and infected blood schemes.

The report says the Windrush scheme has no provision for government-funded legal advice or representation. The Horizon Shortfall and Lambeth Children’s Home Redress schemes provide for funded legal representation at different stages. Proposals for the Infected Blood Compensation Scheme include provision for legal advice and representation throughout the claims process.

Windrush claimants can access a government-funded ‘We Are Group’ helpline. However, the report says the helpline provides a maximum of three hours’ support, which does not include advice on the merits or substance of the application, and the helpline is not sufficiently independent from the Home Office.

The report says: 'There is a strong emerging consensus amongst those involved with designing and engaging with contemporary compensation schemes involving state harm that the provision for legal support is a necessary component for the scheme to function effectively, promote trust, and respect the dignity of victims.'

A Home Office spokesperson said: ‘The government remains absolutely committed to righting the wrongs of the Windrush scandal, already paying out more than £75m, and continuing to make improvements so people receive the maximum award as quickly as possible. For those who claim under the Windrush Compensation Scheme, free assistance is provided through our independent provider, We Are Group, who have extensive experience of working with isolated and vulnerable people.’

The department said the scheme was designed to be ‘as clear and simple as possible’ so that applicants do not need legal assistance.

The King’s College London report was written by Elly Nowell, research assistant at Dickson Poon School of Law and Shaila Pal, director and supervising solicitor at King’s Legal Clinic.

 

This article is now closed for comment.