This am, @CommonsHomeAffs is taking evidence on the Windrush Compensation Scheme. It is hearing from @JacquiMckenzie6 and @_hollystow, both practitioners who have dealt with stacks of compensation claims, first. At 11, it will hear from the Big Cheese himself, Martin Forde QC. 1/

Stick around. 2/

@JacquiMckenzie6 is currently speaking about ex-gratia payments, or any catch-all category that might capture true, broad losses including opportunity cost. The Scheme doesn't work because it has limited categories that don't cover the range of impacts actually experienced. 3/

"Not everybody goes to the doctor when they're depressed, so showing impact on life is difficult - sometimes having witness statements from family and friends is all we can have," says @_hollystow. This is a recurring theme - mental health impact is hard to assess; 4/

and there is stigma associated with seeking mental health help/diagnoses, in particular within some of the cultures that are disproportionately affected by Windrush. 5/

"People are giving up" because of the complexity of the evidence demanded from them, the cost/barrier to legal advice, and the sheer burden of gathering documents, says @JacquiMckenzie6. 6/

@GwynneMP asks @JacquiMckenzie6 what can be done to fix it. Jacqui notes that some of the people @ukhomeoffice has enlisted to help it fix this Scheme don't seem to know much about Windrush. 7/

Apropos of nothing, here is a sub-thread we published the other day. 8/ https://twitter.com/WindrushLives/status/1336058369719799812?s=20

There are questions about how funds - for engagement, providing legal access, advice and support to victims - have been allocated to entities including the Cross Government Working Group. 9/

@Stuart_McDonald asks if its worth moving it to a different organisation. @JacquiMckenzie6: "the HO was always seen as judge, jury and executioner, so it shouldn't have gone to them in the first place. But I'm worried that if we take it away it will be difficult to get a new" 10/

"department up to speed. People are suffering in the interim; the delays are inordinate. So if you were to move it, what would happen? Unless from the moment you get a victim, process their documents, they WILL have a claim, we make them an interim payment immediately." 11/

More on ex-gratia payments - "they will go some way to saying we have got this wrong", which (reasonable) figure can be determined by a team of experts; THEN the body can take its time to figure out actual losses over and above. @JacquiMckenzie6 and @_hollystow agree on this. 12/

Some claimants say I don't want any contact with the HO, @_hollystow notes, because it takes them back to a dark place.

Us too, Holly. 13/

Interesting Q from @Stuart_McDonald - would it help if caseworkers/HO met with claimants?
They sort of do this, @Stuart_McDonald - the Windrush engagement events - they're a car crash. At one of them, the HO ticked off a woman for trying to share a video of her 14/

mum, who had died whilst waiting for compensation. They shut down the internal chat allowing victims to communicate, and when we asked them why, babbled incoherently about vulgarity/inappropriate statements, which weren't relevant. 15/

@JacquiMckenzie6 says it shd be an independent tribunal, with experts, who sit and interview the victims - NOT @ukhomeoffice. (But they'd report back to the HO). Is that scalable, asks @Stuart_McDonald. That is a problem, for sure, but not everyone will require that, says JM 16/

To what extent has the change of std from BRD to BOP on Loss of Access to Employment helped, asks @Stuart_McDonald. 17/

@JacquiMckenzie6 hasn't seen the trickle down from that yet, but it should help. There is a difference btwn the std of proof and asking for onerous amts of evidence though, she notes, and it's the latter which hamstrings applicants. 18/

One of @_hollystow's clients was asked if they got a letter or evidence showing they tried and failed to open a bank account... because banks do that sort of thing, for complete strangers. "What did you then do when you couldn't open a bank acc"? 19/

"used my partner's account and got on with my life?"

There is a real lack of common sense with the way evidence is evaluated and further qs formulated. 20/

@YvetteCooperMP asks a crucial Q - what happens if you lost the ability to take a job because of loss of status, therefore wouldn't have lost employment evidence, but were clearly affected. @_hollystow has seen these cases. 21/

Evidence that @ukhomeoffice asks for is "what further evidence did you keep of trying to apply for other jobs?" 9/10 times employers who reject you won't call back - evidence doesn't EXIST for a lot of these things, and even if it did, you're forcing 22/

people to go over these traumas over and over again, sending them into depression and anxiety. A caseworker then asked if @_hollystow's claimant applied for benefits - there's a letter from DWP saying "the law says we cannot pay you" 23/

and the caseworker WOULDN'T accept that as evidence that this person was denied benefits.

@YvetteCooperMP is making a meme-worthy face, and asks for details on that case. 24/

Employers are scared to write letters of evidence for obvious reasons as well, notes @JacquiMckenzie6 - why would you willingly engage with @ukhomeoffice... ever?

No really, why? 25/

Lots of these employers don't exist anymore either. Why won't @ukhomeoffice go to HMRC, DVLA, National Insurance records...? This is something @ukhomeoffice SAYS it does, by the way. But it really, really doesn't. They sit on apps claiming they're doing this but the offer 26/

letters that come back show they obviously aren't doing this because the narratives given to support the decision on each head of claim lack any mention of such records. 27/

@JacquiMckenzie6 is concerned about the contracts to provide assistance/support - not sure vulnerable, elderly claimants in particular, who may not know or trust these organisations (contract has recently gone from CAB to WeAreDigital?) won't go to them 28/

@YvetteCooperMP asks about that community engagement funding - @JacquiMckenzie6 mentions that CGWG may have some of that funding. She's not 100% convinced that one individual on that group knows much about Windrush. 29/

She's actually being extraordinary generous in that remark. And she doesn't name that individual.

Apropos of nothing, once again. 30/ https://twitter.com/WindrushLives/status/1336058369719799812?s=20

What do you think of Tier 1 Reviews, asks @YvetteCooperMP? One woman was told by her caseworker not to pay attention to the review process and that she just wouldn't get any more money. She just caved and took the offer because she was destitute and broke. 31/

@_hollystow is asked if she's seen any good resolutions from a Tier 1 review.

"No, I've not seen any." 32/

@JacquiMckenzie6's claims are in earlier stages; she has one claimant who says she is happy, but she's not sure she would have been happy with that offer, having looked at the papers. But the claimant was. 33/

The top 2 changes @JacquiMckenzie6 wants are better access to legal support and general support; and there need to be quick interim payments. @_hollystow wants greater transparency and better standards for evaluating evidence. 34/

That's @_hollystow and @JacquiMckenzie6 done for now.

Now comes the big event. Martin Forde QC doesn't look particularly happy. 35/

@YvetteCooperMP asks about his role in the design process. He goes into the chronology of his appointment, the reasons he was appointed etc (being a compensation lawyer, as MFQC puts it - he is a clinical neg/PI silk.) 36/

MFQC was involved in the initial call for evidence, which lasted a month; there was then a second 4 month call for evidence. He travelled all across the land. He names some cities. 37/

The name Windrush is unfortunate because Black people from Commonwealth countries (Nigeria, Ghana etc) don't necessarily know they qualify - great point, there is poor uptake in those communities still. 38/

There was a trust problem from the start.. "people came to look at me to see if I was a Home Office lackey and a sellout".

He sort of spits out the world sellout there. The grapevine tells us he was called a sellout at public forum/talk held last night. 39/

He talks about the much greater detrimental mental effect of immigration detention vs standard detention, because there is the constant threat of deportation, which is a good point. He was mindful of that from the start. 40/

He wanted @ukhomeoffice to be light touch on the documentation from the start, because he knew there wouldn't necessarily be documents for much of the stuff - the costs, particularly the ancillary ones - incurred. 41/

The example he chooses to illustrate for this is, strangely, the car-related costs (petrol, wear and tear on the car etc) that might emanate from driving to collect someone from immigration detention.

I mean... yes, ok. 42/

There was always an issue about the HO marking its own homework, being the tortfeasor itself. But it was "made clear" to him that the HO would always be the final arbiter when it came to eligibility (for status). 43/

There were early examples of people being terminated because of MISapplication of HO policy on status/overstayers etc, which started with the 2007 Borders Act (hello, @UKLabour, this one's on you). 44/

As a matter of law, the liability in those cases should have fallen on the employers, because THEY misapplied the law, he says (not sure we agree with this at all, not necessarily just legally). But it was seen this would be a problem because many claims would have timed out 45/

(The limitation period for contractual claims is 6 years; for ET claims of constructive/unfair dismissal, it's 3 months from the date of termination). 46/

We missed a bit where he was relating a good anecdote about his own dad's experience, that ended with him saying "it sounded like they were saying can you please just go away, having had 20 years of our tax and labour". 47/

He says he has substantive experience in benefits, psych harm; he also explained at the policy level - and his advice was NOT followed - on criminality. The Scheme was ALWAYS designed to be on BOP; BRD should never have come near it, he says. This is entirely fair. 48/

It's been very clear that @ukhomeoffice has treated him badly on this front. Whatever our criticisms of him wrt the Scheme, he is a silk, and he knows the law. He wouldn't have advised clearly legally irrational garbage. He just wouldn't. But he's been stuck with it, 49/

tarred with the brush, because he had the misfortune of being involved with the Scheme.

He talks about his current involvement with junior ministers and the Home Sec. "My role has diminished as the Scheme has gone on; occasionally I raise some cases." 50/

OOOFF - "I was told I was stepping down at the end of November."

Bit harsh, @pritipatel, @MatthewRycroft1? 51/

Chair hands to @HackneyAbbott. Planning assumptions said £250m based on 11.5k claims (KLAXON - These figs are new, recently pulled out of air, and HAVE NOT BEEN EXPLAINED YET, in particular why the eligibility has fallen from 15k claimants to 11.5k. We've directly queried this 52

No reply yet.

MFQC is now being rather stroppy about being refused a platform, which is utter garbage and perhaps the weakest explanation we can think of - you're a QC. No one is no-platforming you. Maybe you didn't try hard enough sir. 53/

This is all about his ongoing beef with "the media" unfairly demonising the Scheme.

Again, this is garbage. Press articles are largely based on interviews with victims. So what you're saying, MFQC, is that you think the victims are wrong. Own that, if you want to say that. 54/

@HackneyAbbott unnecessarily gives him a second shot at blaming the press. He cites ONE example - an inaccurate report re claim awarded for deportation. This predates actual claims, we think - he's talking about criticism of the rules themselves, pre claims 55/

That might well be true.

That was over 19 months ago. What of the media articles since then, MFQC? What's your rejoinder to those? The victims are wrong?

Ever think you might be part of the culture of disbelief? 56/

He's now talking about @cheamfields and the fact that he didn't experience the same things as her, because he wasn't an HO employee. That rings true from the author's experience at a different gov dept - caseworkers/officials present a different face, esp to barristers 57/

Apparently there's no need for political or institutional pushback because everyone agrees that Windrush victims should be compensated well.

This really isn't accurate at all, and shows how deeply out of touch MFQC is with regards to what is actually going on 58/

on the ground. Windrush victims get called grifters and moaners all the time - maybe not openly in the Sun (yet), but we see it all the time on our social media accounts. ANYTHING which involved payment of money selectively to some people will by definition stir up 59/

political opposition (in the sense of the polity, not at the party level). 60/

His advice wasn't followed on Criminality AND mitigation of loss, sorry. Missed that one earlier.

These are the obvious ones, and as we've said, these should never be parked at MFQC's door. He's a silk; he wld never have advised something this wrong + idiotic. 61/

The @ukhomeoffice has definitely done him dirty by letting him take the flak unfairly on some of these fronts. It alone should answer for the legally illiterate aspects of the Scheme. But @pritipatel's understanding of the law is... kindergartenesque. At best. So. 62/

@Stuart_McDonald asks if the next independent adviser's role should be beefed up so that the HO gives them more information about cases. MFQC didn't recognise the job description that has been posted for his now ex-job; he wasn't given the access he needed, clearly. 63/

Again, this is solely on @ukhomeoffice. You roped in a respected silk, ignored his advice on key legal points, didn't give him access to the type of information he really needed to evaluate the success of the Scheme, and now you've shown him the door. Bullying, really. 64/

@Stuart_McDonald wants to know about whether the removal of BRD is showing up in practice, and he alludes to @JacquiMckenzie6's point that there's BRD, then there's onerous demands for evidence. 65/

The people MFQC speaks to are taking a light touch approach; they're asking these questions to understand the claims. There are probably pro-forma letters now because of Covid.. (?) 66/

"The reaction of the community is, you're Big Government, you're asking me all these questions", they're never going to get a fair shake.

Whiff of victim blaming there. 67/

He reiterates his point that the light touch approach to evidence is key because there was no Scheme when the injustices happened; documents weren't kept, understandably. 68/

Measuring Impact on Life is difficult. He used existing High Court tariffs... low level distress and anxiety that is prolonged over times should lead to offers of multiples (i.e. Level 3 award x 10 years). @ukhomeoffice @MatthewRycroft1 - thoughts? 69/

He's not surprised people are upset with their IoL offers. And notes not everybody would have sought psychiatric help.. "my own father wouldn't have seen this as a problem, he thought everything could be cured with TCP and ice". 70/

All good points.

We've mentioned multiples before; that would be a quick and straightforward fix that would significantly up the offers. 71/

He notes the relationship between deportation flights and people's confidence in the HO; the people involved are not necessarily Windrushers, and better communication is needed. (People don't complain about those flights solely because of the possible Windrush connection tho). 72

He has been assured (and he has said this before) that the enforcements officials (Border Force) cannot access the taskforce and compensation databases, so your application shouldn't cause enforcement/deportation actions. 73/

The @ukhomeoffice hasn't necessarily communicated that because it doesn't necessarily want to, he says.

@Laura__Farris is up now, and immediately annoys us by saying laypersons can understand where they fall under the IoL thresholds. No Laura. 74/

There was pressure to get something workable and accessible quickly, and it's not necessarily accessible to *all*, MFQC says - he got lots of emails from children of victims at the start. E.g. the form couldn't be saved and continued in the beginning. 75/

Tribunals would have been good for psych harm.

He didn't expect there would be as many "home made" forms. This is odd because it's a key selling point. @ukhomeoffice repeatedly said this was meant for people to be able to do themselves, without lawyers. 76/

Reluctantly, for a combination of expediency and pragmatism, he resigned to the HO running the Scheme - but wanted the independent advisor and 2 tier appeal system for that case.

We still think he could have done more and tried harder. 77/

The difficulty with having a wide tribunal set up to do all this is time - there is Brexit, etc to contend with. He's absolutely right of course - this government can't punch its way out of a paper bag with all the resources in the world. 78/

@Laura__Farris asks about causation - why didn't MFQC think it was appropriate for HO to contact employers for info? That is a legit concern, he says. But his anxieties were that there might be cases where the status was problematic but it wasn't the sole/entire reason 79/

and not all employers would admit to the truth. So the starting point should have been to believe the claimant. We missed a sentence, but he's now talking about loss of access to new offers. Why would nobody work or claim benefits AT ALL, after being sacked? It's obv 80/

to do with status, he says. Some people now work cash-in-hand, and they would be too afraid to claim and the HO wouldn't want to condone illegality. But a judge would likely condone that small illegality. 81/

Mitigation of loss - @Laura__Farris says that she thought it would resolve itself; if someone was dismissed for a v serious discrimination, they would still have duty to mitigate?

Oh dear, @Laura__Farris. No. 82/

Couldn't it be assessed on a case by case basis, she then adds, sounding like she's landed on some spark of genius in a room full of droogs. Because that wouldn't work, Laura. Look at the figures ffs. 19 months in, LOOK AT THE FIGURES for how many cases have been dealt 83/

with and closed out.

Separately, the idea that this is in any way analogous to an ET issue is laughable. There is no corresponding nexus between the state and its citizens; there is no contract; there is no set of duties and consideration. STOP COMPARING IT TO EMPLOYMENT. 84/

@YvetteCooperMP says she has been told that the majority of awards are general awards, not actual awards. She then refers, we think, to Anthony's case - having lost his job, he then couldn't work again for a significant period. So why not multiply general award by years? 85/

Ooh, ooh, ooh, MFQC notes the ONS produces usable salary stats by region.

We're literally crying tears of joy to see someone else refer to this. There is absolutely no reason @ukhomeoffice can't use proxy figures instead of the crappy general award. 86/

@YvetteCooperMP puts a final few Qs, some of which may have to be answered in writing. 1. Have avg awards granted been at the level you expected? MFQC immediately hits on the problem of the fact that the stats are UNUSABLE 87/

He, perhaps diplomatically, leaves it at that - he can't really tell whether the awards are good because the averages aren't really usable. For IoL, awards need to multiplied by the number of years of suffering.

One point though. The Scheme Rules - which MFQC presumably wrote 88

don't say that. If you intended the IoL award to be a per-year figure, the Rules should have said that. 89/

Disappointed by the level of apps too, but if they'd been ten times what they are, he wonders if the HO would've coped (Ed: lol no bae)
Better legal support is needed
90/

@YvetteCooperMP for the kill: is @ukhomeoffice spending more on the engagement and operational garbage than the actual compensation offers? MFQC doesn't want to be drawn on this, and says he doesn't have the figures anyway. 91/

Would it have been better to have a simpler Scheme to make payments faster, in particular a lump-sum for suffering a wrong, without going into details? MFQC has read about that but the difficulty with that is he doesn't know if it would be passed by @hmtreasury or @CommonsPAC 92/

@YvetteCooperMP presses - if there's clear evidence of being wronged, for specific things, e.g. loss of passport, can't you be awarded for that? MFQC notes that corresponds somewhat to general damages; it wasn't mooted at the time. It's a difficult area; eg the CICS 93/

What would be the top 2 changes you'd make be? MFQC: Legal aid, and it would make @ukhomeoffice's job easier. And a better publicity campaign (Ed: ... really?) There has to be a more effective way of reaching the cohort (fair) 94/

There's a slight refrain here of his standing grievance with publicity; that somehow bad media is the reason the Scheme is derided. Again, that is a logical fault - the media is based on victims' accounts. 95/

Here endeth the session. 96/