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“Poorly implemented, pathetically funded”: A Deeper Look into the Windrush Compensation Scheme

November 22, 2022 / / 0 Comments

On October 5th, 2022, King’s Legal Clinic, in collaboration with Southwark Law Centre and the Windrush Justice Clinic, hosted a panel of legal experts to explore whether the Windrush Compensation Scheme (WCS) is delivering on its promises of justice to the victims of the Windrush scandal.

The panel comprised of Martin Forde KC (the independent Advisor to the Windrush Compensation Scheme 2018 – 2021), Grace Brown (Barrister at Garden Court Chambers), Jeremy Bloom (Duncan Lewis Solicitor), Anna Steiner (Supervising Solicitor & Lecturer, King’s Legal Clinic, King’s College London), and Glenda Caesar (Windrush campaigner and survivor).

The first half of the event explored the key deficiencies of the WCS, the strategic legal challenges being made, and the critical areas of reform needed. The second half focused on the ongoing impact on claimants and the barriers they face in obtaining to access to justice.

Deficiencies of the Windrush Compensation Scheme and Reforms Needed

While the WCS is functional in terms of policy design, its ineffective implementation renders it toothless for victims seeking compensation for government wrongdoing. The panel identified two main issues with the scheme:

(1) Narrow interpretation of the scheme

The Home Office has consistently adopted a narrow interpretation of the scheme, especially in relation to the power to award discretionary payments. Indeed, while the scheme covers a range of losses (e.g. loss of access to employment; homelessness; impact on life), it also gives decision-makers the power to exercise discretion where established categories do not cover specific fact patterns. In practice, however, the power to award discretionary payments is rarely used – out of 1095 claims for discretionary payments, only 86 payments have been made, meaning that the success rate for these claims is less than 8 percent.

The reluctance of the Home Office to engage with the power to award discretionary payments constitutes one of the main obstacles towards the effective operation of the scheme. The mechanical approach adopted by decision-makers is inadequate for complex cases that do not fall under neatly delineated categories. In fact, cases often spill over multiple heads of loss at varying degrees. The latter means that the exercise of discretion by the decision makers is vital to reflect victims’ experiences adequately.

(2) Restrictive approach to evidence

The Home Office’s restrictive approach to evidence bars victims from seeking their entitled compensation. Indeed, the approach places unreasonably high standards of proof and attaches significant weight to certain types of evidence. Furthermore, the decision-makers’ devaluation of testimonies and hyperfocus on rigid evidence negates the scheme’s effectiveness. This is especially true when considering the circumstances of Windrush victims, who often don’t have access to the type of documents that they are being asked to produce.

The Home Office’s evidentiary approach becomes particularly paradoxical once one understands the government’s role in the evidentiary gap and the lived realities of claimants. Indeed, the Home Office itself has consistently failed to preserve records that would have accelerated the processing of compensation claims. Beyond mere omissions, reports have demonstrated the Home Office’s active role, such as the destruction of thousands of landing cards recording the arrival dates of the Windrush generation in the UK, during Theresa May’s tenure as Home Secretary. Furthermore, the burden of proof imposed on victims is onerous and does not take into account the fact that most people would have seen no need to hold on to such documents from many years ago as they had no need for them at the time and did not foresee the fact that the introduction of the hostile environment would mean they would be required to verify their legal right to live and work in the UK, when this had not been questioned previously. In addition, some claimants suffer harsh living conditions and psychological and physical trauma induced because of government wrongdoing itself.

Impact on Victims and Access to Justice

The impact of the Windrush scandal on victims is beyond measure. The audience was fortunate enough to hear the testimony of Windrush campaigner and survivor Glenda Caesar. Glenda arrived with her mother in the UK in 1961 from Dominica “as a babe in arms.” She first found out she wasn’t British and could not get a passport after trying to visit her dying mother in the Caribbean in 1998. In 2009, Glenda was sacked from her part-time job as a GP practice administrator because she wasn’t considered “British.” She became a victim of the government’s hostile environment policy. Unable to work or claim benefits for the following ten years, she was forced to rely on her children for support. These living conditions heavily impacted Glenda’s mental health and that of her family members, breaking family bonds and pushing individuals to contemplate suicide.

After filing a compensation claim under the scheme, the Home Office offered Glenda a mere £22,000 for over ten years of unemployment without benefits due to government wrongdoing. Glenda refused the compensation offer, considering it an additional insult to her humanity. After experiencing the dysfunctionalities of the scheme, she started campaigning for Windrush victims and their claims for justice. She says the scheme does not operate for the victims and puts them through additional trauma.

In her co-written report “The Windrush Compensation Scheme: Unmet Need for Legal Advice,” Anna Steiner explores issues of access to justice related to the scheme, with the objective of informing policy and campaigning for victims. The data indicates that the scheme is too complex to complete without legal advice and that the support provided by the Home Office is insufficient. Outside the Windrush Justice Clinic network, the report found very few sources of free and easily accessible legal advice for WCS claimants. Decades of legal aid cuts have exasperated access to justice issues and relegated victims to a subclass of human existence where the computer says “no,” and the government does not care.

One Windrush victim partaking in the research says it best: “From my experiences with the Windrush Compensation Scheme/Home Office, and their responses to my claim, it is almost like they are telling me the following: We are really, really, sorry for punching you in the face, however, we are sure you’ve recovered now, it wasn’t that bad of a punch, so here is another punch in the face, but don’t worry about that one, because you’ve already recovered, please accept some tape and cotton wool to make a plaster out of.”

By Laurent Sammouri

Working on an Amicus Brief re Guantanamo and Reflecting on the Court of Appeals Decision

November 16, 2022 / / 0 Comments

Handcuffed hands

Politics, Philosophy and Law LLB (4th year) discusses the recent case of Guantanamo detainee Abd al-Rahim al-Nashiri in which King’s Legal Clinic students conducted research under the supervision of Sue Willman leading to an amicus brief drafted by Dr Philippa Webb and Rosana Garciandia of the Dickson Poon School of Law, which has been said to have a ‘global impact’.

Working at King’s Legal Clinic was a unique experience for me, in that it was my first time contributing to a real case in international human rights law and public international law. It was made clear to us from the very beginning that the task would be a challenging one. Tight deadlines, lots of material to go through, and no room for error. During the first week of research, I worked with other student researchers on secondary sources relating to the use of torture in pre-trial and interlocutory proceedings, going over more than 40 journal articles, legal blogs, and even Twitter threads, to identify trends on the use (or, rather, non-use) of torture evidence. For the second and third weeks, I turned to case law review, looking at common law jurisdictions, and their stance on torture tainted evidence. The collaboration with the rest of the Clinic members was exemplary. We worked methodically and efficiently, dividing jurisdictions between us, and looking at the relevant cases, whilst contributing to a common document to be submitted to our supervisors. I believe we rose to the challenge!

The final task I undertook was working on distinguishing torture evidence from hearsay evidence, and putting together an original argument, drawing from the research of the whole team. Together with Saras Sawhney, we drafted an argument with reference to the Military Commission’s judgement, outlining why torture evidence ought to be treated separately from hearsay, and consequently why the torture prohibition also applies in pre-trial. Overall, it was particularly rewarding to be able to contribute to such a pressing human rights concern, and to know that the work we all put into this experience could be a drive for positive change, and for upholding the rule of law. That is why the recent Court of Appeals decision is so important, both for the present case, but also for human rights law generally.

 

Is the outcome entirely satisfactory? What should the Department of Justice have done?

The decision of the Biden administration to reverse the approach previously taken by the U.S. Military Commission is certainly a big step in the right direction. The categorical prohibition of evidence obtained by means of torture or cruel, inhuman, or degrading treatment (CIDT) was upheld by the U.S. Government, reflecting international and domestic legal obligations. The biggest achievement of the recent decision is, in my opinion, the unequivocal pledge by the U.S. government that the prohibition of torture applies to all stages of judicial proceedings.

That being said, and without taking anything away from the importance of the Court of Appeals’ decision, there are a couple of vital questions that remain unanswered. The Al-Nashiri case is not the only case brought before a military commission involving the use of torture-tainted evidence. It is, therefore, particularly interesting to see how pending cases that raise the question of how statements obtained by torture will be treated by the commissions

and the government, and whether the Biden administration is ready and willing to conduct transparent, thorough reviews of torture claims, and adopt similarly brave yet necessary – under domestic and international law – decisions.

This, in turn, raises the bigger question surrounding military commissions as legal institutions. The statement issued by the U.S. government appears to recognize the problem of torture and CIDT facing military commission cases. The question that is necessarily generated, then, is that of reform; and it was unfortunately left unattended by the Court. Is torture bound to poison legal proceedings in future litigation, if no further steps are taken at an administrative level to make legal proceedings more transparent and less politically motivated? Does it safeguard the rights of future detainees? Although satisfactory on the facts of the present case, it seems like the Court could have looked at the bigger picture and seek to take positive steps to fortify the legal system, so as to not leave any room for torture evidence to sneak through the back door.

This is not to downplay the significance of the present judgement, as I believe it is a manifest endorsement of the fundamental human right of freedom from torture. It remains to be seen, however, whether this decision can be a drive for positive change in the U.S. legal system, so as to better safeguard the rights of prisoners and detainees in future.

By Stefanos Arvanitakis

Air Pollution – A Climate Justice Issue

January 22, 2020 / / 0 Comments

What is the reality and what you can do about it?

The issue at hand

On Monday 18th November 2019, around 40 Law Clinics across the globe, who have committed to the Climate Justice Pledge participated in the inaugural global day of action. These law clinics recognise that climate change is one of the most significant justice issues of our time but not everyone feels its effects in the same way. Women, minorities and more vulnerable or marginalized people are disproportionately affected.

We need to ask ourselves, as citizens, as law students and practitioners – are we thinking about the legal and policy solutions to climate change? Are we enabling all facets of society to be a part of the solution?

The King’s Legal Clinic (KLC) has started to tackle these questions. KLC organised an event entitled Air Pollution: What is the reality and what can you do about it?. We heard from speakers Professor Martin Williams, who is an Air Quality Scientist within the Analytical, Environmental & Forensic Sciences department at King’s College London, and Ms. Jenny Bates, an Air Pollution Campaigner at Friends of the Earth.

Prof. Williams provided an overview of the problems linked to air pollution and their potential solutions. He addressed the topic under the light of the most recently published research and policy initiatives put forward in the field.

Ms. Bates discussed how activists have pushed for action at a local level around the globe and where progress remains a requirement for positive change. She also addressed the inherent inequalities which the lack of effective government policy has accentuated as different groups in society, especially the more vulnerable, are disproportionately affected by poor air quality.

London, we have a (transport) problem

Air pollution is a classic common action problem, like climate change. Individual cars and companies contribute to pollution which harms us all, but responsibility is thinly spread. Air pollution and climate change are also invariably linked through their overlapping causes and how the solutions to one can positively affect the other.

Prof. Williams spoke about the classic example of diesel fuel. Transport has become one of the main sources of carbon monoxide emissions, a greenhouse gas that contributes to climate change, and is also understood to be one of the main culprits of air pollution in urban areas through the release of noxious pollutants. These notably include nitrogen dioxide (NO2) and fine particulate matter (PMx). As such, transport has become a central concern for environmental policy-makers and regulators. Its presence and importance in people’s everyday lives means that solutions have to be sensibly implemented, whilst taking into account various factors including social acceptance.

As Ms. Bates pointed out, cities that embrace greener transport systems – electric vehicle charging points, more buses, cycle lanes or pedestrianised areas – have also seen parallel positive effects including general increase in wellbeing. Initially, when road facilities for cars are taken away, a transitional period can lead to what seems like more traffic, fumes escaping from idling cars and confusion. However, Ms. Bates explained these have shown to be temporary problems, if the appropriate alternative transport methods are put into place.

Ultimately, a decrease in the number of cars on the road and miles driven needs to happen especially since, as Prof. Williams pointed out, evidence points to Ultra Low Emission Zones (ULEZ) being one of the most effective measures to decrease air pollution.

Air pollution and its known adverse health effects

As our understanding of the science behind air pollution has increased – Williams noted “…the more research is done, the more evidence we find” for the relationship between concentration of pollutants and risk of death – it has become a pressing public health issue.

Londoners’ concerns with pollution in their city have gone from the mounting price of their laundry bill because of water pollution[1] to how air quality affects the stunted development of children’s lungs[2]. Laws like the Clear Air Act 1956 (the legislative response to “The Great Smog”) have helped, but a recent Royal College of Physicians report shows us there are still around 40 000 deaths a year attributable to air pollution.

Air pollution can be a difficult problem to portray. Its effects are insidious and can appear in the long-term. The personalisation of air pollution and its negative health impacts has become an important part of the activism dedicated to finding solutions. Ms. Bates spoke of the Ella Roberta Family Foundation, started in memory of Ella Roberta after she died of a severe asthma attack. Her mother, whose request for a second inquest investigating the link between Ella’s asthma attack and the illegal air pollution levels in her area was granted, wants poor air quality to be cited as one of her daughter’s causes of death. Ella lived 25 metres from London’s South Circular road.

A 2013 report[3] commissioned by the Greater London Authority found that 82% of the primary schools located in areas where Nitrogen Dioxide (NO2) levels were above the EU legal limit were considered deprived.[4] Black, Mixed or “Other” ethnic groups were also found to be more likely to be exposed to unsafe levels of NO2. Whilst NO2 levels have been decreasing, similar findings apply to Particulate Matters (PM), which are known to increase the risk of heart attacks and respiratory diseases and have been linked to premature death. This clearly shows that people from socioeconomic disadvantaged backgrounds are at higher risk of harm from air pollution, as are BME people. These findings undoubtedly highlight some of the inherent inequalities and injustices within our society. Future policies that don’t directly ask the questions “who mostly uses public transport?” and “who lives near busy roads?” fail to acknowledge these climate justice issues and inequalities.

When we think about these questions, we have to acknowledge the existing health inequalities and other injustices. Our solutions must rise to these challenges to ensure a fairer and healthier future for all.

Air pollution and climate justice – who does it affect and where?

Air pollution is not just an issue in cities in the ‘Global North’, nor is it unique to urban areas.

China and India have both had to tackle with acute air pollution. Pictures of the smog in Beijing, as well as social media posts tagged with #HelpDelhiBreathe have circulated around the globe. These issues with air pollution have been important drivers in China’s and India’s national climate policies

In rural areas, indoor air pollution is an important cause of death. UN Women estimates there were over 4 million premature deaths in 2012 from indoor air pollution[5] by cooking with solid fuels; 60% of which were women and girls. As women in some regions are traditionally responsible for their home’s energy collection and use, for example through the collection and burning of firewood, they are essential actors to attaining effective solutions that they also have most to gain from.

The negative effects of climate change, especially as manifested through their adverse effect on health, will continue to be a deeply impactful climate justice issue until effective and inclusive solutions are brought forward at local and national levels. Solutions that are not only normatively more attractive – taking care of the most vulnerable, amplifying voices of communities which have historically been silenced – but more likely to succeed on the policy field. The power of grassroots movements and including people we may not think have an interest in the climate has proven to have a strong impact. It is also understood that climate litigation, similar to the cases brought by ClientEarth challenging the UK’s illegal air pollution levels, is most effective or even dependent on citizens’ mobilisation.[6]

Solutions to air pollution and other climate justice issues need be participatory to be successful.

Striving for better solutions

Climate change is arguably the biggest challenge currently facing humankind, but not everyone is affected in the same way. Women, minorities and more vulnerable or marginalized people are disproportionately at risk. We found out that air pollution follows a similar pattern.

The event ended with a Q&A session which saw a series of diverse and interesting questions arise from an engaged but concerned audience. There was active discussion that showed people are passionate about these issues. The general themes which ran through these questions were “what can we do to make this better?” and “how can the law and lawyers help in finding effective, sustainable, long-term solutions?”.

Prof. Williams and Ms. Bates pointed to research and recent policy efforts, better monitoring and public awareness, local initiatives, implementation of legislation, and legal challenges which have helped to improve air quality. Nevertheless, they both agreed there was still much work to be done, and political will and effective funding was still lacking. While commenting on the importance of lawyers to fight for better air quality, they emphasized the importance of legal standards – the solid ground on which organisations like ClientEarth have brought spearheading legal claims – even where the science is certain. With an Environmental Bill[7] which has not been deemed “fit for purpose”[8], according to critics, and a near-future where the UK may no longer have to adhere to the environmental standards of the EU[9], we could be losing important elements required to hold authorities legally accountable for their negative actions towards our planet.

Whether at a local or global level, it is clear we need continued citizen attention and pressure, as well as clever lawyering, to keep the issue of air pollution on the political agenda, pushing for inclusive solutions for healthier and cleaner air for all.

Written by Lucia Saborio Perez

 

 

 

[1] House of Commons Debate, 23 May 1871, volume 206, column 1220

When discussing the water supply in London and the pollution of its rivers, Mr. Kay-Shuttleworth said “The question, as affecting laundries and the washing of linen, was important. They spent a great deal more in the washing of their shirts than they did in buying them. The total expenditure for soap in London was £1,000,000 a-year”.

http://bit.ly/2FFcAjE

[2] House of Commons Debate, 28 June 2018, volume 643, column 1120

During a debate on improving air quality, Dr. Philippa Whitford explained that “Some 4.5 million children—a third of them—are exposed to unsafe levels [of particulate matters]. If they live near a busy road, they have twice the rate of respiratory problems. We are talking not only about asthma, the obvious one, but about reduced lung development”.

http://bit.ly/2zRvgMV

[3] https://data.london.gov.uk/dataset/analysing-air-pollution-exposure-in-london?resource=0925e909-9e44-4de3-ae72-97497d3c8511

[4] In the UK, schools considered to be deprived are those with higher percentages of pupils who are eligible for free school meals.

[5] https://www.who.int/mediacentre/news/releases/2014/air-pollution/en/

[6] https://www.openglobalrights.org/climate-change-and-human-rights-lessons-from-litigation-for-the-amazon/ ; Talk given by Professor Neil Gunningham at Dickson Poon School of Law, King’s College London, ‘Averting Climate Catastrophe: Extinction Rebellion, Business & People Power’, 13 September 2019

[7] Environment Bill 2019

https://publications.parliament.uk/pa/bills/cbill/2019-2019/0003/20003.pdf

[8] https://www.parliament.uk/business/committees/committees-a-z/commons-select/environmental-audit-committee/news-parliament-2017/draft-environment-bill-government-response-19-20/

https://www.edie.net/news/11/Environment-Bill-passes-second-reading-against-widespread-criticism-from-MPs/

[9] Draft Environment (Principles and Governance) Bill 2018

https://www.gov.uk/government/publications/draft-environment-principles-and-governance-bill-2018

 

Evidence and Strategic Litigation – My Volunteer Experience

October 2, 2019 / / 0 Comments

I applied to volunteer with King’s Legal Clinic working on its Evidence & Strategic Litigation research project in the previous academic year. The opportunity to take part in research based volunteering, especially within the context of evidence laws and case construction – an area that is at the core of all legal work – was an opportunity I could not pass up. We were set up in pairs, asked to look into a particular practice and collect as much information on how it works as we could. I was assigned to research asset deprivation powers that local councils have and are using on the elderly going into social care. This is an issue that many, sometimes unwittingly, fall into and it has been reported on by AgeUK and other charities/institutions.

As part of what we did, we submitted multiple Freedom of Information requests to local councils, we got in touch with charities that cater for the elderly, we ran through blogs and social media posts to find out more about what people who have been affected have gone through, and we contacted local news outlets that have reported on the matter. Our end product was a report that we submitted to the project leader that included experiential evidence that we collected from the personal accounts that people have shared, policy materials evidence as reported by the local councils, and statistical evidence on the numbers of people the power was used on and how much the councils obtained as a result.

The experience that I got working with the legal clinic on this project is something you do not get enough of throughout your time in law school. Beyond the ‘issue-rule-result’ format, I got to see how the issue comes to light and is found in the first place. I learned what it takes in terms of research to be able to successful show how the issue you identify works, who it is affecting and what could be done differently. I was able to understand a lot more what it is like putting together the right information and the type of information it takes for a case to come together. Research based volunteering experience is something I definitely would recommend all law students to do as part of their studies – they’ll be able to learn a lot more about how work in the legal sector is.

 

Salman Shaeen, LLB Graduate

R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452

May 13, 2019 / / 1 Comment

Image credits to Porapak Apichodilok sourced from Pexel

It has been seven years since Theresa May stated in a Telegraph interview her intentions create a ‘hostile environment’ for illegal immigrants. However on 1 March 2019 we saw a drawback in her plans, as one of her initial measures, the ‘Right to Rent’ scheme, was deemed to be discriminatory on the basis of nationality and ethnicity. In R(JCWI) v Secretary of State for the Home Department [2019] EWHC 452, the High Court declared such legislation was incompatible under section 4 HRA.

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My Experience at Legal Advice Centre (University House)

November 3, 2017 / / 0 Comments

3 November 2017 | King’s Legal Clinic

I am Ana, a first year Ancient History student at King’s College London. Before starting university this year I decided to spend a week at the Legal Advice Centre (University House) in Bethnal Green, East London. Gaining an insight into the work of the centre was an invaluable experience because of the cases I got to work on and my interactions with clients.

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September 4, 2017 / / 0 Comments

DM_Camberwell

4 August 2017 | King’s Legal Clinic

Choosing the right house to live in while at university can be a stressful process. Thinking about who you want to live with as well as the best location to live in are big decisions that shouldn’t be taken lightly. Just as important is ensuring you understand what rights you have when you do start looking into renting private housing.

I recently attended the University of London Housing Services (ULHS) Essential Housing Law training course. The course gave a very informative overview of key rights you have when renting private housing. Below are some important things to bear in mind when looking to rent privately.

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