1. The Scottish Government is mindful of its obligations under the Equality Act 2010 and the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. Section 149 of the Equality Act 2010 places a general duty (known as the Public Sector Equality Duty (PSED) on public authorities to have due regard to: eliminating unlawful discrimination, harassment and victimisation; advancing equality of opportunity between people who share a Protected Characteristic and those who do not; and fostering good relations between people who share a Protected Characteristic and those who do not. The Scottish Government recognises that while the amendment may positively impact on people with one or more of the Protected Characteristics, the introduction of the amendment may also have a negative impact on one or more of the Protected Characteristic groups. Where any potential negative impacts are identified, we aim to mitigate/eliminate these. We are also mindful that the equality duty is not just about negating or mitigating negative impacts, as we also have a positive duty to promote equality. We aim to do this through provisions contained in the Regulations, as amended, or by current support and guidance available.
2. For the purposes of this document the following screening questions were considered.
Will the amendment:
- Eliminate unlawful discrimination, harassment and victimisation?
- Advance equality of opportunity?
- Foster good relations?
3. While all relevant equality data is not available for the people living in Scotland who are entitled to apply to the Windrush Compensation Scheme (“the Scheme”), as this is not recorded, it would seem likely that the amendment would positively impact the equality experience for people from a range of Protected Characteristic groups.
4. The UK Government set up a payment scheme in 2019 in recognition that hundreds of people who arrived in the UK many years ago, often referred to as “the Windrush generation” were wrongly threatened with deportation, or were unable to access work, accommodation and other benefits and services despite being lawfully resident in the UK.
5. The Scheme was set up under the Windrush Compensation Scheme (Expenditure) Act 2020.
6. The compensation scheme will address those losses or impacts felt by members of the Windrush generation who were unable to evidence their lawful right to stay in the UK. They will also extend in some cases to the children and grandchildren of those who have been affected. Furthermore, the estates of deceased claimants and claims where a close family member of an individual who meets the eligibility criteria has suffered certain impacts and/or losses are also included in the eligibility criteria. Compensation awarded to people who came from the Commonwealth countries, mainly the Caribbean, as part of the Windrush immigration policy or their beneficiaries will be exempt from social care support means tests for those now living in Scotland. This will ensure that these immigrants to the UK, or their beneficiaries, in residential care can retain the full value of these payments.
7. This contributes to the National Performance Framework outcome to respect, protect and fulfil human rights and enable people to live free from discrimination.
Who will it affect?
8. The National Assistance (Assessment of Resources) Regulations 1992 (S.S.I 1992/2977) (“the 1992 Regs”) concern the assessment of the ability of a person to pay for certain accommodation arranged by local authorities, including care homes. The 1992 Regs include details of certain income and capital which is to be disregarded by a local authority when it assesses a resident’s ability to pay for accommodation. An amendment is being made to the 1992 Regs to include payments from the Windrush Compensation Scheme. It is understood this would benefit recipients who are living in or plan to move into care homes, who are subject to financial assessments for care charges.
9. The Windrush generation is the name given to around 500,000 people who moved to the UK between 1948 and 1971, mainly from Caribbean countries. Some of them arrived on a ship called the Empire Windrush in 1971, and were told they could stay permanently.
10. However, the UK Government did not keep a full record of everyone who had arrived and some did not apply for official paperwork like a UK passport. Thousands of people were children at the time, and had travelled on their parents' passports.
11. After a change to UK immigration legislation in 2012, many of this group were told they lived in the UK illegally and faced being deported. Without any official record or paperwork, many were unable to prove they had the right to live and work in the UK. Some people were taken to immigration detention centres and some lost their jobs and homes.
12. In the 2011 Scottish census, the number of people identifying themselves as Caribbean, Caribbean Scottish or Caribbean British was 3,430, with a further 730 categorising themselves as Other Caribbean or Black. The breakdown of other Commonwealth citizens is harder to correlate to the Scheme.
13. On 16 April 2018, the Home Office established the Windrush Taskforce, now known as the Help Team, to ensure members of the Windrush generation could get the documentation they needed to prove their right to be in the UK.
14. The Windrush Compensation Scheme was launched on 3 April 2019 and will be open for claims until at least 2 April 2023. It shows that individuals can apply if:
- they came to the UK from a Commonwealth country before 1973
- their parents or grandparents came to the UK from a Commonwealth country before 1973
- they came to the UK from any country before 31 December 1988 and are now settled here
Applicants can also apply if they are:
- the close family member of someone eligible to claim and they have had significant losses personally
- representing the estate of someone who would have been eligible
15. As a result of 23 potential applicants having already died without being able to access their compensation, on 14 December 2020 the Home Office announced an overhaul of the Scheme to ensure that people receive significantly more money, much more quickly.
16. The UK Government increased the minimum award under the Impact on Life category to £10,000. This is forty times the previous minimum award under this category and will be paid as a new early preliminary payment as soon as someone applying on their own behalf or on behalf of a deceased relative can show any impact on their life under the terms of the Scheme. They do not need to wait for their whole application to be assessed.
17. The value of awards also increased for impact on life at every level so everyone will be paid more in this category, with the maximum award increasing from £10,000 to £100,000 (with options for even higher awards in exceptional circumstances).
18. Applicants may be able to claim compensation if they suffered losses because they could not show that they had a right to live in the UK.
19. The Macpherson Report following the Inquiry into the murder of Stephen Lawrence highlighted the institutional racism in the police and justice systems. In recognition of this in October 2020 the Home Office clarified the Scheme’s criminality policy and set out that in most instances an individual’s criminality will not impact on the compensation they are to be awarded. Only awards for Impact on Life will be affected and only where individuals have received sentences of imprisonment of four years or longer for offences such as murder, rape or sex/sexual offences with a minor. This serves to reduce the indirect discrimination caused by this aspect of the Scheme. To the end of October 2021, fewer than 10 claimants have had their compensation award for Impact on Life declined or reduced because of previous criminality.
20. Awards for loss of access to employment are made where individuals can demonstrate they lost access to employment because they were unable to demonstrate their lawful status. Where evidence can be obtained of an individual’s salary, their award will be based on this. Where evidence of salary cannot be obtained, an award will be made using a general tariff. However, people who worked in lower-paid, temporary or insecure jobs may be less able to provide evidence to support their claim under this category, particularly evidence of their salary. Households on the lowest incomes are overrepresented by black and minority ethnic people and women.
21. For people entering care homes the largest numbers are in the age group who have applied to the compensation scheme. 92% of care home residents are older people. Of the 3618 claims to the Scheme so far, 2662 of the claims come from people aged 55 or older, as at February 2022. It is likely that a number of these older people will have developed health conditions and/or impairments.
22. It is possible that women may find it more difficult to evidence their loss of access to employment if they have had breaks in their career history potentially as a result of caring responsibilities (for example, career breaks, part-time working, temporary or insecure work). This is because women are more likely to be the primary caregivers within the family unit.
23. Since April 2019 the Scheme has offered over £12 million, of which £4.1 million has been paid.
24. On 24 February 2021 the Home Office published the latest set of data on the Scheme which covers the period to the end of January 2021.
To the end of January:
- The value of all payments made through the Scheme was over £4.1m.
- A further £8m had been offered to individuals, awaiting acceptance or pending review.
- 338 claimants had accepted and received a payment.
- 651 people had been referred to the independent claimant assistance provider.
What might prevent the desired outcomes being achieved?
25. If legislation within The National Assistance (Assessment of Resources) Regulations 1992 is not amended to ensure payments under the Windrush Compensation Scheme are disregarded, this may prevent local authorities disregarding those payments when making financial assessments in relation to an individual’s residential social care support charges.
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