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ING’S
College
LONDON
eformin i Redress Schemes
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Reforming Redress Schemes Roundtable Report
October 2024
1. Executive Summary
A significant number of Redress schemes have been set up over the years to compensate
citizens for harms caused by failures by public bodies’. Recent King’s research” evaluated
the structure and performance of the Windrush Compensation Scheme (WCS) to the
Horizon Shortfall Scheme (HSS), Lambeth’s Children’s Home Redress Scheme (Lambeth
Scheme) and the Infected Blood Compensation Scheme. King’s research found
weaknesses in all Redress schemes and concluded that there were significant structural
failings present in the WCS which required urgent reform.’ Wider systemic issues in the
administration and regulation of Redress Schemes had been identified earlier by the APPG.
for Fair Business Banking’, and there have been calls for reform in the House of Lords and
House of Commons.
On 20 June 2024, King’s Legal Clinic (KLC) convened a Roundtable made up of a range
of stakeholders including victim advocates, experienced lawyers and researchers primarily
with expertise relating to the WCS, HSS, the Lambeth Scheme, the Infected Blood
Compensation Scheme and Financial Services Redress Schemes. The aim of the
roundtable was to identify whether reform was needed in the operation of Redress
schemes relating to harm perpetrated by the state’. The discussion focused on exploring
critical problems, what had been effective and what structural reform was needed. The
Roundtable was conducted under Chatham House rules; KLC is grateful for the time and
thoughtful contributions of all Participants.
Overall, the resounding view of many of the Participants was a feeling of being let down
and that many of the schemes were not fit for purpose, they did not achieve their aims in
important respects and the schemes exacerbated the harm already suffered by the
individuals who were the intended beneficiaries. Generally, the redress offered both
financial and otherwise, was considered inadequate. Redress schemes universally suffered
1 More widely, in the case of financial services many redress schemes have been set up to compensate for failures by companies (of
which some have significant public ownership)
* Pal, Shaila and Nowell, Elly, The Windrush Compensation Scheme: A Comparative Analysis (9 February 2024). Available at
SSRN: https://ssrn.com/abs 3
* Research reveals structural weaknesses in Windrush Compensation Scheme remain as legal challenge of the refusal to provide legal aid
to victims is to be heard, KCL (13 February 2024)
Available at:
hitps://www.kcl.ac.uk/news/research-reveals-structural-weaknesses-in-windrush-compensation-scheme-remai
refusal-to-provide-legal-aid-t heard
* Building a Framework for Compensation and Redress’ (February 2023) APPG for Fair Business Banking (since the opening of
Parliament in July 2024, this APPG has been renamed the All-Party Parliamentary Group on Fair Banking):
Available at:
legal-challenge-of-
victims-is-to-l
butps://www appebanking ore uk/news/
report-launch
“The roundtable was aided by wider discussions on the similar challenges and systemic issues found in the financial services redress
scheme context,
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from delays in their establishment and operation, with each scheme having to invent itself
from the ground up. Additionally, with no framework for how schemes should be run, they
are highly inconsistent in their adherence to principles around fairness and accessibility.
Concerns were raised around the consistency and transparency of decision making. The
Infected Blood Compensation Scheme, whilst still to be implemented, provided a valuable
potential best practice framework for the design and core principles which should underpin
a redress scheme.
Following the Roundtable, the National Audit Office published its report on Government
Compensation Schemes finding:
ere is no central coordinated approach when government sets up new compensation schemes resulting in
arelatively slow, ad-hoc approach. Setting-up and administering a compensation scheme is a complex task,
and challenging for officials who may have never done it before. This has led to mistakes and inefficiencies in
the design of schemes, and delays in getting money to claimants. Claimant and stakeholder confidence can be
Surther undermined where the design and operation of the scheme is not seen as being independent from
those who have caused them harm.
In light of the Roundtable discussions and the report by the National Audit Office, KLC’s
key recommendations for reform are:
. Create compulsory guidance with common principles’ for the setting up and
hemes.
operation of redre:
. The establishment of a standing public body to act as a compensation authority
and administer redress schemes relating to harm perpetrated by the state, to
enable fair and independent outcomes.
2. Views of the Roundtable
Victims’ Voice
A number of Participants noted that the relative success and failure of the schemes
correlated with the extent to which those designing and implementing the scheme
meaningfully committed to the active participation of Victims’ Advocacy Groups. For
both the Lambeth Scheme and the Infected Blood Compensation Scheme, Victims’
Advocacy Groups were provided with some legal costs to enable engagement in the design
of the scheme, though Participants noted that in the case of the Lambeth Scheme, this
came after some protestation. The superior model of the Infected Blood Compensation
Scheme (which is in its implementation phase) was attributed significantly to the approach
of those involved in the Infected Blood Inquiry, in particular Sir Robert Francis KC and
tional Audit Office, Lessons leamed: Government compensation schemes (July 2024), Session 2024-25 HC 121
” Please sce pages 5-6 of this report for suggested common principles.
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Sir Brian Langstaff who as well as consulting Victims’ Advocacy Groups, broadly adopted
many of the proposals made. It is worth noting however that even in these schemes where
some positive comment was made, it was preceded by decades of cover ups which only
came to light due to the tenacity and fortitude of Victims’ Advocacy Groups. In contrast, a
number of Participants felt the WCS failed to meaningfully and adequately consult
Victims’ Advocacy Groups and stakeholders on the design and implementation of the
scheme. In part, these failures were attributed to a desire to implement a scheme quickly
and an entrenched institutional view of the limited value of the voice of migrant
communities. Some felt promises were made during this period and then later told that
they would not be implemented, which served as another blow to victims. Similar
dissatisfaction was expressed by the Participants in respect of all the Post Office Schemes,
which have been developed and implemented in a fragmented way arising in part from
litigation.
Victims are often not at the centre of the mission of restorative justice in the establishment
of compensation schemes, their experience is often marginalised, and their voices are not
adequately heard in the set-up of the schemes. A particularly acute problem which
significantly damaged trust in redress schemes was that many were set up by the same
institution that perpetrated the harm and in some instances lawyers who were previously
defending the institution were involved in the running of the redress scheme.
Awards
There was a divergence of views on how loss should be calculated. Some favoured a tariff
system which they felt allowed some clarity on what could be claimed and therefore
arguably more straightforward to manage administratively. Whereas others felt awards
should be more individualised reflecting the specific circumstances of the victims which,
whilst likely to take longer and be most costly, would deliver ‘justice’ to victims. Most
schemes explored in fact operated on a tariff basis with some having mixed models.
Problems were identified in the ability to claim and the assessment of consequential loss, in
particular the long-term earning potential of both individuals and business.
The use of interim awards was highlighted as being essential to mitigate waiting periods
whilst full awards are being calculated, though it was noted that the introduction of interim
awards in the Post Office, Infected Blood Compensation Scheme and the WCS came
after either significant public outcry or criticism by stakeholder forums.
Many of the Participants considered non-financial redress equally important as financial
redress and were dissatisfied with what was available in the various schemes, which either
did not offer an effective or genuine apology. Participants agreed that an apology needed
to be timely, meaningful, personal and not couched in the language of lawyers.
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Application process and evidential burden
Participants from the WCS and HSS schemes reported exasperation at the application
process and the amount of evidence expected, which was felt to be excessive and
inconsistent with the stipulated standard of proof. It was also broadly agreed that schemes
should tailor evidential requirements to the context of the compensation scheme and the
decision maker should support the gathering of evidence. Where the wrongs are of a
historical nature, difficult to evidence, or where the body responsible for the harm played
an active role in the destruction or obfuscating of evidence, evidential requirements should
be relaxed to take this into account. For example, the claimant’s witness statement should
be believed unless there is compelling evidence to the contrary. This is the intended
approach in the Infected Blood Compensation Scheme and can be found in a more diluted
form in the guidance for other schemes, though Participants felt this was not applied in
practice. Participants also felt schemes should be transparent and consistent about the
weight they give evidence.
Participants reported that the WCS, Lambeth Scheme and HSS schemes delivered slow
and inconsistent outcomes. Some felt that the decision maker was trying to get away with
not paying or paying as little as possible or ‘low balling’. The majority felt the schemes
were generally adversarial in their approach and this was in part attributed to the culture of
the decision maker, who was also the perpetrator of the harm in all the schemes bar the
Infected Blood Compensation Scheme. Some Participants found that the involvement of
external specialist lawyers supporting the decision-making process assisted the resolution of
the claim. Though criticisms were also made by Participants of the high costs (which in
some cases exceeded the total costs of compensation paid) of using external lawyers in the
HSS, and the operating costs by non-specialist caseworkers in the WCS. Participants from
the Infected Blood Compensation Scheme noted that, in developing their compensation
framework with Sir Robert Francis, they were acutely aware of the failings of the other
schemes, in particular the WCS, and this was reflected in core design elements including:
(i) having an arms-length body as a decision maker, (ii) evidential standards, (iii) the awards
framework, and (iv) the wider support framework.
Many Participants felt the process of applying for compensation itself traumatising, and
many of the schemes lacked appropriate support for victims. It was widely agreed that a
holistic, tailored approach is needed; one which considers not only the original harm done
but also how to minimise and alleviate any further harm done through an accessible and
compassionate redress scheme.
Provision of legal advice
Participants all agreed that accessible, good quality, funded legal advice was necessary to
enable victims to make claims due to the fear and distrust felt towards the state and the
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need for lawyers to act as buffer and support victims to make objective decisions in
emotionally charged circumstances. The lack of any funded advice in the WCS was
highlighted in the wider context of a very high refusal rate for the scheme compared to the
HSS and Lambeth Scheme which provided some level of funded advice. Some Victims’
Advocates raised concerns about the involvement of lawyers due to a belief that some
lawyers are ‘just after the money,’ though they felt this could be addressed with proper
vetting of lawyers or specialist panels. Notably, some victims preferred to manage
information and direct the process entirely to retain ownership and as a form of
empowerment to reflect their deep understanding of the harm suffered.
The Financial Services Redress scheme context was explored and provided valuable
ns faced where schemes are asserted to be
insights into the accessibility issues vict
accessible without the need for legal representation, which was not funded. Whereas in
fact banks who operate the schemes took extensive legal advice which meant victims were
at a disadvantage.
Transparency and accountability
Issues around transparency were also raised about all schemes, in particular the WCS and
the HSS. In respect of the HSS, it was felt there were inconsistencies as to the amount of
awards, lack of transparency with what claim handlers were doing including the level of
involvement of the Post Office in the decision making and review process. For both the
HSS and the WCS it was felt that there was a lack of transparency on the statistical data
produced for the schemes.*
3. Key recommendations
The Participants all agreed that each scheme involved different issues and the design and
implementation of a scheme should be adjusted to the reflect the issues and the harm
experienced by victims. It was agreed that were many instances of commonality and that
certain structural elements and underpinning principles should be present in a redress
scheme.
KLC recommendations for reform? are:
race Brown (Barrister at Garden Court imbers), Rachel
-d Beale (Hausfeld & Co LLP), David Enright and Ross Smith
Zorruption &
ma Jones (Leigh Day),
‘Senior Researcher, APPG on Fair Business Banking and APPG on Anti
Responsible Tax).
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Recommendation 1: Create compulsory guidance with common principles for the setting
up and operation of Redress schemes. The principles should include:
II.
Vv.
Vi
VIL.
VIII.
IX.
Justice delayed is justice denied. This is of heightened relevance in claims relating
to historic harm perpetrated by the state. The set up of redress schemes should be
commenced without delay, though balanced with the need to consult with
stakeholders and allow for an appropriate framework to be devised.
Schemes should be designed, implemented and adapted utilising a collaborative
and victim centred approach. A range of stakeholders, including victims and their
representatives should design, implement, and monitor, the scheme. Funding
should be made available to enable equitable participation. Recommendations from
victims and their representatives should carry significant weight, and where these
are departed from in the final scheme, justification should be provided.
A Redress scheme must be administered by a body separate and independent from
the perpetrator of the original harm. The public body should ensure the make- up
of the advisory board contains relevant independent experts, victims and/or
victims’ representatives. A robust ‘conflict of interests’ assessment must be carried
out in respect of any advisory board member to ensure independence is both real
and perceived to be real. Victims and their representatives should be given a right
to object, and where they are overridden, clear justification should be provided.
Schemes must be designed which minimise any re-traumatising effects and are
accessible. Application processes should be straightforward, trauma informed, and
compassionate. Funded legal advice and support services should be made available
from the outset of a claim to safeguard victims.
Eligibility criteria for compensation should be framed broadly to reflect the harm
suffered and proper regard must be had to the harm suffered by dependents and
families of victims. Schemes should proactively identify eligible victims rather than
trying to minimise compensation.
Awards should reflect the range of harms suffered and include both financial and
non-financial awards.
Heads of loss should be devised to reflect the harm suffered having regard to
existing legal principles on loss, but not constrained by them. Schemes must not be
adversarial. A lowered standard of proof should be applied, particularly in cases of
historic state harm, with the benefit of the doubt applied in favour of victims.
Those administering Redress Schemes should facilitate the gathering of relevant
evidence, taking steps themselves or through third parties where appropriate. This
should include provision for psychiatric reports and forensic accountants where
needed.
Schemes must be set so up that are able to deliver compensation, in a fair, effective,
timely, transparent and proportionate manner. Applications and claims should be
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processed swiftly. Minimum processing times should be set and published and.
enforcement mechanism for delays must be implemented. It should be borne in
mind that victims who are in a difficult financial position will often take whatever
first figure they are offered. Interim payments should be made available to mitigate
the impact of delay on victims.
X. Schemes should have a simple and clear independent appeal mechanism.
Recommendation 2: The establishment of a new standing public body to act as a
compensating authority and administer redress schemes to enable fair and independent
outcomes.
In the interim, whilst steps are taken to set up a public body, we agree with the
recommendation of the NAO that the Cabinet Office set up a ‘a centre of expertise to provide
guidance, expertise or a framework for public bodies seeking to set up a compensation scheme’.
4. Roundtable Participants
Sharon Anthony-Tewkesbury (Southwark Law Centre)
Ned Beale (Hausfeld @ Co LLP)
Grace Brown (Barrister at Garden Court Chambers)
Glenda Caesar (Windrush Lives)
Hannah Camplin (King’s College London)
David Enright (Howe+Co Solicitors)
Jason Evans (Factor 8)
Van Ferguson (Southwark Law Centre)
Clara Gisoldo (Senior Researcher, APPG on Fair Banking @ APPG on Anti-Corruption &
Responsible Tax)
Jeremy Gostick (National Audit Office)
Lucia Hinton (Shirley Oaks Survivors Association)
Rachel Hire (Collins Solicitors)
Malcolm Johnson (Lime Solicitors)
Emma Jones (Leigh Day)
Elly Nowell (King’s College London)
Shaila Pal (King’s College London)
Simon Reason (National Audit Office)
Ross Smith (Howe+Co Solicitors)
Raymond Stevenson (Shirley Oaks Survivors Association)
Julie Taberer (Collins Solicitors)
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King’s Legal Clinic (KLC) aims to enhance the education of law students
at The Dickson Poon School of Law and promote social justice. We aim
to improve access to justice through a range of activities, including:
providing free legal advice to members of the public through our Legal
Advice Clinic and working with local and international organisations on
research and justice projects. KLC works in partnership with
Southwark Law Centre on the Windrush Justice Clinic. The Windrush
Justice Clinic provides pro bono legal support to claimants seeking
compensation and conducts research on the accessibility and fairness
of the Windrush Compensation Scheme.
This report was prepared by Shaila Pal (Director, Supervising Solicitor
& Senior Lecturer at King’s Legal Clinic) with assistance from Elly
Nowell (Research Assistant) and support from King’s Law students
Wendy Agutu, Brightney Opara, and Hanane Zidani.
King’s Legal Clinic
The Dickson Poon School of Law
Somerset House East Wing
King’s College London Strand
WC2R 2LS
kcl.ac.uk/kings-legal-clinic
@kcllegalclinic
Reforming Redress Scheme Roundtable Report I King’s Legal Clinic