Home Office

7. Mr L complains about complains about the Home Office’s Windrush Compensation Scheme. He is unhappy with the way it handled his WCS claim.

8. Mr L came to the UK from Jamaica in 1960, He acquired settled status in 1973 under the provisions of the 1971 immigration Act. He says that, as the result of him being unable to prove his lawful status in the UK, he suffered a number of serious detriments. These detriments, which were the subject of his claim under WCS, concerned his employment, his housing, his later homelessness, and the general impact on his life.

9. Mr L says neither the rules of WCS, nor the intention behind them have been applied in his case. Mr L says WCS failed to fully or properly assess his case in respect of all the categories he had identified in his primary claim (Mr L claimed under seven categories), particularly in relation to his eligibility for compensation under the Homelessness category.

10. Mr L says he has been left feeling disappointed and frustrated, and overwhelmingly misheard and helpless. He says the final decision to not increase his award has been retraumatising as WCS has failed to grasp the full impact of the Windrush Scandal has had on his life.

11. As an outcome of his complaint, Mr L would like WCS to reconsider his claim.

12. Mr L was born in Jamaica in 1951. He came to the UK from Jamaica in 1960, travelling on his uncle’s passport, after which we went to live with his parents. He acquired settled status in the UK as a Jamaican citizen in 1973 under the provisions of the 1971 immigration Act.

13. Following his childhood, Mr L worked for various employers, usually on a cash in hand basis. He obtained a paper driving licence in 1970. He was unable to obtain a photo driving licence later from the Driver and Vehicle Licensing Agency (DVLA), despite also passing a motorcycle driving test in 2000. He states obtaining valid identity documents has been a consistent problem throughout his life and the lack of this has caused many hardships. He says this prevented him from obtaining a bank account, housing, employment and other services.

14. Mr L became homeless in 2014 for a period due to the breakdown of his long-term relationship. Mr L became increasingly concerned about his situation and contacted the Jamaican High Commission in 2015 to enquire about obtaining a passport. In 2018, after applying to the Windrush Scheme, he was granted No Time Limit status and obtained British citizenship in 2018, after which he was able to access housing services from his local authority.

15. In 2017 it emerged the Windrush generation, and their children, were being wrongly detained, deported and denied their legal rights. In 2019 the Windrush Compensation Scheme (WCS) was set up to compensate individuals who had suffered because of not being able to demonstrate their lawful right to stay in the UK.

16. Mr L applied to the Scheme. The Home Office decided to award Mr L compensation of £10,000 under the scheme. This Level 1 award was based on WCS recognising the inconvenience and worry involved in applying for a document to enable him to demonstrate his lawful status in the UK. Mr L appealed this decision and after two reviews the decision remained the same. In particular he says WCS failed to action the recommendations made by the Independent Adjudicator, which considered his Tier 2 appeal, and so he says WCS’s final decision following this is flawed.

19. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications that something has gone wrong.

20. Mr L applied for compensation under several categories of the WCS. WCS awarded £10,000 under the impact on life category but no award under any others. Mr L appealed this under a Tier 1 review and WCS upheld the original decision, deciding the initial award of £10,000 was correct. In order to not duplicate information considered repeatedly across several appeals we have focused our statement on the Independent Adjudicator’s recommendations to WCS under the final, Tier 2 appeal, and WCS’s final decision on Mr L’s award following this.

21. Mr L originally applied for compensation under multiple categories. WCS decided he was not entitled to an award under the following categories: • denial of access to banking services • loss of access to benefits • loss or refusal of a driving licence

22. Mr L did not appeal these decisions under his Tier 2 challenge. We have therefore focused our consideration on the categories he has appealed.

23. The Independent Adjudicator noted Mr L asked for a tier two review of WCS's decision on: • loss of access employment • denial of access to housing • homelessness • impact on life • WCS's discretionary category

24. It concluded that WCS had not sufficiently demonstrated how it had considered Mr L’s legal status in arriving at decisions in these categories. It recommended three key actions: • WCS explain its consideration of what status Mr L held between arriving in the UK in 1960 and the date he obtained No Time Limit status in 2018 • WCS explain how it decided Mr L’s period of loss, due to not being able to demonstrate his status, spanned 2015 to 2018.

• WCS then reconsider each of its decisions for the categories appealed (with the caveat that this may not alter the outcome)

25. We see the Independent Adjudicator did not identify any fault in WCS’s decision making, only that it had not clearly explained it’s decision, and recommended WCS should set out its consideration more clearly and review its decisions to see if they would be affected.

26. Following the Independent Adjudicator’s recommendations, WCS sought further information from Mr L on several points.

27. WCS asked if he had any access to his uncle’s passport after he arrived in the UK 1960. Mr L responded that he did not, lost contact with his uncle and only saw him again at a funeral in 2000. He explained that, by this point, his uncle no longer had access to his passport, and he passed away shortly after.

28. WCS asked if Mr L had considered applying for a Jamaican passport after it gained independence in 1962 in order to travel abroad, and of not why not. Mr L explained in 1962 he would have been 11 years old and he was unaware of his loss of status in the UK until many years later. He explained that when his concern over this loss of status increased in later years, he approached the Jamaican High Commission in 2010 and 2015. He explained he was unsuccessful on both occasions in obtaining a Jamaican passport as he was unable to provide sufficient documentation.

29. In relation to Mr L’s claim of not being able to provide identity documents, WCS asked for more information on why this was and why he did not have access to any utility bills in his name, access to his birth certificate, or national insurance number. Mr L explained he had obtained a copy of his birth certificate in 2002 and a card confirming his national insurance number in 2010. He reiterated that he was homeless between 2014 and 2019 (we assume in response to the query on why he was unable to access utility bills in his name).

30. Mr L additionally made the point that none of these documents would have assisted in matters affecting his employment, housing or other categories in his claim, as they would not prove his lawful status and right to live in the UK after 1997.

31. In its final Tier 2 decision notice, WCS set out Mr L’s status between 1960 and 2018. It explained: • In May 1960 Mr L arrived in the United Kingdom on a dual passport with his uncle. At this point he held Citizen of the United Kingdom and Colonies (CUKC) status • In August 1962 Jamaica became independent he lost his CUKC status and became Jamaican under paragraph b(a) of the Jamaica independence Act 1962 • On January he acquired settled status as a Commonwealth citizen ordinarily resident in the UK • In August 2018 he was granted No Time Limit (NTL) under the Windrush Scheme

32. We consider this is consistent with the facts of the case and reasonably complies with the first recommendation made by the Independent Adjudicator.

33. WCS then set out how it arrived at the period of loss. It explained this was based on Mr L visiting the Jamaican High Commission in 2015 to seek a replacement passport, and that he had told WCS he had become worried about his status after separating from his wife in 2014 and becoming homeless. We see WCS could establish evidence of Mr L being compelled to take action over his status in 2015, and so it considered this to be the start of the period of loss.

34. We note WCS had obtained evidence of the approach to the Jamaican High Commission to seek a passport. WCS also made enquiries with Mr L’s local authority but did not uncover any evidence to establish he had been denied access to housing following his separation from his wife. Mr L was also unable to provide any evidence to establish this. WCS explained that once Mr L obtained NTL in 2018, his status would have been resolved, so this was considered the end of the period of loss by WCS.

35. We consider this reasonably complies with the second recommendation made by the Independent Adjudicator. WCS explained it’s rationale for the period of loss being from 2015 to 2018 as was able to show with evidence an impact on Mr L’s life for that period.

36. In addition to the appealed categories WCS also provided some additional consideration of banking and driving licence categories, which we see has some relevance to the appealed categories. We briefly reference this below.

37. WCS noted that Mr L had not been able to a open bank account due to lack of identification or legitimate employment history. WCS noted banks were not required to carry out immigration checks before 2014. Therefore, being unable to prove his lawful status in the UK would not have been the reason for this difficulty. This would not have been a barrier to him obtaining a bank account in the years prior to this, as it was still possible for individuals with little documentation to open bank accounts and various banks offered such products.

38. A condition of WCS Rule F15 is ‘The reason the claimant or the deceased was denied access to banking services was their inability to demonstrate their lawful status.’ Mr L was unable to provide sufficient evidence to prove he had been denied banking services, but primarily he would not qualify for compensation due to this condition not being met.

39. We note Mr L had worked cash in hand during his working life. WCS enquiries with HM Revenue and Customs (HMRC) and Department for Work and Pensions (DWP) for a tax or benefits history and this search found no records.

40. WCS noted Mr L had attempted to obtain a photograph drivers licence to have a form of identification he could use to access other services. Its enquiries with DVLA identified no evidence that he had been denied this due to any issue with his lawful status in the UK. The problems again appeared to be rooted in him not providing proof of identity.

41. As set out earlier in this statement, Mr L had been able to obtain proof of his identify via his national insurance number and a copy of his birth certificate. He also had enquired about obtaining a Jamaican passport and we have seen no evidence he was prevented from obtaining this due to being unable to prove his lawful status in the UK.

42. While he encountered barriers to this due to a lack of identify documents, we see he was able to provide his birth certificate, and the High Commission provided a route forward if his sister could support his application. We recognise setting the rules on issuing of such documents is for the Jamaican authorities, and not a matter for HM Government.

43. Nonetheless, this appears to have provided a way for him to obtain further identity documents. His sister appears to have declined to come forward, and it is unclear why his application was not pursued further. We are unable to see how not being able to prove his lawful status in the UK prevented Mr L from obtaining valid forms of ID in order to access services.

44. WCS’s position on this, that problems obtaining ID documents were not directly caused by HM Government’s immigration policy, appears reasonable. We see no indications this was the wrong view to take, and have seen no evidence to support the view that Mr L’s problems providing ID documents were directly due to his legal status. It also appears to be the central consideration on many of the claims made in other categories. WCS rules require proof of lawful status being the direct, not indirect, cause of a claimed injustice in order to award compensation.

45. WCS Tier 2 decision letter then set out its reconsideration for each category appealed. We have looked at WCS’s consideration of the rules for each category in turn.

Loss of Access to Employment 46. WCS decided it was unable to award compensation to Mr L due to the conditions of rules D2 and D9 not being met.

47. Rules D2 and D9 both require the claimant provide specific evidence of lost opportunities for employment, and evidence that this was due to ‘the inability of the primary claimant or the deceased to demonstrate their lawful status in the United Kingdom.’

48. Having reviewed the evidence Mr L provided in support of this claim and what information WCS was able to obtain, we have seen no indication there is sufficient evidence to meet these conditions to award compensation for loss of access to employment. Mr L provided information of his difficulties finding employment due to not being able to provide documentation, such as ID or banking details. As set out above, these problems do not appear to be rooted in being unable to prove his legal status.

49. Additionally, WCS noted that Right to Work checks (requirements for employers to confirm a person’s legal status) were not introduced and enforced until 2008. Prior to that date Mr L’s legal status would not, therefore, be a barrier to employment. WCS checks with the relevant authorities also established no employer had ever checked his legal status in the UK.

50. We have seen no indication that WCS failed to apply the rules correctly on this category. WCS has not denied Mr L’s difficulties in finding employment, but it would not be able to award compensation as there is not sufficient evidence to establish a loss of opportunity directly due to his legal status.

Denial of Access to Housing 51. WCS decided it was unable to award compensation to Mr L due to the conditions of rule F3 not being met.

52. Rule F3 requires the claimant provide proof ‘the reason the primary claimant or the deceased was denied access to housing services was their inability to demonstrate their lawful status.’ Mr L was unable to provide evidence to show he had applied for housing and was refused due to his lawful status in the UK. This would be necessary to meet the conditions set by rule F3.

53. WCS’s enquiries with his local council had established he had applied for housing in 2018 and was helped with a deposit to obtain private accommodation. While this does support that Mr L was homeless during that time, a fact WCS did not dispute, it does not establish denial of housing due to inability to demonstrate lawful status.

54. We have seen no indication that WCS failed to apply the rules correctly on this category. WCS has not denied Mr L’s period of homelessness, but it would not be able to award compensation as there is not sufficient evidence to show he was denied housing directly due being unable to demonstrate his legal status.

Homelessness 55. WCS decided it was unable to award compensation to Mr L due to the conditions of rule G4(b and c) not being met. This rule set the condition that a claimant needs to be able to provide evidence they became homeless, or continued to be homeless, due to their inability to demonstrate their lawful status.

56. WCS did not dispute that Mr L suffered a period of homelessness (as defined in rule G3 which WCS deemed had been met) after his relationship breakup. However, he and WCS were unable to identify any specific evidence of him being denied housing due to his legal status. WCS decided there was insufficient evidence to show this was directly caused, or continued, by being unable to demonstrate his lawful status. This would be necessary to meet the conditions set by rule G4.

57. Mr L had explained that the cause of his homelessness was his relationship ending and he was able to provide evidence to show his difficulties obtaining housing due to his lack of ID, employment, and housing history (he was not on any mortgage, rental or utilities documents). As set out earlier in this statement, we see WCS considered the lack of these documents as not stemming directly from being unable to prove his legal status, which we consider a reasonably arrived at view.

58. We have seen no indication that WCS failed to apply the rules correctly on this category. Again, WCS has not denied Mr L’s period of homelessness, but it would not be able to award compensation as there is not sufficient evidence he became, or remained, homeless directly due being unable to demonstrate his legal status.

Impact on Daily Life 59. WCS concluded its original decision to award Level 1 compensation to Mr L was correct. This was based on him meeting the conditions of rule H1(a) and H2(a & b). These set out that an award can be made where an inability to demonstrate lawful status in the UK led to inconvenience, injury to feelings, anxiety, distress and/or reputational damage.

60. WCS identified limited evidence had been provided to show Mr L had suffered frustration, inconvenience, and worry of deportation when he started to become concerned about his legal status in the UK in 2015. It acknowledged that this had prompted him to take action. He made enquiries with the Jamaican High Commission to enquire about obtaining proof of his legal status and later applied to the Windrush Scheme in 2018 to formally resolve his status.

61. As set out above, WCS found (reasonably in our view) no evidence to establish the wider injustices claimed, that Mr L’s legal status directly caused or exacerbated employment problems, homelessness or unemployment. Mr L also claimed problems with his legal status led to other issues covered under rule H2, such as: • family separation (inability to travel abroad due to no passport, covered under H2 c) • inability to attend significant family occasions (specifically funerals abroad, covered under H2 e) • deterioration in physical or mental health such as pain, suffering and loss of amenity (such as problems getting a GP, covered under H2 f).

62. After carefully considering the evidence he provided, and what more WCS could obtain, we think WCS’s decision on these points is not unreasonable and in line with the rules of the Scheme. We see these additional injustices were also subject to the need to establish a causal link between being unable prove his lawful status in the UK and missed opportunities.

63. Mr L was unable to show how his status in the UK prevented him obtaining a Jamaican passport (as a Jamaican citizen with leave to remain in the UK). His lack of identity documents was a barrier but not, in WCS’s view, one caused directly by his legal status. His family separations and missed events appear linked to this inability to travel due to not obtaining a passport, and so also not directly caused by an inability to demonstrate his legal status. Similarly, other problems, such as signing up to a GP also appear to have been rooted in his lack of ID, or address documents, which WCS conclude was not a direct consequence of this either.

64. Taking this into account, we have seen nothing to indicate the Level 1 award of £10,000 awarded by WCS was wrong. The rules appear to have been correctly applied in arriving at this amount. It is the lack of evidence to establish impact, beyond inconvenience and worry over Mr L’s status beginning in 2015 and ending in 2018, that has limited his award to that level.

Discretionary 65. WCS considered Mr L’s claim that he had lost out on free public transport after the age of 60 due to his lawful status. He said this had cost him significant amounts in the following years getting around. WCS were unable to find any evidence of Mr L applying for a 60+ travel card and being declined due to his legal status in the UK. Mr L has been unable to provide any supporting evidence either, so we do not consider this an unreasonable decision for this category.

66. Having examined WCS’s reconsideration of its decision on all appealed categories, we can see this complies with the Independent Adjudicators third recommendation. We have seen no indications it failed to apply the Scheme rules correctly or failed to comply with all recommendations in its Tier 2 final decision.

1. We have carefully considered Mr L’s complaint about the Home Office Windrush Compensation Scheme (WCS, or the Scheme). We have decided not to take further action as we have seen no indication that anything went seriously wrong.

2. We have come to this conclusion as, after reviewing WCS’s handling of his claim through its initial consideration and later appeals, we have seen no indication WCS has failed to correctly apply the rules set for it.

3. We have found the WCS rules do not give the Home Office discretion to award compensation, unless the claimant can provide clear evidence that being unable to prove their lawful status in the UK directly impacted their life. Unfortunately for Mr L, the WCS scheme rules do not allow WCS to award compensation without that clear link being established. We see there is a lack of evidence to establish a clear causal link between UK Government policy on immigration and many of the impacts claimed.

4. If it is not possible to show with evidence how difficulties proving a person’s lawful status led directly to impacts on or injustices in their life, WCS rules compel the Home Office to decline a claim. WCS has taken the view that, while it does not dispute how a lack of documentation, such as identification, or banking and employment records, has limited his access to many opportunities over the years, it does not agree this was directly caused by problems with his legal status. We have not seen any indication this position was unreasonably arrived at.

5. WCS did award compensation to Mr L to a limited extent, and in line with what the Scheme rules would allow. We have seen no indication this was an unreasonable, or insufficient, amount to award under the rules. Without more compelling evidence, WCS would have no option but to award Mr L a more modest level of compensation, which is what it did.

6. We were saddened to learn of Mr L’s difficulties throughout his life. We are glad to learn his situation has improved in recent years but can appreciate the impact on his wellbeing this has caused. We thank him for bringing her complaint to us and hope we have been able to provide some reassurance that, while the outcome will have been disappointing, WCS fairly considered his claim and appeals.