Home Office

6. Miss B complains on behalf of her mother, Ms D, about the outcome of her WCS application. Miss B complains the Home Office did not properly reconsider its decision on her mother’s application. Miss B says the Home Office did not contact her mother for further information on her disabilities and employment history when reconsidering its decisions on the loss of access to employment and impact on life categories.

7. Miss B is also unhappy with the Home Office’s decision making on the access to banking and driving license categories.

8. As a result, Miss B says her mother has suffered frustration, upset and distress. She says her mother has also suffered financial hardship. She says this impact is ongoing.

9. Miss B is seeking a review of the Home Office’s decision making as an outcome to her complaint, so that her mother can receive the maximum award of compensation for the claim. If we find failings in how the Home Office reached its decision, Miss B would like an apology and acknowledgement of wrongdoing.

10. Ms D was born in Jamaica in 1956.

11. According to her Windrush Application, Ms D arrived in the UK between 1969 and 1972 on her mother’s passport. The Home Office has accepted, on the balance of probabilities, that Ms D was present in the UK and settled as of 1 January 1972.

12. We understand from the information submitted in support of her WCS application that Ms D has learning difficulties which require support. She has three daughters in the UK, born in 1974, 1975, and 2000. Ms D was a stay at home mother before appearing on HMRC and DWP records from 1990 onwards.

13. On 10 September 2018, Ms D applied for Naturalisation under the Windrush Scheme. She was granted Naturalisation by the Windrush Taskforce on 8 February 2019.

14. The Windrush Scheme allows individuals the opportunity to apply for British citizenship if they are: a national of a Commonwealth country listed in the Windrush Scheme Policy, settled before 1 January 1973, and have been continuously resident in the UK since arrival. Individuals can also apply as a child of a national of a Commonwealth country if they were born in the UK or arrived before they were 18 years old.

15. On 16 August 2021, Ms D made a claim under the WCS as a primary claimant. The Home Office received the application form on 17 September. Ms D claimed under loss of access to employment, child benefit, benefits, banking, driving license, and impact on life.

16. On 21 October, Ms D submitted her written consent for her daughter to act as her representative.

17. The Home Office completed its preliminary award assessment on 4 March 2022. It wrote to Ms D to advise, based on the information provided so far, it could not offer a preliminary award. It passed her claim to be assessed in further detail by a caseworker.

18. On 24 June and 21 November, a WCS caseworker telephoned Ms D and her daughter to discuss the claim.

19. On 25 November, the Home Office wrote to Ms D with the outcome of her WCS claim. It declined to offer an award under any of the categories claimed for. It considered awarding under ‘homelessness’, however, also did not offer an award for this category.

20. On 4 January 2023, Ms D requested her claim be reviewed under the categories of employment, banking services, driving license, and impact on life. These categories have formed the focus of our primary investigation.

21. On 31 August, a WCS Tier 1 Reviewer completed their review. They wrote to Ms D with the outcome on 8 September. They maintained the decision not to offer an award.

22. On 22 September, Ms D requested her claim be reviewed by the Adjudicator’s Office. The Home Office referred the claim on 13 October.

23. On 15 January 2024, the Adjudicator’s Office wrote to Ms D with the outcome of its Tier 2 Review. It recommended the Home Office reconsider its decision on employment. If its decision changed following reconsideration, the Adjudicator’s Office also recommended the Home Office reconsider its decision under the impact on life category. It did not recommend a review of the decisions under the banking and driving license categories.

24. On 25 April, the Home Office wrote to Ms D with the outcome of its Tier 2 Reconsideration Review following the Adjudicator’s Office’s recommendations. It explained it was still unable to offer an award under the employment and impact on life categories. This was because it had not been able to conclude Ms D experienced detrimental impacts as a direct consequence of being unable to demonstrate lawful status.

27. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the events complained about had a negative effect which the organisation has not put right. Having done so we have found the Home Office has already done enough to put right the impact of these events.

Categories: loss of access to employment and impact on life

28. Miss B says the Home Office did not reconsider its decision on her mother’s application in line with guidelines. Specifically, Miss B says the Home Office did not contact her mother for further information on her disabilities and employment history when reconsidering its decisions on the loss of access to employment and impact on life categories.

What should have happened

29. WCS guidance outlines caseworkers are required to assess each category of a claim on the balance of probabilities. This means they must be satisfied it is more likely than not (over a 50% chance) what has been claimed for occurred.

30. If caseworkers feel it is necessary to contact claimants for further information, they should do so and invite claimants to provide this. If the claimant is unable to do so, caseworkers should proceed to a full consideration. The WCS guidance is clear caseworkers should not continue to ask the claimant to provide something they say they cannot get.

31. As Miss B is unhappy the Home Office did not contact her mother for further information during reconsideration, we requested and reviewed its Standard Operating Procedure (SOP) to identify any requirement to engage with WCS claimants during reviews.

32. We note the only reference to communication is that customers should be notified of the review outcome in writing. Similarly, the Home Office is required to send written confirmation to the claimant of the review outcome if it receives recommendations from the Adjudicator’s Office.

33. The SOP acknowledges that customers may wish to provide further information or documents following the Tier 1 Review decision. It explains, if received, the Tier 1 Review Team will consider whether the new information affects the outcome before passing the decision to Tier 2. If further information arrives prior to or during a Tier 2 Review by the Adjudicator’s Office, the same process applies.

34. At Tier 2 Reconsideration, reviewing caseworkers should focus on the recommendations provided by the Adjudicator’s Office. They are also required to follow the WCS rules and guidance, as well as any caseworking memos and outstanding policy issues.

Employment

35. The WCS rules and guidance says between January 1997 and February 2008, Section 8 of the Asylum and Immigration Act 1996 applied to right to work checks. This placed responsibility on employers to check their employee had the legal right to work in the UK.

36. Prior to the introduction of this Act, right to work checks did not exist in the UK. The Immigration, Asylum and Nationality Act 2006 introduced right to work checks as a legal requirement for every worker, regardless of nationality.

37. The WCS rules and guidance say if a claimant is unable to supply sufficient evidence, caseworkers should refuse the claim for compensation for loss of access to employment.

38. Annex D provides the framework for this category. There are two types of awards: actual earnings award and a general award. The distinction between the two is whether the claimant can demonstrate what their earnings would have been or whether they are unable to do so. Caseworkers should consider making a general award if a claimant is unable to supply sufficient evidence of their earnings.

39. As there was insufficient evidence of Ms D’s earnings, we consider the general award is more applicable in this case. General awards are calculated by multiplying the number of months comprising the period of loss by £1,147. Part months are treated as full months.

40. The period of loss is applicable from the date of termination and ends either three months from the date on which the primary claimant receives a document from the Home Office providing their lawful status or the date on which they commence employment.

41. D9(a) sets out the conditions to which a general award may be made:

• the primary claimant was in employment which was terminated • was not in employment but had accepted an offer of employment which was rescinded • was unable to access employment but had been in regular employment in the two years prior to the date starting the period of loss • or was required to defer the progression of an application for employment which they were subsequently able to secure (D2) or had not been in regular employment in the two years prior to being first unable to progress an application but can demonstrate they were actively seeking employment (D9).

42. D9(b) says the reason for the loss was the inability to demonstrate their lawful status.

Impact on life

43. The WCS guidance sets out several detrimental impacts which may be claimed. Each case should be considered on its merits. Caseworkers should ensure they do not include any impacts in this category that would be more appropriate to consider under others.

44. Caseworkers should consider whether the claimant has experienced a loss or disturbance in their everyday life because of their inability to demonstrate status. They need to determine the significance of the impact on the claimant. This, alongside supporting evidence, is what determines the tariff payment awarded.

45. For lower level impacts, evidence may be circumstantial. Caseworkers may take these statements at face value. However, impacts that have a greater effect on the claimant should be accompanied by directly relevant information and evidence where possible.

46. Annex H provides the framework for the impact on life category. H1 sets out the conditions which should be met. H1(a) says the primary claimant experienced detrimental impacts as a direct consequence of being unable to demonstrate lawful status. H1(c) says the detrimental impacts are of the type described in H2.

47. H2 sets out detrimental impacts can include:

• inconvenience, such as hardship lasting no more than a few days, small financial losses, or delays with no material impact • injury to feelings, such as distress, or traumatic and highly upsetting experiences • deterioration of physical and/or mental health • family separation and/or an inability to attend significant family occasions • an inability to work because of a deterioration in physical or mental health • an inability to return after a short period of time outside the UK.

48. H3 says the Home Office will use the available evidence provided to reach a determination. If an award is made, it will determine the amount payable by reference to the amounts set out in levels one to five. These range from short-lived impacts up to profound impacts which are likely to be irreversible.

What did happen

49. The Adjudicator’s Office recommended the Home Office reconsider its decision on employment. This was because it could not be satisfied the decision was reasonable. The Home Office took account of information provided during the telephone call on 21 November 2022; however, the Adjudicator’s Office was not satisfied the record of this information was accurate.

50. The Adjudicator’s Office considered the Home Office’s decision under the impact on life category to be consistent with WCS rules and guidance. However, as it had asked the Home Office to reconsider its decision under employment, it also recommended the Home Office reconsider its decision under impact on life if it changed for the employment category.

51. We have listened to the call recording of 21 November 2022. We agree there is a discrepancy between what was said by Miss B during the call and what has been recorded in the call matrix. This has subsequently been referred to in the Home Office’s outcome letters.

52. During the call, Miss B discussed her mother’s employment. Specifically, she says her mother was denied education, she couldn’t really keep a job, and even though she was hired several times, she was fired quickly. In the context of the call, Miss B is referring to the lack of education as the reason her mother struggled with employment. She then moved onto her mother being part of a mental health programme and her mental health difficulties, before discussing the pressures her mother felt due to her lack of status.

53. In the call matrix, the Home Office have documented Ms D was hired several times but fired quickly as she had mental health issues all her life. We did not hear Miss B say it was her mother’s mental health difficulties that caused the termination of her employment.

54. We also cannot see reference to this in the original claim form. Ms D provided a specific example of her having to leave employment. Ms D says she worked in a Woolworths Department Store in her local area when she was 17 or 18. She told the Home Office she had to leave as she did not have the required paperwork when asked for it.

55. We consider this is an indication of a failing. The Home Office has not acted in line with our Principles. Our Principles say decision making should take account of all the relevant considerations and balance the evidence appropriately. We cannot see this has been done. We discuss the impact of this in the following section.

56. In its assessment for the impact on life category, the Home Office referred to the supporting documents relied upon to reach a decision. This included the telephone calls with Ms D’s daughter of June and November 2022, as well as the primary claim form. We note the following impact described by Ms D as relevant for this category:

• her arrival and early years in the UK, during which time she became pregnant but was vulnerable as she was kicked out of her mother’s house at 16 and went to live with her children’s father • her mental health difficulties, which led to her hospitalisation for 18 months and electric shock therapy, as well as a breakup of the family and her children being fostered for a year • very challenging domestic circumstances, including abuse and violence • the anxiety and fear as a result of not having the appropriate documentation to show her right to remain in the UK, and concerns around deportation.

57. The Home Office noted it needed details of any other impacts experienced due to not being able to demonstrate lawful status. Under its case consideration, the Home Office referred to the difficulties Ms D and her daughter described following her pregnancy at 16. We consider the information is reflective of that provided in the original claim form and during the two telephone calls. This is in line with our Principles.

58. The Home Office noted Ms D’s daughter stated she was the first to question her mother’s status when she applied for her under the Windrush scheme. The Home Office acknowledged the difficulties experienced; however, it was unable to determine these impacts were caused due to an inability to demonstrate lawful status. It noted H1(a) had not been met. The Home Office maintained this decision at Tier 1.

59. There is sufficient evidence in the assessment documents to indicate the Home Office considered the impact on life category in line with the WCS rules and guidance, and our Principles. Specifically, it took account of the information shared by Ms D in her claim form and by her daughter in the evidence submitted and during the calls. It documented Ms D had been in receipt of various benefits since 2010, that a letter submitted indicated she had access to a bank account, and had been able to access housing support.

Claimed impact

60. During our correspondence, Miss B told us the WCS process has caused a lot of distress and frustration to her mother and that she has suffered financial hardship. Miss B told us they feel as though the Home Office used Ms D’s disabilities against her. She told us it had not taken her mother’s disabilities and mental health into account, nor her employment history. She told us, had it done so, the outcome could have been different.

61. In its reconsideration, the Home Office acknowledged the incorrect recording of the circumstances of Ms D’s employment during the call in November 2022. It reassessed the call and documented the discrepancy between what was said and what had been documented. It noted, due to the miscommunication, it would reconsider the decision without including information from the telephone calls. We consider this decision is in line with our Principles; organisations should make decisions by balancing available evidence appropriately.

62. We also note the WCS rules and guidance follow a balance of probabilities approach. This is to recognise that providing detailed documentary evidence to support every aspect of a claim can be challenging. Caseworkers are expected to take a holistic view of the claim and use all information and evidence they have available.

63. The Home Office has noted there is no information or evidence available, aside from that which has been provided by Ms D and her daughter in the claim form and during the telephone calls. The evidence provided alongside the claim (such as a letter from Jobcentre Plus and an energy bill) did not support the claim under the employment category. We consider this reasoning is in line with the WCS rules and guidance.

64. The reviewing caseworker noted there would be no evidence available to show there was a denial of access to employment as a result of an inability to demonstrate lawful status. This was because:

• Ms D told the Home Office she could not continue employment with Woolworths when she was 17 or 18 as she did not have identification • it is known Ms D had her first child in February 1974 and her second in January 1975, therefore the events described would have occurred in 1973 or 1974 • the likelihood of gathering evidence is diminished by the passage of time • the company in question was no longer in operation and could not be contacted to request evidence directly.

65. The Home Office noted it was accepted, during Ms D’s Naturalisation application, that she was a stay at home mother. This matched her HMRC and DWP footprint, which began in 1990 when her first daughter turned 16.

66. There is a case discussion note from the initial assessment which documents a HMRC referral would not be processed. This is because it does not hold records as far back as 1973 and 1974. We consider this to be in line with WCS rules and guidance.

67. Under ‘information gathering and evidence’, the guidance says caseworkers should ensure, where relevant, other government departments have been contacted to verify and gather customer information. It also says caseworkers should consider whether information could be obtained more quickly and easily through third parties, for example, previous employers. In this case, the Home Office considered whether it could make a balance of probabilities decision using all available evidence.

68. Both the Tier 1 Review and Tier 2 Reconsideration noted the circumstances described by Ms D appeared to predate the period when right to work checks commenced. This is in line with WCS rules and guidance. Prior to the Asylum and Immigration Act of 1996, there was no legal requirement for an individual to provide evidence of their right to work.

69. Under the impact on life category, the reviewing caseworker noted a reconsideration was required due to a possible new outcome if there were any amendments to the employment category. This is in line with the SOP.

70. The reviewing caseworker documented there was no information or claim which would allow the Home Office to reconsider or amend its decision. This was because the impact described by Ms D occurred prior to right to work checks being implemented, happened at a time when she could have obtained identification to work, and the company the claim is based on cannot provide further evidence. They upheld the original decision.

71. We acknowledge this outcome is upsetting for Ms D. In the circumstances, we consider the Home Office has clearly documented its rationale for declining to reconsider the impact on life category. This is in line with the relevant guidance. It has taken everything relevant into account and recognised the limitation of the information available.

72. In its outcome letter, the Home Office apologised for misinterpreting the information given. We consider this action is in line with our Complaint Standards, which say organisations should openly identify instances where things have gone wrong and identify suitable ways to put things right. This includes giving a meaningful apology.

73. Miss B has told us she is unhappy the Home Office did not contact her mother for further information on her employment and disabilities during the Tier 2 Reconsideration. During our primary investigation, we asked Miss B what information she wished to share with the Home Office and whether this was anything new or not previously shared.

74. Miss B told us she wanted to clarify with the Home Office her mother suffered mental health problems later on in her life. She wanted to correct this misunderstanding. Miss B told us she had already provided everything prior to the Tier 2 Reconsideration. She told us the further discussion would have focused on what her evidence showed and her mother’s impact.

75. We considered if this required consideration by the Home Office. We cannot see the information Miss B wanted to share was new, as she has told us she already had provided all her relevant supporting evidence. We can see the Home Office has already apologised for misinterpreting the call of November 2022. For these reason, we cannot see this information would affect the Home Office’s reconsideration decision.

76. As per the WCS guidance and SOP, there is no obligation or requirement for caseworkers to regularly contact claimants unless they establish further information is needed to reach a decision. In this case, the reviewing caseworker deemed they could reach a balance of probabilities decision without the earlier calls due to the miscommunication. We have already established that this is in line with the relevant guidance.

77. We considered whether Ms D provided any further information in her written requests for a review. She wrote that she had worked as a cleaner when she was 17 years old, was paid weekly into a HSBC account, and was a wigmaker. We cannot see any evidence was enclosed with this to support her claim under the employment category. As per the SOP, this information required consideration as to whether it affected the decision.

78. As per our review, we have established there is sufficient evidence to indicate the Home Office balanced the available evidence appropriately and in line with our Principles. This includes its consideration that the likelihood of gathering evidence from 1973 and 1974 is diminished with time. We note Ms D did not provide any supporting information under the second request for a review.

79. We understand Ms D has faced very difficult circumstances throughout much of her adult life. Her daughter has told us that this has included a considerable amount of domestic and violent abuse. We cannot imagine how difficult this has been for Ms D and commend her for sharing her story with us and the Home Office.

80. Based on the evidence we have reviewed, we cannot see any failings in how the Home Office reconsidered her claim under the employment and impact on life categories. It apologised for misinterpreting the information provided by Miss B. We consider this action is in line with our Complaint Standards. We appreciate this will be disappointing to Ms D. We hope she is reassured we fully considered the concerns her daughter brought to us.

Categories: access to bank and driving license

81. 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.

82. Ms D complains about the Home Office’s decision making on the access to banking and driving license categories.

What should have happened

Banking

83. The WCS rules and guidance says claimants may provide documentary evidence which could include bank or mortgage statements and correspondence from a bank confirming the service has been lost or denied due to the claimant’s inability to show their lawful status. This category also includes cases where the claimant was denied access to a new service and where the provision of existing services was withdrawn.

84. F15 of Annex F provides the framework for caseworkers to assess whether the claimant meets the criteria for denial of access to banking services. An award may be made if the following conditions are met:

• the primary claimant was denied access to banking services (a bank account) during the relevant period (starting on the date on which the claimant became aware they could not demonstrate their lawful status and ending on the date they received a document proving their status) • the claimant would have accessed banking services had they not been denied access • the reason they were denied access was their inability to demonstrate their status.

85. F16 says the primary claimant will be awarded if the Home Office is satisfied they meet the conditions above. For this category, there is a one-off award of £200. No additional awards are payable for multiple instances of denial or withdrawal of access to services.

Driving license

86. The WCS rules and guidance says the Driver and Vehicle Licensing Agency (DVLA) deals with claims relating to the loss or refusal of driving licenses.

87. Caseworkers are required to notify and send any claims to the DVLA for it to deal with. The DVLA will then directly contact the claimant and decide if they consider it appropriate for settlement in accordance with its own relevant legal and administrative frameworks. Awards are calculated as £50 per month up to a maximum payment of £500.

What did happen

88. In her claim form, Ms D stated she could not access banking services as she did not have the required documentation (a passport or driving license). She stated this was because the rules around banking were changed whilst her husband was in prison. She therefore lost access to their bank account.

89. The Home Office asked for further information as to whether Ms D applied to open accounts with other banks during its calls. This is in line with WCS rules and guidance. Caseworkers should contact claimants for further information if they feel it is necessary.

90. Ms D’s daughter told the Home Office her mother must have tried to open an account but was denied. We note the caseworker asked if they had any documentation to support this. The caseworker also advised they would need to write to the banks to confirm and asked for the names of the banks. This is in line with WCS rules and guidance.

91. Miss B stated this happened prior to her birth and when her mother was working at Woolworths (estimated around 50 years ago). They did not have any paperwork to act as supporting evidence. The caseworker did not ask for anything further. We consider this is in line with WCS rules and guidance, which say caseworkers should not continue to ask the claimant to provide something they say they cannot get.

92. Miss B also told the Home Office her mother still does not have a bank account, nor has she tried to open one after receiving confirmation of her lawful status. She stated this is because she did not have identification to open an account.

93. We note the caseworker asked how Ms D received her benefits if not into a bank account. Miss B stated her mother has them loaded onto a prepaid card. We also note the caseworker advised Miss B they were concerned her mother still did not have a bank account. They referred to her obtaining confirmation of her lawful status in 2018.

94. In its case consideration, the Home Office stated Ms D did not meet the conditions under F15. It provided its reasoning for this for each criteria. We consider it is reflective of the information provided by Ms D and her daughter during the assessment process.

95. Specifically, it focused on there being insufficient information to demonstrate Ms D was denied access to banking solely because she was unable to show her lawful status. It noted the period described predated when financial institutions began to check immigration status and the circumstances related more to an inability to demonstrate identity.

96. The Home Office also referred to a letter addressed to Ms D by Jobcentre Plus, dated 9 March 2022. The letter refers to Ms D’s savings and property. Specifically, it says ‘Bank A/C Current’. The Home Office noted this suggests Ms D did have access to a bank account during 2022. Its reference to this letter is in line with WCS rules and guidance, and our Principles.

97. We consider the Home Office’s decision under the banking category is made in line with WCS rules and guidance. It has accurately documented the information provided by Ms D. It has contacted her daughter, as her representative, for further information regarding the names of the banks as this had not previously been provided.

98. The Home Office took everything relevant into account and balanced the evidence appropriately. This is in line with our Principles. We do not consider there are indications the Home Office has done anything wrong in its consideration of the banking category.

99. Regarding the inability to obtain a driving license, the Home Office documented Ms D’s claim she was not able to obtain a license as she would not have been able to provide the required documentation to apply. In the call of 24 June 2022, it was confirmed Ms D did not make an application for a driving license.

100. Under case consideration for the driving license category, the Home Office noted a referral to the DVLA was not necessary as Ms D did not apply for a driving license. We consider this is in line with WCS rules and guidance.

101. WCS caseworkers are only required to notify and send any claims to the DVLA. In this case, there was no claim for the DVLA to consider as Ms D had never applied for a driving license. Therefore, her application had never been refused.

102. We note in her first request for a review, Ms D stated she has a bank account but could not keep it long term as she did not have a passport. She also stated it was impossible to obtain a driving license without a passport. We considered if this information was new and therefore required further consideration by the Home Office. We cannot see that it was.

103. We appreciate this decision may cause additional distress to Ms D, who, as far as we understand, has had very difficult circumstances throughout much of her life. We are very sorry that our primary investigation may not have resulted in the outcome sought. We hope she is reassured we fully considered the concerns she brought to us.

1. We have carefully considered Ms D’s complaint about the Home Office. We were very sorry to hear about the circumstances that led Ms D to approach us and of the difficulties her daughter has told us she experienced throughout her life.

2. Her daughter told us she has suffered tremendous abuse and has mental health and learning difficulties. We cannot imagine how difficult her life, especially her formative years, must have been for Ms D.

3. Having looked at the evidence available to us, we have not seen any indications that anything went wrong regarding the Home Office’s consideration of Ms D’s claim to the Windrush Compensation Scheme (WCS) under the banking and driving license categories.

4. We have seen an indication the Home Office did not act in line with the relevant guidance in reaching its decision under the employment and impact on life categories. In this case, we have reviewed the Home Office’s reconsideration. We feel the Home Office has appropriately reconsidered these categories. As such, we consider it has now put things right.

5. For these reasons, we have decided not to take any further action on the complaint. We hope Ms D is reassured by our explanations below.