Home Office

5. Mr L complains the WCS did not make its decision on his claim fairly. He says it wrongly penalised him because the company he worked for (the Company) no longer has the records it requested about his loss of access to employment claim. He says he was dismissed from employment because of Home Office failures and he should be compensated for these years of loss. Mr L says WCS did not consider the balance of probability properly.

6. Mr L says he has depression, anxiety and suicidal thoughts because of what happened. He said when he was wrongly told he did not have a right to live or work in the UK he had a full time, permanent job and had completed studies in health and social care. He said he was stopped from working and this had a massive impact on his life and family and he was unable to provide for his daughter. Mr L said the claims process depressed him more because after 15 years of struggling, it is awful to still be pleading for what happened to be put right.

7. Mr L wants the WCS to compensate him fairly for the income he lost during the years he was wrongly stopped from working.

8. Mr L was born in Africa in the 1980s and arrived in the UK in the late 1980s to live with his mother. In 1992 he was granted indefinite leave to remain (ILR) in the UK. In 1994 he left the UK to travel home to stay with relatives and go to school. He returned to the UK in 1998.

9. In 2003 the Home Office told Mr L there was no record of him having ILR or being given a returning resident’s visa when he came back to the UK.

10. In July 2005 Mr L began working as a customer service adviser at the Company. His employment was ended a month later. Mr L says this was because he was unable to show his right to live and work in the UK. The reason for Mr L’s employment ending is recorded on the Company’s HR systems as ‘dismissal - other’.

11. In October 2005, Mr L made a No Time Limit (NTL) application in an effort to get proof of his status. The Home Office refused his application.

12. Mr L tried to find work in other areas but was unable to progress applications or accept jobs because he did not have proof of his status. In 2007 he asked for his NTL application to be reconsidered, but the Home Office’s decision stayed the same. Mr L’s MP made representations on his behalf in 2007 and 2009, for him to be given the right to work. The Home Office refused, saying Mr L was found to have no lawful status in the UK.

13. In 2017 it emerged the Windrush generation were being wrongly detained, deported and denied their legal rights. In 2018 the Home Secretary started a taskforce (which later became the Windrush Scheme) to help those who had come to the UK many years ago and did not have documentation to prove their status. The next year the WCS was set up to compensate individuals who had suffered because of not being able to prove their lawful right to stay in the UK.

14. In June 2019 Mr L’s NTL application from 2005 was reopened by the Windrush taskforce. The next month he was granted ILR in the UK.

15. In August 2019 Mr L made a claim to WCS under several categories. WCS decided Mr L should be compensated in the ‘impact to life’ category and refunded the fee he paid for his unsuccessful 2005 NTL application. It did not make an award for loss of access to employment. After review, the adjudicator (decision-maker) felt WCS had failed to take steps to gather extra circumstantial evidence about Mr L’s employment at the Company. They asked WCS to make more enquiries and review its decision if the Company was able to provide the extra information.

16. The Company said they did not hold any records before April 2016 and they were unable to help. WCS did not change its earlier decision not to offer Mr L an award in the loss of access to employment category.

19. Before we decide if we should do 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.

20. WCS should have considered Mr L’s claim in line with the scheme rules and the guidance for caseworkers making decisions on claims. It should have taken everything relevant into account in line with our Principles.

21. The guidance for caseworkers making decision on claims says they can make an actual award for loss of access to employment if they are satisfied, on the balance of probabilities, the claimant was in employment which was terminated and they can show what their earnings had been. The reasons for the termination of employment must have been the inability of the claimant to show their lawful status in the UK.

22. The guidance for caseworkers considering claims to the compensation scheme has always needed the decision to be made on the balance of probabilities, which means considering whether it is more likely than not that someone lost their job due to difficulties proving their status. But, the current (2023) guidance for caseworkers includes more detail on the standard of proof and evidence needed. It accepts that it can be challenging for complainants to give detailed written evidence to support every part of a claim for compensation. It says caseworkers should take a complete view of the claim and make sure they use all the information and evidence available to them, including circumstantial evidence.

23. Mr L provided evidence showing he was employed in July 2005 and his employment was terminated. The evidence showed the reason for his employment ending was recorded on the Company’s HR system as ‘dismissal – other’. He was able to prove his earnings. Mr L said he was dismissed because of an inability to prove his lawful status. He provided other evidence showing that soon afterwards he had tried to regularise his status by making a NTL application (which was refused) and he then went to his MP to act on his behalf. Mr L had repeatedly requested permission to work and tried to regularise his status over a number of years.

24. WCS refused Mr L’s claim under the loss of access to employment category saying there was not enough information to show the scheme requirements were met. When Mr L requested a tier two review (the next stage), the adjudicator asked WCS to make more enquiries about Mr L’s employment and review its decision. WCS then asked the Company for more information to try to find the reason Mr L had left their employment in 2005. But, the Company said they did not hold any records before April 2016 and it was impossible to give this information or help any more. WCS decided its original decision not to offer an award was right.

25. It is not clear that WCS considered Mr L’s employment claim on the balance of probabilities taking a complete view of his claim and considering all the evidence available. This included the circumstantial evidence (such as the attempts to regularise his status and representations to his MP) as the guidance requires. The 2023 guidance now accepts that documentary evidence to support every part of a claim might be challenging to provide. This also seems to be a relevant consideration in Mr L’s claim because the Company said they could not provide evidence showing the reason why Mr L’s employment ended.

26. There are signs of failings in WCS’s decision making because it is not clear that it took everything relevant into account and used the evidence available on the balance of probabilities. When we discussed Mr L’s complaint with WCS it agreed to review its consideration of his loss of access to employment claim to make sure it acted in line with its guidance.

27. We think the work WCS has agreed to do resolves Mr L’s complaint at this stage. Although we do not know what the outcome will be, Mr L will be able to come back to us if he has anymore concerns in the future.

1. We have carefully considered Mr L’s complaint about the Home Office’s Windrush Compensation Scheme (WCS). We have decided that the action WCS has agreed to take addresses the main concerns Mr L raised with us.

2. Mr L was concerned WCS had not considered his loss of access to employment claim fairly. He said he was being unfairly penalised because the company he had worked for did not hold records covering the date he was dismissed from employment. This affected his ability to establish that the reason for his dismissal was due to being unable to prove his lawful status in the UK. He felt WCS had not considered his case fully and using all the evidence available.

3. When we looked at WCS’s decision, it seemed it may not have considered all the relevant evidence as a whole to make a decision on the balance of probabilities (based on the evidence provided) as the guidance requires. This evidence included the efforts he made to regularise his status and get permission to work after his dismissal from employment. After speaking with us about Mr L’s case, WCS agreed to review the decision it had made on his loss of access to employment claim, using all the evidence available.

4. We appreciate the big impact Mr L described because of not being able to work for many years and the difficulty he experienced going through the compensation process. We do not know what the outcome of WCS’s review will be but its agreement to do the review to address Mr L’s concerns, resolves the complaint. Mr L can come back to us in future if he wants to.