Issue 1 – immigration fees 16. 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 with the WCS’s decision to refuse Mr J’s claim in the immigration fees category.
17. Mr J claimed compensation as a close family member of a primary claimant (that is, his ex-partner). The first category of his claim was for immigration fees. Mr J said he paid his ex-partner fees for an application made in 2012.
18. The WCS had to assess this claim in line with the WCS Rules. Rule B1(b) says the claimant needs to provide:
‘(i) confirmation from the primary claimant to whom the fee payer is related… that the fee payer paid the fee on behalf of the relevant claimant;
(ii) signed agreement from that primary claimant… permitting the Home Office to make an award to the fee payer; and
(iii) signed agreement from that primary claimant… that they have not made and will not make additional claims for that same fee.’
19. The WCS sent Mr J a form for his ex-partner to complete and show that she gave the required consent. We understand Mr J’s ex-partner did not give her consent.
20. The WCS’s August 2023 decision letter to Mr J explained it could not award compensation for immigration fees because it had not received the required confirmation from his ex-partner that she consented to his claim.
21. The evidence we have seen indicates the WCS correctly followed the relevant WCS Rules when considering this aspect of Mr J’s claim. As such, we cannot see indications anything has gone wrong. We hope this information helps Mr J to understand this aspect of the WCS’ decision.
Issue 2 – impact on life 22. Mr J’s claim in the impact on life category said it was for impacts that occurred between 2007 and 2020. The evidence he submitted showed his ex-partner first experienced problems due to being unable to demonstrate her lawful status from January 2016.
23. The WCS Rule 2.6 says a close family member is eligible to claim in this category ‘only if the impact, loss or detriment in respect of which the compensation is claimed, occurred or was triggered when the close family member was lawfully in the United Kingdom.’
24. Mr J obtained lawful status in March 2022.
25. The WCS refused this aspect of Mr J’s claim because he did not meet that eligibility criteria. We can see the WCS correctly applied the WCS Rules because Mr J was not lawfully in the UK at the material time.
26. However, we carefully considered Mr J’s arguments why the WCS’s decision was unfair, and his circumstances meant the WCS should make an award outside of the WCS Rules. Mr J said he was a victim of trafficking and his ability to regularise his status was impacted by his ex-partner’s situation.
27. While the WCS told us it cannot go outside the WCS Rules, we recognise Mr J’s situation as a victim of human trafficking could have placed him in a position of unfairness regarding eligibility for WCS. We accept this could be an indication of maladministration – the WCS did not appear to be acting fairly and proportionately (in line with the Ombudsman’s Principles of Good Administration) – when taking decisions public bodies should behave reasonably and ensure the measures taken are proportionate to the objectives being pursued.
28. We accept receiving an incorrect decision, which the WCS has still not properly addressed is an indication that Mr J has suffered an injustice which remains unremedied. We then considered if further work by the WCS is likely to have resulted in a different outcome for Mr J. Based on the evidence we have seen we decided that Mr J’s arguments, if accepted, would not result in a positive outcome for him. This is because the evidence he provided to the WCS showed he did not meet the eligibility criteria for a close family member in WCS Rule 2.8.
29. WCS Rule 2.8 says:
‘a person is a close family member of a primary claimant if the person was at the material time… (b) the claimant’s partner (living with the claimant, unmarried and not in a civil partnership, as husband and wife or as civil partners, for a continuous period which lasted in total for 2 years or more)’
30. The WCS has added the following clarification to this Rule:
‘there may be circumstances where one party to the relationship was away from the family home at the material time, for reasons outside of their control. This could include, for example, where one party to the relationship is imprisoned, in hospital, or in a nursing home. Where this has occurred, you will need to be satisfied the relationship was durable, genuine, and subsisting, despite the enforced separation. There will usually be evidence of the spouses or unmarried partners residing at the same address in the past.’
31. The ‘material time’ in Mr J’s case is from January 2016 – when his partner began experiencing immigration difficulties. The evidence he submitted to the WCS only showed that he was in a relationship with his ex-partner and at the family home between 2010 and 2014. Mr J’s evidence showed he did not meet the close family member eligibility criteria.
32. During our investigation, Mr J told us that the relationship and co-habitation with his ex-partner recommenced in late 2015 and ended in April 2017. Mr J has not provided any evidence to us or to the WCS to corroborate this statement. Further, when responding to a separate aspect of Mr J’s claim (see below), WCS told Mr J it did not accept he was cohabiting with his ex-partner at the material time.
33. We hope this decision helps Mr J to understand why we cannot see a basis for us to undertake a detailed investigation on this aspect of his complaint.
Issue 3 – living costs 34. Mr J claimed for £2,500 of living costs paid to his ex-partner in 2017 and 2018.
35. Our investigation identified the wording of WCS Rule 2.6 on the eligibility criteria for close family members had changed in updated versions of the WCS Rules published in 2022 and 2023. The WCS had applied an incorrect version of Rule 2.6 when determining Mr J’s claim.
36. The WCS said the correct version of Rule 2.6 allowed claims in the living costs category even if the close family member was not lawfully in the UK at the material time. The WCS acknowledged it had not correctly considered Mr J’s claim in this category. This is an indication of maladministration. Therefore, WCS agreed to reconsider this aspect of his claim.
37. The WCS sent Mr J its reconsideration in December 2023. It decided Mr J was still not eligible for an award in this category because he did not meet the co-habitation requirement of WCS Rule 2.8 (see above). Mr J’s claim and supporting evidence had only demonstrated that he was in a relationship and living with his ex-partner between 2010 and 2014 and not at the material time in 2017 and 2018 when he made the living costs payments.
38. We can see the WCS’s reconsideration correctly applied the WCS Rule 2.8 to the facts of Mr J’s case, as the WCS knew them to be. As such, there are no indications the new decision is wrong or that Mr J suffered an injustice from the WCS’s initial wrongly made decision.
39. We hope our decision helps Mr J to see the WCS has now correctly considered his claim in living costs category.
40. Mr J’s complaint highlighted an issue that potentially impacts on other WCS claim. We are pleased that the WCS has agreed to look again at any decisions made using the incorrect version of Rule 2.6.
Issue 4 - discretionary 41. In April 2023, when asking the WCS for a Tier 1 review of its initial decision to refuse his claims in the above three categories, Mr J said ‘I wish to be considered for the discretionary award’. He added ‘I ask for a review with the desired result being that should you not be able to consider it because of the barrier of unlawful status then perhaps outside of the rules with a consideration for a discretionary award.’
42. Annex I of the WCS Rules says that a discretionary award can only be made if the loss is not of a kind covered by the other categories. Mr J’s claim was for losses covered by other categories. This means that the WCS were right to not make an award in this category.
43. Mr J has clearly faced difficulties over the last 25 years since arriving in the UK. We know he feels it is unfair to have not received any compensation from the WCS. We have considered his reasons for why his claim should be considered outside of the WCS Rules. We hope the information we have provided helps Mr J.