Issue 1 – Ms L says WCS have not considered her claim fairly. In particular, she says WCS final compensation offer ignored evidence she presented.
15. Ms L has said she presented evidence to WCS that demonstrated several invitations to start new employment. She said she was unable to prove her right to work in the UK due to the time that has passed and documentation no longer being available.
16. She also says the WCS acknowledged over time businesses and companies may not be able to keep records due to data protection and says the whole nature of the investigations heavily relies on company records.
17. Ms L has said inland revenue information has been ignored.
18. 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.
19. While the WCS originally offered no compensation to Ms L, following the Adjudicator Office’s report and recommendations, WCS agreed to make an offer of £25,344. This was based on the following:
Loss of Access to Employment
• Proposed award £5,344.00 - period of loss starts on the date the employment offer was withdrawn on 13 August 2018. The period of loss ends three months from the date Ms L received a document confirming her lawful status.
• She was granted indefinite leave to remain in the UK on 28 August 2018. Therefore, her period of loss is 13 August 2018 to 28 November 2018. Part months were rounded up, so her total period of loss is four months.
• WCS had said it had conducted enquires with various of the potential employers Ms L had stated in her claim. However, it has said, following its enquiries there was insufficient information to demonstrate the set criteria was met to evidence Ms L’s efforts to secure employment with the various employers, due to lack of evidence demonstrating she applied for the roles.
• WCS was satisfied on the balance of probabilities that Ms L had an offer of employment withdrawn on 13 August 2018 because she had evidence of a work offer being withdrawn because she was unable to demonstrate her lawful status for right to work purposes.
• WCS awarded compensation for the period Ms L was unable to access employment. The period of loss started on the date the offer of employment was withdrawn.
Impact on Life
• Proposed award £20,000.00 - Ms L had an accepted offer of employment rescinded on 13 August 2018 because she was unable to demonstrate her lawful status for right to work purposes.
• It had been concluded reasonable to consider she may have experienced detrimental impacts as a direct consequence of being unable to demonstrate her lawful status for right to work purposes from 13 August 2018 until indefinite leave to remain was granted on 28 August 2018.
• It has also been concluded reasonable to consider she experienced a moderately severe impact on some aspects of her life over an extended period.
• Based on the information available, it had been decided to overturn the original decision for this category and it offered her a Level 2 award that attracts the set tariff of £20,000.00 under the Impact on Life category.
• WCS had said it concluded, on the balance of probabilities, Ms L experienced detrimental impacts because of being unable to demonstrate her lawful status in the UK. As such, it found she experienced a moderately severe impact on some aspects of her life over an extended period and made the offer of £20,000.
20. WCS should have considered Ms L’s claim in line with the scheme rules and guidance. They should have taken everything relevant into account in line with our Principles of Good Administration. We will look at the various categories of Ms L’s claim in turn to come to a decision about whether they did this, or if there are indications their decision was wrong or unfair.
21. Again, Ms L has said evidence she needed to support her compensation claim were no longer available due to data retention polices and the amount of time that has passed since the issues occurred.
22. The rules on loss of access to employment claims are set out in Annex D of the scheme rules. These say a general award can be awarded where the claimant:
• was in employment, which was terminated, but is unable to demonstrate what their earnings had been, or • was not in employment and had accepted an offer of employment which was rescinded and is unable to demonstrate what their earnings had been, or • was unable to access employment and had been in regular employment in the previous two years but is unable to demonstrate their earnings over that period; or • had not been in regular employment in the previous two years but can demonstrate they were actively seeking employment and were unable to progress applications for employment.
23. When considering Ms L’s claim for loss of employment, we can see WCS did make enquires with companies Ms L says she was unable to undertake employment with. However, there was insufficient evidence to demonstrate the criteria of the WCS rules stated above.
24. It appears WCS’s decision on loss of access to employment was in line with its rules and guidance. The decision-maker considered the rules and decided on the balance of probabilities. They followed up on the information Ms L had given them and took into account what he told them. The WCS considered there was not enough evidence available to say Ms L’s issues were a result of an inability to demonstrate her lawful status.
25. In relation to the impact of Ms L’s life, it is clear WCS has considered the detrimental impact of her not being able to demonstrate lawful status in the UK and awarded a financial figure in line with level two of its compensation scheme. Level 2 of the impact to life tariff states the following:
‘A Moderately severe impact on some aspects of the claimant’s life over an extended period of time (weeks or months) or where multiple cumulative impacts were suffered for a relatively short period of time. Claimant may have been unable to engage in activities with which they were previously familiar, although should still have been able to live a relatively normal life for much of the time. There may have been an inability to attend one or more significant family events; or there may have been family separation’.
26. We have seen nothing to suggest WCS has failed to consider any of the evidence Ms L has provided and we are satisfied it has acted in line the rule of the compensation scheme and our principles of good administration – getting it right.
‘Public bodies should …follow their own policy and procedural guidance. …Decision making should take account of all relevant considerations …and balance the evidence appropriately’.
27. We appreciate Ms L is concerned WCS have not considered the evidence she provided properly. Our review of their consideration of her claim suggests they did take everything relevant into account when making their decisions on his claim. She also raised concerns about the difficulties of providing evidence from many years ago. This is an understandable concern and one the scheme has acknowledged. In their consideration of her claim WCS did make balance of probabilities decisions, as the rules require.
Issue 2 – Ms L is unhappy with the length of time it took to administer her claim and the ‘lack’ of transparency
28. Ms L complained about unreasonable delays in dealing with her WCS claim. She said it took over two years for her claim to be considered (June 2019 – March 2021).
29. She says she made several calls to check the progress of the claim but was just told the case was being looked at.
30. The AO report (dated 30 November 2021) has explained the guidance says Home Office should aim to fully investigate and respond to all the issues raised in a complaint.
31. The report went into detail about what had happened during the period in question and has set this out chronologically. It concluded there were no unreasonable delays in the Home Office’s handling and progressing the claim.
32. It explained in December 2020 Ms L complained about ‘unreasonable delays’ in dealing with her claim. On 15 December 2020, WCS explained it had asked Ms L’s previous employers for information, but they had not responded.
33. WCS later explained information was still outstanding on 14 January 2021. It also set out a timeline of the handing of Ms L’s claim, acknowledging the frustration she was experiencing.
34. The AO explained that to uphold the complaint it needed to see evidence that there were significant periods of time where the Home Office did not actively progress Ms L’s claim. It explained that taking all the evidence into account it concluded there were no unreasonable delays in progressing the claim.
35. Following the report on 30 November 2021, AO asked the WCS to reconsider its initial decision, which it agreed to (in respect to loss of access to employment and impact to life). WCS made its final decision on 23 January 2023.
36. When reconsidering AO’s recommendations, we have seen evidence the WCS attempted to conduct enquires with various companies Ms L says her employment prospects were affected by due to issues with her immigration status.
37. From the information we have seen it does appear there was a delay in progressing Ms L’s claim. However, we can see Ms L was provided with reasons for this. The Home Office did explain several times to Ms L that it was trying to access information from previous employers, which was taking some time to obtain. We can also see Ms L was still providing information on the case throughout 2020, which the Home Office needed to consider too.
38. Although, we fully appreciate the frustration Ms L experienced whist waiting for the claim to be progressed, like the AO, we are satisfied the evidence shows WCS were actively trying to progress the claim and updated Ms L throughout this time. Therefore we have seen no indication of maladminstration in respect to this issue. This is in line with our principles of good administration – Being open and accountable.
‘Public administration should be transparent, and information should be handled as openly as the law allows. Public bodies should give people information and, if appropriate, advice that is clear, accurate, complete, relevant and timely’.
Issue 3 - Support for vulnerable people
39. Ms L says she felt let down by the vulnerable persons team as she did not hear from them for over a year and describing the overall support as unsatisfactory. She believes they should have given her more support throughout the process due to the lack of transparency and misleading information it provided.
40. Once again, the AO report addresses this issue and did not uphold this element of the complaint.
41. In the report it stated, the Home Office said Ms L was referred to the Windrush Vulnerable Persons Team on 21 February 2019 via the Windrush Help Team.
42. The AO explained it was unable to comment on the level of support that the Vulnerable Persons Team should provide for those who have made a WCS claim.
43. Firstly, it is important to understand the role of the Vulnerable Persons Team. It was established in May 2018 to provide help and advice to individuals where safeguarding and vulnerability issues were identified, as outlines on the government website (see evidence relied on).
44. The Vulnerable Persons Team works with central and local government departments, the NHS, police, local authority housing providers, social services and mental health teams to find practical solutions to vulnerability issues. The team may also directly contact vulnerable individuals’ employers, landlords, utility providers, banks, creditors and bailiffs to resolve issues wherever possible.
45. Ms L has said in her complaint to us that she felt abandoned throughout her compensation claim without the support she needed.
46. We appreciate Ms L says the service she received fell below the standard she would have liked. Having carefully considered the evidence we have seen nothing to suggest the support provided by the Vulnerable Persons Team constitutes maladminstration. This is because it appears the Vulnerable Persons Team is not set up to help individuals with their Windrush claims, but rather wider issues that may be affecting them i.e. accessing benefits or housing. Ms L has not raised any specific points in relation to this.
47. Furthermore, it is also worth noting that Ms L submitted her WCS claim and followed the correct process in doing so. Therefore, we would not expect anything further from the Vulnerable Person’s team in this instance and are satisfied these actions are in line with our principles of being customer focused.
‘Public bodies should behave helpfully, dealing with people promptly, within reasonable timescales and within any published time limits. They should tell people if things take longer than the public body has stated, or than people can reasonably expect them to take’
Issue 4 - Information regarding the final compensation offer
48. Ms L has told us that the WCS misled her into believing she had to accept the final compensation offer to ‘end the process’ and progress the case to our office.
49. She said WCS told her that once you were in the WCS process you could not leave it unless you ‘quit’ no matter how unhappy you remained. As such, she says she accepted the compensation offer even though she was unhappy with it.
50. The Home Office have not responded to this specific point. However, I have seen no evidence to suggest the Home Office misled Ms L into accepting the final compensation offer.
51. In its final response letter, it has stated the review (following the AO report) ends its involvement in the case and signposted Ms L to her MP to refer the matter to our office if she wished to escalate it further.
52. There is insufficient evidence to support Ms L’s claim that she was misled to accept the WCS compensation offer. We note also that she was able to progress matters to our office. As such, we cannot say there are any indications of maladminstration in respect to this issue.
53. We understand this decision is likely to be disappointing for Mr L, particularly given the serious impacts included in her claim to the scheme. We hope the explanations outlined in the report is helpful and we wish her all the best moving forward.