Issue 1 - The Home Office made the wrong decision on her close family member claim for compensation under the WCS ‘Impact to Life’ and ‘Discretionary’ categories. This is because it did not accept evidence of the problems her mother experienced when the British Embassy did not acknowledge her mother’s indefinite leave to remain status, between 1988 and 1989.
Ms S says she didn’t understand the justification behind the outcome decisions
28. 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 the Home Office made a mistake when considering Ms S’s claim.
29. The issue at the heart of Ms S’s case is that the Home Office WCS decided her mother, Mrs D, was unable to return to the UK in 1978 (at a time when Mrs D still held lawful status to live in the UK) because of financial difficulties, and that the difficult experiences Ms S described of living in a west African country were not an impact of Ms D being unable to demonstrate her lawful status to live in the UK. Ms S disagrees and says Mrs D was unable to return to the UK because the British Embassy in a west African country refused to accept Mrs D held evidence of lawful status and did not give Mrs D correct advice about her status.
30. Ms S says: • the Home Office ignored her own and Mrs D’s evidence, personal testimony and accounts of events in 1978, 1982, and 1983 and did not explain how this evidence was weighed • Where the Home Office says: ‘there are no apparent records of your mother applying for clearance… or encountering difficulties demonstrating her status’ it has unfairly over relied on the absence of records despite the Home Office acknowledging the historic destruction of records • she should not have to prove beyond doubt that her experiences were directly caused by her mother’s inability to prove her lawful status. Instead, the decision should be based on the balance of probabilities • she challenges the Home Office’s statement that the difficulties she described regarding her relationship with her sister were unrelated to her mother’s lawful status in the UK. She says this dismisses family harm, and the scheme allows for family breakdown awards if on balance these are linked to an inability to prove status.
Relevant Guidance
31. The WCS rules say an award for the: • impact of life category can be made to a close family member if they ‘experienced detrimental impacts as a direct consequence of being adversely affected by the primary claimant’s inability to demonstrate lawful status’.
• discretionary category can be made to a close family member if they ‘experienced significant impacts, loss or detriment of a financial nature as a result of being adversely affected by the primary claimant’s inability to establish their lawful status’. This also says no award shall be made ‘unless where, on the basis of the evidence provided, the Home Office is satisfied on the balance of probabilities’ that ‘the losses or impacts arose solely as a direct consequence of the inability to demonstrate their lawful status’.
32. WCS’s Caseworker Guidance on Standard of proof says: ‘We want claimants to receive the maximum compensation to which they are entitled under the scheme. However, providing detailed documentary evidence to support every aspect of a claim for compensation can be challenging for claimants. The scheme operates on the balance of probabilities. This means you can award compensation if you are satisfied it is more likely than not that what has been claimed for occurred, that is, you are more than 50% sure’.
33. WCS’s Caseworker Guidance on Balance of Probabilities says, ‘You should take a holistic view of the claim and ensure that you use all the information and evidence available to you, including circumstantial information’.
34. WCS’s caseworker guidance on Impact of life recognises family separation as a form of detrimental impact that may be considered for an award, where it occurred as a direct consequence of the primary claimant being adversely affected by their inability to demonstrate lawful status.
Analysis
35. We recognise Mrs D and Ms S desperately wanted to return to the UK in 1978 and being unable to do so was very distressing for them.
36. The Home Office considered Mrs D was unable to travel in 1978 due to lack of finances rather than difficulties with her lawful status. This decision was based on evidence Mrs D sent it in relation to her own WCS claim.
37. We think it was reasonable the Home Office reached this decision based on the information Mrs D provided.
38. Mrs D’s ILR lapsed in the autumn of 1979 due to the ‘two-year rule’. As per the Immigration Act 1971, a person with ILR has lawful status to be in the UK and move freely in and out of the country. However, the Commonwealth Immigrants Act 1962 gave the Home Office power to refuse admission to Commonwealth citizens who had been absent from the UK for two years. The effect of this is that people with ILR will lose their ILR if they are continuously absent from the UK for more than two years.
39. Therefore, any difficulties Mrs D experienced in returning to UK after this time were not due to her not being able to demonstrate lawful status – because after the autumn of 1979 Mrs D no longer held ILR.
40. We are saddened to hear about the extremely difficult circumstances Ms S experienced while living in a west African country, and the distress she experienced when separated from her family members. Because the evidence suggested Mrs D was unable to travel in 1978 due to lack of finances, this means the Home Office could not link the impact Ms S told them about with her mother being unable to prove her lawful status in the United Kingdom.
41. Ms S says she didn’t understand the justification behind the outcome decisions.
42. PHSO’s complaint standards Being open and accountable | Parliamentary and Health Service Ombudsman (PHSO) says public bodies should give clear, evidence-based explanations, and reasons for their decisions.
43. UK General Data Protection Regulation (UK GDPR) sets out that anyone responsible for using personal data must make sure the information is used in a way that is adequate, relevant and limited to only what is necessary.
44. The Home Office included a minimum level of detail to set out its decision. We acknowledge the Home Office’s response did not explain to Ms S what information it used, or weighed up, to reach its decision that Mrs D was unable to return to the UK, due to a lack of funds.
45. We recognise it is possible Ms S has not seen the evidence Mrs D included in her claim which was central to the Home Office’s decision on Ms S’s Close Family Claim.
46. The Home Office told us it cannot disclose details given by the Primary claimant in its consideration or decision as these are confidential and this was its policy at the time of the decision.
47. By only stating it considered Mrs D was unable to return to the UK, due to a lack of funds, and not including any further detail we consider the Home Office acted in line with UK GDPR by only referring to what was necessary and adequate for it to explain its decision.
48. While we accept the Home Office did not explain to Ms S what information it used to reach its decision, we cannot say the decision was unreasonable or incorrectly made. We have seen no indications the Home Office made a mistake when considering the evidence Ms S, or Mrs D provided. This means there is no basis for us to ask WCS to reconsider Ms S’s claim.
Issue 2 – The Home Office refused to consider the difficulties Ms S had proving her lawful status as part of her close family member claim
49. 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 the Home Office did anything wrong when it did not look at Ms S’s difficulties proving her lawful status as part of her Close Family Member WCS claim.
50. Ms S questioned why the Home Office could not consider the difficulties she experienced when trying to return to the UK as an adult, under her close family member claim. She considers this was linked to the same root cause.
51. Ms S referred to guidance which she believes allows the same events to be considered under multiple claim types where relevant. She says if there is an overlap between categories: ‘a loss or impact may be considered under more than one category where applicable’. However, we have not identified this wording in the published WCS rules or caseworker guidance.
52. Any events relating to Ms S’s attempts to return to the UK as an adult cannot be linked to the events of Mrs D attempting to return to the UK in 1979, or of Mrs D’s inability to prove her lawful status. Ms S was born in the UK and had lawful status by birth.
53. The Home Office was correct to tell Ms S that these issues were relevant to her primary claim and had not been considered within the Close Family Member Claim.
Issue 3 - Ms S says the Tier 1 Decision statement in relation to her close family member claim merely repeated the original decision without providing any further explanation.
54. Ms S says by merely repeating the original decision, the Home Office was not working in line with PHSO’s principle that public bodies should explain the reasons for their decisions, addressing all relevant evidence.
55. Our UK Central Government Complaint standards say public bodies should be thorough and fair in their responses. This includes demonstrating a clear understanding of what the main issues are for the service user and responding to emerging information where appropriate. They take everyone’s comments into account.
56. The Home Office’s decision letter sets out how claimants can ask for a tier 1 review. This says: ‘You should explain your reasons for requesting a review and submit any supporting evidence on the enclosed claim form’.
57. When Ms S requested a tier 1 review, she said she didn’t agree with the decision because her mother’s immigration status was not acknowledged.
58. We have not found any indications that something has gone wrong because Ms S did not provide any new or different information within the review request, than what she had included in her original claim form – which the Home Office had already responded to. Because Ms S had not set out reasons or evidence explaining why she thought the Home Office’s decision was wrong, there was no new emerging information or comments for the Home Office to consider, and therefore the Home Office had no further explanations to offer. The Home Office acted in line with our UK Central Government Complaint standards.
Issue 4 - The Windrush Compensation Scheme’s process was confusing
59. 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.
60. Ms S says she didn’t understand the process: • there was no explanation about what type of claim she should make or what kind of information she should provide when applying and there was no one available to speak to or ask • when the Home Office wrote to her to say she was able to make a primary claim, it said that doesn’t guarantee compensation. She also understood from the Home Office’s letters she was eligible for a preliminary payment. She didn’t understand this process or what this meant.
• she didn’t understand why her primary claim was initially rejected, but then the criteria changed and she was able to make a claim
61. I have set out the consideration for each of these points below.
Ms S says: • there was no explanation about what type of claim she should make or what kind of information she should provide and there was no one available to speak to or ask.
• when the Home Office wrote to her to say she was able to make a primary claim, it said that doesn’t guarantee compensation. She also understood from the Home Office’s letters she was eligible for a preliminary payment. She didn’t understand this process or what this meant.
62. We have not found any indications that something has gone wrong because we consider the Home Office’s communication was in line with our Principles of Good Administration which say public bodies should provide services that are easily accessible. Policies and procedures should be clear and there must be accurate, complete and understandable information about the service.
63. We recognise the nature of the information needed to understand and submit a claim is complex. In Ms S’s case there is additional complexity involved as she has applied to the WCS as both a close family member and primary claimant. Both processes involve a number of steps and stages. We can see why this was a complex process and why this created confusion. However, this was due to the nature of the claim, and the stages that needed to be considered and not because anything went wrong with the process.
64. The Windrush Compensation Scheme Full Rules and Caseworker guidance are publicly available online and set out how claimants should make claims, what can be claimed for under each category, how claims are assessed and awarded, and the conditions which must be met for an award to be met. The Windrush Compensation Scheme Casework guidance suggests documents and types of evidence which can be used, although the guidance says this is not exhaustive or prescriptive.
65. The Windrush Compensation Scheme claim form sets out the different categories under which people can claim compensation. Each of these includes a brief introduction asking for details. For example, the Impact on Life category asks to ‘provide details of the non-financial impact you experienced on your daily life for which you are claiming, the dates or times you were affected and set out or attach the evidence you are using to support your claim. The claim form says claimants ‘will need to be able to prove that any impact or loss they suffered was a direct result of being unable to demonstrate their lawful right to stay in the United Kingdom’.
66. Ms S says she also didn’t understand why she wasn’t guaranteed compensation or a preliminary payment if she was eligible for these.
67. Eligibility refers to people who may claim compensation under the WCS scheme. Entitlement refers to whether a claimant is entitled to an award. Eligibility does not necessarily mean someone will be entitled to compensation. The WCS Full Rules set out how it determines both a claimant’s eligibility and entitlement.
68. We have seen the Home Office set out the processes it was following, and each stage it was considering at each time, when it wrote to Ms S. If Ms S wanted more information, this was publicly available online within the WCS Full Rules.
69. The Windrush Compensation Scheme Claim Form, and letters the Home Office sent Ms S, include a link to the Windrush Helpline. This is a telephone helpline set up to help people applying to the Windrush Compensation Scheme and is free to call within the UK. Information about the Windrush Helpline services is publicly available online.
70. We consider the Home Office has made sure its guidance on applying for the WCS is publicly available. We cannot say there was no one available to speak to because support was available via the helpline. Ms S told us she thinks she did use the helpline but it didn't give her the level of support she needed. We do not have any further details about what support was requested or given. We have not seen the Home Office acted contrary to our Principles of Good Administration.
Ms S says the first time she made a claim as a primary claimant she was rejected, but then it later said the criteria had changed and she now was able to make a claim. She didn’t understand why
71. Our Principles of Good Administration ‘Getting it right’ says public bodies should comply with the law and have regard for the rights of those concerned. This includes being alert to the possibility that changes in approach may be needed and introducing any changes fairly.
72. In June 2021 the Home Office initially rejected Ms S’s primary claimant claim. It explained she was not eligible because she had not been continuously resident in the United Kingdom.
73. When Ms S made her WCS primary claim in 2021, The Home Office understood the WCS Full Rules as meaning it could only accept claims from a child of a Commonwealth citizen where the child was born in the United Kingdom and has been continuously resident in the United Kingdom since their birth.
74. In October 2023 the Home Office changed its interpretation of these rules and expanded the ways in which people could qualify for the Windrush Compensation Scheme. It changed its way of working and no longer required children of Commonwealth citizens, who are British citizens, to have lived in the UK continuously.
75. In November 2023 the Home Office wrote to Ms S (along with other claimants affected by these changes) explaining the changes it had made to its way of working and said that she now qualified to be considered for compensation.
76. We have not found any indications that something has gone wrong because we have seen the Home Office provided an apology and information to explain why Ms S was now able to make a claim. It explained it had made changes to its way or working. By doing this it was remedying its earlier decision that Ms S was not eligible. It also apologised for any distress caused by its original decision. In doing this, we consider the Home Office acted in line with our Principles of Good Administration to fairly introduce changes and ensure Ms S did not miss out on her right to apply for the WCS.
Issue 5 - The Home Office asked for an unreasonable amount of information
77. 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 when the Home Office asked Ms S for information.
78. Ms S complains the Home Office kept asking for further information and the process was repetitive as she had to repeat the same information again at tier 1 and tier 2 stages of her close family member claim.
79. The WCS’s Full Rules say:
• it will need to see supporting evidence to enable it to determine a claim • the claimant should provide further information or evidence as reasonably required
80. WCS’s Caseworker Guidance on evidence says:
• We want claimants to receive the maximum compensation to which they are entitled under the scheme. However, providing detailed documentary evidence to support every aspect of a claim for compensation can be challenging for claimants.
• The scheme operates on the balance of probabilities. This means you can award compensation if you are satisfied it is more likely than not that what has been claimed for occurred, that is, you are more than 50% sure.
• the caseworker should write to a claimant where they have not provided the minimum amount of information required and outline what information is required.
81. We have seen the Home Office asked Ms S for information in addition to what she provided within her claim application on the following occasions:
• it asked Ms S to provide a copy of documentation proving her identity, address and continuous residence in the UK in February 2021, in support of her Primary Claim • it asked for further information about her circumstances in April 2021 and November 2021 in support of her Primary Claim • it used standard wording in its letters to give Ms S further opportunities to provide evidence in support of her claim • in June 2021 the Home Office wrote to Ms S explaining she did not qualify to be considered for compensation under the WCS primary claim and advised her to consider making a close family member claim, to give her a further opportunity for a claim to be considered • in September and October 2022 it told Ms S it had introduced a new ‘Living Costs’ category for Close Family Member claims and give her the opportunity to provide further information and submit a claim.
• It gave Ms S opportunities to request a tier 1 and tier 2 review and give her an opportunity to provide further information or evidence to support her review requests.
82. We consider the Home Office needed this information to complete its consideration and to give Ms S the best opportunity to put evidence forward in support of her claim. As Ms S said she disagreed with the Home Office’s decision and consideration, if she wanted to challenge this decision she was required to set out why she considered their decisions to be wrong and provide any new or different evidence to support this.
83. We have not seen indications the Home Office asked for an unreasonable amount of information. It asked for the necessary information it needed, as it could not make a decision on her claim without this. By providing these opportunities it also gave Ms S the best opportunity to present her claim. We consider the Home Office acted in line with WCS Full Rules and caseworker guidance that the claimant should provide further information or evidence as reasonably required.
84. We acknowledge Ms S found the process extremely difficult due to reliving the past trauma she experienced, and we are sorry to hear this had an impact on her mental well-being.
85. We have seen evidence the Home Office took this into account. We have seen the case notes say: ‘unless it was absolutely necessary to make a decision, I would not call Ms S again in relation to her claim’.
86. We thank Ms S for all the information she gave us to help us complete this primary investigation. We recognise Ms S is likely to be disappointed with our decision to not look at her complaint further. We hope Ms S understands the reasons for our decision to close the case at the primary investigation stage and has found our explanations helpful