Home Office

4. Mr A complains about the Windrush Compensation Scheme. He specifically complains about WCS’ consideration of his claim under the Impact on Life and Discretionary categories. He says that WCS originally accepted that he was excluded from employment for 13 months, and when it reviewed his claim this was increased to 44 months and the compensation increased accordingly under the Loss of Access to Employment category. He complains the extended period of loss of employment had a greater impact to his life than WCS originally accepted and this has not been considered or reflected in its Impact on Life assessment which remained at level 4. He complains that being denied access to employment for 44 months negatively impacted his future career prospects which has not been factored into WCS’ decision to give no award under the Discretionary category. He says WCS are applying their rules and criteria in an overly narrow way which has led to an unfair result for him.

5. Mr A says WCS’ poor decision making from when he first made his claim has contributed to his feelings of hopelessness and he has a lack of trust in the WCS process.

6. As an outcome to his complaint Mr A wants WCS to reconsider his claim under the Impact on Life and Discretionary categories.

7. In 1978 Mr A was born in the United States of America. He came to the UK in 1984.

8. On 25 October 2019 Mr A applied for a no time limit (NTL) biometric residence permit. This was granted on 3 June 2020.

9. In June 2020 Mr A submitted his WCS claim where he claimed under the Loss of Access to Employment and Impact on Life categories. Under Loss of Access to Employment, Mr A explained that he did not have any issues with employment until 2014 when his employer did not extend his contract as he could not prove his right to work in the UK. He outlined a number of job opportunities he had lost between 2014 and 2019 due to him not having the required documents to prove his right to live and work in the UK and provided evidence to support this. Under the Impact on Life category, Mr A described how his life had been ‘turned upside-down’ due to not being able to work. He said having been in the UK since 1984 he considered himself to be British. Since losing his job in 2014 he found securing and sustaining work to be very difficult and it forced him into a cycle of living on benefits and poverty. He says this caused him distress, confusion, depression and anxiety. He said he felt the impact on his mental and physical health and also his personal relationships as the situation made him feel like he would not be able to provide a stable environment for a family. He also said his professional career had been negatively affected as his work history shows gaps in employment which compromised his reputation. He said his life prospects will not be what they could have been if he had not been rejected by employers who said he had no right to live or work in the UK.

10. WCS provided its decision in October 2021. It accepted on the balance of probabilities that Mr A was actively seeking work but was unable to progress applications as he was unable to demonstrate his right to work in the UK. It said the first time he was unable to progress an application was in June 2014. It said his period of loss was until December 2014. It calculated this as seven months (because part months are rounded up) but because it did not have evidence of a salary it offered a general award of £8,029. It calculated a further loss of six months between April and October 2015, though this was adjusted for part time working to four months. It did not have evidence of a salary and so offered a general award of £6,882. Overall this was a loss of access to employment of 13 months and the total offered to Mr A was £14,911. It said under the Impact on Life category that it acknowledged Mr A’s life was substantially affected for an extended period of time and his inability to demonstrate his right to work had a large impact on his mental health and wellbeing. It offered him a level 3 awarded of £40,000. The total offered was £54,911.

11. In July 2022 Mr A submitted a Tier 1 review request via his legal representative. Mr A provided more evidence to support his claim in the Loss of Access to Employment and Impact on Life categories. His representative also requested that an award under the Discretionary category be considered. Mr A’s representative provided a detailed timeline of events for his employment history together with supporting evidence and provided calculations for what they had determined he should be awarded. Mr A’s representative provided additional evidence for the Impact to Life category, they said Mr A had suffered irreversible consequences to his life because he was unable to prove his right to work between 2014 and 2020. They said that the number of repeated rejections of employment during this time had a devastating impact on him and this was corroborated in the evidence. They said his inability to find stable employment had a knock-on effect on his mental health and resulted in the breakdown of several relationships as he was not in a position financially, mentally or physically to start his own family. They said the damages to his professional, personal and all-round wellbeing was irreversible.

12. Mr A’s representative requested his claim also be considered under the Discretionary category. They reasoned the other categories do not consider future loss of earnings and so the only category this could be considered under was this one. They explained that Mr A had a promising career as a Graphic Designer and he was on an upward career trajectory, they said his past work counterparts were now Creative designers or higher and are earning six figure salaries. They said Mr A’s career trajectory was different to those counterparts as his career path was impacted by his inability to prove his status in the UK. They said the gaps in his employment during the period in question are seen as red flags to employers and though his lawful status was confirmed in June 2020, he has not been able to resurrect his Graphic Design career. Instead he was in a lower paid job and relying on Universal Credit support. Mr A’s representative provided research on the average salary for a number of roles within the Graphic Design industry and said that it would be reasonable to expect Mr A to earn a salary of at least £37,000-45,000k per year for the remainder of his 21 years in employment before standard retirement age. They said this would mean Mr A would earn between £770,000 and £945,000. They compared this to what he would earn in his current role where he is earning £14,000 a year, which would amount to £294,000 over the same period. His representative said the difference in his actual and potential earnings was between £476,000 - £651,000 and asked the Tier 1 review to consider an award for this amount, also saying Mr A was willing to accept a figure of £150,000.

13. WCS issued its Tier 1 decision in May 2023. Under Loss of Access to Employment, it outlined its consideration of each employer where Mr A provided evidence. It upheld its original decision to award £14,911. Under Impact on Life it said it had previously acknowledged that his ability to live a relatively normal life was substantially affected due to his inability to demonstrate his status. It accepted that he did not have sufficient documentation to prove his right to work between June 2014 and June 2020 and this caused disruption to his life. It also acknowledged that this impacted his physical and mental health, his personal relationships and his career prospects. It said he also received medical treatment. It said that based on the information it had decided to overturn its original decision and offered a level 4 award of £70,000. Under the Discretionary category, to be able to make an award under this category, the losses must not be of a kind excluded from consideration under the scheme rules. WCS said it accepts that Mr A’s earning potential may have been impacted because he was unable to demonstrate his lawful status but it was unable to compensate as the potential loss was of a speculative nature. The total amount awarded at the Tier 1 review was £84,911.

14. In August 2023 Mr A’s representative requested a Tier 2 review but also provided new information for consideration. The representative said the award offered so far for Loss of Access to Employment was very low. He said that Mr A was willing to accept general awards for loss of earnings where applicable and required. He also said he was willing to concede to jobs where information was not available to show the loss of employment was due to an inability to demonstrate lawful status. Under Impact on Life, Mr A’s representative reiterated the information already provided, Mr A also provided a further statement setting out how the loss of employment had affected him. Under the Discretionary category, Mr A’s representative reiterated the information provided at the Tier 1 review request.

15. In view of the new information provided, WCS decided to reconsider the claim at Tier 1 and provided a new decision in October 2023. In its decision WCS explained that it had reconsidered all the available evidence under the Loss of Access to Employment category and determined that between June 2014 and June 2020 Mr A had a period of 44 months where he was unable to obtain employment due to his inability to demonstrate his lawful status. It increased its offer to £77,115.95. Under the Impact on Life category it acknowledged he had experienced a severe detriment to his ability to live a normal life but there was insufficient information available which would result in changing its previous decision and so it upheld its decision of a level 4 award. It maintained its decision and reasoning under the Discretionary category. The total award offered in its reconsideration was £147,115.95.

16. In December 2023 Mr A requested a Tier 2 review. He said that he did not accept the Tier 1 review offer of compensation.

17. In March 2024, the Adjudicator’s Office (AO) issued its Tier 2 decision. It did not ask WCS to review its decision. Its letter says Mr A asked it to recommend WCS reconsider its decision on either Loss of Access to Employment or Impact on Life due to his earning potential being impacted due to the lengthy periods of time he was denied access to employment. The AO said the rules do not allow WCS to make an award for loss of earning potential or loss of chance and so it could not recommend a review of this category of claim. For Impact on Life the AO said it had looked at the process by which WCS had reached its decision and found it had taken account of the information and interpreted it in a reasonable manner. It also said WCS’ decision was consistent with the WCS rules and casework guidance.

20. 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.

Impact on Life

21. Mr A complains that although WCS changed its decision on the period of time he suffered loss of access to employment from 13 months to 44 months, this wasn’t reflected in its award under Impact on Life, which remained the same. He says that if 13 months inability to access employment amounted to a level 4 award under this category then a 44-month period means it has affected him more significantly. However, the award offered remained the same at level 4.

22. Annex H of the scheme rules sets out the criteria to be met to make an award under this category. It also sets out descriptors for each level of award. For level 4 it says:

‘Significant impacts to the extent that the claimant’s ability to live a relatively normal life was seriously compromised. Cumulative impacts will have been experienced for a prolonged period (months or years). The claimant’s life will have undergone change of some description, such as having regular medical treatment, care visits or other therapeutic intervention, with recovery taking a significant amount of time.’

23. For level 5 it says:

‘Profound impacts on the claimant’s life which are likely to be irreversible. This is expected to involve major physical or mental health impacts, where the claimant has been permanently affected or where recovery or return to a relatively normal life is likely to (or has taken) several years.’

24. We can see from the evidence that Mr A provided a significant amount of information to support his claim under the Impact on Life category. This included a detailed chronology of events between 2014 and 2020, including the significant number of jobs he had applied for in that time; witness statements from his family; a psychiatric report confirming he was suffering from a major depressive disorder and other medical evidence. He also provided a statement setting out how his life had been impacted. In this statement he said he became homeless, was unable to sustain meaningful relationships and felt disregarded and alienated. He said he would not now be able to pursue a true career as he had always wanted to, had missed out on a large six-figure salary and missed the opportunity to have a family and children. He said at the age of 45 (at the time of the tier 1 reconsideration) he felt his life had been completely ruined due to his inability to demonstrate his legal status during this period.

25. We can see from WCS’ second Tier 1 reconsideration in October 2023 that it set out all its previous considerations of this category, along with the evidence it considered. WCS considered the impacts outlined by Mr A against levels 3, 4 and 5. It discounted level 3 as insufficient because Mr A had been impacted in several areas of his life for a prolonged period of time and this had affected his mental health. In its consideration against the Level 5 descriptor, WCS said this was also not applicable as although Mr A felt he would be unable to return to a normal life there was no reason why he could not return to work as a Graphic Designer and still had many years of potential employment and the ability to marry and have children. It therefore upheld its previous decision to award level 4 in this category.

26. The caseworker guidance says ‘You should take account of all relevant circumstances and available information and evidence and pay particular regards to the severity and duration of detrimental impacts, adopting a ‘balance of probabilities’ approach.’

27. We understand Mr A’s view that WCS accepted he lost access to employment for a significantly longer time than it originally calculated and as such it stands to reason that this also had a greater impact on his life.

28. We have looked at WCS’ consideration of the evidence against the descriptors for both level 4 and 5 awards together with the scheme’s caseworker guidance. We can see that it has fully considered all the evidence Mr A and his representative provided and set out why it does not meet levels 3 and 5 and why it considers level 4 to be more appropriate. We can see that it has taken into consideration the extended period of time Mr A was unable secure employment. The descriptor for level 5 says the impacts to the claimant’s life are likely to be irreversible which WCS does not agree is the case for Mr A.

29. We have seen no indication that WCS has not considered all the available evidence in line with the scheme rules and its caseworker guidance. It has provided a reasonable rationale for why it does not consider the impact to Mr A meets the level 5 descriptor and has explained its reasoning in its decision. We are satisfied that WCS has acted in line with our Principles of Good Administration which says ‘In their decision making, public bodies should have regard to the relevant legislation. Decision making should take account of all relevant considerations, ignore irrelevant ones and balance the evidence appropriately’.

Discretionary

30. Mr A says that being denied access to employment for 44 months negatively impacted his future career prospects. Due to the gaps in his employment history, he has not been able to gain employment in the Graphic Design industry and is instead working in a supermarket on minimum wage. Mr A says this ‘loss of chance’ has not been factored into WCS’ decision to make no award under this category.

31. Annex I of the scheme rules sets out when an award can be considered under the Discretionary category. It covers losses of a financial nature which are not already covered by the other categories of claim set out in the rules. The scheme rules say:

‘3.16 An award under the scheme, including an award under Annex I, will not be made in respect of:…

(h) loss of opportunity to invest money for the purpose of profit or income generation, or other potential losses which are of an essentially speculative nature’

32. In its consideration of the category, WCS said that as per 3.16 (h) of the rules it is unable to offer an award for potential losses which are of a speculative nature. It acknowledged that Mr A lost out on employment as he was unable to demonstrate his lawful status, but it said there was no guarantee he would have progressed into senior roles. It also said he may gain employment and progress his career in the graphic design industry at a later date. At the tier 1 reconsideration, it said that no further information had been provided which would show a financial loss which could be compensated under this category nor had the scheme rules changed to allow loss of future earnings to be considered.

33. We have considered WCS’ consideration against the scheme rules and cannot see that it has done anything wrong. It considered everything Mr A and his representative said and reached a reasonable decision in line with the scheme rules. It is also our view that the impact Mr A outlined under this category was considered under the Impact on Life category where WCS concluded the impact to him was not irreversible and so it did not increase the level of the award offered. We have already explained above that its decision in that category is reasonable and so there is nothing further we can add to this.

1. We have carefully considered Mr A’s complaint about the Home Office’s Windrush Compensation Scheme. We have seen no indication that anything went wrong.

2. We have not seen any indications that WCS’s decision is incorrect or that it has not thoroughly considered all the information Mr A has provided. We also cannot say it has applied the rules in an overly narrow way. It considered everything Mr A said against the scheme rules when reaching its decision.

3. We appreciate that this complaint is extremely important to Mr A and we will explain our decision in more detail below. We hope our explanation provides him with reassurance about how carefully we have considered his complaint.