Readers of my blog will be familiar with the scandalous story of the billions owed to 50s born women who both suffered maladministration and direct discrimination over the raising of the pension age from 60 to 66.
But what has emerged over the past year appears to show that this is part of a pattern where pensioners and disabled people are frankly swindled out of their money by the incompetence, maladministration and meanness of top management and politicians who run the Department for Work and Pensions.
Far from the 50swomen being an isolated case where mistakes were made those at the top of the DWP administration appear to have a playbook to deprive people of their rightful pensions and benefits, especially if they happen to be women. Nearly all the cases hit women much worse than men and as I have highlighted before – men have had privileges denied to women – such as the long running auto enrolment scheme that allowed men to have their national insurance contributions paid by the state from 60 to 65 while denying women any such privileges.
One of the worse cases which saved the state billions was a decision not to pay out extra pensions to people whose firms had contracted them out of Serps – an old style second pension- so they lost out of a Guaranteed Minimum Pension still payable in the public sector. A lot will have been women
The blog I wrote on this – despite being fiendishly complicated to explain- attracted over 15,000 hits – yet only two people got any compensation as the DWP made it difficult to claim.
Time to sign this petition
Christopher Thompson, a retired expert on this, has put up a petition to Parliament to protest about this and restore the indexation, but sadly only 311 people have signed. If everybody who read the blog signed it it would force the government to have to explain to Parliament why they did it. So please sign if you can.
Then there was the case of 237,000 pensioners – again a lot of them women – cheated out of £1.46 billion from their pensions – by miscalculations by the ministry raised by former pensions minister, Sir Steve Webb. The department is slowly trying reimburse them – some have decades of extra pension owed -but it will take at least to 2024 before it is completed.
Now Sir Steve has found another scandal which only affects women who should have received credits for looking after children from the late 70s. He has launched a campaign Mothers Missing Millionsto try and get women’s pensions raised to make up the money – in one case a women was not credited with 14 years contributions.
And you have to add the scandal of the 118,000 disabled people put on a lower rather than benefit rate where the ministry has declined to compensate them – only giving money to the one person who complained to the Parliamentary Ombudsman. Even the Ombudsman has been silenced by the ministry who refuse to budge on this issue -leaving him appealling to MPs for help.
Time for an inquiry into the running of the DWP
What I am saying here is if you put all these cases together it is quite clear there is a pattern of underpayment and maladministration where the department do their best to avoid doing anything about it. It is without doubt discriminatory against women and suggests that ministers don’t want to pay them.
It is time women pressed all MPs to take up these issues. There is a strong case for an inquiry into the running of the DWP – there are too many cases for this to be just a coincidence.
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FreshUpdate: MPs on the Commons Public Administration and Constitutional Affairs Committee have taken up this story by writing to Rob Behrens asking for an explanation of the proposed remedy that has been sent to six complainants. Read the letter in fullhere.
The letter from Tory MP William Wragg, the chair, reads: ” We have received reports that women affected by the changes are expected to receive minimal, if any, financial compensation…
“I would therefore be grateful if you could clarify:
whether any decisions around financial remedies have been taken or communicated to thoseaffected;
whether there have been any changes in the expected timeline for the final report; and
whether there have been any changes in who will be eligible for compensation.”
In what must be the biggest betrayal of complainants since the Ombudsman was set up by Harold Wilson in 1967 Rob Behrens has put out proposals to deprive the vast majority of 1950s born women from any compensation for the maladministration suffered by being not personally informed about the rise in the pension age from 60 to 66.
The six people who complained will get £1000 each and another 600 who complained to the Ombudsman could get the money if the Department for Work and Pensions deign to pay them which on its present record seems unlikely. For the rest there is nothing.
This proposal is a far cry from the promise made by Angela Madden, the leading figure from Waspi, who told a fringe meeting at the Labour Party conference in September that payments of £10,000 to £20,000 each were a possibility for women who had missed out. See here. She has continually urged people to rely on the Ombudsman to sort this out – though recently has suggested a direct approach to the DWP to get a fair settlement because of the numbers of women dying.
A big emphasis has been highlighted by Waspi on making sensible demands and not going for full restitution – now on the basis of direct discrimination- as pushed by Backto60 and now by former judge Jocelynne Scutt, in her report.
Well this is the provisional settlement Waspi has got and it has not been worth the wait. Confidential proposals, seen by these blog, reveal this betrayal. It reads:
The Ombudsman’s proposed remedy -guaranteed £1000 offer to six people
“Our provisional view about remedy is that DWP should:
• publicly acknowledge maladministration in its communication about changes to State Pension age resulting from the 1995 Pensions Act and maladministration in its complaint handling
• publicly apologise for the impact that maladministration has had on the sample complainants and others similarly affected
* pay each sample complainant £1000 compensation for the injustice they have suffered
• establish and fund a compensation scheme to provide equivalent compensation [ie £1000] to anyone else who has suffered the same injustice as the sample complaints because of maladministration in its communication about State Pension age and its complaint handling
• provide an adequate and proportionate financial remedy to anyone who can evidence they suffered financial loss because they lost opportunities to make different decisions due to maladministration in DWP’s communication about State Pension age
• provide an adequate and proportionate financial remedy to anyone who can evidence they lost opportunities to add qualifying years to their National Insurance record because of DWP’s maladministration in not adequately using research and feedback about people’s understanding of the new State Pension to improve its service and performance.”
Now there are a barrel load of problems in this settlement. There also appears to be some level of deceit over recent pronouncements by the PHSO to Parliament and Waspi to the Daily Express and the Independent. First the proposed settlement. To get even this measly £1000 some 3.6 million 50s women have to both prove they didn’t get a letter and prove they lost opportunities to take different decision or lost out to pay in expensive sums to the DWP to build up their pension. Many of these women who were on the breadline would not have had the thousands of pounds of cash to do this.
Secondly very simply how do you prove you didn’t get a letter? The DWP has said it has no records and DWP’s so called Independent Case Examiner, Joanna Wallace, as I reported earlier -see here – has conveniently destroyed loads of letters she received complaining about this issue after being cleared of maladministration by the Parliamentary Ombudsman. It is almost as though there have been deliberate moves to make sure no evidence was available in advance of the Ombudsman’s decision.
I also found it extraordinary that the Ombudsman has put forward a remedy so quickly after being quizzed by MPs on the Commons Public Administration and Constitutional Affairs Committee last month. At the time – see my blog here – Amanda Amroliwala, chief executive of the Parliamentary Ombudsman, was closely questioned by MPs about the 50swomen investigation and said it could take until March before the full investigation and remedy were published.
To give her the benefit of the doubt perhaps she was so taken aback by the questioning from MPs she may have speeded it up. More suspicious minds might suggest she daren’t tell them what the Ombudsman had in mind because it would create a furore. The only public announcement by the PHSO since then has been it has completed stage 2 of the investigation but still has no remedy in mind.
The other extraordinary behaviour has been by WASPI. An article in the Daily Express on Friday quotes WASPI saying this.
Angela Madden, chair of WASPI, said: “These latest findings confirm the previous conclusion of the Ombudsman that maladministration took place at the Department for Work and Pensions. “But nearly 18 months after the Ombudsman’s first report, we are still waiting for his conclusions on a remedy. This is becoming a lengthy examination of the blindingly obvious.”
Now by then people had been informed of the proposed remedy. Perhaps Angela Madden didn’t know. or perhaps she didn’t want anyone else to know because it is obviously too embarrassing for their campaign.
The Parliamentary Ombudsman’s press office said they were unable to comment was the investigation was on going.
But John McDonnell, Labour’s former shadow chancellor and a member of the Public Administration and Constitutional Affairs Committee, said: ” This offer is completely unacceptable. I shall be raising it immediately with the PACAC committee”. As Shadow Chancellor he had offered a £58 billion settlement over five years. I await a response from WASPI.
In the meantime Rob Behrens, the Ombudsman, according to his posts on Linked In has been literally glad handing with President Zelensky in Kiev at a special Europe wide human rights conference. Someone ought to ask him about the human rights of the 3.6 million 50s women who will now be cheated by him out of any decent settlement. The DWP must be cheering him on.
As a matter of the interest the pension age for women in Ukraine is 60 – six years below the current age in the UK. See this link.
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A preliminary two day employment tribunal hearing has led to fresh revelations about the national role of one of the NHS’s top law firms, Hill Dickinson, that acted for Health Education England against whistleblower junior doctor, Dr Chris Day, in a case that has now been ongoing for 8 years and was also against the South London Trust Lewisham and Greenwich NHS Trust.
Day alleges Hill Dickinson failed to disclose over 200 commissioning contracts between Health Education England and NHS Trusts around England including a contract with Lewisham and Greenwich NHS. The significance is that these contacts proved Health Education England’s status as a second employer of junior doctors.
This is something that Health Education England and Hill Dickinson spent 4 years denying, between 2014 and 2018, at huge expense to the taxpayer in order to argue junior doctors out of whistleblowing protection.
This was in order to stop Dr Chris Day’s case ever being heard. The Tribunal were told that not one of these contracts was disclosed in the litigation and were obtained in 2019 by a freelance journalist, Tommy Greene who was writing about the case in the Telegraph. The scandalous focus of the hearing was that Hill Dickinson profited from not disclosing the contracts in litigation arguing that it was fanciful for Day to assert HEE as an employer of doctors.
The Judge was told that Tommy Greene had also found that Hill Dickinson were paid handsomely to draft the very contracts that were not disclosed most notably the one between HEE and Lewisham and Greenwich NHS Trust.
The Judge was referred to a complaint to the legal regulator from Sir Norman Lamb and Tommy Greene that set these details out.
And a debate in Parliament where the 2 MPs Justin Madders and Sir Norman Lamb further explored the matter;
Justin Madders stated;
“Health Education England effectively sought to remove around 54,000 doctors from whistleblowing protection by claiming that it was not their employer.”
Sir Norman Lamb stated;
“Is the hon. Gentleman aware that the contract between Health Education England and the trusts, which demonstrates the degree of control that Health Education England has over the employment of junior doctors, was not disclosed for some three years in that litigation? It was drafted by the very law firm that was making loads of money out of defending the case against Chris Day. I have raised this with Health Education England, but it will not give me a proper response because it says that the case is at an end. Does the hon. Gentleman agree that this is totally unacceptable and that it smacks of unethical behaviour for that law firm to make money out of not disclosing a contract that it itself drafted?”
Dr Day has fought an eight year battle with the Lewisham and Greenwich NHS Trust and Health Education England over protected disclosures about patient safety in the intensive care unit at Woolwich Hospital which associated with two avoidable deaths.
He recently lost a case against the trust despite it being revealed that hundreds of emails and documents had been withheld from him including notes of a crucial trust broad meeting which discussed and decided the fate of his case. Some 50,000 emails involving his case were also destroyed by a senior trust official, David Cocke, during the hearing. He was also due to be a witness in the case but never gave any.
This new hearing has been brought by Dr Day over ” wasted costs” in an earlier hearing after he was pressed to agree to a settlement with the trust which exonerated the NHS or face huge costs which would have lost him his family home.
Day was arguing that had he known the truth he would not have agreed to three separate compromise agreements made with the NHS, one of which protected all lawyers in the litigation from wasted costs stemming from misconduct and another that paid Day a £55k contribution of his legal costs which was only a fraction of what he spent resisting the false arguments in this case on HEE’s employer status.
At this hearing Day asserted that the settlements should be set aside after new information came to light following a freedom of information disclosure to investigative journalist Tommy Greene. The Judge at the hearing was also taken to references made by Tommy Greene and Sir Norman Lamb to fraud and other offences based on a legal opinion that had been instructed by Tommy Greene.
In this hearing the Judge only had to decide whether Day’s wasted cost claim against Hill Dickinson was strong enough to progress to a full hearing where Hill Dickinson would be subject to a disclosure order for all relevant documents and emails relevant to this dispute. Hill Dickinson argue the settlement agreements should prevent the case progressing to full hearing.
The hearing revealed that Hill Dickinson were paid to re-draft contractual agreements for 200 other trusts as well as Lewisham and Greenwich. The contract with highest values was revealed as £79m. As Andrew Allen argued: “The LDA disclosed nearly three years after the 2015 strike out hearing,(an outdated LDA not drafted by Hill Dickinson), showed that the 2nd Respondent[ Health Education England] was responsible for substantial terms under which the Claimant”. This was a position that had been plainly denied on multiple occasions in several courts. Andrew Allen KC continued;
” The entire basis for the strike out application had been false. The argument run by the 2nd Respondent that it was ‘fanciful’ to suggest that the party which substantially determined the terms and conditions of the Claimant’s engagement was or could have been the Respondent was completely wrong.”
Extraordinarily Hill Dickinson claim that the lawyers representing Health Education England in the case did not know about the new agreement and even other lawyers working for Hill Dickinson didn’t know about it.
Andrew Allen KC said: “Had the Claimant known then what he knows now, he would not have entered into an agreement which could stop him applying for costs against Hill Dickinson. It is in the interests of justice to permit the Claimant to progress this application. His full skeleton argument ishere.
Mr Angus Moon KC for the Health Education England argued that the non disclosure of the document was not relevant to Dr Day’s whistleblowing case. made no material difference to his case, and to throw out the agreement would break the finality of all agreements reached in courts. He also warned the press and the public reporting and observing the case that any reference to Hill Dickinson should not suggest that they had done anything wrong. He wanted Dr Day’s application struck out while Mr Andrew Allen, KC made it clear that this should not happen as the preliminary hearing could not investigate nor discuss the actions of Hill Dickinson without a full hearing at the tribunal.
Dr Chris Day’s Crowdjustice page explains more about what this hearing against Hill Dickinson was about with a link to the legal paper including Andrew Allen KC’s skeleton arguments. the link is:
Dr Day has recently published a Linked In article explaining the twists and turns of his 8 years of whistleblowing litigation. The link is here.
Background note: Hill Dickinson is a 212 year old law firm, founded in Liverpool and now a big international firm. Its famous cases included acting for the White Star line, owners of the Titanic when it faced claims in the US courts after it sunk and for Cunard, owners of the Lusitania torpedoed by a German U boat in 1915.It also employed one of the first women to become a solicitor, Edith Berthen, in 1927.
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Rob Behrens, the Parliamentary Ombudsman, has asked the Commons Public Administration and Constitutional Affairs Committee (PACAC) to intervene on his behalf and summon the heads of the Department for Work and Pensions and the Environment Agency to appear before them to explain why they are ignoring his findings and refusing to compensate people.
The plea came during a hearing of the committee last week to examine the organisation’s progress and future plans to handle complaints. The committee also heard how the Ombudsman was hamstrung by the failure of the Cabinet Office to pass new legislation to give him greater powers and the latest progress in the 50swomen maladministration claim. More about this below. All these issues highlight weaknesses I have raised in previous blogs.
The DWP case involves 118,000 disabled people who suffered from years of benefit maladminstration . I wrote about this in August- see here. The complaint came from Ms U – via the London borough of Greenwich welfare rights office- who was put in the wrong lower category of the employment support allowance despite being in very poor physical and mental health with little or no savings The Ombudsman ordered the Department to pay her £7500 compensation and five years of arrears totalling £19,832.55 plus interest.
A National Audit Office investigation found that 118,000 people were in the same boat and should have been compensated alongside her following the Ombudsman’s ruling. But the DWP decided only to pay her and ignored everyone else. The pay out would have run to millions of pounds and the DWP decided it would ignore the Ombudsman because legally they can.
The second case involves one family but it is one of the most egregious cases I have heard in Whitehall. The case has been going on for 12 years and involves admitted maladministration by the Environment Agency over the issue of a water licence for a micro hydro project in Bradford on Avon, Wiltshire. The Earl family who renovated a tumbledown watermill to use for the scheme was supposed to receive substantial compensation decided by an independent assessor appointed by the Environment Agency. who bungled their case. The money owing could amount to £3m as interest has piled up and the EA has refused to follow through the Ombudsman’s finding for years.
MPs also raised the issue of the Ombudsman’s lack of powers. John McDonnell, the former shadow chancellor and a Labour member of the committee, has tabled a question to the Cabinet Office asking why they have not introduced legislation to do this. The issue is raised in an earlier blog here.
Mr McDonnell asked Robert Behrens:”Can you explain the practical implications of the Government’s lack of support for legislative reform? How does that hold you back from adhering to the Venice principles, which the Government have signed up to ?”
He told him: “Two of my counterparts have the power of own-initiative investigation. In cases like Windrush, the maternity scandal in hospitals or the issues with mental health, we could go out and look at an issue without it being complained about. We could resolve that issue before it went to a long-standing independent or public inquiry. The peer review panel said that other ombudsman schemes in Europe use that and have used it in Covid to good effect.”
He went on: “If you have 16 public service ombudsmen in the United Kingdom, it means that people do not know where to go. It means the profile of my office and other offices is lower than it would otherwise be. That is not satisfactory in terms of being the only organisation in the public service that provides redress free of charge to citizens. That is very important.”
He added that he saw no reason why a government could not introduce a bill to do all this straight after the next general election.
MPs Question chief executive on 50swomen pension investigation
Amanda Amroliwala, chief executive of the Parliamentary Ombudsman, was closely questioned by three MPs, Ronnie Cowan, SNP, John McDonnell and Lloyd Russell-Moyle, both Labour, on the maladministration complaints over the delay in paying 3.6 million 1950s born women.
On Stage 2 of the report, which has already been leaked on this website see here, she said: “We have not finalised that stage of the report yet. We are in the process of receiving and analysing the very extensive comments that we have had from the Department and from the complainants who have brought the complaints to us”
Under further questioning she added: “We are looking at how those will need to change the provisional views that are not yet public but that some individuals have had sight of. We will do that as soon as possible.” She would not commit a date for this report and the proposed remedy will be published except ” hopefully” between January and March next year. She was also quizzed on the level of compensation. Ronnie Cowan pointed out it could be anything from nothing to £10,000 but if it was maladministration only the top level was much less than £10,000 .She would not be drawn on how much this is likely to be.
John McDonnell reflected the frustration among MPs about the long delay in the Ombudsman producing a final report. “You can understand the scale of interest and concern there is amongst Members of Parliament. You will have seen that from the early-day motions. There is not an MP without a constituent who has been affected. The concern that people have is because of the age of many of our constituents. Some of them have already passed away. Others may not be here to receive any form of redress, if we delay beyond the next quarter of next year.”
There is another elephant in the room that was not discussed. If the DWP is refusing to pay 118,000 benefit claimants their compensation, why should they pay any of the 3.6 million 50swomen a penny beyond the six test cases who complained?
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Former judge Jocelynne Scutt today published her full report on the plight of 1950s women who have waited up to six years to get their delayed pension. As expected it provides copious arguments why the women have been cheated, why the 50swomen were the first group targeted and contains some heart rending cases. You can download the report here. It is a large file as the report runs to 155 pages including appendices.
Here is the entire speech by Jocelynne Scutt to MPs in Parliament this week. This explains the logic of her argument.
Some 3.8 million women suffered direct discrimination by the Tory government’s decision in 1995 to raise the pension age, of women to 65 and then 66, MPs and peers will be told at a briefing in Parliament today.
This is the main finding of a big report by Jocelynne Scutt, a former Australian judge who served on the Fiji bench and was Tasmania’s first Anti Discrimination Commissioner. She now teaches law at the University of Buckingham and is a member of both the Australian Labor Party and the British Labour Party and is a Labour councillor in Cambridge.
Her report followed a hearing by the CEDAWinLAW People’s Tribunal last July which specifically looked into the plight of 50sborn women where some of the women and Dr Elgun Safarov, vice chair of the UN Convention for the elimination of all forms of discrimination against women and girls (CEDAW) from Geneva, gave evidence. The UN committee is currently challenging the UK government to explain its failure to write the convention into UK law some 36 years after Margaret Thatcher ratified it.
The ruling in the report to be published in due course is much tougher than the case put forward by two members of BackTo60 in the court hearings following the judicial review. Then lawyers argued that the women had suffered indirect discrimination as their opportunities to pay contributions into the National Insurance fund, among other issues, to qualify for a full pension were not equal with men.
Jocelynne Scutt argues that this was not indirect discrimination but direct discrimination of a specific group of women who had been singled out to wait for their pension while everyone else was unaffected. It has also to be taken into account that 9.8 million men over 60 who decided not to claim unemployment benefit were given free auto-credits which ensured that nearly all got a full pension for life. It was going to be offered to women until 2018 but that idea was swiftly scrapped.
Every one of these women – many who have worked since the age of 15 as well as bringing up a family- was promised by the government when they started work that they could retire at 60 and planned to do so. And given the Department for Work and Pensions told the courts that it was not obliged under the 1995 Act to tell them personally this had changed – this only came in when men were affected by a rise in their retirement age.
Jocelynne Scutt has already delivered the report to Rishi Sunak at Downing Street. She argues that 50s women were treated unfavourably from the start. The 1995 decision did not affect any women born in the 1940s, targeted the 1950s women while those born in 1960s and 1970s onwards had much longer to adjust. The Parliamentary Ombudsman’s report agrees there was partial maladministration in that 50s women were not properly informed. In fact hardly anyone was properly informed until it all changed with men and women facing a rise in their pension age to 66.
Full restitution must be honoured – Jocelynne Scutt
Jocelynne Scutt says “Government and Parliament have a responsibility to face up to and acknowledge the grave wrong done. There is no room for obfuscation or quibbling. Historical discrimination requires relief. There is a moral imperative to right this wrong. The law is on the side of the 1950s-born women. 1950sborn women alone are the group targeted. This is a debt of law and honour. Full restitution is the only proper legal, ethical and moral outcome. Full restitution must be honoured.“
The briefing is in the House of Commons at 2.0pm today.
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A high powered peer review of the Parliamentary Ombudsman has exposed the hypocrisy and double standards of the present UK government towards people having the right to redress from bad and unfair public and NHS treatment.
The report released from an international panel of Ombudsmen , an academic and a UK housing ombudsman concludes with a polite but damning assessment of the failure of the government to keep its word to strengthen the Ombudsman’s powers. Members of the panel included both the Greek and Israeli Ombudsmen and a respected academic, Professor Robert Thomas, Professor of Public Law, University of Manchester.
The UK is a member of the Council of Europe Venice Commission which lays down what are known as the ” Venice Principles” – an international standard to guarantee the independence of the Ombudsman and the human rights of people to have direct access to the Ombudsman to make complaints about their treatment by public services.
The UK then co-sponsored a UN resolution incorporating these standards for the entire world – telling every country that Britain was in the lead on this issue.
But then under successive Tory governments of Boris Johnson, Elizabeth Truss and Rishi Sunak nothing has not only been done but ministers have taken active steps to thwart reform.
The most obvious example is Michael Gove, who used his power in the Cabinet Office, to block any bill-even a draft bill- coming before Parliament to the despair of the Commons Public Administration and Constitutional Affairs Committee (Pacac) which under a Tory MP wanted this to happen.
The situation is remarkably similar to the government’s attitude towards the UN Convention on the elimination of all discrimination against women and girls (CEDAW) which Margaret Thatcher ratified in 1986 and had still not been properly implemented 40 years on . This is now the subject of a review from the convention in Geneva which criticises the UK for not implementing it properly and is demanding answers.
The conclusions of the peer review couldn’t be clearer:
“The ‘Venice Principles’ lay down a set of international standards and principles on the protection and promotion of Ombudsman institutions. These have been accepted by the UK, as a member of the Venice Commission of the Council of Europe in 2019. They were also adopted by the UN in a motion co-sponsored by the UK Government in 2020.
” In several respects, PHSO’s legal framework complies with the ‘Venice Principles’, but not in other respects. PHSO’s statutory framework is now out of date and widely seen as being unnecessarily restrictive. PHSO is also out of line with other UK Ombudsman offices, which possess powers that PHSO does not. “This means that citizens in some parts of the UK do not have the same rights as others. We are aware that reform of the Ombudsman is a long standing and unresolved issue, although it has become an increasingly urgent matter which makes the work of PHSO more difficult. PHSO is doing everything it can reasonably do to make the argument for reform. What is required is action from the UK Government and Parliament. Any reform must maintain PHSO’s direct reporting line into Parliament to preserve its absolute independence from Government.”
The report backs this up with a traffic light (red, amber, green) system of points where it measures the consistency and performance of the Ombudsman with the Venice principles.. Nearly all the red and amber points are caused by the failure of the government to legislate to strengthen the Ombudsman.
The government does not meet the principle that “Any individual or legal person, including NGOs, shall have the right to free, unhindered and free of charge access to the Ombudsman, and to file a complaint.” Instead a complaint has to be filtered by an MP or in the case of the NHS there has to be a “safe space” for administrators to look at the complaint before the Ombudsman can act.
There is no legal provision to protect whistleblowers who contact him. He, unlike his Welsh, Scottish and Northern Ireland Ombudsmen cannot initiate investigations. It is not clear whether he has full powers to force people to respond to him and certainly his recommendations don’t have to be followed by the government if he finds maladministration. There is not proper protection for his position by law and even the recruitment of a successor is limited, so not all people can apply.
Venice Principles give Ombudsman right to recommend changes to the law
The Venice Principles give him the right ” to have the power to present, in public, recommendations to Parliament or the Executive, including to amend legislation or to adopt new legislation” and this is definitely not allowed in England – otherwise he could go further on the case of the 50swomen who lost their pensions for up to six years.
Now you might think the Ombudsman would make a great deal out of this report to press the government to expand his powers or show up ministers for failing to keep their obligations to an international agreement they signed.
But the heading on his website is “World’s first official international ombudsman review finds UK service is robust and good value “. Yes the report does make good points about improvements in the running of the Ombudsman’s |Office but its fundamental objection is given muted coverage – buried down in the copy.
Further down the press release Rob Behrens, the Parliamentary Ombudsman, says: “The peer review rightly says that the UK is out-of-step with other modern Ombudsman services in terms of our statutory framework. Without powers of own initiative, I am hamstrung from investigating many systemic issues that no one is looking at. Legislative reform of the UK Ombudsman service would mean fewer barriers to justice and more opportunities to prevent injustice happening in the future.”
I think a more gutsy Ombudsman would fight his corner better -particularly as this government is on the back foot when it comes to defending decent public services and upholding standards in public life.
A more cynical explanation is that the government don’t want the public to have greater rights to complain as they are fearful of more bad administration and scandals coming to light But they want the rest of the world to think Britain is a beacon of good government in this area -knowing this is a lie.
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An employment tribunal under Judge Anne Martin has thrown out whistleblower Dr Chris Day’s claims against the Lewisham and Greenwich NHS Trust after an eight year battle about patient safety at the intensive care unit in Woolwich Hospital.
In a bizarre ruling the judge has managed to discredit the evidence of Dr Day’s witnesses, including the present Chancellor of the Exchequer, Jeremy Hunt and two very senior medical experts.
She glossed over the disclosure of the deliberate destruction of 90,000 emails by the NHS Trust, which should have been provided as more evidence of what happened during the eight year long dispute.
She played down false evidence given under oath from the trust’s chief executive, Ben Travis, that there was no record of a board meeting which discussed his case and approved the settlement when a note of the meeting came to light. Evidence here.
She is remarkably sympathetic to David Cocke, the associate director of communications at the trust destroying the 90,000 emails, which is a criminal offence, and accepted the excuses of the NHS Trust to avoid him attending the court where he would be cross examined.
Jeremy Hunt; Official Portrait
She did have the opportunity to strike out the trust’s defence midway through the hearing when it became clear that large volumes of potential evidence had been withheld and destroyed but decided there was enough evidence to continue the case. Now with this judgement we know why – perhaps she didn’t want to hear anything else that would prevent her finding for the trust.
Despite a long rambling 67 page judgement Judge Martin’s findings are as notable for what they omit as much as what they disclose and seems to cast doubt in one instance on the integrity of Dr Day while accepting at face value anything put forward by the trust.
Sir Norman Lamb
Dr Day was backed by two prominent politicians Jeremy Hunt and Sir Norman Lamb, a former health minister. Early in the judgement she disposes of Jeremy Hunt’s evidence by saying ” it relates to what he was told by the Claimant about the protected disclosures he had made. It does not refer to the statements made by the Respondent which are the subject of this hearing. The Tribunal does not understand why his witness statement was put forward.”
This odd statement by the judge seems to suggest that Dr Chris Day told Jeremy Hunt t what to say – which I find hard to believe. I think Jeremy Hunt can make up his own mind and wouldn’t have given that statement if he hadn’t thought something was wrong. Sir Norman Lamb who was very vocal about the trust’s failings in treating Dr Chris Day – enough to want an inquiry – is said by the judge to have been treated ” fairly” by the trust.
Dr Megan Smith
The two medical witnesses Dr Megan Smith and Dr Sebastian Hormaeche were also dismissed as biased because they were supporters of Dr Chris Day’s whistleblowing activity. In fact Dr Day has never met Dr Megan Smith. She effectively demolished the case provided by the trust’s ” independent” consultant Roddis Associates, that staffing levels at the intensive care unit were adequate by quoting the national guidelines. She told the hearing;“You would not find an anaesthetist or ICU doctor in the country who would accept those ratios. There was a clear and present danger to patient safety – no question about that.”
Yet this fact- it is fact not a campaigning point by Dr Day – is ignored completely.
She said: “I have been a member of my hospital’s Serious Incident Review Panel and am currently the mortality lead for the department of anaesthesia with responsibility for investigating any patient deaths. I am also a practising barristerand I carry out expert witness work (primarily in the field of clinical negligence) for”. She linked Dr Day’s safety concerns at the ICU to the two deaths there.
When it comes to the treatment of Mr Cocke the judge almost turns somersaults to protect his activity. The passage where she describes him shows up her unconscious prejudice in favour of the trust.
“It was Mr Cocke who opened this can of worms. It was he who contacted Dr Harding [one of the doctors that Dr Day raised the issue of the icu) and he who forwarded the emails provided by Dr Harding to the Claimant. He has been open about deleting the documents.
” It was not a situation where he owned up only because he had been found out. This does not strike the Tribunal as the actions of someone who is mindset on concealing documents and lends some credence to his explanation.””
And on his non appearance:”The Tribunal’s view at that time was that considering the medical evidence from Mr Cocke’s GP there was no medical reason Mr Cocke could not give evidence and if he did not give evidence then this was a decision of the Respondent. Further medical information was then obtained which said that Mr Cocke was too unwell to attend to give evidence. Mr Cocke did not give evidence. On balance the Tribunal is satisfied that Mr Cocke was unfit to give evidence. “Whilst the members of this Tribunal are not medically trained, it appeared that the apparent contradictions raised by the Claimant were indicative of a progressing mental health issue and this taken together with the irrational act of deleting emails points to Mr Cocke being quite unwell especially as it was he who first provided extra documents that had not been disclosed. We do not doubt that Mr Cocke is ill, but accept that there is no independent medical information explaining the nature of his illness and how it manifests.”
First of all it remarkably prejudicial for a judge to describe the unearthing of documents that should have been provided four years ago in discovery as “a can of worms” and secondly it is remarkable for a judge to decide to excuse a criminal act as a mental health problem. That seems a job for a psychiatrist not a judge who admits she has no medical expertise.
Harold Pinter: Pic Credit: National Portrait Gallery
Pulling this altogether this hearing would make a splendid play for the Theatre of the Absurd – it reads a bit like a plot by Harold Pinter than a serious contribution to judicial case law..
I hope some playwright considers putting together a play or TV drama on Dr Day’s epic eight year struggle for justice for patient safety. It should be dedicated to the two people who unfortunately died at Woolwich Hospital ICU and whom the trust prefers to forget.
I can’t imagine a more fitting place for Judge Anne Martin, Ben Travis and David Cocke to appear than a hard hitting and satirical play at the Edinburgh Fringe.
Jocelynne Scutt, president of the Convention for Ending all Discrimination Against Women (CEDAW) Tribunal, yesterday delivered her report on the plight of 50s born women to Rishi Sunak, the new Prime Minister, at Downing Street.
The report, to be officially published at the end of this month, is the latest move to press for full restitution for the women who had to wait 6 years to get their pension. It is timely reminder to the government which is about implement big tax rises and spending cuts that this issue will not go away for the 3.6 million people who lost out.
Jocelynne Scutt, President of the CEDAW Tribunal; Janet Chapman, Ian Byrne’s Parliamentary Assistant, and Ian Byrne, Labour MP for Liverpool, West Derby, who tabled a Parliamentary motion call for full restitution, pictured outside Parliament
Jocelynne Scutt gave a speech outlining the main issues and Ian Byrne wholeheartedly backing the campaign. See it on a video here.
Ian Byrne’s Parliamentary motion now has 75 signatures from MPs. The latest MPs to sign include more Labour MPs such as Qureshi Yasmin, Bolton, South East; Karl Turner, Kingston-upon-Hull, East: Dan Jarvis, Barnsley Central; and Khalid Mahmood, Birmingham, Perry Barr and Clive Betts, Sheffield South East.
Liberal Democrat transport spokesperson, Wera Hobhouse and MP for Bath is the first member of the party to sign.
The issue is very popular in Northern Ireland with all MPs in the Democratic Unionist Party signing plus a member from Social Democrat Labour Party and the Alliance. Eight MPs from Scottish National Party have signed and two from Alba Party. There are also a number of ex Labour MPs now Independents have signed, the latest being Dr Rupa Huq, MP for Ealing Central and South Acton.
It is noticeable that not a single Conservative MP has signed the new motion though many signed the motion in the last Parliament calling for full restitution.
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As the UK faces public spending cuts the Ministry of Justice is embarking on a £200 million plan to expand the women prison population by building 500 new places for women.
The scheme has been condemned by charities from the Prison Reform Trust, the Howard League for Penal Reform to Women in Prison and was subject to a highly critical report from MPs on the Commons Justice Committee.
This weekend a report from Women in Prison provided a cost funded case to turn this spending plan on its head by funding women’s centres instead to keep women out of jail and save the NHS, local authorities and the police a shed load of public money in picking up the pieces after prison life.
If you don’t believe this you should read last year’s Chief Inspector of Prisons report on Foston Hall, near Uttoxeter, Derbyshire, the worst women’s prison in the country. housing around 272 women prisoners.
1750 cases of self harm in one year at Foston Hall prison
An unannounced visit found that in one year there were 1750 cases of self harm by the women inmates and a staggering 1000 calls to the Samaritans each month. Two women had killed themselves there since 2019. Other statistics revealed that 20 per cent of the women were released into the community with nowhere to live – adding to the homelessness problem. The prison couldn’t even get people to work there – it had a supposed full staff complement of 110 but only 62 were deployable at any one time. As a result there was a high level of violence and lot of women were segregated.
The report said: “The prison had no strategy to reduce self-harm or improve the care for those in crisis. Recommendations made by the Prisons and Probation Ombudsman following their investigation into deaths in custody had still to be addressed and the relatively few women who accounted for most of the incidents did not have meaningful care plans. The response to women in crisis was too reactive, uncaring and often punitive.”
Contrast this with a plan put forward by the new Women in Prison report. It follows one of the last acts of the Johnson government to allocate £24m – compared to £200m for new prison places – to develop women’s centres as an alternative to prison.
Women in Prison point out that just one centre “receiving £1m in a given year can support over 650 women and generate £2.75m in public sector savings, while providing a lifeline for vital services and significantly improving wellbeing for women and their children. The savings would go to local authorities (47%), the Ministry of Justice (17%), the NHS (15%), the Police (10%), the Department for Work and Pensions (9%) and HM Revenue and Customs (2%).”
Instead nearly half of Women’s Centres surveyed said they are concerned about their survival because the £24m is being parcelled out in short term funding spread across the country. Once the money runs out centres face closure.
Joy Doal, Chief Executive of Anawim Women’s Centre in Birmingham said: “We are struggling. The needs of the women we work with are becoming more complex. We are witnessing the fallout from Covid-19 – which is driving mental health problems – and an alarming number of women driven into poverty due to rising bills. On top of that our own costs are skyrocketing due to inflation and the rise in living costs. Now more than ever, we need sustainable, long-term funding to ensure we can continue meeting the ever growing needs of the women we work with.”
To me this seems just one more example of the lack of joined up thinking in Whitehall. The Women in Prison charity have done a great job not only in highlighting what is going wrong but in providing a fully costed solution that ought to be sent to the Treasury post haste. One example of a woman ending up in prison because they have mental health problems was covered on my blog earlier this year. See it here.
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My reporting and coverage of the confidential provisional Parliamentary Ombudsman’s Report into the maladministration has caused considerable controversy particularly among the people at the top of Waspi. People who follow me on Backto60 have been very grateful for keeping them informed. People on Waspi have objected to me publishing it at all and have kept their members in the dark about its contents. Robert Behrens, the Parliamentary Ombudsman, is constrained by law from publishing it while his investigation continues. People at the top of Waspi have accused me of only publishing snippets which undermine Waspi’s case.
To dispel any doubts here is the full summary of his findings (the report is 298 paragraphs long) – though there is a link in a comment on my previous blog to the full report in the comments section. You can see the Ombudsman makes it clear that maladministration over a 28 month period ” caused complainants unnecessary stress and anxiety and meant an opportunity to lessen their distress was lost. For some complainants, it also caused unnecessary worry and confusion.” But it rejects that ” this maladministration led to the financial losses complainants claim.”
In other words it has no intention of compensating people who have lost up to £50,000 through the changes or anywhere near this. Need I say more. Here is the summary.
Reference: SPA (stage 2) Complained about: Department for Work and Pensions Independent Case Examiner
The issues we are considering and our provisional views
In July 2021 we issued the report for stage one of our investigation into complaints about the adequacy of DWP’s communication of changes to State Pension age, and associated issues. We found that maladministration led to a delay in DWP writing directly to women about changes to their State Pension age.
We are now working on stage two of our investigation. This stage is considering complaints about:
DWP’s communication of changes to the number of qualifying years National Insurance contributions required for a full State Pension
DWP’s complaint handling
the Independent Case Examiner’s (ICE’s) handling of complaints about DWP’s communication of State Pension age changes.
It is also considering the impact of any failings by DWP and ICE, including the injustice arising from the maladministration identified during stage one of our investigation.
This document sets out:
a summary of our provisional views
the evidence we are considering
our analysis so far of DWP’s communication of changes to National
Insurance qualifying years, including o background
what should have happened – the relevant standards
what did happen o our provisional views
our analysis so far of DWP’s and ICE’s complaint handling, including o what should have happened – the relevant standards
what did happen o our provisional views
our analysis so far of injustice
Summary of our provisional views
The evidence we have seen so far suggests timely and accurate information was available about the change in eligibility criteria for a State Pension, including how someone’s National Insurance record links to how much State Pension they can claim once they reach State Pension age. Research showed the majority of people knew about the changes.
However, research also showed that too many people did not understand their own situations and how State Pension reform affected them. The gap between awareness and understanding was highlighted by the Work and Pensions Committee and the National Audit Office. DWP does not appear to have used research and feedback to improve its service and performance. In this respect, DWP does not seem to have demonstrated principles of good administration. We think that was maladministration. However, we do not think this maladministration led to the financial losses complainants claim.
Before 2016, people built up ‘qualifying years’ towards a Basic State Pension by paying National Insurance or through, for example, receiving benefits credits towards their National Insurance record. Some people paid National Insurance to build up entitlement to an earnings-related State Pension on top of the Basic State Pension. The earnings-related State Pension was called the Additional State Pension.
Not everyone paid National Insurance towards the Additional State Pension. Some people who joined personal or occupational pension schemes ‘contracted out’ of the Additional State Pension when they joined those schemes. While they continued to build up qualifying years for a Basic State Pension, they gave up their entitlement to the Additional State Pension. So, a person who had always contracted out would have been entitled to the Basic State Pension and their personal or occupational pension when they reached State Pension age, instead of being entitled to the Basic State Pension and Additional State Pension.
From April 2016, the new State Pension replaced the Basic State Pension and the Additional State Pension. The full rate of the new State Pension is higher than the full rate of the old Basic State Pension. People who were contracted out of the Additional State Pension before April 2016 but have reached or will reach State Pension age after April 2016 may not be eligible for the full rate of new State Pension. A ‘contracted out deduction’ is made when calculating their starting amount of new State Pension to reflect the fact they contributed less into the National Insurance system in return for a personal or occupational pension.
Transitional arrangements introduced with the new State Pension mean that none of the complainants – or people like them – will get less State Pension under the ‘new’ rules introduced in April 2016 than they would have got under the ‘old’ ones. DWP compares what they would have been entitled to under the old system and what they are entitled to under the new system, and they get the higher of these amounts. The transitional arrangements also allow them to do things to add to their starting amount of new State Pension if it is lower than the full rate. Having considered the complainants’ individual circumstances, we do not think they have lost any opportunities to add to their starting amount.
We also do not think maladministration in DWP’s communication of changes to State Pension age more likely than not led to all the financial, health, domestic and emotional consequences complainants claim. Complainants told us they made choices they would not have made if they had known their State Pension age had changed, and described the financial, family and health consequences those choices have had. However, some of their choices had already been made by the time DWP should have written to them about changes resulting from the 1995 Pensions Act. We do not think women lost opportunities to make different decisions, if those decisions had already been made by the time DWP should have written to them.
However, we think an additional 28 months’ notice would have given complainants opportunities to consider, for example, saving, looking for work or changing job. While there is too much we cannot now know for us to be able say what would have happened, it seems that some women are left not knowing whether they could have been in a different financial position, and whether they could have avoided the health and emotional consequences they claim. We think that not knowing is an injustice resulting from maladministration in DWP’s communication about State Pension age.
We also think the anger and outrage complainants feel about not having as much notice of their State Pension age as they should have, could have been avoided if DWP had written to them when it should have. Their sense of anger and outrage is a further injustice resulting from maladministration in DWP’s communication about State Pension age.
We think some aspects of DWP’s complaint handling reflected applicable standards. But, DWP does not appear to have adequately investigated or responded to the complaints it was considering, or avoided unnecessary delay. In these respects, DWP does not seem to have demonstrated principles of good complaint handling. We think that was also maladministration.
We think maladministration in DWP’s complaint handling caused complainants unnecessary stress and anxiety and meant an opportunity to lessen their distress was lost. For some complainants, it also caused unnecessary worry and confusion.
We think ICE’s complaint handling reflected applicable standards and guidance. ICE appears to have acted within the scope of its remit, which is set out in its contract with DWP. We note, however, our view that the contract meant ICE could not address complainants’ key concern that they did not have as much personal notice of changes to their State Pension age as they should have.
Finally, we think ICE should have said that it could not determine whether or not DWP had written to individual complainants who said they had never received a letter about their State Pension age, instead of telling them it was more likely than not they had been sent a letter. But even if ICE had appropriately balanced the evidence in this way, we do not think the shortcoming in its handling of this issue was significant enough to be a failure to ‘get it right’.
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