When Rob Behrens took over as the new Ombudsman in April 2017 it was very much hoped that he would instigate a more open and transparent regime at the PHSO. Sadly this has not yet proved to be the case. Let us unravel some of the spin and obfuscation in his recent letter to Bernard Jenkin, published on 23rd January 2017 on the PACAC website.

Financial compensation paid in 2016-17.

According to Mr Behrens letter;

PHSO made 13 payments to complainants in 2016-17, totalling £26,333. This included a single payment made to a complainant’s solicitors to reimburse legal fees they had incurred of £24,855 in relation to one of our investigations. The remaining 12 payments, therefore, totalled £1,478 and were relatively small consolatory payments to complainants ranging between £50 and £228.

This recent FOI request from PHSO fails to mention the significantly large sum of £24,855 which must indicate a major failure on the part of PHSO. In other respects, Mr Behrens estimate matches up with the data previously released, although the smallest payment was £11.00 and not £50.00 as he claims. To put these payments in context it would have been far more helpful to list the payments made over a range of years. As can be seen below, 2016-17 was unusual for the relatively small sums of compensation paid out to mistreated complainants apart from the one major payment. It is interesting to note that the one significant payment clearly had legal backing.

FOI compensation payments Jan 2018


Delays in dealing with feedback from complainants.

When trying to explain the increasing delays Mr Behrens claims “the increasing number of investigations……led to an increase in the amount of work subject to review”

This is interesting as the previous Ombudsman, Dame Julie Mellor told PACAC that the increased number of investigations would save money by lowering the number of reviews requested.  Equally, in the 2016-17 Annual Report compiled under Mr Behrens stewardship it is stated that;

The significant decline in the number of complaints needing a review is likely a result of our more consistent criteria and ways of working at every step of our process. p17

In fact, the annual report appears to show that the number of reviews has indeed declined from 392 in 2014-15 to just 81 in 2016-17 so how does this explain the increasing delays in dealing with feedback?

reviews from annual report

Missing from this table, as it is every year, is the total number of review requests which is a very different figure to the total number of reviews.  PHSO decide in-house whether a review request merits an actual review and as the number of requests rises (due to poor performance) so the number of reviews decreases giving a false impression of the quality of decision making at PHSO.  The real question Mr Jenkin should be asking is ‘how many review requests did PHSO receive this year and why is that figure omitted from the annual report?

This FOI request from September 2017 gives the detail.  (The discrepancies in the figures is due to a discrepancy in response from PHSO).

In 2015-16 there were 1,969 review requests concerning the decision. PHSO reviewed 218 (11%) and upheld 19 (0.9%)
In 2016 – 17 there were actually 383 more review requests for decisions with the total of decision reviews at 2,352.  Even more people dissatisfied yet PHSO reviewed only 81 (3.4%) and upheld 15 (0.6%). Without putting the total number of review requests in the Annual Report they then try to use the lower figure to argue that their service has improved at all levels when the data show the absolute opposite. More dissatisfaction.

If review requests are considered to be a sign of dissatisfaction then it can be seen that this has increased at a near 20% rate which should be alarming.  Mr Behrens neglects to mention that of the 15 upheld reviews only 5 led to a changed decision which is about 1 in every 500 requests. The situation in 2015-16 was even worse when only 2 out 1969 review requests led to a change of decision. This is shameful and more appropriate for an authoritarian state than for a liberal democracy. Is there any other judicial or quasi-judicial body that has such a low rate of successful appeal or review? It shouldn’t be surprising though when reviews are carried out by the same body that made the original decision, in secret and without external audit. This is not an acceptable state of affairs and it will have to change. The only question is how long it will take and which officials and MPs will be seen by history as the champions of justice for speaking out.

Mr Behrens also claims that “our caseworkers do also regularly receive positive feedback directly from complainants about their work, even where we have not upheld a complaint”.

Well, that sounds very nice for all caseworkers involved but it is an easy statement to make without any evidence to back it up. So what does the actual evidence show? Well, according to a recent FOI request there were a grand total of 8 compliments recorded in 2016-17 from a total of 3,306 feedback comments ((0.2%)


The Customer Care Team, who consist of just 15 members of staff, are clearly run off their feet finding ways to turn down review requests, no wonder they don’t get many compliments.

Service Charter feedback.

Further on Mr Behrens states that according to the Service Charter, for “July to September 2017, 78% of all complainants agreed that we gave them the information they needed”

Well, that sounds very impressive. The information they needed about the investigation right? Unfortunately not. According to the Service Charter, it means:

We will explain our role and what we can and cannot do

We will explain how we handle complaints and what information we need from you

We will direct you to someone who can help with your complaint if we are unable to, where possible

We will keep you regularly updated on our progress with your complaint


So nothing at all to do with the really important information about the investigation, just basic things that should be taken for granted.

It is also stated by Mr Behrens that “70% agreed that we had provided a good service”

More impressive statistics. That does refer to the quality of the investigation right? Unfortunately not. According to the Service Charter, it means:

We will treat you with courtesy and respect

We will give you a final decision on your complaint as soon as we can

We will make sure our service is easily accessible to you and give you support and help if you need it  giving-you-good-service

So again, nothing at all to do with the most important part of the complaint, the quality of the investigation.

So why doesn’t Mr Behrens refer to any of the important statistics about the quality of the investigation? Well, let’s have a look at a couple:

Only 44% agreed that “We will gather all the information we need, including from you and the organisation you have complained about before we make our decision” This is down 8% from the previous quarter.

Only 50% agreed that “We will explain our decision and recommendations, and how we reached them”. This is down 9% from the previous quarter.

So when it comes to the actual investigation, the most important part of the complaint, the statistics are not looking so good. But what about one of the most important statements regarding the quality of investigations. The statement of impartiality. How do complainants view this statement?

“We will evaluate the information we’ve gathered and make an impartial decision on your complaint”  following-open-and-fair-process

Well, strangely enough, no figure has ever been published for the number of complainants who agreed with this statement. Why not?  Perhaps it such a small number that it is too embarrassing to publish? In the Complainant_feedback_survey_2015-16 only 35% thought the decision “followed an independent, fair, and unbiased assessment”. Perhaps that’s why they stopped asking the public that particular question.

Bear in mind that with all the Service Charter data just 24% of people who had a complaint investigated were contacted for feedback and 3% of people who had their case dismissed. (p13 Annual Report). Think how different these figures would be if everyone had automatic access to feedback their opinion of PHSO.

This independent study by Naomi Creutzfeldt found that only 12.4% of the public had trust in the public service Ombudsman. do-complainants-trust-ombuds (2016)

Historic Cases

Mr Behrens reiterates his claim that “there should not be a permanent body that routinely and independently reviews our decisions”, and claims that “the purpose of the Ombudsman is to be the independent complaint handler of last resort”. This would be fine if the PHSO delivered a high-quality service. It doesn’t and the statistics show that it doesn’t.

Isn’t the real reason for his attempt to quash the idea of any independent oversight of the Ombudsman’s decisions would be that, for the first time, the Ombudsman would become accountable, and the dreadful quality of the investigations could no longer be hidden?The Health Select Committee recommended an external audit of a selection of investigation reports to ensure quality and standards are maintained and indeed external examiners were employed for that very purpose, now all long gone. It would appear that Mr Behrens, just like his predecessor, is an expert in spin. Will Bernard Jenkin demand full disclosure from the Ombudsman? Mmmmmmm


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