Early in March 2020 the Parliamentary and Health Service Ombudsman presented to parliament their 2019 Casework Report. An exercise in spinning straw into gold. In this report the Ombudsman shared the findings from 9 parliamentary complaints and 21 health service complaints. Given the very low uphold rate of 2.4% of total complaints in 2018/19 it is incumbent upon PHSO to choose those complaints which best demonstrate the effectiveness of the Ombudsman in holding public bodies to account and finding redress for harmed citizens. Largely by omission, the Ombudsman manages to weave his magic and please the King, or in this case parliament.
The Ombudsman’s report does not provide comment from the ‘satisfied’ complainant and consequently their account goes unchallenged. In a new book called ‘What is the point of the Ombudsman’ soon to be published by PHSOtheFACTS on Amazon, complainants tell their own stories and one of these just happens to be the first case file reported by the Ombudsman. So we have two accounts to compare and contrast. This complaint was against the Department for Work and Pensions (DWP) and the Independent Case Examiner (ICE). For context, 1,553 complaints were made against the DWP in 2018/19. Only 4 cases received a partial uphold and 0 cases were upheld against ICE. The final line of the report confirms that the CSA complied fully with the Ombudsman’s findings.
Child Support Agency failed to ensure a parent got £10,000 in child support arrears.
Organisations: Child Support Agency and Independent Case Examiner
Complainant D complained that the Child Support Agency (CSA) did not do enough to ensure the proceeds from the sale of Person G’s property were secured to pay off child support arrears and had not accepted its failings.
Complainant D also complained that the Independent Case Examiner (ICE) carried out a flawed investigation into her concerns. The ICE is the second-tier complaint handler for the CSA and other government organisations that deal with benefits, work and financial support.
Complainant D told us that as a result of the CSA’s failings, Person G was able to sell a property without paying approximately £10,000 in arrears of child support.
Complainant D had a child with Person G. Their relationship broke down and Person G was responsible for paying child support to Complainant D, which they did not pay. Complainant D had a long-standing child maintenance case with CSA. For the purposes of child support, Person G was classed as a Non-Resident Parent (NRP).
CSA can apply to the court for a charging order on an NRP’s property in relation to child support arrears owed to a parent with care of a child or children. A charging order places a restriction on the sale of the property. In this case, any sale of the property by the NRP could not proceed without first notifying CSA. To force the sale of the property, CSA can apply for an Order for Sale.
An Order for Sale effectively gives CSA the ability to sell a property to settle the debt owed. If the owner sells the property themselves, this would breach the Order for Sale. However, if a sale took place despite the Order for Sale, the sale would be binding and could not be reversed.
Person G bought the property in question with another person. Over a four-year period, CSA obtained four charging orders on the property. These said CSA should be notified before any sale of the property could take place.
CSA was then granted an Order for Sale against the property. One condition of the Order was that a valuation be undertaken within 28 days. If the debt was not paid by Person G within three months, the Order for Sale said Person G should deliver possession of the property to CSA. CSA sought a valuation two months after the deadline set in the Order for Sale and five days after the deadline set for Person G to vacate the property.
One month after the deadline to secure possession of the property, an estate agent conducted an external valuation and delivered the report to CSA. The estate agent told CSA it had previously undertaken a valuation of the property for Person G. The estate agent told CSA the property was sold subject to contract with another estate agent.
In accordance with the restriction on the property by the original charging order, Person G’s solicitors informed CSA about the forthcoming sale of the property. CSA informed them of the debt owed but did not tell them about the Order for Sale. Person G’s solicitors said they would take instruction from their client (Person G). The property was then sold outside the terms of the Order for Sale.
Complainant D complained to CSA and subsequently to the ICE as the second tier complaint handler. Complainant D was dissatisfied by the responses and brought her complaint to us.
What we found
CSA did not comply with the conditions of the Order for Sale. CSA sought a valuation of the property after the deadline set by the court. There was no reason for CSA to have acted outside the conditions of the Order for Sale. CSA should have done more to proceed with the Order for Sale within the deadlines set by the court, given Person G’s history of non- payment of child support.
CSA took no action to secure possession of the property by the deadline set in the Order for Sale and made no record of any decisions taken about why it did not take action to do so.
CSA did not tell Person G’s solicitors about the Order for Sale. This would have placed an onus on the solicitors to abide by the terms of the Order for Sale. CSA could also have considered requesting an undertaking (a legally binding promise) from the solicitors to settle the arrears of child support through the sale of the property. CSA’s failures effectively enabled the sale of the property in breach of the Order for Sale.
Even following the sale of the property, we found CSA did not do enough to ensure Person G settled the debt owed. CSA made no record of the reasons why it did not pursue other options, such as a freezing order on the monies received from the sale of the property to prevent them being disposed of.
We did not find any failings in relation to the Independent Case Examiner’s handling of the complaint.
Putting it right
CSA should have secured the child support arrears owed to Complainant D through the Order for Sale. Not doing so left Complainant D without the money they were owed. CSA’s handling of the complaint caused Complainant D distress, inconvenience and frustration. To put this right, we recommended the CSA:
• Apologise to D for the impact of its failings
• Pay D £10,018.27 in compensation for the child support arrears they would have received but for the failings by CSA, plus interest
• Pay D £2,000 for the inconvenience, distress and frustration caused by the CSA’s handling of the complaint
• Review the learning from the case, including relevant policy and procedures when pursuing an Order for Sale where there is a history of non-payment of debt by an NRP.
CSA has fully complied with our recommendations.
My complaint against the CSA was first assigned to an investigator, K M, on 28 May 2015. After that, it was considered by D W, then G K and finally C P.
I’m very relieved to say that, after approximately four and a half years, it has finally been resolved in my favour, but only after an almighty battle and the involvement of solicitors on both sides. I am acutely aware that, had I not involved solicitors to threaten a judicial review application, my complaint would not have been successful, despite being completely justified. Whereas the PHSO is supposed to provide a relatively pain-free alternative to litigation, I have spent thousands of hours fighting my corner and am in no doubt that the time lost has taken its toll on me, my children and wider family.
In a nutshell, in 2012, the CSA and its solicitors were negligent in relation to the enforcement of a court order for sale in that, to my dismay, they sat back and failed to take any of the customary steps necessary to protect my position in relation to the sale proceeds. As a result of this negligence, I lost the arrears of child support that had accrued due to me over a period of many years. This loss was particularly devastating as I had been told by the CSA to expect imminent payment in circumstances where I had lost my own salary due to ill health, (lupus and fibromyalgia).
Initially, K M of the PHSO upheld my complaint – I was absolutely delighted when she contacted me to let me know the good news. This was in the summer of 2015. Although she did explain that the draft would have to be submitted to the CSA, she reassured me that there would have to be exceptional circumstances for it to be changed. Ironically, I thanked her for restoring my faith in the system, a faith that had been undermined by very poor prior experiences with both the independent case examiner as well as the local government ombudsman.
To my consternation, however, following the issue of a very robust draft report, first things went quiet and I then noticed that the tone of Ms M’s subsequent email letters to me had changed completely. She repeatedly referred to the need to be fair to the CSA and explained that the CSA disagreed with the report. I was told that there would be a meeting between the CSA and the PHSO to which I was not invited. I realised immediately that the findings in the report were going to be reversed. In desperation, I requested my then MP, Gavin Barwell, to intervene before it happened, explaining to him that I felt that the CSA was leaning on the PHSO and that this was corrupt. However, his response was that he was of the opinion that there was nothing untoward going on and that I should just let matters take their course and apply for judicial review, should that become necessary. I tried to explain that judicial review would be unlikely to be a realistic option, but the truth is that Baron Barwell, as he’s now known, simply had no appetite to fight the injustice I faced.
As I had predicted, the report was, indeed, changed to my detriment. I requested the notes of the meeting, but there weren’t any. What there was, however, was evidence of a phone call between the CSA and PHSO at high level during which a decision was made to alter the PHSO’s findings in relation to causation: Although the amended report recognised that mistakes had been made, it concluded that I had no proof that these mistakes had caused me loss. The bar had been raised so high that I could never have hoped to satisfy the new burden of proof that was being applied to my case. Unlike the CSA’s, my objections were given short shrift and the report was finalised almost before I’d submitted them.
Luckily for me, when I was on the point of giving up, I found J B of Leigh Day & Co. He was sympathetic and came to my rescue by issuing a strong letter before action threatening judicial review proceedings on my behalf. As a result, the PHSO eventually backed down and agreed to consider my case afresh. (This is a very condensed version, as there was a great deal of work involved).
Unfortunately, however, the PHSO’s agreement was just the beginning of a very-long winded process indeed. I had to wait for months for my case to be reassigned. Eventually, a new investigator, D W, got involved and had to spend time familiarising himself with the case. In fairness, he was very thorough and a good investigator. The only problem was that he left the PHSO in December 2016, before issuing a draft report. He did tell me, however, that his draft, draft report had almost been finalised. I received the impression that, although he wanted to uphold my complaint and disagreed with the CSA’s arguments, the CSA’s lack of cooperation was a major stumbling block.
And so, I had to wait again for a new investigator to take over. The next investigator was not great: she never seemed to get to grips with the case and my impression, rightly or wrongly, was that there was no movement at all during the nine months that she spent familiarising herself with the detail. Eventually, in November 2017, she announced that she, too, was leaving. It seemed to me that the PHSO was not taking its agreement to consider my complaint afresh very seriously.
Finally, in January 2018, C P took over. She was very professional in her approach, but there were numerous interminable delays due to the CSA continuing to object strenuously to the PHSO’s findings in my favour, causing the draft, draft report to be amended by the PHSO on numerous occasions. As I told C P at the time, I felt that the PHSO were bending over backwards to accommodate the CSA who were threatening judicial review. C P explained that the CSA would be more likely to comply with the PHSO’s recommendations if they agreed with report. By that stage, I was so frustrated with the whole thing that I insisted that, whether or not they complied, I just wanted the report finalised. However, the PHSO remained anxious to secure the CSA’s cooperation, and, as Rob Behrens explained to me at a meeting, they simply could not risk another unsuccessful judicial review.
I suppose what I found most frustrating was that, although the CSA’s objections were not valid, it was permitted to drag out the resolution of my complaint for so many years without sanction. Although I am grateful to have eventually received the money I’d lost, seven years after the event, its value has been significantly eroded by inflation, a factor that was not taken into account. Moreover, whilst I had understood that the CSA would have to pay interest, I have been offered a rate of just half a percent, considerably less than the judgement rate of 8% awarded by the courts. (The CSA got to determine the rate, as the PHSO omitted to stipulate it in its report). And, if I wish to challenge the rate, unfortunately, it means a new PHSO complaint and another battle.
The crux of the matter is that, even though, given the numerous mistakes it had made, the CSA did not have a compelling case for judicial review, the PHSO was so fearful of the CSA’s threats that it seemed to feel quite unable to finalise matters without the CSA’s cooperation, leaving me in a state of disillusionment and limbo for many years. For this reason, I am unable to recommend the process to others.
On a more positive note, I am told that the CMS, as it’s now known, will henceforth be handling orders for sale differently. Hopefully, this will mean that fewer parents with care will be deprived of the arrears of child support due to them. Having said this, however, in my view, there needs to be fundamental, systemic, change at the CSA as, in my experience, it remains highly inefficient and, for the most part, unaccountable for its mistakes, which probably explains why so many are continuing to be made.
The sticking point for PHSO was ensuring compliance, given that it has no powers to compel a public body to abide by its findings. As Rob Behrens stated, PHSO could not risk another unsuccessful judicial review, hence the ‘independent’ and ‘impartial’ process required endless negotiation with the public body under investigation. This was finally resolved by Karl Banister from the PHSO legal team, as recorded in the October 2019 board minutes.
But all is well for the Ombudsman for parliament are unlikely to probe beyond the shiny gold thread woven into the PHSO Casework Report. No-one but us knows that underneath that glimmer and gloss, lies the dirty straw of damaged lives.