Rob Behrens – the Rumpelstiltskin of his day.

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.

PHSO Report: 

 

Complainant’s Report: 

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.

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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.