“You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. Knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.”
Judge Lake was applying the legal principle of wilful blindness: you are responsible if you could have known, and should have known, something which instead you strove not to see.’
Introduction to Wilful Blindness 2012 by Margaret Heffernan
Turning a blind eye is endemic in our institutions, aided and abetted by a compliant media. The official response to the pandemic has recently brought this issue into sharper focus but as Ombudsman watchers we have been aware of dark arts of our democracy for many years.
PHSOtheFACTS are a grassroots organisation consisting of people who have suffered appalling injustice at the hands of the Parliamentary and Health Service Ombudsman (PHSO). We are not alone, check out these reviews on Trust Pilot. PHSO masquerades as an impartial arbiter of complaints against government departments and the NHS. If you or your family have suffered harm due to the recent lockdowns, it will ultimately be the Ombudsman who decides whether you deserve an apology or remedy. If you disagree with his decision, tough luck. The Ombudsman Rob Behrens CBE is a Crown Servant who is not accountable to the people or to government but is accountable to parliament via the Public Administration and Constitutional Affairs Committee (PACAC) who are unable to look at individual complaints.
Their oversight of the Ombudsman amounts to little more than an annual scrutiny session and the next one is due to be held at 9.30am on 29th November in the Wilson Room, Portcullis House. Ahead of the meeting the chair of the committee, William Wragg MP puts out a call for evidence and members of the public take great care in relaying the many flaws inherent in the complaint handling process and the suffering this has caused them. Here is a typical example from Maureen Rudley.
It is my belief that the PHSO is not fit for purpose and that, rather than being of assistance it actually causes further extreme distress and harm to the complainant. My complaint of negligence at an NHS hospital was taken to the PHSO, after the death of my husband when it was clear that the Trust involved were denying the events and what actually occurred, which, in my opinion, was a cover up. The PHSO accepted the case but rather than assist in the matter, they immediately showed a preference for statements made by the Trust, the subject of my complaint. The situation quickly became quite stressful and difficult as the investigator was reluctant to investigate and I spent a great deal of time and effort in attempting to do the work for him. This is not what is expected of an organisation which is set up to help the public in times of real distress.
And this summary from Mr Dewsbury neatly sums up the true nature of the process.
Based upon the voluminous evidence the Ombudsman:
1. Is no value for money . In fact, it is wasting precious public funds to serve as nothing more than a window dressing exercise and to protect the state’s institutions and not serve the public or protect them from harm
2. Casework performance continues to fail with extortionate delays all blamed on covid, although the significant delays were there before covid
3. Staff are poorly trained and unequipped to deal with the complaints they are meant to investigate with little or no knowledge is these specialist areas
4. Impact on other organisations eg the NHS is positive as the Ombudsman simply serves as a protective body for them and to shut down any legal action by protecting the institutions and leaving the public at risk
Evidence submitted by members of PHSOtheFACTS provide the committee with a helpful analysis of the data. They can see from the evidence submitted by Nicholas Wheatley that since the arrival of Rob Behrens in April 2017 the number of investigations carried out by PHSO has decrease by 85%
In 2016-17 about 46% of all complaints made to the PHSO were investigated. In 2021-22 only about 8% of all complaints were investigated.
They also learn that only 81% of investigations are completed in 52 weeks compared to 96% when Rob Behrens took office in 2017.
From the evidence presented by David Czarnetzki the committee are informed that there has been a significant fall in response times to both Freedom of Information requests and Subject Access requests.
On page 36 of the annual report, PHSO released figures to show that, within statutory limitations, they responded to 93% of Freedom of Information requests in 2018-19 but only 51% in 2021-22. Examination of the percentages reveals that 338 of 364 requests were so answered in 2018-19 but only 253 of 498 requests met the criteria in 2021-22. A similar situation is revealed with subject access requests. 95% of SAR’s were dealt with within statutory limitations in 2018-19, gradually falling to 45% in 2021-22. This translates to 291 of 307 requests dealt with in 2018-19 falling to 129 of 288 requests in 2021-22.
This evidence also reveals that there has been a delay in publishing the results of the staff survey. It has previously been the practice at PHSO to release the results of the staff survey, held in October/November each year, the following March. In this instance the results ‘required additional work’ and were not released until October the following year. Perhaps members of the committee will ask what kind of ‘additional work’ is required given that such surveys should be carried out by independent agents.
The committee must at least be intrigued by the difference between the evidence submitted by the complainants and that of the ‘organisations’ who write in glowing terms of their close collaboration with the Ombudsman, using descriptives such as open, transparent and professional. The cherry on the top of the cake is the submission presented by the Ombudsman himself.
Although the data signals (KPI) are pointing downwards, the evidence submitted by Rob Behrens opens with the following statement.
In 2021-22 PHSO, the UK national Ombudsman service, delivered significant operational improvements, despite major challenges and a substantial increase in demand compared to the pre-pandemic period.
Despite this challenging environment, in 2021-22 we reduced, by approximately a third, the number of cases waiting to be allocated to a caseworker, while also improving the quality of our service.
The quality of the service is measured by the survey of complainants which according to the Ombudsman’s own data shows a decline across all areas. The Ombudsman puts this decline down to ‘not asking the right questions’.
We are planning to obtain further qualitative feedback to understand the root cause behind changes in responses, as well as reviewing the questions we ask complainants to make sure we are asking the questions that those using our service feel best address their views about service quality.
Their efficiency at reducing the numbers of cases waiting to be allocated was facilitated by a new policy of focusing only on those cases where people faced the most significant injustice and using arbitrary criteria to close the others down.
110% increase in complaints concluded for “Other reason...
”The table on page 31 of the annual report shows a large increase in the number of investigations concluded for “Other reason…”. In 2021-22 there were 3,123 complaints concluded for this reason compared with an average of 1,484 over the previous 3 years. That represents a 110% increase. No reason is given in the report for this large increase. Nicholas Wheatley evidence to PACAC.
Those suffering injustice at the hands of the state would no doubt be livid at having their cases turned down without investigation but as Rob Behrens confirms in his submission, PHSO are … neither a consumer champion nor an advocacy service. On this basis PHSO do nothing to redress the balance between the naive citizen navigating the complex complaint system for the first time and the inherent power of state run complaint departments who are expert at obfuscation and have ready access to a legal advice. Lambs to the slaughter comes to mind.
Whilst not supporting the citizen in order to maintain his impartiality there is much evidence of the Ombudsman is working in close liaison with other organisations, some of which are under his jurisdiction.
NHS Resolution: Our experience of working with the PHSO has been positive, meeting regularly to discuss collective objectives and how we can work collaboratively to achieve our shared aims; recognising that at times we have different positions due to our roles within the system.
Local Government and Social Care Ombudsman: The Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman take the opportunity to learn from each other through their membership on each other’s Boards, and through regular operational discussions between managers from both organisations.
Healthcare Safety Investigation Branch: PHSO have attended HSIB seminars to share their work and HSIB staff have attended PHSO internal events to share information on our role and function. These interactions have been helpful, friendly, and providing constructive feedback in both directions to support improved outcomes from our work.
HMRC: HMRC have an excellent working relationship with PHSO, and their caseworkers/investigators are professional, knowledgeable and easy to engage with. We appreciate that PHSO colleagues support a direct communication approach to resolve queries and issues to find and agree a way forward, whilst maintaining their independence.
GMC: We remain in an ongoing and positive relationship with the PHSO at both a senior leadership and operational level.
Will the committee contrast this happy club to the evidence of complainant David Walford who provides a most thorough account of the various ways PHSO caseworkers misconstrue basic information in an attempt to deny or delay upholding an investigation.
The PHSO are now on their fourth case review. In all that time, they have done absolutely nothing to challenge the Hospital’s position. The PHSO have required eight months to assign our latest caseworker. Their remit is now to determine if the Hospital maintain their previous position, despite our assurances that absolutely nothing has changed over the past three years and six months. We escalated our complaint to the PHSO in March 2019, who responded that our complaint had not been officially recorded by the Hospital. Despite us having followed the Hospital’s complaint procedure correctly, we were now obliged to go through their process again. We provided Caseworker #1 with the full timeline of events. We explained the Hospital’s complaint procedure, and how we had followed that correctly from our very first letter. We deconstructed their paperwork to demonstrate how their own investigations had been nothing of the sort, then used the court judgement transcript to demonstrate how the actual evidence supported our complaint. In March 2021, four months after my case review was snatched from a named Manager without explanation, RAFT wrote to say that they had decided to open a new case. They continued that, because this was now a new case, the PHSO would need to once again consider if it could be taken forward for investigation or not. I immediately referred RAFT to the PHSO’s own “Service Model Policy and Guidance: Review and Feedback Guidance 9.0”, which made it plain that my review request could only have reached RAFT if it had already been upheld by an Operational Manager. RAFT’s immediate response was to remove this public document from the PHSO’s policy page4, where it remains listed as “currently under review” eighteen months later. I next heard from Caseworker #3, who made it clear that my case really was now being treated as though it were my first contact with the PHSO. Their remit, handed down from persons unknown at RAFT, was merely to determine if NHS organisations were responsible for the actions of their car parking contractors.
In order to assist the investigation, David Walford supplied evidence which confirms this position, yet somehow PHSO are still struggling to determine the outcome.
Since 2015, NHS car parking guidance1 has stated that NHS organisations are responsible for the actions of private contractors who run car parks on their behalf, that NHS organisations should act against rogue contractors, and that income should not depend on the number of charges issued.
An inability to recognise indisputable evidence was also confirmed by Graham James Clitheroe in his submission to the committee.
The PHSO behaved in a misleading way. Clear information was provided to the PHSO but from the replies I received from them I formed the impression that somewhere a decision had been taken to intentionally misconstrue meanings and effectively overlook factual events. It was as though the PHSO were unable to recognise or process straight forward points concerning dates and grammar. The information I sent the PHSO was sound and true and should therefore not have been rejected or handled in a manner many would regard as underhanded.
Returning to Mr Walford, the committee are also given the head’s up that all is not well with the ‘independent’ customer survey.
In the meantime, on the 1st of April 2021 I received the first call of two calls from the independent private research company appointed by the PHSO to gather feedback on their KPIs. I apologised to the kindly operator for my comments, who said I was calmer than average, then volunteered that “about 100%” of the people they spoke to were firmly dissatisfied. This is anecdotal, but we encourage the PACAC to request such raw data in addition to the derived KPI percentages.
We also encourage the PACAC to ask the PHSO why, at least four years after their omission was first noted, they still do not publish the percentage of respondents who are satisfied with their ability to “evaluate the information gathered and make an impartial decision on your complaint”.
Proper scrutiny would indeed examine the raw data and not be content with the headlines after PHSO have applied ‘additional work’.
The members of PACAC are in full knowledge that the public are routinely denied justice in an abusive process which causes further harm to those who have already suffered bereavement or trauma. They are in full knowledge that Key Performance Indicators (KPI) are in decline. They have even been informed by David Czarnetzki that Ombudsman Rob Behrens has taken a little job on the side, joining an organisation which could come under his remit for investigation.
PACAC last held its scrutiny of the Parliamentary and Health Service Ombudsman on 14th December 2021. That same day, the Committee Chair wrote to the Chancellor of the Duchy of Lancaster expressing the view the committee could see no issues to prevent the Ombudsman continuing in post after March 2022 (later confirmed by the Cabinet Office).
On 15th December 2021, just one day later, the PHSO Board held a meeting. Minute 6.3 of the meeting states:
“The Board was informed Rob Behrens had been appointed as Chair of Governors at Anglia Ruskin University”.
Minute 6.4 shows the appointment was registered in the register of Board Members Interests.
The committee are in full knowledge of this tale of two cities. The cosy club of official bodies where Rob Behrens, International Ombudsman, spends his time setting standards which are not enforced and holding back-slapping peer reviews while citizens struggle to communicate basic information to caseworkers who are wilfully blind to the evidence put before them.
Trevor Mayes sums up the long-term damage caused by those in authority denying the truth.
My evidence was ignored and no reference was made to relevant facts, laws, or rules as part of a fact-based decision-making process. Their decision was based on second-hand contradictory opinions provided by the GB [government body] some of which were outside the remit of both the GB and the PHSO. The Committee should not underestimate the damage that can be done to complainants subject to this conduct by those in a position of authority and trust.
But if we go by previous experience, the committee will indeed focus on the good work Mr Behrens is doing with his chums while turning a wilfully blind eye to the pleas of the public. If you would like to watch the performance and cannot get to Portcullis House for a ringside seat on Tuesday 29th November, then tune in to Parliament TV via this direct link and see for yourself.