How the Ombudsman swindled the pensioners one more time.

As Ombudsman watchers since 2013 we knew that things were unlikely to turn out well when Rob Behrens (Mr B) the Parliamentary Ombudsman took over the Waspi complaints in 2017.  Our warnings fell on deaf ears as the Waspi women rejoiced in the fact that an independent and impartial body was going to resolve their complaints against the DWP regarding a failure to inform the increase in pension age for women born in the 1950’s and beyond.

No private pension scheme could arbitrarily change the payout date for those already signed up to the contract but the government can, because the government are unaccountable and the Ombudsman is their unaccountable clean-up guy.  You only have to look at Mr B’s record.  In 2021/22 there were 1,226 complaints to the Ombudsman with regard to DWP.  16 were accepted for detailed investigation, 2 received a full uphold and 7 a partial uphold. Just 0.7% of all submitted complaints received any kind of uphold. The rest just got buried along the way.  

The odds were always against the Waspi women but they lived in hope as months turned to years. Then in July 2021 there was much to celebrate when the Ombudsman found that the DWP had acted with maladministration and published their first stage report.  With renewed hope the women waited for the resolution report, which is due to be released in March 2023, more than five years after the original acceptance of the complaints. 

Just what has the Ombudsman been doing all this time? 

Well time is a weapon in itself. The waiting wears you down, lowers your resolve and in some cases kills you off. Problem solved. 

Thanks to David Hencke and his blog Westminster Confidential the ‘secret’ update report has found its way into the public domain. Secrecy is another weapon used against the helpless complainant. No one can discuss the rationale of the report until it is made final, but by then it is often too late.  In order to secure a review of a final report the complainant must demonstrate flawed reasoning or produce new evidence. Even if you are able to prove that the reasoning is flawed, as it so ofter is, the odds are still against you with this clause from PHSO review guidance. 

45.Where the service user demonstrates our rationale was flawed, but the case owner considers that our overall decision reached was correct, we do not need to conduct a fresh primary investigation. The case owner should explain this to the service user.

Getting a final report overturned is an herculean task when the author of the report can simply determine that the decision was correct and who among the tired and defeated Waspi women is going to try?  

So just how did Mr B pull this sting on the multitude of Waspi women? 

PHSO reports are deliberately verbose, with repetitions, deviations and contradictions. Aimed to confuse, they are packed to the margins with factual debris.  If you have read everything released to date, you will have read approximately 100 pages. So in case you missed it, as most of the media appear to have done, the catch all is the way the first investigation managed to reduce approximately 15 years of DWP maladministration to just 28 months. A neat trick, but then that is their area of expertise. 

So let’s look at the facts as recorded in the first investigation report.

The law changed in 1995, equalising pension age for both men and women at 65 years. The bill included an intention to provide a long lead-in so that women could make adjustments.

26. The change was to be phased in over a 10-year period between 2010 and 2020. The long lead-in period was to allow people sufficient time to plan ahead.

27. The White Paper stated:

‘In developing its proposals for implementing the change the Government has paid particular attention to the need to give people enough time to plan ahead and to phase the change in gradually.’

Had 50’s women been effectively notified in 1995, there would have been a 15 year lead-in time, but women were not individually notified by DWP until 2009 (or later due to cohort batch arrangements) causing many to fall into financial hardship just as they were expecting retirement. 

The stage one report found that from 1995 DWP ran a number of generalised campaigns which encouraged individuals to actively seek information about how changes to pension rules would affect them. It has been acknowledged that these campaigns were not specifically targeted at changes to pension age, which affected only women. 

78. Pensions education campaigns focused on encouraging individuals to understand their pension entitlement and plan their retirement. DWP has said these campaigns included material relating to women’s State Pension age specifically targeted at women. However, a relatively small proportion of the campaign material we have seen refers to State Pension age:

A plan to specifically target the changes to women’s state pension age through a media campaign were scuppered by the government. 

79. The need for an advertising campaign to tell women about the changes to State Pension age was considered in early 1997. The response to a ministerial submission in February 1997 said ‘Ministers do not see a pressing need at this stage to run such a campaign but would be prepared to re-consider at a later date.’

Two years down the line from the 1995 Act the government fail to inform all those affected with a targeted tv campaign. Is this mere oversight, incompetence or a deliberate attempt to keep the lid on things until it was too late for the women to take action? Can you imagine the impact as millions of women instantaneously discover they are to be robbed of five years pension as they tune into their favourite soaps? The time to take opposing action would have been then, with street campaigns similar to the ones currently on-going in France where there is a proposal to raise the pension age from 62 to 64.  Millions have taken to the streets in the hope of reversing this proposal. 

Unfortunately, here in the UK, our horse had already bolted by the time protest groups formed.  

It is clear from the stage one report that following the 1995 act the DWP were ineffective at communicating the changes to women’s pension age through generalised campaigns. In particular the DWP did not communicate how the changes would affect the individual and this statement confirms that DWP expected women to be proactive in finding out. 

115. Unpublished DWP research from 2007 found 85% of women aged 48 to 59 knew State Pension age was going to be equalised, but many women did not know when it would happen. The research also found that 50% of women whose State Pension age had risen to between 60 and 65, and 36% of women whose State Pension age had risen to 65, still thought that it was 60. DWP told us that if people are aware of the changes, they can find out their own State Pension age.

The DWP, no doubt restrained by the heavy hand of government, had repeatedly stopped short of alerting women to how they would be affected by the 1995 Act.  The Ombudsman confirms that the information provided at this time was too generalised to be effective. 

130. Where State Pension age changes were mentioned, generalised messages that State Pension age was ‘being equalised’ from 6 April 2010 and would increase ‘from 2010 to 2020’ or ‘by 2020’ would not necessarily have alerted women that they could be personally affected. 

So how does this lengthy delay get reduced to just 28 months maladministration?

Despite the failure to inform at least 50% of affected women since 1995, the Ombudsman selects the date of 2006 to calculate the start of the maladministration. 

154. The 2006 Civil Service Code required DWP to deal with the public and their affairs promptly. The public’s need for time to adjust their retirement plans was set out in the 1993 White Paper and the need for significant pre-warning of changes in State Pension age had been highlighted again by the Pensions Commission in 2005. The 2006 research showed a significant proportion of time had already been lost, given the changes were due to take effect from 2010.

The Ombudsman decided that by December 2006 DWP, equipped with the 2006 research showing that efforts to inform women had failed, needed to move to an individualised approach. This arbitrary date selection ignores the fact that, as recorded in the report (sections 94 to 101) DWP had been given similar research findings in 2000/2001, 2002, 2003/4 and 2005. Any of these dates could have been selected, but they would have increased the time span of the maladministration.   

155. DWP failed to act promptly on its 2006 proposal to write directly to affected women, or to give due weight to how much time had already been lost for women who remained unaware of the changes in the 11 years since the 1995 Pensions Act. It appears to have made no progress in developing its proposals between November 2006 and December 2007, despite the November 2006 memo saying an approach for direct mailing would be shared with Ministers before Christmas. We take that to mean Christmas 2006. We have seen no evidence a ministerial submission was made until December 2007.

156. DWP failed again to ‘get it right’. It did not act promptly as required by the Civil Service Code and did not give due weight to how much time had already been lost. And it failed again in its responsibility to ‘seek continuous improvement’ in response to the 2006 research. That was also maladministration.

When the mail shot programme started in April 2009 it only targeted women in transition, giving them as little at one year’s notice. Those who were required to wait a full five years were still in the dark. Yet this date is considered to be the end of the maladministration period because individual communications had begun. 

112. The schedule proposed in the paper gives women increasing periods of notice depending on when they turn 60. For example, women whose State Pension age increased by between one and 12 months would receive one years’ notice. Women whose State Pension age increased by between 52 and 60 months would receive three years’ notice. The document says direct mail was considered the best way to try to ensure information about the increase reached as many women in the transitional group as possible and was the only sensible option left to increase awareness.

The Ombudsman confirms that DWP had a duty under the Civil Service Code 2006 to act promptly and it failed to do so.  Using the Civil Service Code of 2006 appears to mark a change in policy, allowing the Ombudsman to determine maladministration from this time.  But their report confirms that DWP had a duty from 1995 to ‘get it right’ provide clear information in a timely manner and seek continuous improvement, by reference to the DWP Policy Statement on public information, quoted earlier in the report.  

50. The DWP Policy Statement is quoted in our ‘Trusting in the pensions promise’ report (2006). It describes the expected quality standard for information provided by DWP. It goes on to describe DWP’s duty to give information to the public.  

51. The DWP Policy Statement states that all information provided by DWP should be ‘appropriate, relevant, correct, up-to-date, clear, concise and to the point, helpful and targeted’. For the purpose of this investigation, we understand ‘targeted’ to mean that information about changes to State Pension age should have been directed to, and tailored for, the people who needed it.

53. We consider that the DWP Policy Statement applies throughout the period we are looking at. The language used, particularly the statement including that it ‘is widely accepted’ that DWP ‘has a duty’ indicates that this was not a newly introduced position, and that the duty pre-dated the DWP Policy Statement. The fact that DWP had already been providing information (for example, by publishing leaflets about benefits) for some time before the DWP Policy Statement was issued further illustrates this point. We consider the statement to be consistent with the Principles of Good Administration.

The Ombudsman’s report confirms that since 1995 ‘time had been wasted’, that the DWP had a responsibility under their own policy statement to provide ‘targeted’ information in keeping with the Principles of Good Administration.  And that at the start of the mail shot in April 2009, when only those women in transition were contacted, at least 50% did not know that the reforms were due to start just one year later in 2010. DWP had failed to give the required long lead-in time as laid down by the 1995 Act. Yet, with a logic only the Ombudsman can comprehend the conclusion in the first report is as follows. 

2. We find that between 1995 and 2004, DWP’s communication of changes to State Pension age reflected the standards we would expect it to meet. Accurate information about changes to State Pension age was publicly available in leaflets, through DWP’s pensions education campaigns, through DWP’s agencies and on its website. That reflected those applicable standards.

With a flick of the wrist the Ombudsman removes ten years of damaging delay.  No wonder this report was published in stages, which is highly unusual for an Ombudsman report. The determination that DWP were guilty of just 28 months maladministration is now set in stone and will be crucial to the next part of the investigation where the Ombudsman determines both the harm and the remedy. What could women have done differently if they had been informed 28 months earlier, is the question used to determine the severity of harm. Well, given that pension plans are long term endeavours, not very much. This allows PHSO to conclude that the harm would have happened in any event, regardless of the maladministration. No uphold, a small payment for distress. Case closed.