If you have been following the PHSO investigation into the ‘WASPI’ complaint (Women Against State Pension Inequality) then you will have seen that WASPI were forced to take legal action when Ombudsman Rob Behrens refused to withdraw the flawed second report.

From the Waspi Crowdjustice page – update 12 – we learn that there was a request for Rob Behrens to withdraw the second report and/or engage in Alternative Dispute Resolution (ADR).

But he refused to accept that the report was flawed.

It was therefore necessary for WASPI to crowdfund for legal proceedings as described in update 4.

Even when Pre-action Protocol (PAP) papers were issued, his legal team attempted to find technical grounds on which to dismiss the claim. These are recorded in the Statement of Facts and Grounds submitted to the High Court.

[6] …the PHSO refused to accept WASPI’s standing as a claimant in these proceedings…

[13] …the PHSO asserts at §§21-26 that the challenge is out of time because it was not brought “promptly… It is said that the challenge should have been brought, or at very least warned, within two weeks of the Claimant and the Interested Parties being sent the final Stage 2 Report (i.e. on Christmas Eve).

[13] It is said that there is no public interest reason for the claim to proceed notwithstanding the alleged lack of promptness and that the PHSO has, “justifiably proceeded on the basis that his stage 2 Stage 2 Report was not challenged and moved on to stage 3”

Due to this intransigence the 1950’s women, who have already suffered severe financial loss, were forced to raise funds for a judicial review. Once it became clear that WASPI had both the grounds and the means to pursue the legal route the Ombudsman backed down and agreed to look again at aspects of the stage 2 report. He described this action as ‘cooperative’ in a summary on the PHSO website.

We are confident that we have completed a fair and impartial investigation and, as an independent Ombudsman, our duty is to provide the right outcome for all involved and make sure justice is achieved. We hope this cooperative approach will provide the quickest route to remedy for those affected and reduce the delay to the publication of our final report.

It is clear that the WASPI campaign team were informed that court action was the only route for withdrawal of the flawed report.

Waspi update 12 states that;

That may have been the case historically, but since the arrival of Rob Behrens, things have changed. In February 2018, the Ombudsman conferred upon himself the powers to quash a report in exceptional circumstances, as outlined in this letter to PACAC.

Following this correspondence, PHSO updated their Review and Feedback Guidance which makes rather contradictory statements with regard to withdrawing (quashing) a flawed report

[6] Our decisions are final and can only be challenged by Judicial Review. We recognise though that this is a technical and expensive process, so we will review a decision we have made on a case if there is information that shows we got something wrong in a way that could change the decision. There is no automatic right to a review, and we will not review a case just because someone is unhappy or disagrees with what we have done.

[66] In considering a suitable way to remedy a complaint about a decision, we can consider quashing our own report or decision. This means that we would treat the report as invalid (and we would make that clear to all affected parties).

[67] We will only quash a report or decision we have made in exceptional circumstances given the strong public interest in certainty around our decisions and where we are unable to complete a new detailed investigation.

It is important to bear in mind that the review process is set by PHSO who decide on the criteria, decide whether a review will be carried out and decide what action to take when a review is upheld. Internal changes to this process are most likely responsible for the marked decline in review requests and upholds. (PHSO Annual Report 2022/23 p35)

Typically, a review will look at whether staff followed the correct procedure, rather than at the conclusion reached. The best outcome would be for the Ombudsman to undertake a new investigation. However, the original flawed report would not be withdrawn (quashed) unless the Ombudsman was unable to carry out a further investigation. On this basis the complainant is left either with contradictory reports in the public domain, or no report at all.

On the subject of ‘quashing’ Rob Behrens accepts in his correspondence with PACAC that, “… there is no specific power in our legislation that would compel the recipients of such correspondence to follow this action, this would at least be a clear signal that the findings should not be relied upon more widely..

The question is whether the Ombudsman has overstepped his legal remit by adopting the ability to quash flawed reports. Is he acting ‘ultra vires’, i.e. outside the law?

In 2016, under the previous Ombudsman, Dame Julie Mellor, there was much debate on the issue of ‘functus officio’ indicating that it was beyond the powers of the Ombudsman to re-open an investigation once a decision had been made. If this is the case, then the whole review process is null and void.

Despite many requests for clarification on this important issue, the Ombudsman remains tight-lipped on the matter; aided and abetted by ICO.

As the current guidance stands, it is clear that Rob Behrens could have offered to open a new investigation if he had been willing to review the stage two report and accept that errors had been made.

[OAT – Ombudsman’s Assurance Team]

Instead of taking this ‘cooperative’ approach, Rob Behrens went to great lengths to defend the flawed report.

Was he deliberately trying to minimise the harm caused by DWP maladministration and in doing so minimise the compensation payment?