The Rob Behrens Audit

Rob Behrens CBE took up the office of Ombudsman in April 2017. As he prepares for retirement from this post in March 2024 let us take a look at whether his tenure has lived up to the promise of what a ‘real ombudsman’ can achieve.

Behrens set out his intentions during his pre-appointment inteview with PACAC on 18th January 2017. He has had the best part of seven years to achieve these goals. As the PACAC committee searches for his replacement, it would be beneficial to determine which promises have been delivered and which were nothing but hot air.

Behrens was transferring to PHSO from his role as the Independent Adjudicator and Chief Executive of the Office of the Independent Adjudicator for Higher Education (OIA). A position he held since 2008. He describes the poor state of that organisation when he took over.

The key issue is that I have 10 years’ experience as an ombudsman and, in higher education. I took over an organisation that had done very well at the beginning but needed to become more open, more outward facing, more transparent, and needed to have a conversation not only with universities but with users of the service and complainants, to make sure that the complaints process was user friendly and rigorous in terms of the investigations that were taking place.

Over a period of four years after I joined, I set about three national consultations called the Pathway process, which set out to listen to stakeholders and users about their experience of the OIA. What we got from that process was an acceptance that the OIA performed an important function but, in the view of users and stakeholders, it was insufficiently user friendly, insufficiently transparent, too slow in resolving complaints and not sufficiently flexible in its approach to cases.

https://committees.parliament.uk/event/10131/formal-meeting-oral-evidence-session/

Behrens likes to see himself as something of a troubleshooter. Shortly after taking on the role of PHSO Ombudsman he described to Civil Service World the issues he faced there.

Behrens told CSW the organisation had been through a “traumatic two years”, but that the strength of PHSO’s “superb” staff had shone through.

“It was quite clear talking to people throughout the organisation and outside in preparation for coming that there had to be reassurance and a plan for moving forward,” he says of the episode. “The reassurance is about having a leadership that sets out very clearly what the priorities of the organisation are, so we have to be first and foremost an ombudsman service that resolves complaints for groups and individuals.

https://www.civilserviceworld.com/in-depth/article/lessons-in-listening-phso-rob-behrens-doesnt-just-want-to-be-the-ombudsman-for-bad-news-and-recalls-working-with-cyril-ramaphosa

Just as Behrens set about his Pathway project at OIA, he began his tenure at PHSO by setting up new complaint standards for the NHS. This was a major project, launched in March 2021 (four years after his appointment) and they were still to be rolled out across the NHS in March 2023.

Our next step is to roll out Complaint Standards materials and training across the wider NHS. When doing so, NHS staff can be confident that the Standards have been tried and tested with their peers.

We will also begin to refer to the Standards in our casework. This will focus on identifying good practice and how local complaints handling can be improved.

https://www.ombudsman.org.uk/news-and-blog/blog/nhs-complaint-standards-value-good-complaints-handling

It has taken until October 2023 for PHSO to produce the standards for government bodies.

The pace of this work means that evaluation of these new complaint standards will occur well after Rob Behrens has left office. It could be argued that time and money could have been better used by rolling out the existing guidelines, My Expectations, as commended in the Health Select Committee report of 2015 and supported in the government response to that paper.

We welcome the work that has been done to produce what is essentially a best practice guide to first-tier complaints handling. There can be no excuse now for any health or care organisation not to have an appropriate mechanism in place to deal with concerns and complaints. It represents an important first step towards an overarching, single access-point complaints system. (Paragraph 79)

Government response: We agree that the work recently published by the Parliamentary and Health Service Ombudsman, the Local Government Ombudsman and Healthwatch England [“My Expectations for Raising Concerns and Complaints”] clearly defines universal expectations for what good complaints handling should be like. It has made clear what is required of organisations in respect of complaints handling, and now informs CQC’s inspections.

Rob Behrens stated that his primary purpose was to resolve complaints for groups and individuals. Let us look at his record on this key issue.

During his time at OIA, Behrens oversaw a low uphold rate for complaints about Higher Education Institutions (HEI) Just 4% were found to be fully justified and 73% were rejected as either unjustified or not within their remit. final report 2016/17 (p9).

A study by Dr David Hockey ((investigative criminologist & researcher) published in March 2020 ‘The Ombudsman Complaint System; a Lack of Transparency and Impartiality’ found this uphold rate to be significantly biased towards the institutions.

Although the OIA’s annual findings are statistically significant in favour of the providers’, p < 0.05 (see OIA annual reports 2018), in the rare event of the OIA finding a complaint to be ‘justified’ (about 4–6% of complaints annually) or ‘partly justified’ (about 11%), the OIA will suggest a financial figure to the provider to pay to the complainant by way of compensation. 

https://link.springer.com/article/10.1007/s11115-020-00469-2 paywall

This perceived bias caused considerable disquiet among service users, as described by Hockey in his study.

“Many students were angry and frustrated that in the event of a conflict of evidence, they perceived that the HEI account was accepted and their own rejected for no satisfactory reason that they could see.” (Price and Laybourne 2009). 

In addition to this, the OIA refuse to make visible the feedback comments of most complainants whilst publishing a few examples which they select, thus through impression management, a misleading picture is presented about how students perceive the OIA. However, the overwhelming number of feedback examples that have been published independently of the OIA, do not support the OIA’s assertion that they are without bias towards the providers.

https://link.springer.com/article/10.1007/s11115-020-00469-2 paywall

They also converge on similar points (i.e., that the OIA ignore evidence against HEI ‘s on issues of substance, which in turn serves to justify their decision to agree with HEI’s), almost two thirds of students felt that important points were not addressed by the decision maker at the OIA (Price and Laybourne 2009).

Any investigation by PACAC into Behrens’s previous record would have determined his low uphold rate and lack of public confidence in OIA decisions. Once in office at PHSO, he followed a similar agenda. Note the significant fall in both investigations and upholds from 2017.

Behrens often changed definitions or ways of recording data, making it difficult to compare his performance with previous years. Shortly after his appointment, initial assessments of complaints were redefined as primary investigations. This gives the impression that a significant number of complaints are investigated by the Ombudsman when in reality this stage only records those cases dismissed from full investigation. At the same time, Behrens oversaw a steady decline in detailed investigations (which are required for uphold) from 13.6% prior to his appointment to just 1.7% of all complaints in 2021/22. Equally, there has been a decline in the uphold rate from 4.9% to just 1.1% of all complaints. Of those cases that are listed as ‘resolved’ fewer than 10% are resolved with a positive outcome for the complainant and none of these cases have received a full investigation.

Remarkably, at interview, Behrens was in praise of the Ombudsman investigating more complaints.

One of the good things that PHSO has done, particularly since the Titcombe affair, has been to increase the number of cases that it has taken on, and I think that is absolutely right. But there has to be a very clear clarity of purpose about what can be investigated and what should be investigated, and we have to share that with users.

https://committees.parliament.uk/event/10131/formal-meeting-oral-evidence-session/

More recently he has shared with users the fact that the Ombudsman will no longer investigate ‘minor’ NHS complaints, as outlined in a recent service update.

‘Relatively minor’ means:

• annoyance, frustration, worry or inconvenience – usually from a one-off incident
• a small amount of distress or minor pain – which usually lasts a short time.

Given that you cannot make a complaint to the Ombudsman until you have completed the NHS first-tier stage, do people sacrifice a considerable amount of time and effort for such relatively minor issues in the first place? However, without a full investigation and usually within seven days of receiving the complaint, the Ombudsman has given himself the powers to dismiss the case as ‘minor’.

It would appear that Behrens’s fine words have not been met with equally fine actions when it comes to carrying out investigations.

This low investigation rate has failed to build public confidence and in line with Hockey’s findings on OIA, reports that are collated outside of the organisation show high levels of public dissatisfaction. Trustpilot Reviews.

Here is a typical example:

Hockey describes OIA and PHSO as ‘closed’circuit’ complaint organisations as they are self-regulating and enjoy wide-spread discretion to act as they see fit.

In that sense, these self- regulating closed-circuit complaint organisations, although independent in some respects, are effectively annexed to the institutions they adjudicate upon and so form part of that eco-system, with many individual adjudicators and members of Governance boards originating from those institutions …

https://link.springer.com/article/10.1007/s11115-020-00469-2 paywall

Returning to his pre-appointment statements we can see that Behrens intention was to improve stakeholder and user opinion by decreasing the time taken to handle investigations.

There is a need to understand the perspective of the staff in the organisation, about their take on how things are, and there is a need to agree together a common approach to deal with the deficits in stakeholder and user opinion of the organisation. That is the first thing.

The second thing is to try to bring down the average time it takes for complaints to be processed by the organisation. As I understand it from the annual report, the average handling time at the moment is 263 days. As an ombudsman, and with respect to those who are involved in it, that is far too long. I notice that in 100 days of those 263 days nothing happens, so there are backlogs and queues. That is part of the frustration that users feel about coming to the PHSO, so those are two critical things.

https://committees.parliament.uk/event/10131/formal-meeting-oral-evidence-session/

During 2016-17, 526 investigations, 12% of the total, took us more than a year to complete, compared to 10% of the total number of investigations last year.

https://www.ombudsman.org.uk/sites/default/files/PHSO_Annual_report%20and%20accounts_2016-17.pdf P20

By 2022/23 we can see that had risen to 23% of investigations taking over a year (p38).

We must bear in mind the effect of the pandemic lockdown in 2020/21 but we must also consider that in 2021/22 PHSO staff were investigating just 612 cases compared to 4,239 in 2016/17. We also learned from a recent Service Update that;

Current wait times are:

• up to six months for complaints about the NHS
• up to 5 months for complaints about UK Government departments.

It would appear that despite a significant reduction in the number of cases investigated under Behrens administration, far too many of them are still suffering from lengthy delays. Including the 3.6 million women waiting on the outcome of the 50s women’s complaint against the DWP. A complaint taken up by the Ombudsman in 2017 which is still to reach a final conclusion.

Behrens may claim a lack of funding and staffing but according to this FOI, PHSO saw an increase in funding to £41.8m in 2021 and now enjoys a larger staff quota than at any other time, partly because jobs are now duplicated across both the Manchester and London offices. With all his interests in International Ombudsman issues, Behrens has failed to deliver on his promise to reduce waiting times despite this pre-appointment claim.

I would be looking to invest in the frontline of the operation, which I think is absolutely critical to its success.

Behrens also spoke about increasing mediation as a beneficial way of resolving complaints.

For example, in the 2015 report of the PHSO, I think only 4% of cases were resolved through mediation. At the OIA we managed to settle or mediate about 10% of cases, and this is a very important way of having conversations between the parties without the need to investigate a complaint, to give satisfaction to both sides and to move on without there being an investigation. That is something that I am very keen to develop.

https://committees.parliament.uk/event/10131/formal-meeting-oral-evidence-session/

On page 36 of the 2022/23 Annual Report we can see that Behrens resolved 74 complaints via mediation from a total of 35,662 decisions. That equates to just 0.2% of all complaints received.

Essentially, Behrens has failed to deliver on every front. Investigations and upholds are significantly down. He has created a new criteria of ‘minor issues’ to dismiss NHS cases without investigation. Cases that matter very much to the individuals who have pursued them up to this point. Unforgivably, knowing the plight of the 50’s women, many of whom have used their savings trying to make ends meet, he has delayed reporting on their DWP investigation for six long years and is unlikely to report on the matter until close to his retirement.

To return to a phrase used by Dr David Hockey – ‘Impression Management’ is all we can see here. Let us hope that the members of PACAC hold Behrens to account at his final scrutiny meeting, to be held soon at Westminster. He has much to answer for. Watch this space for more information.