Essential skills – Ability to: 

  • close the overwhelming majority of complaints after initial enquiries
  • retain indifference when compensation recommendations are ignored by Government Ministers and NHS Executives

It is questionable whether interim Ombudsman, Rebecca Hilsenrath, can lawfully continue from 1st April 2025. 

PACAC withholds submissions to its Public Bodies Inquiry:

By David Czarnetzki 1st April 2025 

Such a tangled web, but this is no April fool. On 4th May 2024, PHSO The True Story published my blog, which reported that Rishi Sunak, when Prime Minister, did not approve the recommendation of the Public Administration Committee (PACAC) regarding the appointment of PACAC’s preferred candidate for the position of Parliamentary and Health Service Ombudsman. Just before Easter recess in 2024, there was a rush to make Rebecca Hilsenrath, PHSO Chief Executive, the Acting Ombudsman for one year as the incumbent, Sir Rob Behrens, could not legally continue beyond his seven-year term, which expired on 31st March 2024.

The excellent blog entitled ‘PACAC slow off the mark’ by Della Reynolds, captured on this site on 18th January 2025 included the letter of 14th May 2024 sent by Dame Jackie Doyle-Price, then chair of PACAC, to Rishi Sunak advising him the process would need to be re-run, would probably take six months and should be commenced with some urgency in order to have the new Ombudsman in place by 1st April 2025.

Then came a general election. Concerned about slippage in the timetable, I wrote to the Prime Minister, Sir Kier Starmer. Back came the reply (below) from the Cabinet Office. The Minister in charge is Pat McFadden.

Cabinet Office

Public Correspondence

70 Whitehall, London, SW1A 2AS

David Czarnetzki

Our reference: TO2024/09249

14 August 2024

Dear David,

Thank you for writing to the Prime Minister on 11 July. This government is determined to repair and restore trust in our public services, ensuring they operate with full accountability. We will therefore place a legal duty of candour on public servants and authorities to make sure there is a culture of transparency and openness throughout the public sector.

You raise questions on the appointment of the next substantive Parliamentary and Health Service Ombudsman. The recruitment process is ongoing and I can assure you that appropriate checks on the integrity and merit of appointees will be applied.

You also raise points on the PHSO’s strategy and approach to investigations. These are matters for the PHSO’s board and for Parliament, which scrutinises the Ombudsman’s performance.

Yours sincerely,

Alan

Correspondence Officer

Public Correspondence Team

Cabinet Office

We would be entitled to think all was in hand. After all, I was assured the recruitment process is ‘ongoing’. Then came silence. No advertisement for the position and no information on PACAC’s parliamentary website.

Following the general election, the new PACAC committee came into being in September 2024 under the chairmanship of Simon Hoare MP. On 13th December 2024, the committee opened an inquiry into Public Bodies and called for evidence by 7th February 2025. The numbering system indicates nineteen submissions were made, but by 25th March, only eight had been published. Mine was not, maybe because it contains embarrassing but justified criticism. As a consequence, in the public interest, I publish it below.

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Submission by David Czarnetzki to Public Administration and Constitutional Affairs Committee.

I recognise all members of the committee, with the exception of the chair, were elected to the House of Commons for the first time in July 2024.

The committee should already have been made aware by committee clerks of the historical context regarding the Parliamentary and Health Service Ombudsman, an issue which fully engages with the purpose of this inquiry.

Periodically, Members of Parliament ask questions in the House of Commons concerning the Ombudsman, to which the stock reply by government has been ‘the Ombudsman is independent of government’. As time passes, fewer and fewer members of the public believe that to be the case and the evidence supports they are right to hold that belief.

The Ombudsman’s appointment

In the spring of 2023, PACAC launched the search for an individual to replace the outgoing Ombudsman, Sir Rob Behrens, in advance of his tenure being completed on 31st March 2024. The process is clearly articulated in the evidence submitted to the committee by the House of Commons administration, and on 21st March 2024, that evidence was published on the PACAC website in the pre-appointment hearings section.

On behalf of Parliament, the committee, as is usual practice and after full consideration, made a recommendation for a preferred candidate to be appointed. The recommendation was not passed to His Majesty by Prime Minister Sunak. Sir Alex Allan, who sits on the Board of the Ombudsman, expressed his concerns at the delay. A Freedom of Information request revealed the process cost taxpayers £51,399 in recruitment consultancy fees and expenses.

Legislation provides for an Acting Ombudsman to be appointed. Rebecca Hilsenrath’s nomination was rushed through by Parliament at the end of March 2024 without the usual due process being followed. The legislation permits her to be Acting Ombudsman for a period of no more than one year. With less than three months of her term remaining, no pre-appointment hearing has been arranged by PACAC to find a permanent successor. This leads to suspecting the inevitable conclusion is she will be singularly nominated for the role on a permanent basis without a competitive process taking place, creating the likelihood that equality, diversity and disability legislation will be infringed by both Parliament and government.

I respectfully request the committee seek explanation from former Prime Minister Sunak as to why this situation was allowed to arise. Appointment of a permanent Ombudsman by due diligence and proper process is now an urgent issue for the committee.

The Ombudsman’s authority

The Ombudsman spent six years investigating the case of the 1950’s born women (The WASPI case) and made recommendations for compensation in relation to maladministration by the DWP. On Wednesday 18th December 2024, Prime Minister Starmer stood at the despatch box at Prime Minister’s Questions and stated:

“I am afraid to say that the taxpayer simply cannot afford the tens of billions of pounds when the evidence shows that 90% of those impacted knew about the changes. That is because of the state of the economy”.

The Ombudsman is one of the institutions the public has little faith in. Widespread disillusionment is expressed on PHSO Trust Pilot reviews. Time and time again, PACAC predecessor committees have called for reform.

As part of this inquiry, I ask the committee to review all government responses to the predecessor committee’s recommendations, noting how, over the years, the previous party in government published an unsatisfactory bill for ‘a peoples’ ombudsman’, followed by statements that no reform would take place before 2024-25 and finally, in the last two years, turned its back on reform altogether.

The Prime Minister’s comments to the House on 18th December highlight the lack of enforcement power possessed by the Ombudsman and Prime Minister Starmer has clearly set an unfortunate precedent that others in Government Departments, and particularly in the NHS, are at liberty to follow. This was clearly demonstrated when Rebecca Hilsenrath, together with Matthew Taylor, Chief Executive of NHS England, were called before the Health and Social Care Select Committee on 16th April 2024.

I draw attention to part of the response of Rebecca Hilsenrath to question 38 of that session:

I will quickly mention anecdotally three behaviours we have seen at leadership level. One is a concern about findings about an NHS trust because they were worried that it would damage reputation and patients’ willingness to be treated at that hospital… 

The second was refusing to accept the financial recommendations that we made because they were worried about their budgets. (emphasis added)

The third was not accepting the findings of avoidable death.

It should be of no surprise to the committee that the lack of enforcement powers leads to greater litigation faced by the NHS, which is running at an all-time high. If an Ombudsman’s award is made against an NHS Trust, the Trust is under no obligation to comply. The complainant then has to consider legal proceedings through the courts.

At the same hearing, in answer to question 39 from committee member Rachael Maskel, Matthew Taylor commented:

Rebecca talked about the proliferation of different regulatory bodies such as the Care Quality Commission, the Healthcare Safety Investigation Branch, the national ‘freedom to speak up’ guardian, the Patient Safety Commissioner, the Parliamentary and Health Service Ombudsman, Healthwatch England, local authority overview and scrutiny committees, NHS England and professional regulators. I could go on.

Summary

I welcome the recent announcement by the Treasury of a line-by-line review of how public services operate. It is clear the whole process of NHS investigations is not fit for purpose insofar as patients and complainants are concerned and the outcomes are stacked against them. The various ‘quangos’, as outlined by Matthew Taylor, need amalgamating into one over-arching body with real power to intervene at an early stage. The Ombudsman comes to the investigation far too late and allows NHS bodies to first conduct their own inquiries, providing opportunities for delay, deceit and cover-ups to flourish, as so fatefully documented in the plethora of various NHS public inquiries conducted over the years.

The country has elected a government which states it is committed to openness and transparency. The failures are not confined to the CQC and a radical overhaul of the legislation is required in order to create greater accountability of NHS managers, speedier outcomes relating to patient and internal whistleblower complaints and a likely reduction in the long-term bill for clinical negligence paid by the taxpayer.

The new Secretary of State for Health and Social Care has acknowledged failures within the CQC and promised reform. It is nonsensical that he has responsibility for health and social care, yet the investigations into these are shared between two Ombudsmen, with two Boards of Directors and each Ombudsman sitting on the other’s Board.

Proposals for reform

  1. The Parliamentary Ombudsman and Local Government Ombudsman should be amalgamated into one body with responsibility confined to these two areas. Current powers should be reviewed and enhanced. 
  2. All responsibility for Health and Social Care investigations, currently within the responsibility of the two Ombudsmen above, should be placed in the remit of a new body, with powers to immediately commence investigations into health and social care. This body should operate on a regional basis, but with national oversight, and be open to approach by patients and clinicians alike. It should have strong powers of enforcement and adjudication, including disqualification of NHS management, subject to appeal of its decisions at Health and Social Care Tribunals.
  3. The existing plethora of quangos operating in this field should be abolished.

Whilst comment that there are too many regulatory bodies is welcome, none see themselves as ‘surplus to requirements’ and, accordingly, continually highlight the relevance of their own existence. Whilst they remain tolerated in their current form, any NHS reforms proposed by the Secretary of State for Health and Social Care which do not take these issues on board will undoubtedly fail. 

Future comments by Government Ministers and Officials that the Ombudsman is independent of government will no longer be credible in view of the Prime Minister’s performance at the despatch box on 18th December 2024. Legislation creating the Parliamentary Ombudsman was introduced in 1967 with responsibility for NHS investigations added in 1993. In the original debate, Quintin Hogg MP described the legislation as ‘a swiz’. This legislation is outdated and, as identified by the Patients Association nearly 10 years ago, remains unfit for purpose (unless, of course, the purpose is to give the public an illusion of accountability).

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I submitted the evidence to PACAC on 30th December 2024. Somebody, somewhere, leaped into action. The following week, recruitment consultants Gatenby Sanderson, who had already received a chunk of public money the first time round (see blog dated 4th May 2024), were again advertising the role. The overview of the application process was also on the Government’s public appointments website and indicated the expected timetable to be as follows:

Closing date 12.00 noon, Monday 10 February 2025

Shortlisting meeting w/c 17 February 2025

References From 17 February 2025

Final Panel interviews w/c 3 March 2025

Pre-appointment hearing by PACAC. Following consideration of panel recommendation by the Prime Minister (it looks to me the last sentence might be a ‘typo’ as it is repeated)

Motion in the House of Commons Following consideration of panel recommendation by the Prime Minister

Appointment by Letters Patent Following approval of motion by the House of Commons

Appointment to commence 1 April 2025 or as soon as possible after issue of Letters Patent

By any measure this has been a shambles perpetrated by both the outgoing and incoming governments. If the process was ongoing, as averred in the Cabinet Office response of 14th August 2024, why was the post not advertised at that time?

The legislation governing the appointment of an Acting Ombudsman is contained in Section 3A Parliamentary Commissioner Act 1967. That is why Rebecca Hilsenrath cannot continue in that role and call herself Acting Ombudsman as from 1st April 2025. Up until now, the law has been complied with although was Section 3A really drafted to deal with this situation or was it intended to be a backstop purely to cover the death or incapacity of an Ombudsman during tenure and not to deal with political and administrative mismanagement and incompetence.

Sir Rob Behrens left office on 31st March 2024. Traditionally, PACAC scrutinises the PHSO Annual Report and makes a call for evidence from the public. That has not happened and the latest reporting year is also now over.

Four politicians have serious questions to answer.

They are the former Prime Minister Rishi Sunak, the current Prime Minister Sir Kier Starmer, Cabinet Office Minister Pat McFadden and the current chair of PACAC, Simon Hoare. Time for them to come clean and demonstrate the transparency and openness promised. If this is indicative of the standard of governance in relation to what is, in effect, a small but important legal and constitutional issue, we can only wonder whether it mirrors political (mis)management when major issues face the country.

By the way. £51,000 would fund either the salary of a nurse or police officer for a year, or cover a winter fuel allowance for 340 pensioners, or maybe go towards giving the recommended Ombudsman’s compensation to at least a few of the WASPI women.