The legal minefield of the PHSO re-opening of cases and the PHSO commencement of fresh/new investigations.

M Boyce made this Freedom of Information request to Parliamentary and Health Service Ombudsman

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Dear Parliamentary and Health Service Ombudsman,

(1) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of the re-opening of PHSO investigations after a case has been closed.

(2) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of fresh/new investigations after a case has been closed.

Yours faithfully,

M Boyce

InformationRights@CMSPHSOLGO.mail.onmicrosoft.com,

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

InformationRights, Parliamentary and Health Service Ombudsman

3 Atodiad

Dear M Boyce

 

RE: Your information request: R0000929

 

I write in response to your email dated 11 October 2019 regarding your
request for information to the Parliamentary and Health Service Ombudsman
(PHSO) which has been handled under the Freedom of Information Act 2000.

 

Your request has been considered vexatious under Section 14(1) of the Act.
Section 14 (1) states: ‘Section 1(1) does not oblige a public authority to
comply with a request for information if the request is vexatious’.

 

We consider that your request is burdensome with a level of unjustified
disruption. To respond to this request is considered to be disruptive,
burdensome and the PHSO would have to expend a disproportionate effort to
meet the request which engages section 14(1) whereby we cannot reasonably
be expected to comply.

 

If you believe we have made an error in the way I have processed your
information request, it is open to you to request an internal review. You
can do this by writing to us by post or by email to
[1][Parliamentary and Health Service Ombudsman request email]. You will need to specify that the
nature of the issue is and we can consider the matter further. Beyond
that, it is open to you to complain to the Information Commissioner’s
Office ([2]www.ico.org.uk).

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

W: [3]www.ombudsman.org.uk

 

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Dear Parliamentary and Health Service Ombudsman,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Parliamentary and Health Service Ombudsman's handling of my FOI request 'The legal minefield of the PHSO re-opening of cases and the PHSO commencement of fresh/new investigations.'.

I do not agree that my request is vexatious.

The ICO have stated that the PHSO failed to provide relevant legal advice to the First-tier Tribunal regarding the review process. This current request is simply in response to this confusion.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/t...

Yours faithfully,

M Boyce

InformationRights@CMSPHSOLGO.mail.onmicrosoft.com,

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

Gadawodd J Roberts anodiad ()

M Boyce,

You might like to read this recent UT decision:

http://www.bailii.org/uk/cases/UKUT/AAC/...

“7.14 Public authorities should avoid using section 14 for burdensome requests unnecessarily. On this basis they should always consider whether section 12 applies in the first instance. For example, if a public authority considers that locating and extracting the information in scope would exceed the cost limit, section 12 is likely to be most appropriate."

Did the PHSO consider whether section 12 was applicable? If so, when did they decide that it was not? If they did consider it, presumably a record would exist confirming that they did. You could make a 'meta request' asking for a copy of the record which confirms that section 12 was considered.

'8. The Commissioner has issued guidance on meta requests. Her guidance advises:

“A meta request is a request for recorded information about the handling of a previous information request...Meta requests do not have any special status under FOIA or the EIR, nor are there any specificexemptions (or exceptions) for this type of request. This means that an authority should treat meta requests in the same way as any other information request”.'

https://ico.org.uk/media/action-weve-tak...

Gadawodd J Roberts anodiad ()

Link to the Freedom of Information Code of Practice:

https://assets.publishing.service.gov.uk...

Gadawodd M Boyce anodiad ()

No J Roberts the PHSO have not considered section 12. My submissions so far have not raised your particularly perceptive point. If I get chance to make a further submission that submission most certainly will.

Gadawodd Jason anodiad ()

Something very strange has happened to the other thread:

https://www.whatdotheyknow.com/request/t...

At around midnight, a significant number of posts/annotations mysteriously disappeared (not just mine).

I also can't add any more annotations.

Gadawodd M Boyce anodiad ()

Yes Jason this is very strange and worrying. I will get in touch with WDTK to try and find out what has happened.

Gadawodd M Boyce anodiad ()

I've sent a message to the WDTK team to ask them to look into or explain what is going on.

Gadawodd M Boyce anodiad ()

What has now happened to the post from whatyoudontknow, or whatever it or who it was? I didn't open it because I thought it looked dodgy.

Gadawodd Jason anodiad ()

Yes, something very strange is going on.

I opened it, as it was just a PDF. It was a letter from mySociety.org to a WDTK user threatening to take legal action if they continued to use the site. I'm note sure about the legitimacy of it though.

Gadawodd Jason anodiad ()

Have you had any response to your enquiry?

Gadawodd M Boyce anodiad ()

Yes, the WDTK Support Team have told me that they have disabled the annotations function from this request. It would have been nice to have been informed beforehand, so I wasn't worrying about malicious intent etc..

The Team say:

'We would respectfully suggest that the use of our annotation functionality may not be the best way to exchange advice on the matters that you are seeking to address with the PHSO.'

It might not be the best way, but I truly believed it was of real value and benefit to the public and myself - I've learnt much from the exchange of information and I hope others have gained something from it too.

Gadawodd Jason anodiad ()

That is really saddening news, M Boyce. I thought that thread was an extremely invaluable tool to exchange information of significant public importance.

I've also learnt a lot from that thread.

I wonder if someone maliciously reported it? Why were certain posts deleted and not others?

Gadawodd M Boyce anodiad ()

Thanks very much Jason, and for sending me the OneDrive information.

The WDTK Team have elaborated further and said that they decided to remove the annotation function from the request because the discussion was straying too far towards criticising the PHSO. In any case, they have said that when I get my Tribunal decision they would be happy to let me post that outcome on that request. I will do that and I will post the decision on here too. I will say that the Tribunal have informed me that they will not be able to assign it to a panel until mid-January 2020 at the earliest.

Thanks everyone for their advice and assistance.

InformationRights, Parliamentary and Health Service Ombudsman

Dear M Boyce

 

PHSO reference R0000929

Internal review of your request for information

 

Thank you for your correspondence of 29^th October 2019 in which you
requested an internal review from the PHSO.

 

PHSO response

 

Request:

(1) Please provide all relevant documents (commissioned legal advice,
discussions, emails, legal briefing notes, unabridged Board Meeting
Minutes etc..) that the PHSO possess with regard to the legal status of
the re-opening of PHSO investigations after a case has been closed.

 

(2) Please provide all relevant documents (commissioned legal advice,
discussions, emails, legal briefing notes, unabridged Board Meeting
Minutes etc..) that the PHSO possess with regard to the legal status of
fresh/new investigations after a case has been closed.

 

 

Response to your request:

 

PHSO refused this request as vexatious under Section 14(1) of the Freedom
of Information Act 2000.

 

Time for response:

 

The request was received on 11^th October 2019 and PHSO’s response was
sent on 29^th October 2019. This is within the 20 working-day limit
established under Section 10(1) of the Freedom of Information Act 2000.

 

Request for an internal review:

 

“I do not agree that my request is vexatious.

 

The ICO have stated that the PHSO failed to provide relevant legal advice
to the First-tier Tribunal regarding the review process. This current
request is simply in response to this confusion.”

 

 

Review of your request:

 

PHSO has reviewed its decision and has upheld the refusal of the request
as vexatious as per Section 14(1) of the Freedom of Information Act 2000.

 

 

Context of the request:

 

Since 24^th January 2018 PHSO has received 20 requests (containing 36
questions) from you on the subject of reviewing PHSO’s decisions, and the
legality behind its decision making. Nine of these have gone to internal
review, and four have been to the ICO. None of these appeals have been
successful. One is currently at First Tier Tribunal, but no decision has
yet been reached.

 

The request is similar to PHSO request R0000153, which asked for the same
document types regarding the legal status of PHSO’s reviews, and the
application of refusing a request because an alternative legal remedy was
available. This request was refused under Section 42(1) of the Freedom of
Information Act 2000 as it was legally privileged, and the ICO upheld the
refusal of this request.

 

The request is also similar to PHSO request R0000532, which asked for
whether PHSO obtained and received external legal advice on its review
process. This request was refused under Section 14(1) of the Freedom of
Information Act 2000 as vexatious, and the ICO upheld the refusal of this
request.

 

 

Arguments request is not vexatious:

 

The subject matter of the request concerns PHSO’s function. This has a
wider interest as it has implications for the individuals who bring
complaints to PHSO, and the wider public who benefit from the work of
PHSO’s complaint handling.

 

Arguments request is vexatious:

 

The context of this request shows that this subject has been looked at
previously on numerous occasions by PHSO. Most requests were complied with
in full, but you have previously shown what the ICO have referred to as
“unreasonable persistence”, and this request is your attempt to pursue the
subject further. Request R0000532 asks for confirmation of information
held, this was refused as vexatious by PHSO and this decision was upheld
by the ICO. That this is then followed up with a wider request asking for
a copy of the actual information – and further documents - shows that you
are misusing the formal procedure afforded to you under Freedom of
Information Act 2000.

 

You have stated this request is intended to address a matter concerning
your appeal of request R0000532 to the First-Tier Tribunal. However, any
disclosure to a request under Freedom of Information Act 2000 is to the
world, and is not the appropriate process for ensuring the Tribunal has
all the material it needs before proceeding with an appeal. This provides
further evidence that the purpose of this request is unjustified, and that
the request is vexatious.

 

PHSO considers that this request creates further work to a subject it has
already diverted significant resources to. There have been many requests
on the subject of PHSO’s reviews, and several appeals through internal
review, the ICO, and the First Tier-Tribunal. The PHSO’s only has a small
team to handle freedom of information requests, and a significant amount
of time has been spent dealing with information regarding the review
process. However, PHSO considers the threshold was crossed with R0000532
when it refused a request from you as vexatious (and the ICO agreed), and
yet you have submitted a further request with a wider scope, which would
involve further work. This burden is an unjustified disruption and shows
the request can be considered vexatious.

 

Having considered the above PHSO has upheld the refusal of the request as
vexatious as per Section 14(1) of the Freedom of Information Act 2000.

 

 

Right of appeal

 

If you are not content with the outcome of your internal review, you may
apply directly to the ICO for a decision. The ICO can be contacted at:

 

The Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

[1]https://ico.org.uk/

 

Regards,

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

E: [2][email address]

W: [3]www.ombudsman.org.uk

 

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Dear InformationRights,

I completely disagree with everything you say.

One point is worth highlighting in particular, because it is displays an astonishing lack of understanding by the PHSO. In your response you state:

'...any disclosure to a request under the FOIA 2000 is to the world, and is not the appropriate process for ensuring the Tribunal has all the material it needs before proceeding with an appeal. This provides further evidence that the purpose of this request is unjustified, and that the request is vexatious.'

Really? Then what is the APPROPRIATE process for ensuring that the Tribunal has all the material it needs?

Ask the PHSO directly for this information? This would be refused/ignored.

Wait for the PHSO to publish this information? That would never happen.

Wait for the Tribunal to ask for this material? The burden of proof lies with appellant, who has to obtain the information themselves.

It is quite clear that the PHSO would never volunteer much information to the public. The FOIA is the ONLY process for obtaining information from the PHSO.

So, I ask again: what is the APPROPRIATE process for obtaining information from the PHSO that would be crucial in an appeal to the First-tier Tribunal?

You won't answer, because you don't have an answer.

I will now appeal this request to the ICO. The ICO will, with a tedious inevitability, agree with everything you say and disagree with everything I say. Then off to the FTT.

Yours sincerely,

M Boyce

Gadawodd M Boyce anodiad ()

No Jason the case has not been heard by the Tribunal yet. I hope it will be assigned to a Tribunal panel in late January 2020.

I'm sorry to hear about your continuing problems with the PHSO. All we want is justice, and it seems that this is in very short supply if you are not rich and well-connected.

Gadawodd Jason anodiad ()

Any further news, M Boyce?

Gadawodd M Boyce anodiad ()

Jason
The Tribunal informed me several weeks ago that my case would now be assigned to a Tribunal panel. Unfortunately they do not let you when the case will be discussed.

As soon as I hear the outcome I will post it on this site.

Gadawodd M Boyce anodiad ()

I've just asked the GRC whether a tribunal panel has now been found to consider my appeal. I was informed that they were still looking for a panel. It has now been well over a year since my case was sent to the Tribunal and sadly it seems it will be many months or possibly years before it is considered.

Gadawodd Jason anodiad ()

That's very worrying news, M Boyce. Why are they struggling to put together a panel?

Gadawodd M Boyce anodiad ()

I don't know Jason, but I suspect it is because they have a backlog of cases. As soon as I hear more I'll let you know.

Gadawodd M Boyce anodiad ()

This case has now been allocated to an ICO caseworker.

If anyone thinks that the ICO behave in a fair and impartial way, let me just relieve you of that misapprehension.

Today I received a response from the above ICO caseworker, which states EXACTLY the following:

'I was allocated the case on 27 February and have not yet had the opportunity to review it in detail. HOWEVER, from the information I have seen so far it does appear that PHSO has correctly cited section 14 [vexatious] in response to your request.'

And there we have it: the ICO have already made up their mind in just a couple of days that an authority is always right and a complainant is always wrong before they have even looked properly at the evidence. The ICO just look at what the PHSO say and they just completely ignore what a complainant says. Now I have the proof in black and white.
And off to the Tribunal I go... again.

Gadawodd Jason anodiad ()

That says it all, M Boyce. Seems they are closing ranks with the like of the PHSO and other government agencies, true to form.

When I get 'review' decisions from the PHSO I don't even read them anymore, apart from the final paragraph - I just put them straight in the bin.

What a total waste of taxpayers' money...

Gadawodd J Roberts anodiad ()

The 'similar request' (R0000153) argument:

“1) Please provide all relevant documents (discussions, legal briefing notes, unabridged Board Meeting Minutes, guidance etc.) that the PHSO possess with regard to the legal status of reviews of decisions.

(2) Please provide all relevant documents (discussions, legal briefing notes, unabridged Board Meetings, guidance etc.) that the PHSO possess with regard to Alternative Legal Remedy."

https://www.whatdotheyknow.com/request/t...

This compares to:

(1) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of the re-opening of PHSO investigations after a case has been closed.

(2) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of fresh/new investigations after a case has been closed.

I don't think the similarities in the following are sufficient to render your request vexatious:

i. “with regard to the legal status of reviews of decisions” and “with regard to the legal status of the re-opening of PHSO investigations after a case has been closed”.

ii. “with regard to Alternative Legal Remedy” and “with regard to the legal status of fresh/new investigations after a case has been closed.”

Gadawodd Jason anodiad ()

I have just had another horrid experience with the PHSO:

I sent them a complaint over a year ago. They contacted the respective Trust for some curious reason and were told the matter was with the ligation team, which was not entirely accurate as I raised a matter of a contravention of the Equality Act 2010 with the Trust (matters the PHSO should not concern itself with).

The PHSO then allege they wrote to me a year ago informing me of the same, however, I never received the said letter. In that letter, which I have only now received, they closed the complaint pending a response to the issues raised with the Trust, which is certainly curious.

I recently chased the matter up with them, and they have now responded by purporting that I they have now permanently closed my complaint, and will not re-open it, because I didn't chase them up sooner, notwithstanding the fact that the complaint was submitted in time.

This is your trusty PHSO, folks...

Gadawodd M Boyce anodiad ()

Sorry to hear about this awful experience Jason. I obviously understand why you do not trust what the PHSO have said.

J Roberts, my requests are similar, and deliberately so. The latter is merely wanting clarification of the response and sequelae to the former. I know it's not vexatious, but the ICO only listen to what the PHSO have to say and not what I have to say. It's not what you know or can show, but simply who you know - and the ICO know the PHSO and the PHSO know the ICO.

Gadawodd J Roberts anodiad ()

'I was allocated the case on 27 February and have not yet had the opportunity to review it in detail. HOWEVER, from the information I have seen so far it does appear that PHSO has correctly cited section 14 [vexatious] in response to your request.'

Your experience reminds me of this PIP claimant who fell victim to 'what is known as a “protective essay”'. In this case, the judge included in the decision something specifically aimed at discouraging the claimant from appealing further:

https://assets.publishing.service.gov.uk...

A caseworker “arrogating to himself the right to decide on the adequacy of his own reasoning” does not seem right.

CH v Secretary of State for Work and Pensions (PIP) [2020] UKUT 19(AAC)

Gadawodd Jason anodiad ()

Indeed, M Boyce.

I believe the fact that the likes of the ICO and the PHSO exercise shameless bias has become no secret. This is something that was discussed and alluded to in the other thread.

The sad reality is we can't expect a fair and proper decision from this rotten bunch; all we will get is bias and layer after layer of whitewashing.

What saddens me is now the Tribunal are also seemingly dragging their heals. It really beggars belief the lengths that the ordinary person has to go through to get a modicum of justice.

Gadawodd M Boyce anodiad ()

Today I received an email from the ICO in response to my query about anonymity of ICO caseworkers and decision notices. It stated the following:

'I can advise a number of years ago due to the delays in decisions being signed off and the growing backlog of cases, it was agreed the Senior Case Officer (SCO) could sign off their own decision notices. This was on a voluntary basis and for a variety of reasons not all SCO's volunteered, including myself.'

I asked for this information because I wanted to research potential 'bias' in ICO decision notices. It is my belief that certain case officers may well be 'interpreting' the law, instead of applying it correctly. Since most DN's are now signed off by ICO managers, it is obviously difficult to see who has actually made the DN. Difficult, but not impossible. I aim to make an FOI request to the ICO shortly asking for information to see if this 'bias' is substantial or not. I fully expect the ICO to refuse to provide the names of SCO's associated with particular DN's, so I will instead ask for this data to be anonymised, for example, the initials of each SCO associated with a particular DN.
I am only concerned at this stage with section 42 FOIA cases, as this is where some SCO's correctly regard this exemption as qualified, whereas others 'interpret' the law in their own way and regard it as absolute. At the moment, from the published information, there is no way of knowing whether such an apparent 'bias' can be substantiated.

Gadawodd J Roberts anodiad ()

I have just done a quick search of FTT upheld/partly appeals where the appellant was the complainant and not the public authority. The earliest appeal I looked at was dated 28/10/19. Between that date and today I found eighteen relevant appeals.

In seven instances, the name on the related Commissioner's DN was the same. One individual's name appeared on DNs three times. The remaining eight appeals were each associated with a different ICO employee.

To read the DN of the earliest one I looked at (it's not on the ICO website) go here:

https://www.whatdotheyknow.com/request/d...

(I didn't spend a lot of time doing my search, so my figures could be slightly out!)

Gadawodd J Roberts anodiad ()

Clarifications:

The person with 7 is a 'Group Manager' and the person with 3 is also a 'Group Manager'.

I incorrectly referred to appeals upheld and partly upheld. I should have said 'allowed' and 'part allowed':

http://informationrights.decisions.tribu...

Gadawodd M Boyce anodiad ()

Thanks J Roberts.

So the 10 Group Managers could all be the same Senior Case Officer, or they could all be different. That's why it would be informative to find out. I can understand why some Senior Case Officers would wish to remain anonymous - and they can remain so - as I only want the anonymised data.

Gadawodd M Boyce anodiad ()

What's happened to the Review and Feedback Team Guidance on the PHSO website? It seems to have completely disappeared.

Gadawodd M Boyce anodiad ()

I phoned the PHSO 'helpline' this morning, but they couldn't help me with this query. They said they knew nothing about technical matters (page 404)and couldn't put me through to anyone that might know. They did say that there is now no Review and Feedback Team (RaFT) with the PHSO anymore. Why has this not been publicised on the PHSO website? Where do complainants go for guidance? Where is the much publicised openness and transparency here? The PHSO appear to be putting up shutters upon shutters.

Gadawodd Jason anodiad ()

That's alarming as I've recently had correspondence from the purported Review and Feedback Team.

This page also still applies it would seem:

https://www.ombudsman.org.uk/about-us/fe...

Gadawodd M Boyce anodiad ()

Yes Jason the review form page still exists, but the detailed RaFT guidance has disappeared.
If the PHSO continues to hide this guidance from the public then another FOI request will unfortunately be necessary to try and make it public again. They will, of course, refuse the request as vexatious!

Gadawodd Jason anodiad ()

They must be up to something.

Let me know if you would like me to make a FOI request, as they seem to be defining all your request as 'vexatious'.

Gadawodd M Boyce anodiad ()

Thanks for your offer of assistance Jason, it is very kind. I wouldn't, however, wish to put you at risk of being 'vexatious' by association. In any case, the PHSO did reply to my email yesterday and stated that the guidance had been removed because 'it was out of date' and that the new updated guidance would be published shortly. Let's see.

Gadawodd Jason anodiad ()

No worries, M Boyce.

One wonders what cynical changes they will be making to their guidance on this occasion.

Keep us posted with any developments your end.

Gadawodd M Boyce anodiad ()

In the above DN paragraphs 19 and 26 are crucial.

In paragraph 19 the ICO state that they cannot comment on an ongoing tribunal case. This is utter nonsense. They regularly comment on tribunal cases - and indeed, it is essential that they do, as the tribunal process simply could not function if the ICO said nothing on cases - ongoing or otherwise.

In paragraph 26 the PHSO say that it is not appropriate, and is vexatious to use the FOIA to obtain information for a tribunal hearing. This is also utter nonsense. The FOIA exists to afford this provision of information.

The PHSO and the ICO are simply wanting to pervert the course of justice. I will vigorously challenge it through the tribunal system, and we will see if they agree with what is happening.

Gadawodd Chris Hunter (Ataliwyd y cyfrif) anodiad ()

I wonder if one of the officers listed in the below correspondence under the heading "Information Commissioner's Office (ICO)" was involved in the Decision Notice.

https://tinyurl.com/tedyxt8

Gadawodd M Boyce anodiad ()

Not that I am aware of. If a Senior Case Officer does not want their name published with a particular decision, then I will respect that. I do of course know who the SCO is. What I am concerned with is that decisions are made fairly and with as much transparency as possible. This transparency could be largely achieved by anonymising decision notices, but still including the initials or some other unique identifier of the SCO so that patterns in decision making - good or bad - can be seen.

Gadawodd Jason anodiad ()

Yet another shamelessly bias decision. Were you truly expecting any different, M Boyce?

It seems the only way to obtain a crumb of justice is go though the judiciary I'm afraid, and these cynical government agencies will do everything they can to make that as difficult, risky and laborious as they possibly can.

Gadawodd M Boyce anodiad ()

No, it is exactly what I was expecting.

Gadawodd J Roberts anodiad ()

“So the 10 Group Managers could all be the same Senior Case Officer, or they could all be different. That's why it would be informative to find out. I can understand why some Senior Case Officers would wish to remain anonymous - and they can remain so - as I only want the anonymised data.”

It would indeed be informative to find out. Their identities could be completely anonymized using numbers to prevent a 'motivated intruder' finding out something they shouldn't!

I was alerted to the possibility of improperly trained staff preparing decision notices for Group Managers by this:

https://www.whatdotheyknow.com/request/t...

Gadawodd M Boyce anodiad ()

The ICO DN for this FOI request is now also with the First-tier Tribunal. I have been left with no choice as it is now almost fifteen months since my appeal EA/2019/0032 was sent to the Tribunal. The PHSO and the ICO have both worked to make sure that the Tribunal do not get to see the relevant legal advice. I will never accept that trying to make sure that the Tribunal has all the relevant information it needs to make a fair and balanced decision is vexatious. I only want fairness and transparency; I'm not asking for the world.

I will make the FOI request to the ICO shortly about receiving anonymised data on those caseworkers who fail to use the 'correct rule' (act contrary to the law), in the words of the FTT, with regard to section 42 of the FOIA.

Gadawodd J Roberts anodiad ()

Here is a recent 'finely balanced' decision that was allowed by the FTT. It relates to Section 14 and raises further serious questions about the ICO:

http://informationrights.decisions.tribu...

“11. ...At two places in the decision notice (paras 24 and 42), the Commissioner reports that the Council argues that the stress has led to the resignation of a number of clerks. We should record here (and see below) that the Council has subsequently stated in writing that this is not an allegation it has made.”

The DN is not available on the ICO website, unfortunately, but I have requested a copy:

https://www.whatdotheyknow.com/request/d...

Gadawodd Chris Hunter (Ataliwyd y cyfrif) anodiad ()

This is apparently the Decision Notice ref: FS50697903 but is is not in any obvious way publicly available

https://www.gov.uk/government/publicatio...

Gadawodd M Boyce anodiad ()

Yes this is a deeply worrying case.

What if the Tribunal had believed the incorrect allegation made by the ICO of resignations in this 'finely balanced case'?

What if the Tribunal had agreed with the ICO allegation that the complainant was 'passive-aggressive' in this 'finely balanced case'?

What if the Tribunal agrees with the ICO that it is OK for them to ignore the law with regard to section 42 of the FOIA - effectively turning a qualified exemption into an absolute exemption?

As far as the ICO is concerned anyone asking these sort of quite legitimate questions would be branded vexatious, and therefore would be silenced.
The requestor wanted to obtain information to help improve public services. That is what most of us want to do, and it is what I want to do. I'm not the slightest bit interested in annoying anyone, or engaging in any of the other vexatious 'indicators' - my interest is purely and only to obtain information to improve public services. I notice in this Tribunal decision that it states that a request merely has to be 'burdensome' to be vexatious. Of course the burden on an authority is an important consideration, but I believe that THE most important consideration is the JUSTIFICATION for the request. If the request is fully justified, then that should trump the alleged burden, especially when that burden is self-imposed by an authority by not proactively, or even reactively, publishing important information (as in this case), or not adequately answering previous requests, or not considering that answers to previous requests may quite legitimately lead to further requests as part of a reasonable 'drilling-down' investigation.

Gadawodd J Roberts anodiad ()

Chris,

Thanks for unearthing the DN reference number. I've provided it to the ICO to assist it in its search.

M Boyce,

You are right, it is deeply worrying. The 'finely balanced' outcome might have been different had the appellant not opted for an oral hearing.

Gadawodd M Boyce anodiad ()

Yes, but there is now not likely to be any oral hearings for a very long time.
It is also the case that many requests are refused as vexatious due to being an alleged 'burden'. But this 'burden' is often completely unavoidable. If a requestor has a number of 'questions' they wish to ask they know that they can only ask for a very small amount of information at any one time, otherwise the request would be refused under section 12 cost exemption. So they may need to make more than one request, but then the authority and the ICO consider this to be vexatious under section 14. You are damned if you do and you are damned if you do.
One of my FOI requests on the subject of PHSO reviews concerned the promised publication of the new Review and Feedback Team (RaFT) guidance last year. The PHSO had been promising to publish this guidance 'soon' for nearly a year. The ICO intervened and made the PHSO finally publish it. Now the ICO are using this request as an example of my being vexatious! Incidentally, the same situation is now happening all over again. The PHSO removed all its detailed RaFT guidance from its website nearly a month ago. They assured me that the new guidance would be published 'soon' - the exact same promise made over a year earlier. Complainants are again left with no detailed guidance on the PHSO review process - and if anyone dares to ask for it they will be shouted down as 'vexatious'. This is a growing and repeated scandal. The PHSO are failing people over and over and over again in clear and plain sight, and the ICO are actively encouraging this by labelling people as 'vexatious' in an attempt to gag them.

Gadawodd J Roberts anodiad ()

“If a requestor has a number of 'questions' they wish to ask they know that they can only ask for a very small amount of information at any one time, otherwise the request would be refused under section 12 cost exemption. So they may need to make more than one request, but then the authority and the ICO consider this to be vexatious under section 14.”

A DN from the SIC you might be interested in:

“35. In the circumstances, the Commissioner concludes that the Applicant’s request of 10 August 2018 is not identical or substantially similar to the requests of 5 June 2018 or 14 May 2018.

36. The Commissioner considers it reasonable for the Applicant to use the information obtained from the Council to inform further requests, particularly where previous wide-ranging requests have been refused on grounds of costs. This information has justifiably been used by the Applicant to ascertain the nature and extent of the information held by the authority and to inform subsequent requests.”

https://www.itspublicknowledge.info/uplo...

LPP is also considered (para. 153 and others):

“153. The Commissioner acknowledges that there will be occasions where the significant public interest in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing the information.”

Some examples are included of when the public interest may favour disclosure.

Gadawodd Chris Hunter (Ataliwyd y cyfrif) anodiad ()

https://www.itspublicknowledge.info/uplo...

In the above decision, the Commissioner looks to have followed a pattern which is pretty routine whenever a public interest consideration is a factor.

It starts with an acknowledgement that there might be exceptional circumstances that would favour the public interest in disclosure (they are seen to be acting impartially). They follow this by asserting that after careful consideration they are satisfied that none of the circumstances apply. They then bring the reader's attention to previous decisions and that the courts have long recognised the strong public interest in withholding the information, accompanying this with the citing of a High Court case on which they routinely rely as leverage for their argument.

Gadawodd M Boyce anodiad ()

The ICO's agenda is to convert the Freedom of Information Act (FOIA) into the Refusal of Information Act (ROIA). I firmly believe that the Government deliberately directed the ICO to effectively neuter the FOIA - to use its power to do everything it could to prevent public access to information. The Government grudgingly enacted the FOIA because it could no longer refuse to implement this long overdue piece of legislation. It knew, however, that the ICO, which was set up to administer this legislation, would dance to its tune.
Refusal under section 14 is supposedly a 'high hurdle' to surmount, and yet the ICO surmount it with the facility of a kangaroo jumping over a garden gate.
Section 42 is a qualified exemption, but the ICO always endeavour to make it an absolute exemption. Their clarion call is that under common law legal professional privilege is 'a fundamental right', and therefore cannot be assailed. But Parliament chose to make section 42 qualified, and probably because public authorities have a special duty to act with transparency. The ICO know full well that statute always prevails over common law - and yet they choose to ignore this central legal doctrine. It remains something of a legal irony and a quandary that a 'fundamental right' (LPP) can be disapplied by statute, but that is what Parliament legislated for, and that is the pre-eminent law, whether the ICO like it or not.
The ICO should follow the law, not make it up as they go along.

Gadawodd J Roberts anodiad ()

You may like to read this FTT decision. The Appellant was the former MP Justine Greening. It concerns EIR.

“33. In our view to aggregate the requests in this case would also not be in accordance with the Commissioner’s guidance at paragraph 25 where the Commissioner urges public authorities, when considering aggregation, ‘to be sensible about this issue and to only use this approach when dealing with multiple requests would cause a real problem...there must be an obvious or clear quality to the unreasonableness’.

36. In addition, in our view not all four requests should be viewed in the same light...

37. Even if aggregation is applied, then taking a restrictive approach to the manifestly unreasonable test would lead, in our view, in this case to some of the information being subject to disclosure...

38. That seems to us to be a sensible way to approach a case even where aggregation applies, where there is a presumption in favour of disclosure: if there are parts of a request, or parts of an aggregated request, which can be disclosed without breaching the ‘manifestly unreasonable’ test, then that is what should happen.”

The part I'm not sure about is the implication in para. 38 that the Tribunal would not find the approach sensible under the FOIA:

“10. '...40. This is evident also in the fact that the EIR contains an express presumption in favour of disclosure, which the FOIA does not...'”

http://informationrights.decisions.tribu...

Gadawodd M Boyce anodiad ()

Yes it is interesting that the FOIA and the EIR employ quite different terminology and quite different presumptions. The FOIA uses 'vexatious', whereas the EIR uses 'manifestly unreasonable'; the EIR has an explicit presumption in favour of disclosure, whereas the FOIA has no such explicit presumption. This seems unfair, especially given the imprecision in what constitutes environmental information and what does not. In any case, as I've said before, the ICO treats both information regimes with a presumption of refusal and not disclosure - it is embedded in their very DNA.

Gadawodd M Boyce anodiad ()

Last Tuesday the PHSO published its 'Equality, Diversity and Inclusion Strategy 2020 -2024.' All good and proper, but it clearly shows that the PHSO does fully expect still to be around in four years time. The PHSO has been 'calling', albeit with an increasingly muted voice, for itself to be replaced by a fairer Public Service Ombudsman (PSO). Will the PHSO raise the issue of the PSO being put on the back burner now for six years so far, or will it ignore this completely unacceptable delay? I spoke to PACAC today to find out when the 2020 annual scrutiny shindig would be happening. I was told it would likely not be before June at the earliest - obviously done remotely.

Gadawodd M Boyce anodiad ()

The extremely worrying thing about the above decision, which on the whole appears comprehensive and well argued, is what Judge Holmes states in paragraph 103:

'....It would have been open to ANY such party [an enquiring individual] to seek judicial review...'

This sadly shows that some judges are out of touch with reality. Most people could not afford, and would never dare risk, applying for judicial review. The bill could easily reach a six figure sum. The FOIA exists to allow ORDINARY people to obtain information from public authorities - the clue is partly in the name - FREE -dom of Information Act. The judge has refused the above request because he believes, amongst other things, that everyone can just apply for judicial review at the drop of a hat. With that 'reasoning' section 42 of the FOIA slips dangerously towards becoming a de facto absolute exemption by virtue that an alternative legal remedy is 'readily' and 'easily' 'open to any such party'. If only it was.

Gadawodd Jason anodiad ()

Totally agree, M Boyce. It's a chequebook justice system we have sadly, and most of use don't have big chequebooks.

I've also found that, notwithstanding the above, solicitors with legal aid contracts just are not interested in carrying the risk and working for peanuts.

Gadawodd M Boyce anodiad ()

Thanks Jason.

I totally agree with what you say too.

I should have an update on my case shortly.

Another couple of issues with the above recent tribunal decision. Firstly, the ICO said in paragraph 45 that legal advice was just 'guidance' - implying that it is unimportant/irrelevant. Then why do authorities waste public money on legal advice if they regard it as unimportant/irrelevant, and then just ignore it? If they are treating it so glibly they are guilty of profound misconduct/misuse of public money.

Secondly, in paragraph 95 of the above decision in relation to the well known 'Mersey Tunnel Users' tribunal case it states that:

'...disclosure [of the legal advice] was the ONLY way for anyone to understand the basis of the authority's actions.'

Funny that, given that later in the above recent decision the judge then completely contradicts this by saying that anyone can just apply for judicial review. Why couldn't anyone just apply for judicial review in the Mersey Tunnel Users case? This was never suggested in that case, and probably because it is simply not a realistic option, and the fact that a possible JR at a later date should never be regarded as a bar to disclosure in section 42 of the FOIA - even the ICO publicly state this in their guidance on section 42 FOIA!
The PHSO and the ICO use the same arguments in my case - the legal advice is just advice - nothing more than a casual conversation, albeit a hugely expensive one. They also state that anyone can just pop round to their lawyer (because we have all got one of them in our back pocket) to apply for judicial review. Perhaps we could if we weren't paying a fortune in taxes to pay for a PHSO that regards its legal advice as nothing more than a casual chat, and its ability to use unlimited tax-payer money to employ the most expensive and showy lawyers in the land to defeat anyone who had temerity or stupidity to apply for JR - and in any case in law, it is not what you know that matters, but simply who you know: the establishment always looks after the establishment.

Gadawodd J Roberts anodiad ()

"This sadly shows that some judges are out of touch with reality. Most people could not afford, and would never dare risk, applying for judicial review. The bill could easily reach a six figure sum."

“14. As noted by the Clementi review, ‘high quality legal services are important to society, but of limited value if available only to the very rich or those paid for by the state’.”

https://assets.publishing.service.gov.uk...

Gadawodd M Boyce anodiad ()

How true J Roberts.

In the above Tribunal case the judge says that anyone can just waltz down to their lawyer and get a judicial review, and that is why the legal advice should not be disclosed under the FOIA. Most people would profoundly disagree.
In my case the PHSO told me and the Tribunal that if I wanted to find out if their review process was legal or not I should go and get my own legal advice because their advice was theirs and theirs alone - even though it was paid for by me and every other taxpayer. They knew full well that I could never afford to get legal advice because my case was about tax credits for the working poor, and that included myself. They also knew that legal aid had been decimated under the ConDem Government. Oh how they laughed when they told the Tribunal to dismiss my case because I was at liberty to get my own legal advice. They knew this was utter tosh. I did previously apply for judicial review, but I was able to get legal aid for the application process - several hundred pounds. Little did I know at the time that this legal aid did NOT extend to costs if I lost. My case was refused, but the PHSO incompetently failed to provide a schedule of costs to the judge, so I didn't have to pay. If I had had to pay I would have been paying it off for the rest of my life.
So here we have the PHSO, and then some judges just telling people to get their own legal advice and judicial review. The PHSO knew I could never afford it, and the Tribunal judge in the above case just didn't understand that we are not all paid a fortune - 'judicial review is open to anyone!' It most certainly is not, and that is why the FOIA is the ONLY option for gaining information for most people.

Gadawodd J Roberts anodiad ()

Paragraph 14 of the Clementi review was clearly not at the forefront of the judge's mind.

I have previously mentioned on WDTK the two cases brought by Morris against the PHSO. In one of them the PHSO asked for costs of £80,654.35:

"73. MR JUSTICE JAY: How much do you seek?

74. MR MAURICI: My Lord, the schedule, the total figure is £80,654.35."

http://www.bailii.org/ew/cases/EWHC/Admi...

'judicial review is open to anyone!'

Like the Ritz Hotel.

Gadawodd M Boyce anodiad ()

Yes that figure concretely illustrates exactly why judicial review, or obtaining legal advice, is demonstrably NOT available to everyone, or in indeed most people. That is why section 42 of the FOIA and the refusal to disclose legal advice should NEVER occur because everyone can supposedly obtain an alternative legal remedy. It also raises the question of why the more than half a dozen Tribunal cases that have favoured disclosure under section 42 actually came to that conclusion. They clearly did not regard section 42 as a de facto absolute exemption - by virtue of the supposed ready availability of alternative legal remedy.
Most people do not obtain legal advice or apply for judicial review simply and almost entirely because of the serious costs involved. The FOIA SHOULD allow ordinary people access to information, but this basic right, and something that we have all paid for, is being wrongly denied to people by some judges.

Gadawodd Jason anodiad ()

Any further updates, M Boyce?

Gadawodd M Boyce anodiad ()

Hi Jason.

With regards to the most substantive case, EA/2019/0032 - the sham review process - the PHSO are still dragging this out. It is now around 18 months since the case went to Tribunal and still the PHSO has not sent the Tribunal all, or perhaps not even any, of the relevant withheld legal advice. There have been well over a dozen Case Management Directions issued by the Tribunal so far, and the way the PHSO are behaving there is likely to be many more.

The Tribunal recently reiterated that delay of justice is denial of justice, and the PHSO are happily embracing this.

Gadawodd Jason anodiad ()

That is truly egregious, M Boyce. The lengths that the ordinary person has to go through to get a modicum of justice in this country really boggles the mind.

I also think that it is reasonable to infer that, based on what you have said, the PHSO are looking to hide something pretty damning.

I can only commend you again for all your valiant determination, and for so bravely taking on this rotten bunch.

Gadawodd M Boyce anodiad ()

Thanks Jason

It's not brave, not really, though it is very stressful; it's just an attempt to get justice and to try to make a highly deficient system a little bit better and a little bit fairer.

All over the world many people are trying to make things better for themselves and others, and it is ALWAYS an uphill struggle against the establishment that wants to keep ordinary decent people down-trodden and acquiescent to authority and unjustified privilege.

All lives matter, and all people matter - not just the rich and powerful.

Gadawodd Jason anodiad ()

You're being a tad modest there me thinks. You must have known the likes of the PHSO would make things as stressful and difficult as possible for you, but you ploughed on regardless. You also issued JR proceedings at one point, which was immensely brave.

I agree wholeheartedly with your comments regarding unethical and high-handed authorities etc.

We do really need more people like you in this world.

Gadawodd M Boyce anodiad ()

Thanks my friend. It is nice to have supportive comments.

I'll keep you updated on what happens.

Gadawodd M Boyce anodiad ()

A quick update on Tribunal appeal EA/2019/0032.

The Judge decided around three months ago that this case could not proceed without an oral hearing. The ICO declined to take part and the PHSO have now twice failed to inform the Tribunal whether they will take part or not.

The Tribunal have also asked the PHSO for a number of pieces of clarificatory information/documents. These have not been forthcoming from the Ombudsman.

I have no idea what is going to happen next, but what I am certain about is that both the ICO and the PHSO have always regarded this case as 'in the bag'. Why else would they have been so disengaged with the whole process ?In fact, their only real engagement has been to procrastinate and to frustrate the case for nearly nineteen months so far.

Both the PHSO and the ICO must have taken huge succor
from my Appeal EA/2019/0334 where Judge Shanks declared that he did not need to see crucial evidence from myself. Justice cannot be done, and importantly, seen to be done, if evidence is not provided when requested, and neither can it be done when evidence is ignored.

It is not hard to see where the PHSO and the ICO's confidence in their assured success and good old 'British justice' comes from.

Gadawodd Jason anodiad ()

Thanks for the update, M Boyce.

This sounds a bit concerning. Either they are complacent, or they are looking to hide as much as they can, which is reflected in the fact that they are not disclosing documents etc. Perhaps a combination of both. Can you not get an ‘unless order’, or something along those lines?

I have very little faith in the justice system in this country. For the most part, the only people that benefit from litigation are solicitors and barristers who generally get paid a fortune. As you know, the justice system clearly favours the rich and powerful too.

Gadawodd M Boyce anodiad ()

Yes Jason, it is definitely a combination of both.

I think instead of an 'unless order', a 'useless order' or a 'couldn't care less order' might be more appropriate.

Gadawodd J Roberts anodiad ()

The latest ICO annual report was published a few days ago. From page 45:

'Openness by Design also commits us to making the case for legislative reform to improve transparency in the public sector, as set out in our Outsourcing Oversight? report published last year. Our focus here will be about building a debate about the importance of openness and transparency as a fundamental part of a healthy, functioning democracy.'

https://ico.org.uk/media/about-the-ico/d...

Indeed!

Gadawodd M Boyce anodiad ()

Openness and transparency from either the PHSO or the ICO?

Both organizations have never been less open and less transparent and all this does is undermine the rather fragile liberal democracy that we live in.

Gadawodd J Roberts anodiad ()

Dr Bruce Newsome writes:

'According to heart-breaking testimonials, most complainants are treated by PHSO staff as time-wasters, liars, idiots, fantasists, egotists, and objects of ridicule. The victims have nowhere else to go. Parliament’s Select Committee on Public Administration has complained since 2015 that the PHSO is unaccountable to Parliament except through annual reports. The PHSO’s only practical accountability is to the executive, which controls its funding and appoints its person, but every executive has said that the PHSO is “independent.” Its own solution to criticism is to demand more powers.'

https://thecritic.co.uk/democracys-accou...

Gadawodd M Boyce anodiad ()

Yes J Roberts it makes very depressing reading.

John C, if you read this I would like to help if I could, but I hope you understand that I am wary of divulging my email to people via the internet.

Obviously I don't know your case, but if you are thinking of going down the PHSO route I would just advise you to think very carefully about it. You will need the patience of a saint and the constitution of an ox, because they will do anything and everything to grind you down.

It does not matter whether your grievance is genuine, and I don't doubt that it is, or how eloquently you make your case, the establishment will deny everything.

Persistence in the fight for justice should be a virtue, but the establishment will turn that virtue into an accusation of vexatious behaviour.

If you are prepared for a very long and stressful battle, then go for it. If not, don't.

Gadawodd Jason anodiad ()

That article was a very interesting read, J Roberts. This paragraph was also quite pertinent:

"Then there are the QUANGOs you hear even less about despite their impressive powers. Take the Information Commissioner and its Office (ICO), which are regulators, investigators, and enforcers of criminal laws relating to data protection. Formally, they are accountable to the Select Committee on Digital, Culture, Media, and Sport, but the DCMC is hardly a paragon of virtue itself, and has taken little interest. "

This was very good advice, M Boyce. The more I learn about the PHSO, the more I form the view that they are an unaccountable whitewashing machine.

To add insult to injury, they tend to treat the genuinely aggrieved with disdain and contempt in my opinion. Just recently, they denied receiving an important e-mail from me (requesting a review from the caseworker as she was obliged to carry out insofar as I can remember), which is very curious because they certainly received all other e-mails from me over the course of many years. It took a letter before claim for them to reverse their position, whilst allegedly a "technical error", which is probably a euphemism for "we just couldn't be asked to respond". Incidentally, I noted a very similar issue posted by a Google reviewer in respect to exactly the same caseworker. Mere coincidence?

Gadawodd J Roberts anodiad ()

Jason,

It is indeed an interesting article. You mentioned the ICO as well as the PHSO in your comment. To complain about the former QUANGO you must contact the latter QUANGO. In 2018/19 not a single complaint made against the ICO to the PHSO was accepted for investigation:

https://www.whatdotheyknow.com/request/c...

The actual PHSO document from which I extracted the figures appears to have been taken down from the PHSO website because of a data breach, but D Moore has requested the figures:

https://www.whatdotheyknow.com/request/s...

For anyone considering legal action:

https://phsothetruestory.com/going-to-co...

Judicial Review:

https://phsothetruestory.com/judicial-re...

Potential costs:

"73. MR JUSTICE JAY: How much do you seek?

74. MR MAURICI: My Lord, the schedule, the total figure is £80,654.35."

[2014] EWHC 4364 (Admin)

http://www.bailii.org/ew/cases/EWHC/Admi...

(and getting legal aid to bring a JR does not rule out the possibility of your being pursued for costs)

Gadawodd J Roberts anodiad ()

Frompage 44 of the annual report:

'We received and responded to 17 pre-action letters in 2019-20. Ten did not convert into legal proceedings. There were a total of 16 new applications for judicial review of our decisions. Two claims were withdrawn and eight claims were refused permission to go forward to a full hearing. Three of those decisions were appealed but were not successful. Six of those claims have been recently issued and are pending.'

'In 2019-20, we carried out 942 reviews of our decisions and upheld 120 of them. In 2018-19, we completed 1,199 reviews of our decisions and upheld 43 of them.'

https://www.ombudsman.org.uk/sites/defau...

Gadawodd Jason anodiad ()

That is very interesting indeed, but also somewhat unsurprising, J Roberts.

Based on my experience, the PHSO purported that it only looks at where the ICO didn’t follow the procedure (e.g. not completed an assessment or not followed the complaints procedure). This, however, is not the impression given by the ICO:

“If, having exhausted our case review and service complaints procedure, you remain dissatisfied about any aspect of any service you have received from us or think we have not acted properly or fairly, you can take the matter to the Parliamentary and Health Service Ombudsman.”

https://ico.org.uk/make-a-complaint/comp...

Yep, these QUANGOs certainly close ranks.

As for avoiding the PHSO altogether and pursuing a clinical negligence claim for example, the risk of costs is also astronomical:

“NAO 2017 Report found that in 61% of cases (involving the NHS) the Claimant’s legal costs of pursuing a claim is greater than the value of the damages the Claimant recovers.“

https://www.mills-reeve.com/insights/pub...

Another demonstration of how access to justice in this country is appalling, especially if you are not rich and/or powerful.

Gadawodd christina evans anodiad ()

I made a complaint to phso. Despite extensive evidence and another organization saying I should go to the police my complaint was not upheld. Subsequently because the public body got away with what they did now any engagement with them is bias. This despite the fact the one organization Cygnet Coventry is under special measures and the innacurate misleading information passed on to St Georges hospital Stafford by Cygnet still been used. I have requested a review because of the bias. Also because if it wasnt because of us our relative would still not be well and would not have their liberty.

Gadawodd M Boyce anodiad ()

Good luck with your request for a review Christina. Stick with it and fight for the justice you deserve.

Today I contacted the FTT to ask why they had published so few decisions over the last four months. They informed me that there were 105 decisions that had been 'disposed of' -presumably made - over the last four months. They have promised to upload the remaining 70-80 or so cases to the website over the next few weeks. Some of these will be PHSO V ICO cases.

Gadawodd M Boyce anodiad ()

Another quick update on appeal EA/2019/0332 - legal advice about the PHSO review process.

The Tribunal judge stated that the case was not suitable for a paper hearing and that there should be an oral hearing.

Both the PHSO and the ICO have now confirmed that they do not want to attend any hearing.

Neither the PHSO or the ICO want to be asked any difficult and illuminating questions from the judge.

The Upper Tribunal has today asked for the papers in both Appeals EA/2019/0032 and EA/2019/0334.

So the PHSO and the ICO don't want the First-tier Tribunal to be able to ask any probing questions, and Judge Shanks in appeal EA/2019/0334 ignored the most important evidence that I presented.

Justice can't be done if judges don't have, and don't consider, the full evidence from which to make a fair decision.

Gadawodd J E Garner anodiad ()

It is par for the course for many Judges to adopt a Nelsonian approach to written evidence, in order that us pond life do not succeed. Well done you for your tenacity. As for the ICO? Just check out their reviews on Trust Pilot!

Gadawodd M Boyce anodiad ()

Thanks GE Garner

We are supposed to have the best justice system in the world, but when judges are turning a blind eye to evidence sent from the little people then they should be sacked.

The ICO are a government quango that is only interested in shielding the establishment from scrutiny and criticism, and most people's dissatisfaction with this organization proves this.

Gadawodd J Roberts anodiad ()

The link I provided to a SIC decision on 5/4/20 appears to be broken. Here is the content of the paragraph I referred to dealing with LPP:

'153. The Commissioner acknowledges that there will be occasions where the significant public interest in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing the information. For example, disclosure may be appropriate where:

· the privileged material discloses wrongdoing by or within an authority

· the material discloses a misrepresentation to the public of advice received

· the material discloses an apparently irresponsible and wilful disregard of advice

· a large number of people are affected by the advice

· the passage of time is so great that disclosure cannot cause harm.'

Maybe this link will work:

http://www.itspublicknowledge.info/Appli...

Decision Notice 039/2020
Public authority: Glasgow City Council

Gadawodd M Boyce anodiad ()

The factors favouring disclosure of the legal advice about the PHSO review process are compelling:

Large of number of people potentially affected.

Large amount of money involved.

The legal advice is now around 4 years old.

This legal advice may never have been followed or relied upon.

Contradictory information supplied to the public: PHSOthefacts told the review process is legally allowed for; the PHSO Board Minutes say the review process is not legally allowed for.

A judge has recently described the review process as in a muddle and needs sorting out and the legislation is unclear.

He also states that the reasons for disclosure are weighty.

An important consideration is what would be the benefit of disclosing this legal advice?

It is not just a question of transparency; far more importantly it is a matter of empowering complainants with knowledge: if the review process is not legally allowed for then no-one can be forced to use it, instead of a judicial review. It is simply a matter of giving people a choice or denying people a choice.

This is about holding the PHSO to account AND even more importantly, giving information to people for them to make INFORMED choices.

How can any of this not be in the overwhelming public interest?

Gadawodd M Boyce anodiad ()

Another very important consideration is that the PHSO know full well that there is a serious problem with the legal ambiguity/uncertainty/peril around their review process, and now a judge has stated this. So what do they do about this? Yes, that's right, absolutely nothing.

Over the past few years Rob Behrens has gone on record many times to call for reform of PHSO legislation. He has repeatedly called for 'own-initiative powers', for the removal of the MP filter, and other reforms to the 50 year old legislation.

So why has there not been a single mention - not a murmur - from Mr Behrens about the PHSO review process, which is causing so much trouble?

The reason must be that the process greatly benefits the Ombudsman by putting complainants in a dire legal no-man's land.

Why else would the Ombudsman have never even mentioned this much needed reform? Why else would PACAC never mention this much needed reform and tell me directly that they would never ever do so?

If it smells bad, it is because it is bad.

Gadawodd M Boyce anodiad ()

29. The PHSO is part of the legal and judicial landscape of the UK and public
confidence in the system is of primary importance. It is vital that the Ombudsman,
as a public official, is seen to act with honesty and integrity. Any suggestion that he
might act unlawfully is harmful to his office and the legal and judicial system. It
would not be in the public interest to withhold information that might reveal
unlawful conduct by a public official and to allow that conduct to continue. If the
information is released it will hopefully show that the Ombudsman has behaved
lawfully and will restore public confidence.

The above is from a First-tier Tribunal decision that should be published on the GRC website by this coming Wednesday. It concerns the PHSO 'quashing' of reports. What is says is vitally important. The most important sentence is perhaps where it says:

'It would not be in the public interest to withold information that might reveal unlawful conduct by a public official and to allow that conduct to continue.'

In relation to the PHSO review process the PHSO themselves openly state in the December 2017 Board Minutes that their review process is unlawful.

How can it therefore be in the public interest for the legal advice around this unlawful behaviour to be witheld and to allow this unlawful conduct to continue?

Gadawodd J Roberts anodiad ()

'29. The PHSO is part of the legal and judicial landscape of the UK and public confidence in the system is of primary importance. It is vital that the Ombudsman, as a public official, is seen to act with honesty and integrity. Any suggestion that he might act unlawfully is harmful to his office and the legal and judicial system.'

I don't think there is much public confidence in the PHSO. The number of complaints on Trustpilot keeps increasing:

https://www.trustpilot.com/review/www.om...

And disappointed PHSO service users frequently talk of the PHSO's lack of accountability and of their evidence being ignored:

https://phsothetruestory.com/

https://thecritic.co.uk/democracys-accou...

https://www.whatdotheyknow.com/request/m...

The 'Miller' appeal concerned two GPs, but the 'not written down, it didn't happen' bit may explain much of the misery experienced by numerous PHSO victims: missing records.

'59. It is also conceded that the ombudsman’s evidence from one of her most experienced Directors, Mr Kellett, contained an unfortunate use of language when he said “if it is not written down it didn’t happen unless there is other corroborating evidence”. I do not accept that this was an erroneous use of language: it reflected the practice of and language used by officials in the documents to which this court was taken ie unless the doctor had noted something in the clinical records, poor practice is assumed. Aside from reinforcing an impression of pre-determination, that is an inappropriate way to conduct an investigation'.

https://www.bailii.org/cgi-bin/format.cg...

Staying with the Miller judgment, I detect less emphasis on the strength of the relationship between the Ombudsman and the 'legal and judicial system' in it:

'55. I would also emphasise that it is important that this court does not import into the informal, non-judicial process of administrative and complaints adjudicators like the ombudsman the procedures of courts and tribunals. The adjudication process is an informal resolution of a complaint or problem where other remedies are not reasonably available or appropriate. The procedure is a matter entirely within the gift of the ombudsman provided that her decision making process is lawful, rational and reasonable.'

Using judicial review to prove that the Ombudsman acted unlawfully requires very deep pockets.

Figures have just been released revealing that NHS compensation for medical negligence amounted to £1.4 billion last year:

https://www.dailymail.co.uk/news/article...

“Ministers are planning a so-called ‘fixed costs’ plan to cap legal fees in cases where damages are less than £25,000 and Mr Dilks said: ‘We hope a way can be found to significantly reduce the cost to the public purse at no detriment to justice.’”

The PHSO is free to use but does it contributes to justice?

Gadawodd M Boyce anodiad ()

No the PHSO does not contribute to justice. The only thing it seems to contribute to is the prolongation of misery and futility when someone takes a complaint to them.

If it acts within the law, then sadly there is nothing that can be done about this misery and futility. But if it acts outside of the law then something should be done about this.

Gadawodd Jason anodiad ()

Indeed, Boyce.

I am very concerned to learn that Judge Shanks has ignored the most important evidence that you presented. Will you get another opportunity here, and what evidence was it?

Gadawodd M Boyce anodiad ()

The evidence that Judge Shanks ignored (not overlooked) was my entire PHSO review. This 8 page document is central to both my appeals because they are about the review process in general, and particularly the legality of it.
The Judge said the review document was not important, but how could he possibly know that without seeing it? After I appealed his decision he then decided to obtain a copy of the document, and very unsurprisingly found he was 'right' all along. Well he would say that wouldn't he. This is not justice, it is a joke - except the Judge is the only one laughing.
Justice not only has to be done, but it has to be seen to be done. Ignoring evidence ticks neither of these boxes.

The Judge also at the very least overlooked a great deal of other evidence too.

My appeal to the Upper Tribunal has been acknowledged and that Tribunal has asked for all the papers from the two related First-tier Tribunal appeals to be sent to it.

Gadawodd Jason anodiad ()

I see.

Yes, it is very concerning that he failed to even read the document, and then maintained his view to save face no doubt. Unfortunately, based on both our experiences, there seem to be many judges that are just not up for the job, as if access to justice in this country wasn’t bad enough already.

Have you seen this news?

https://www.legalcheek.com/2020/07/staff...

There may be a principle there that also applies to PHSO reviews. It is also good to see someone like that taking on the establishment.

Gadawodd Jason anodiad ()

Gadawodd J Roberts anodiad ()

M Boyce,

You are certainly shining a stark light on how our judicial system works. Am I right to say that you are now waiting to find out whether permission to appeal will be granted? I hope your're in the 15!

'The AAC received 59 applications for permission to appeal in 2019/20 relating to the ICO, of which 15 were granted.'

https://www.whatdotheyknow.com/request/p...

Dr Bruce Newsome's criticism is as sharp as any surgeon's scalpel in his latest article on the PHSO entitled 'Healthcare Needs an Ombudsman':

https://thecritic.co.uk/healthcare-needs...

'Your final champion is supposed to be the Parliamentary & Health Services Ombudsman (PHSO), but this is mistermed in so many ways. It is unaccountable to Parliament, except to submit annual reports. It is unaccountable to the Prime Minister’s Office, except through long-term funding cycles and appointments. It can choose for itself which complaints to investigate or reject. No parliamentary committee or politician can overrule it.'

Jason,

I made a request related to the judgment:

https://www.whatdotheyknow.com/request/e...

Gadawodd M Boyce anodiad ()

Thanks Jason

Yes I am now waiting to hear from the Upper Tribunal.

I wasn't familiar with the Michael Connor Judgement, and it makes very interesting, and not entirely unrelated, reading.

From my initial understanding the Judgement says that ESA Mandatory Reconsideration (MR) is a 'disproportionate interference with the right of access to court.'

Mandatory Reconsideration is somewhat analogous to a PHSO review: both are internal review processes. Both can take a long time, and both can interfere with the right of access to court. The major difference is, however, that MR is provided for by statute, whereas the PHSO review process is not. The PHSO review process does not just interfere with access to justice, it acts to derail it by virtue that it is not legal, and with all the legal consequences that follow.

I'll certainly scrutinise the Michael Connor Judgement more closely over the next few days.

I am also presently appealing a Universal Credit decision on a matter not dissimilar to the Michael Connor Judgement by the First-tier Tribunal and I fully expect this to also go to the Upper Tribunal.

I've been down this road before and won another case with the UTT. That case was very protracted and involved numerous judges, each one successively 'erring in law'.

I've also had extensive experience of challenging the UK Government's EU law breaking with the help of the European Parliament and the European Commission. Sadly the UK Government will be free to act however it wants by the end of the year. But that's a different matter and a different story from a different time.

Gadawodd Jason anodiad ()

J Roberts,

That is certainly another interesting article. This paragraph was pretty apt:

“Since its employees are not civil servants, we have no idea how they are qualified. They often turnover quicker than the cases they’re handling. One complainant told me that a PHSO report on his complaint “seemed to have been written by a 12 year old.””

Alarming, but somewhat unsurprising, to also note that over the past year the PHSO only upheld or partially upheld 0.6 percent of the enquiries (complaints) it received:

“Remember that 96% of all enquiries did not even get registered as complaints. Thus, the true rate of uninvestigated enquiries in 2019-2020 is more than 99 percent. A different measure confirms this scale: the number of investigations ending in a partial or full uphold is just 650, or 0.6 percent of enquiries received that year.”

I also suspect those were cases where the organisation in question made concessions, which does happen very rarely.

Regarding the Michael Connor case, it seems you’re really on the ball.

M Boyce,

Yes, indeed. I agree that the situation with the PHSO is worse in comparison, particularly in the respects you have alluded to.

Let us know how you get on with your Universal Credit appeal. It is interesting to learn that you’ve been fighting many other serious legal battles too, all whist tackling the PHSO and the ICO matters, which is really impressive. Kudos to you, and more power to your elbow!

Gadawodd J Roberts anodiad ()

Dr Newsome wrote an article a few years ago concerning the PHSO about which another requester sought information. The PHSO provided copies of emails created by his article:

https://www.whatdotheyknow.com/request/y...

Gadawodd M Boyce anodiad ()

http://informationrights.decisions.tribu...

I wasn't aware of the above FTT decision until now, but it has interesting parallels to my case EA/2019/0032.

It is also about the PHSO review process.

The PHSO did provide the Appellant with some legal briefing notes on the review process. They have refused to do so under section 42 FOIA - legal professional privilege in my case.

The Appellant above believed that the PHSO held more information, but was concealing it. In my case the PHSO has been forced to provide more and more information to the Tribunal over a period of a year or so. I fully suspect they are concealing much more.

The above FTT case involved a hearing where the PHSO were represented by legal counsel. In my case the PHSO are declining to attend any oral hearing, which has now been tentatively listed for late October this year. The ICO have also declined to attend. This means that I am the only party willing to attend. The Tribunal has stated that my case cannot be heard without an oral hearing, but I now need to find out exactly why this is the case: is it my fault the case has to have an oral hearing, or is the fault with the PHSO and/or the ICO?

To my knowledge my case appears quite unique in that the Tribunal are insisting on an oral hearing which the First Respondent (ICO) and the Second Respondent (PHSO) are not wanting to attend.

Gadawodd J Roberts anodiad ()

A familiar story, unfortunately:

'18. As to whether she told the Appellant, in response to requests for further documentation, "You can't have that" during that conversation she was certain that if she did say that (which she specifically could not remember saying) it would have been in the context of the fact that the PHSO had no further documents to disclose. She states that she could only assume that the Appellant misinterpreted her meaning if he thought there were other documents that she was refusing to provide.'

21. The Tribunal concludes that Ms Beazley's account is straightforward, cogent and credible.'

I suppose the moral of the story is to record everything, but even then tribunals seem reluctant to admit covertly recorded evidence.

If the Judge has said there must be an oral hearing, then it seems that you cannot be hit with any costs.

FTT powers:

'3) The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the Tribunal—

(a) to attend at any place for the purpose of giving evidence;
(b) otherwise to make themselves available to give evidence;
(c) to swear an oath in connection with the giving of evidence;
(d) to give evidence as a witness
(e) to produce a document; or
(f) to facilitate the inspection of a document or any other thing (including any premises).'

https://assets.publishing.service.gov.uk...

Have you seen this FTT decision? (ICO rubber stamp not working!)

'77. Whilst these communications have been annotated “legal advice provided”, the Tribunal cannot see how they can be so characterised... This was not legal advice, but rather practical advice

88. A central feature of this appeal, it seems to us, is that there has been much weight afforded to the fact that much of the material involves communications to and from Sumera Shabir, who is a solicitor with RMBC. To that extent RMBC,and to some extent the ICO, have approached communications to and from her as being legally privileged, almost by virtue of that very fact.'

https://www.bailii.org/uk/cases/UKFTT/GR...

Gadawodd M Boyce anodiad ()

To my understanding a party can only be hit with costs if they have behaved unreasonably. I don't believe that I have behaved unreasonably. I have always responded to the judges directions in full and on time. This is not the case with the PHSO. If any costs are imposed it should be against them.

The FTT can summons any party to appear at a hearing, but will it and what might be achieved by this? I have said I am willing to appear, but both the PHSO and the ICO have stated that they do not want to appear and have nothing further they could add. So even if they were forced to appear they would likely just play the 'no comment' card - since THEY consider the case is in the bag anyway.

When is legal advice legal advice, and when is it advice given by someone who is legally qualified? This is indeed more than just a question of semantics. Certainly the PHSO regard any and all information they have sent to the Tribunal as 'closed' simply by virtue that it has been provided by someone who is legally qualified. This is not what should happen, and it is not fair.

I need to find out as soon as possible why my appeal cannot proceed without an oral hearing, because that way I'll have a better idea of what is going on.

Gadawodd J E Garner anodiad ()

Legal advice is only ever between the Client and their Solicitor or Counsel. Once the advice has been shared with a third party, or somebody else has been copied into the advice via an email for example, then it is no longer deemed "privileged".

As for "unreasonable" of course this is at the Judge's discretion, mainly what side of the bed he gets out of that morning!

Gadawodd M Boyce anodiad ()

If costs were imposed on appellants simply because a judge had got out of the wrong side of the bed then there would be countless examples of such cost orders. Cost orders from the FTT appear to be rare, and rightly so because if they weren't people simply wouldn't risk taking a case to the Tribunal.

Gadawodd J E Garner anodiad ()

Costs are meant to be rare in all Tribunals, but that doesn't stop some Judges awarding punitive costs because they can, on the flimsiest of evidence, the only effective remedy after this is to Appeal, and get another lot. I am of course referring to Employment Tribunals, hopefully FTT are fairer!

Gadawodd Jason anodiad ()

Indeed, M Boyce.

It sounds like the PHSO have cynically sought to delay and frustrate the litigation process, unreasonably refused to attend an oral hearing, and failed to disclose documents that are pertinent, albeit to the FTT only. That is unreasonable conduct based on any right-minded assessment.

J Roberts, the article written by Dr Newsome lost me at the moment I noted it was published on a Tory website. I am no fan of the Tories, not least because of what they have done to the justice system e.g. unlawfully introducing Employment Tribunal fees and decimating the legal aid system.

Gadawodd Jason anodiad ()

J E Garner, yes, I would say that is correct. I have had a lot of experience in Employment Tribunals. In one case, a very unprofessional judge tried to make me pay a Deposit Order without any written reasons, all whist failing to take into account the fact that I couldn't afford it. The reason he did so was plain to me - it was simply because I had brought other cases, which is plainly wrong.

Consequently, my case was struck out because of my financial circumstances, and I was unreasonably denied access to justice.

Gadawodd M Boyce anodiad ()

I've never had any experience of an Employment Tribunal, but the concept of the deposit order does sound very unfair.

I'm sorry to hear about your experience Jason. Have you had a similar experience JE Garner?

I can only speak from experience of the Information Rights Tribunal and the Social Security Tribunal. The latter cannot impose costs to my knowledge. I am not aware of any case where the Information Rights Tribunal has imposed costs on an appellant. I would be interested to hear if this has happened.

Gadawodd Jason anodiad ()

Thanks M Boyce. Yes, it was profoundly unfair, and one of many egregious experiences I had at the Employment Tribunal. There are unfortunately many serious problems with the so-called justice system in this country as you know.

Gadawodd J Roberts anodiad ()

Jason,

Dr Newsome used to work for the RAND Corporation:

https://en.wikipedia.org/wiki/RAND_Corpo...

M Boyce,

Appellants pursued for costs:

https://www.whatdotheyknow.com/request/a...

Two recent decisions. First, an example of a judge's directions working (the appeal was in fact dismissed but...)

'15. In response to these directions, by letter dated 14 February 2020, the CMC has chosen to release all the requested information it holds to the Appellant without giving reasons for its change of mind, and has not produced a witness statement (but has asked for that direction to now be varied)The only information withheld is personal information in the form of some of the officials who have authored or contributed to reports.'

http://informationrights.decisions.tribu...

I have made a request to the ICO related to DN that was appealed:

https://www.whatdotheyknow.com/request/u...

Second, a problem for appellants.

'11. In her Response [40], the Commissioner, relying on Oates v Information Commissioner and Architects Registration Board, argued that she was entitled to take a denial by a public authority that it did not hold information at face value unless there was some reason not to do so (for example, an indication that shewas being misled).'

http://informationrights.decisions.tribu...

Gadawodd J E Garner anodiad ()

M. Boyce and Jason
The original concept of an ET was that an employee could bring a grievance against an employer, stating their case before a Judge, however this has morphed into a one sided area, where only those with the means to afford an equivalent lawyer, or those represented by their Union or "body" can hope to achieve redress. Add to this the fact that local ET Judges are often known to the Employer, as was observed a ET Court Observer, who saw an ET Judge greet the Respondent Employer by his first name, needless to say the employee lost, and even though the Appeal was heard some distance away, he lost that too. As for "overlooking" evidence and blatant perjury, yes I am aware of this, to enable the High Profile Respondent to win the case! It is of note that the unprecedented Judgment by ET Judge Ord, in the Mr Ben Plaistow v Ministry of Justice (Prison Service) whereby the Judge accuses the MoJ of corrupting and the forgery of evidence, although widely reported b the press at the time (June 2019) not one Journalist appears to have followed up the outcome, whereby the MoJ were supposed to have conducted an internal Review? This is astonishing. See my FOI to MoJ for details of this "Review" which I am currently awaiting a response, due 1 September!

Gadawodd J E Garner anodiad ()

J. Roberts re ICO
"argued that she was entitled to take a denial by a public authority that it did not hold information at face value unless there was some reason not to do so (for example, an indication that she was being misled).'"
My experience of the ICO, is that even when they were presented with irrefutable written evidence of the forgery of a judicial document to prevent a Subject Access Request, she took the "Nelsonian" approach....ICO independent? I don't think so. It is of great concern to me that all of these so called "independent regulators" who are meant to rectify the wrong doing of Public Bodies, are an illusion created to make us think we can achieve justice, oh and of course, to waste our time!

Gadawodd M Boyce anodiad ()

Thanks for the further info on Employment Tribunals JE Garner. It's good to get an idea of how other tribunals work. Good luck with your imminent 'review'.

J Roberts thanks for the link to the Dr Reuben Kirkham case (EA/2018/0036). Although the 'unreasonable bar' seems quite high, it is very poorly circumscribed. Do you know whether the invitation for a costs order was followed-up? Any other cases where the FTT has imposed or invited the ICO to impose costs on an appellant? I know the ICO were, as usual, not forthcoming with your enquiries on this issue.

Gadawodd M Boyce anodiad ()

It does appear that the Kirkham case has the distinction of being the only appeal where the FTT has asked the ICO to impose costs on the appellant.

It is possible of course to check every case listed on the Information Rights website - to date 2601 cases (although this number should increase as a number of cases from earlier this year have still not been uploaded). Two thousand six hundred cases taking roughly 30 seconds to search each one would take around 20 hours.

Gadawodd J Roberts anodiad ()

J E Garner

'It is of great concern to me that all of these so called "independent regulators" who are meant to rectify the wrong doing of Public Bodies, are an illusion created to make us think we can achieve justice, oh and of course, to waste our time!'

A very disturbing thought indeed: so many paid handsomely to conceal the truth. I would like to think that you are wrong, but...

M Boyce,

I have no information on actual costs being claimed by the Commissioner. I presume that anyone hit with costs would appeal to the UT. I have yet to come across a decision on the matter.

Recent information rights appeal related to an ET case (just to show the similar nature of case management powers):

'43. Like this Tribunal, the Employment Tribunal has case management powers that would, for examples, allow it to require parties and others to provide information to the Tribunal/a party and to require any person to attend any oral hearing as a witness. If she had raised, or was proposing to raise, her concerns about the incident report as part of her unfair dismissal claim, the Employment Tribunal would be in a position to assess the relevance or otherwise of that issue and, if necessary, ascertain the names of any potential witnesses and require their attendance at an oral hearing. The Appellant would not have needed to know the name of the security officer in order to pursue that issue (and indeed she has not claimed that she would).'

https://www.bailii.org/uk/cases/UKFTT/GR...

Gadawodd J Roberts anodiad ()

I'm pleased to hear that the wheels ar now turning. You made your request in the second decade of the twenty-first century. The Jarndyce v Jarndyce of FOI!

Gadawodd M Boyce anodiad ()

Thanks J Roberts.

I like your reference to Dickens and his expert critiquing of the English legal system. The wheels of justice sometimes seem to move just as slowly these days. Having said that, my dissatisfaction is not with the slowness of the Tribunal process in this case, but with both the Respondents - the PHSO and the ICO - who have both dragged this process out for far longer than needed through either their incompetence or calculation.

Gadawodd M Boyce anodiad ()

https://committees.parliament.uk/publica...

And now we have the PHSO wanting more public money for its 'exemplary' service. Has any person who has used the PHSO service ever described it as exemplary? If they have then perhaps the PHSO deserves a large bonus?

Gadawodd J Roberts anodiad ()

Mr Behrens makes a big thing of the Covid-19 crisis being responsible for a backlog and the likelihood of being inundated with UC complaints. He told PACAC in June that the pause on investigating NHS complaints would end on 1 July. His letter is noticeably short on detail regarding the extent of the backlog. What was productivity like after 1 July, and were steps taken to enable caseworkers to work with optimal effectiveness? As for UC complaints, it takes ages to go through the DWP and Independent Case Examiner complaints procedures.

Will Rob's Academy of Learning have anything engraved on the door? Plato's had 'Let no one ignorant of geometry enter'. Maybe something less challenging: 'we have a template'.

Gadawodd Jason anodiad ()

A classic case of throwing good money after bad there.

Gadawodd J E Garner anodiad ()

There is no greater tyranny, than that which is perpetrated under the shield of law and in the name of justice.
Montesquieu

Gadawodd M Boyce anodiad ()

Couldn't agree more with the last few comments.

It's interesting how Rob Behrens keeps banging on about the PHSO being or becoming an 'exemplary' service. The dictionary definition of exemplary can mean either serving as a model and worthy of imitation OR serving as a warning. Which definition did Mr Behrens have in mind?

Cleary the PHSO should indeed serve as a warning to those thinking about using this service. Don't take my word for it - take everyone else's.

Gadawodd M Boyce anodiad ()

https://www.ombudsman.org.uk/sites/defau...

Why have the appendices not been published?

How does this demonstrate a commitment to transparency?

Gadawodd Jason anodiad ()

Not sure, M Boyce. Perhaps there is some sensitive personal information therein. Maybe a FOI request is the way to go, as some of that looks like interesting reading.

Gadawodd J Roberts anodiad ()

Good point, M Boyce.

I consider it highly unlikely that the question: 'Should the appendices be published too?' was not asked.

If the PHSO continues to keep important information from public gaze the public can hardly be criticised for asking to see it.

Gadawodd J Roberts anodiad ()

Dr Bruce Newsome shoots to bits PHSO figures in his latest hard-hitting article entitled: 'letting another quango mislead parliament?'

https://thecritic.co.uk/why-is-the-gover...

'The PHSO investigated 30.6 percent fewer cases in 2019-2020 compared to the preceding year, even though enquiries fell by 7.4 percent. Yet, the PHSO misreported 13 percent more enquiries, as recently as August this year.'

Gadawodd M Boyce anodiad ()

Yes Jason an FOI request may well be the way to go, though I suspect the PHSO will use every trick in the FOIA book to defeat it, particularly its favourite: vexatious requestor.

J Roberts, the article makes very disturbing reading. Every day this quango becomes less and less transparent and more and more evasive, secretive and utterly dismissive.

I am still waiting to hear whether all of the PHSO's last submissions to the Tribunal in my case could be fairly classed as 'closed submissions' under GRC Rule 14. The problem is the PHSO can just make submissions to the Tribunal under Rule 14 to make sure that I never get to see those submissions. When all said and done my case involves the PHSO shouting legal professional privilege at every and any opportunity. This allows them to send the Tribunal information that I will never see and can never respond to. Another example of the PHSO's lack of transparency and lack of accountability.

Gadawodd J Roberts anodiad ()

I understand your predicament.

"39. As foreshadowed by Lord Taylor in Ex parte B in FOIA Parliament has specifically legislated to permit the disclosure of communications to which legal professional privilege attaches. Neither section 2(2)(b) nor section 42 use words which, necessarily, lead to the conclusion that the party seeking disclosure of information to which section 42 applies faces a more onerous task than a party who is faced with exemptions based upon other sections of the Act."

"48. However, that is not the end of the matter. In the light of the consistent line taken by the Tribunal as to the weight to be attached to the public interest against disclosure in-built into legal professional privilege (an approach which I have found to be the correct one) it was incumbent upon the Tribunal in the instant case to give significant weight to that interest. Further the Tribunal was obliged to consider whether the weight to be given to the public interest considerations militating against disclosure were countered by considerations of at least an equal weight which supported an order for disclosure."

https://www.bailii.org/ew/cases/EWHC/QB/...

Case No: QB/2008/APP/0759

Gadawodd M Boyce anodiad ()

Yes, but I think the main problem is the issue of what information should remain legally privileged DURING the case progression and what should not. Section 42 cases are very difficult for an appellant because they have to effectively fight blindfolded: I don't know what the PHSO have sent to the Tribunal and I don't know all, or perhaps even much, of what they have told the Tribunal. My concerns are of course multiplied by the fact that the ICO have maintained that the PHSO have sent the Tribunal little but entirely irrelevant information, and by the fact that both the ICO and the PHSO have declined an invitation from the Tribunal to attend an oral hearing to presumably shed light on these and other matters.

Am I wrong or paranoid to be concerned?

Gadawodd J Roberts anodiad ()

You have every right to be concerned: the process is Byzantine. If the PHSO has sent little information of relevance to the ICO why hasn't the ICO requested information within the scope of your request, or if the ICO has requested relevant information, why hasn't it been provided? You are playing Jenga blindfolded.

Latest Section 14 FOIA appeal dealt with in the UT:

https://www.gov.uk/administrative-appeal...

(an exhausting read)

Related DN:

https://ico.org.uk/media/action-weve-tak...

I can't find the related FTT decision.

Gadawodd M Boyce anodiad ()

The Judge Wikeley UTT case is interesting, but as you say exhausting. I was lolling in and out of consciousness near the end of it and nearly ended up with whiplash when I fell out of the chair!

Anyone who has spent considerable time looking through the many ICO decision notices on their website cannot fail to notice just how biased they are and how they will do anything to find in favour of the establishment. That anything I now know for certain includes trying to deceive appellants (they told me they couldn't tell me whether the PHSO had sent them and the Tribunal external legal advice, but were later forced, via the FOIA, to admit that they had, albeit later saying it was irrelevant advice), as well as turning a blind eye to the establishment sending the Tribunal all manner of apparent codswallop (irrelevant information) masquerading as relevant 'legal advice'. You couldn't make it up, and promise I am not, as will be seen when this all does finally come out in the wash.

Gadawodd Jason anodiad ()

This doesn't sound like a fair fight at all, M Boyce. Perhaps that is why the likes of the PHSO feel they have got it in the bag. Essentially you are putting all your faith in the impartiality, care, diligence and skill of the judge, and we all know how often they get it wrong. It sounds like it has happened already in this case.

Moreover, you can't really appeal if the judge does something stupid or exercising bias that you're unaware of.

You mentioned some time ago (it was on the other thread I believe) that the PHSO may have lost their legal professional privilege, or some aspect of it, due to their foolishness. Do you still have that argument at your disposal?

Gadawodd M Boyce anodiad ()

I don't know what is going to happen with the Tribunal, and obviously I have put my trust in them, but I do know that fairness is not a word that either the PHSO or the ICO are familiar with.

I have argued to the Tribunal that the PHSO effectively, albeit unwittingly, 'waived' legal professional privilege because they disclosed a string of email and other communications on the 'legality' of the PHSO review process to another FOI requestor. The email communications that were supplied could not possibly have been the complete communications because they stopped about a year before the request. Why weren't the rest of the communications sent to the requestor and therefore the rest of the world?

The doctrine of partial disclosure does complicate things, but in any event the unarguable point is that these communications directly contradict the PHSO December 2017 Board Minutes: the former says that the review process IS allowed in law and the latter says that it is not. Is it in the public interest for the public to be at best clumsily supplied with contradictory and confusing information or at worst deliberately misled on such an important matter? The Tribunal will decide on this matter and other issues relating to my request. Let's hope this happens before the second anniversary of my appeal to the Tribunal!

Gadawodd Jason anodiad ()

Yes, it is quite ironic that the PHSO are an organisation that are meant to act in accordance with the principles of natural justice.

Something also smacks of dishonesty there with the conflicting information. Dishonesty or corrupt behaviour may, of course, amount to or play a part in misconduct in public office.

"Lying to or misleading the public amounts to an abuse of public trust in that office, hence there is, on its face, evidence to meet the ingredients of the offence. The District Judge broadly agreed.":

https://thesecretbarrister.com/tag/misco...

Gadawodd M Boyce anodiad ()

The PHSO have most certainly misled the public with regard to their review process. Judge Shanks in my case EA/2019/0334 described the review process as 'in a muddle and needs to be sorted out', but he also said that this was because the review process is not provided for in law. So you might ask why doesn't the PHSO want to get itself out of this muddle and work with PACAC to effect a change in the law to allow for the review process? This muddle has never been discussed with PACAC, in fact it has never even been mentioned. Why?
I spoke to the clerk of PACAC on the phone several times and on the last occasion he angrily promised me that PACAC would never ever discuss this issue with the PHSO, nor with me. Why? I kick myself for not recording that conversation!
So neither the PHSO or PACAC want to sort out this illegal muddle. Why?

Gadawodd Jason anodiad ()

Those are interesting comments from Judge Shanks. Does he actually posses any powers to rectify the mess though, aside from upholding your appeal?

The clerk of PACAC sounds like an extremely dubious character.

I suspect there are a lot of political reasons behind all the inertia. The NHS is a national treasure (at least to the ordinary person), and the majority of the complaints to the PHSO are about the actual or perceived poor service people receive from the NHS. If the NHS is performing badly, and this is highlighted by the PHSO to some degree, this undermines the party in power.

The review process gives the PHSO, and by association the government, an excellent further opportunity just to brush any shortcomings under the carpet, so to speak, both in terms of the PHSO services and the NHS. This also saves the government money in terms of coughing up compensation.

Moreover, the review process affords the PHSO a belt and braces type system which protects it against a Judicial Review challenge, which also assists the Tories in bringing down public spending and the deficit.

All this is just my speculation though.

Gadawodd M Boyce anodiad ()

The judge did not uphold my appeal: quite the contrary, he dismissed it as vexatious - despite saying that the review process was 'in a muddle and needed to be sorted out'. Work that one out.

The actions of the clerk of PACAC speak for themselves.

The review process does indeed act to benefit both the PHSO and the government, and the judiciary for that matter, so that makes the PHSO's total unwillingness to get the review process sorted out (made legal) all the more inexplicable.

Gadawodd Jason anodiad ()

Gosh, M Boyce, what an absolute charade all this is. I suspect the like of the ICO and/or PHSO did a great job of using the "vexatious" tactic and brainwashing that judge.

Yes, agreed. I think you've got an uphill battle here though. I truly hope at lease some justice will prevail.

Gadawodd M Boyce anodiad ()

My main gripe with Judge HH Shanks is his utter disregard for fair process. We all place our trust in judges to be fair and impartial, but how on Earth can they be if they point blank refuse to look at the evidence from an appellant? It is no good coming back later after the appellant has complained and then saying oh well I have now grudgingly looked at the evidence and come to the same conclusion I did without first seeing that evidence.

It is a clear abuse of trust to prejudge and then ignore evidence. I am quite sure the judge would disagree, but no fair-minded person would agree.

Gadawodd Jason anodiad ()

I totally agree. It seems that judge was exercising bias, at a conscious and/or unconscious level, towards the establishment and/or he was just slapdash in his approach.

Sadly, these judges get paid vast sums of taxpayer's money whether they do a good job or not, safe in the knowledge that most appeals are likely going to fail. Personally, I think that kind of behaviour is egregious, unethical and unconscionable.

Gadawodd M Boyce anodiad ()

http://informationrights.decisions.tribu...

The Nicholas Wheatley v PHSO case published today on the GRC website nearly six months after it should have been published.

Gadawodd M Boyce anodiad ()

29. The PHSO is part of the legal and judicial landscape of the UK and public
confidence in the system is of primary importance. It is vital that the Ombudsman,
as a public official, is seen to act with honesty and integrity. Any suggestion that he
might act unlawfully is harmful to his office and the legal and judicial system. It
would not be in the public interest to withhold information that might reveal
unlawful conduct by a public official and to allow that conduct to continue. If the
information is released it will hopefully show that the Ombudsman has behaved
lawfully and will restore public confidence.

'It would not be in the public interest to withold information that might reveal unlawful conduct by a public official and to allow that conduct to continue.'

Indeed. So how do this judicial statement sit with the PHSO's own declaration that its review process is not legally allowed, but nonetheless the public should not be allowed to know the details of this?

Gadawodd M Boyce anodiad ()

https://committees.parliament.uk/publica...

The above is described as the 'Government Response' on the PACAC website? Is the PHSO now the Government?

Where is the actual Government Response?

Gadawodd Jason anodiad ()

There is so much pretentiousness on the PHSO's part in that document that it makes me want to vomit.

I see it has been proposed that the PHSO and the Local Government and Social Care Ombudsman should be replaced with a single Public Service Ombudsman, and a Public Service Ombudsman Bill may be put through parliament. One wonders what will happen to the PHSO's treasured and dubious review process if that happens.

Gadawodd Jason anodiad ()

This paragraph is pretty alarming too:

"We would also welcome the Committee’s support for PHSO having legal powers to offer and charge for training,
which will enable us to assist with professionalising complaint handling across the bodies in our jurisdiction"

I think the PHSO should really get its own house in order first, and the fact that is trying to grab further legal powers is certainly alarming.

Gadawodd J Roberts anodiad ()

Jason,

You make a good point. Serious and credible allegations highly critical of the PHSO are just a mouse click away. Public confidence in the organisation is disappearing fast. I have enquired about the impressive-sounding learning academy here:

https://www.whatdotheyknow.com/request/p...

Something else of interest, related to Sir Robert Francis QC and his view that the PHSO should become more involved with trusts:

https://www.whatdotheyknow.com/request/i...

Gadawodd M Boyce anodiad ()

https://committees.parliament.uk/publica...

The above letter above disclosed to me after a conversation with PACAC this afternoon will be like music to the ears of Mr Behrens. There will be no new Public Service Ombudsman, and no reform of the antiquated, legally unsound, and highly inefficient current system.

We can all 'look forward' to much more of what we have long become accustomed to.

Gadawodd J Roberts anodiad ()

M Boyce,

This part puzzles me:

"There are budget implications for the PHSO if the merger does not occur as the Committee understands that its previous settlement was based on realising the savings that would come from one organisation."

I don't recall seeing anything to suggest that there ever was any strong likelihood that the merger would take place. And why the word 'understands'; presumably information exists spelling things out?

......................................................................................................

'Call for evidence

Written evidence - Parliamentary and Health Service Ombudsman Scrutiny 2019-20

The Public Administration and Constitutional Affairs Committee (PACAC) is responsible for scrutinising the work of the Parliamentary and Health Service Ombudsman (PHSO).

PACAC is launching its annual scrutiny session into the work of the PHSO in the financial year 2019/20.

As set out in its previous report, the Committee intends to consistently scrutinise the following matters and would welcome evidence relating to them:

• The PHSO’s casework performance, including performance against KPIs.

• Staff management and training.

• Value for Money

• Impact on other organisations.The Committee would also welcome evidence on the following subjects:

• The PHSO’s provision of reasonable adjustments to service users.

• The time taken for the PHSO to respond to correspondence, including Subject Access Requests and Freedom of Information requests.

The deadline for receiving written submissions is Friday 30th October 2020'

https://committees.parliament.uk/call-fo...

Gadawodd J Roberts anodiad ()

Most recent decision notice related to the PHSO and LPP:

'19 The Commissioner agrees with the PHSO that LPP carries with it a strong inherent protection due to the nature of the information that it covers, and the function that it plays in the administration of justice. The Commissioner has not been presented with any argument in favour of disclosure which is sufficiently strong to overturn the protection that LPP requires. The Commissioner’s decision is therefore that the public interest favours maintaining the section 42(1) exemption.'

IC-45662-G8F3

https://ico.org.uk/media/action-weve-tak...

Gadawodd Jason anodiad ()

Yes, Mr Behrens and his ilk will be undoubtedly tickled pink by the news that there will be no new Public Service Ombudsman.

As of the ICO decision, no surprise they are acting true to form.

Gadawodd M Boyce anodiad ()

Yes the latest ICO DN on section 42 LPP comes as no surprise. I notice, however, that the ICO seem to have dropped their dogmatic insistence on extreme exceptionality. I wonder why?

Is the requested advice live or not live? Toss a coin and find out.

A new PSO is not in fact necessary for PHSO legislative reform: a simple Statutory Instrument could very quickly and easily amend the outdated and confusing legislation. Why isn't Mr Behrens calling for this simple and cost effective expedient? Could it be that he doesn't REALLY want reform of the Ombudsman and its legislation?

He is to be judged by his actions and not his words.

Gadawodd J Roberts anodiad ()

The 'very exceptional' criterion appears to have been dropped.

Have you seen this:

“4.1 ...Since April 2013 we have tightened the criteria to provide clarity and to ensure that reviews of decisions are only undertaken where legitimate concerns exist. Since the introduction of the criteria, we have accepted 40% less complaints for review.”

(the document pages are not numbered sequentially, but according to page number of my document reader it is page 77)

https://www.whatdotheyknow.com/request/2...

Increased clarity and wiped out illegitate concerns at the stroke of a pen. Amazing!

Gadawodd M Boyce anodiad ()

It was never the PHSO that were making and endorsing the 'very exceptional' argument - that was, and maybe still is, the ICO. The PHSO went even further at two-fingering the law: they argued that 'it was NOT POSSIBLE' to use section 42 to obtain legally privileged information from it. The ICO made the 'very exceptional' argument to the Tribunal and the PHSO used the 'not possible' argument. The FOIA simply states that the public interest in disclosure only needs to outweigh the public interest for non-disclosure. Both the ICO and the PHSO are repeatedly corrupting the letter and the spirit of the law to further their agendas.

Gadawodd Jason anodiad ()

I would be very inclined to agree. The whole thing stinks to high heaven.

Are you any nearer to getting any kind of hearing at the Tribunal?

Gadawodd M Boyce anodiad ()

Yes Jason I would hope the Tribunal will hear the case fairly imminently. There is now no more (apparent) obstacles to prevent this.

The Tribunal website has been in chaos since the start of the pandemic, but as soon as I get a decision from the Tribunal I will post it here.

Gadawodd J Roberts anodiad ()

The Tribunal website is still down. It's got a virus worse than Covid!

Gadawodd M Boyce anodiad ()

Yes J Roberts the Tribunal website has been malfunctioning since the start of the pandemic. I contacted them about this three or four times during the summer, but they just stated that they had reduced staff due to the pandemic and didn't have time to deal with issues such as publishing decision notices.
Six months on the situation appears worse than ever. Justice (such as it ever was), like people's health and sanity, is rapidly going down the pan.

Gadawodd M Boyce anodiad ()

There are several very serious issues with the FTT website being indefinitely unavailable. Firstly, we now have no idea of how many, if any, cases are being looked at and decided by the Tribunal. Secondly, any appellant wanting to search the Tribunal past cases is now unable to do so and cannot now use past cases to help inform their case.

We currently have high unemployment in this country, and yet the FTT say they do not have enough staff to publish decisions. Why can't they offer some unemployed people a job and simultaneously possibly help to facilitate some justice in this country?

Is this a manifestly unreasonable suggestion?

Gadawodd Jason anodiad ()

Fair point I would say, M Boyce.

It's not just the FTT that is dragging to a halt - I've been waiting for ages for some progress in regards to my complaints/cases with the Legal Ombudsman and the PHSO. I am certainly not holding my breath in respect to the latter, though, for obvious reasons. Indeed, I have decided that sending the PHSO any further complaints/cases is most likely just going to be a waste of time and energy, and only serves to exasperate my sense of injustice and grievance.

Gadawodd M Boyce anodiad ()

I agree Jason.

I would say to anyone thinking of taking a complaint to the PHSO to think very carefully about it: if you like endless stress, frustration, disappointment by the bucket load and a miniscule chance of any success whatsoever then go for it; if not then don't bother.

Gadawodd J Roberts anodiad ()

Unrepresented appellants are now not only hobbled but blinded as well!

As for approaching the PHSO, things seem to be getting worse. Get to a good lawyer before it's too late. Here's what people think of the Ombudsman.

Trustpilot:

https://www.whatdotheyknow.com/request/p...

'What's the Point of the Ombudsman?':

https://www.amazon.co.uk/gp/product/1999...

Latest story by PHSO the Facts on the Ombudsman's venture into radio (spoiler alert: it hasn't gone well):

https://phsothetruestory.com/

Gadawodd Jason anodiad ()

Yes, the whole thing is an unmitigated disaster. The PHSO claims to be "independent", but it is certainly not impartial. In my humble opinion, it is set up as a whitewashing machine, or has certainly covertly morphed into such an entity over recent years, with the view to protecting government agencies, and by association the government itself, from being held to account and/or challenged by Judicial Review.

Gadawodd M Boyce anodiad ()

The Tribunal sat this week to hear my case EA/2019/0032 - legal advice about the PHSO review process. The case will be unlikely to be published on the now defunct GRC website, so I will post it here when I get it.

Gadawodd Jason anodiad ()

Sounds very interesting, M Boyce.

Did you attend remotely, and do you have a sense of how things went?

Gadawodd M Boyce anodiad ()

No Jason. I wanted to attend a remote hearing, which the Tribunal at first said was absolutely necessary, but both the PHSO and the ICO refused to attend, so the Judge decided it then wasn't necessary!

As for how the hearing on the papers went; well suffice to say that my faith in good old British justice is not strong, but we'll find out soon enough.

Gadawodd Jason anodiad ()

Yes, I can certainly empathise with your view of good old British justice, as I am been left extremely disillusioned for a very long time.

Gadawodd Jason anodiad ()

Any further updates, M Boyce?

I would say the way that case has been handled by the respective Judge(s) hitherto is a serious concern.

Gadawodd D. Moore anodiad ()

Here is an information notice dated 9/11/20 that I came across:

https://ico.org.uk/media/action-weve-tak...

"Section 51

Under section 51 of the Freedom of Information Act 2000 (the “Act”), which is set out below, the Information Commissioner (the “Commissioner”) has the power to serve a notice on a public authority requiring it to furnish her with any information she requires to enforce the requirements of the Act."

"18. In view of the matters described above the Commissioner hereby gives notice that in the exercise of her powers under section 51 of the Act she requires that the PHSO shall, within 30 calendar days of the date of this notice, furnish the Commissioner with a copy of the following information:

The withheld information.

Further more detailed arguments to support the application of sections 40, 42 and 44 of the FOIA as outlined in the Commissioner’s email of 14 April 2020."

Gadawodd M Boyce anodiad ()

No further updates yet Jason, but I believe that the decision is currently being written by the Tribunal judge.

My main concerns with the case are more about how the PHSO and the ICO have worked to drag this case on for almost two years so far. Time and time again the PHSO failed to adequately respond to the numerous directions from the judge, and time and time again both the PHSO and the ICO tried to deny the Tribunal essential information.

In fairness to the judge, she has provided both the PHSO and the ICO more than ample opportunity to cooperate fully with the Tribunal - without total success.

Thanks for the link to the ICO DN D Moore. It quite aptly shows that the PHSO are still continuing to show what can only be described as contempt for requestors. But to make such an obvious statement of fact is to to risk being muzzled as vexatious by the establishment.

Gadawodd M Boyce anodiad ()

D. Moore, where did you obtain the above ICO DN, dated November 09 2020 concerning the PHSO? I ask because it has not been published on the ICO website.

It now appears that both the ICO and the FTT are not publishing some (in the case of the ICO) or all (in the case of the FTT) of their decisions.

Gadawodd D. Moore anodiad ()

M Boyce,

The ICO publishes its information notices and practice recommendations here:

https://ico.org.uk/action-weve-taken/inf...

Gadawodd M Boyce anodiad ()

Thanks for this info D. Moore.

Gadawodd J Roberts anodiad ()

Recent report by Open Democracy - 'Art of Darkness: How the government is undermining Freedom of Information':

https://beta.documentcloud.org/documents...

"It is unclear why the ICO makes such infrequent use of Information Notices (the ICO’s website states that as of November 2020 it has issued 28 since June 2019 while processing more than 1,000 complaints).

Information Notices give authorities thirty days to submit a copy of the requested information and its arguments for withholding it, which seems a reasonable time frame. After all, authorities should have prepared this material during the request and internal review stages.

It is plausible, however, that public bodies require extensions because they are not responding to requests in good faith and are betting on requesters failing to use the appeals process." (page 23)

Gadawodd M Boyce anodiad ()

http://informationrights.decisions.tribu...

And now we have the above decision just published on the FTT website.

It makes very interesting reading. How dare the PHSO still claim it is open and transparent? It is an obstructive, defensive and highly opaque organisation.

It is also interesting how Judge HH Shanks does not pull his punches here, whereas in my appeal before him about the PHSO he describes their review process

Gadawodd M Boyce anodiad ()

... in a mess and needs sorting out; yet my enquiries about this mess he then categorises as vexatious.

The PHSO time and time again behaves like an unaccountable autocrat.

Gadawodd Jason anodiad ()

J Roberts,

Yes, that last paragraph seems reasonable to me. The PHSO and its ilk take full advantage of the fact that requestors/appellants/service users would need to be very familiar with judicial processes and have the resources to use them in order to access a crumb of justice.

M Boyce,

I could not agree more, as that has proven to be the case, in my opinion, purely on my own personal experiences.

I note that Judge Shanks, for all intents and purposes, labels the PHSO as a bunch of liars at paragraph 10.

It is good to see a small victory for the ordinary person in regards to that judgment. Needless to say, it further suggests that the ICO are not fit for purpose.

Gadawodd J Roberts anodiad ()

M Boyce,

"Indeed, leaving aside any technical arguments I am puzzled as to why the PHSO did not just get hold of the documents from the LGSCO and pass them over to Mr McDougall, thereby saving a great deal of unnecessary time and expense."

Indeed!

D Moore made a request to LGSCO about the Joint Working Team Manual in December 2019:

https://www.whatdotheyknow.com/request/p...

The request was based on Mr McDougall's 'not upheld' DN ref. FS50871882:

https://ico.org.uk/media/action-weve-tak...

Versions 2,3 and 4 of the manual were provided.

Gadawodd J Roberts anodiad ()

Jason,

It seems reasonable to me too.

Here is something from a DN concerning Greater Manchester Police illustrative of inaction:

'22. On 11 March 2020, GMP wrote to the Commissioner outlining its reasons for not having conducted an internal review (which included a lack of resource and “numerous competing priorities”, together with some confidential concerns). It said it would not be able to carry out an internal review until another officer was available and asked for the Commissioner’s view.

23. The Commissioner explained that: “Internal reviews are not a statutory requirement under the FOIA. We always advise public authorities to conduct them where possible. There may, of course, be circumstances where it is neither prudent nor a proportionate use of resources to carry out a review” and said that GMP could, in the circumstances of this case, elect not to conduct an internal review provided it explained this to the complainant and advised him to complain to the Commissioner.

24. GMP wrote to the complainant on 3 April 2020 advising that it would not be carrying out an internal review. The complainant complained to the Commissioner about this that same day.'

https://ico.org.uk/media/action-weve-tak...

In some cases, not carrying out a review seems like a useful way for a public authority to get the Commissioner to do more of the work required.

Gadawodd J Roberts anodiad ()

M Boyce,

It is indeed interesting how Judge Shanks dealt with your appeal.

Perhaps a distinction could be made between decisions concerning issues with potentially significant implications like yours, and those of less significance like Mr McDougall's. Someone once suggested to me that the perceived implications of a decision invariably colour how a decision-maker views the merits of any related argument.

Gadawodd M Boyce anodiad ()

Jason, I certainly agree that the ICO are also not fit for purpose: they merely rubber-stamp what an authority says and ignore the general public.

I think reviews are generally a good thing - provided they are both legal and properly and fairly done - neither applies to the PHSO.

J Roberts, you quote:

'...the perceived implications of a decision invariably colour how a decision-maker views the merits of any related argument.'

Yes, and that should cut both ways: good implications as well as bad implications. Ultimately it is in the public interest and for the public good for the PHSO to be open, transparent and to act within the law - the PHSO knows that they are not open, transparent or acting within the law, the ICO knows this, and the First-tier Tribunal knows this, and yet this behaviour is continuously promoted and endorsed under the FOIA, e.g. sections 14 and 42, to name but two.

Joe public are being taken for fools.

Gadawodd J E Garner anodiad ()

There is to be n Upper Tribunals Appeal Consultation
see link:
https://panopticonblog.com/2020/12/04/up...
and
MoJ-Proposals for reforms to arrangements for obtaining
permission to appeal from the Upper Tribunal to the Court of Appeal link:
https://assets.publishing.service.gov.uk...

Gadawodd Jason anodiad ()

Really shocking to see this government seek to limit access to justice further, as if things aren't bad enough already.

Gadawodd M Boyce anodiad ()

Thanks for these links G.E Garner. I will look at them closely over the weekend. It looks quite concerning stuff.

Gadawodd J Roberts anodiad ()

Appeal Reference: EA/2019/0275V

The Crown Prosecution Service's appeal was allowed, so s42 remains a difficult nut to crack. But I note the judges remark on policy at paragraph 47.

http://informationrights.decisions.tribu...

'18. The Commissioner concluded that the public interest reasons did not need to be ‘exceptional’ to overturn the strong public interest in maintaining the exemption, but she recognised the significant public interest in not undermining the ability of a public authority to freely seek and receive frank legal advice in future, and the need for confidentiality between lawyers and their clients so that advice can be given freely without fear of intrusion.

19. However, the Commissioner noted that the legal note was 17 years old,

20. The Commissioner decided that there was ‘a stronger public interest in the public knowing about the competency and compellability regarding whether the Sovereign can be called as a witness in court proceedings.

35. However, in my view there is nothing in the case law to which I have been taken which indicates that the ‘in-built’ significant weight can vary from case to case.

47. I also do not agree that the advice, even if it is current, amounts to a CPS ‘policy’ on the issue in question which elevates the public interest in disclosure.

48. it is my view tha t the Commissioner erred in finding that the public interest in disclosure outweighed the significant ‘in-built’ public interest in non-disclosure demanded by th ecase-lawi n s42 FOIA cases.'

Gadawodd J Roberts anodiad ()

Link to the DN of 4 July 2019:

https://ico.org.uk/media/action-weve-tak...

"2. The Commissioner’s decision is that although section 42(1) of the FOIA is engaged, the public interest favours disclosure.

5. Paul Burrell, a former royal butler , faced three charges of theft involving 310 items from the late Princess of Wales’ estate.

7. However, on 2 November 2002 the trial was discontinued as the Queen confirmed that Mr Burrell had told herin a private conversation after the Princess’ death, that he had kept some of her possessions for safekeeping."

Gadawodd M Boyce anodiad ()

The above case contrasts with mine:

The CPS compellability of the Queen case is 'of interest to the public'; mine is 'in the public interest.'

In the CPS case the ICO pull out all the stops hiring flashy barristers; in mine they refused to even attend an essential hearing.

The CPS case did not involve a serious lack of transparency; in my case the PHSO promoted its not legally allowed behaviour.

In the CPS case the ICO claim that LPP cases need not be exceptional; in my case they claim they must be very exceptional.

The ICO is so Janus-faced the rest of us mere mortals don't know who's coming or going.

Gadawodd J Roberts anodiad ()

M Boyce,

You are right to point out the glaring inconsistencies between how the ICO dealt with the two complaints. Maybe because the other complainant was a professor, the complaint was not passed to a caseworker who favours the 'very exceptional' baloney.

Gadawodd Jason anodiad ()

Be inclined to agree with you both.

Anyone heard of the 'Faulks inquiry'? This Tory government are now seemingly trying to screw judicial review law further in their favour:

https://www.lawgazette.co.uk/news-focus/...
https://www.thejusticegap.com/government...

Very worrying.

Gadawodd M Boyce anodiad ()

No Jason I'd not heard of it.

Judicial review is a valuable constitutional check and balance; but let's be honest: it is and only ever was aimed at helping the rich or legal aid areas such as immigration cases. Judges only ever respect barristers and fancy lawyers, and certainly not litigants in person. If anyone doubts this they need only look at the number of cases of litigants in person (poor people) who are granted permission to proceed with judicial review. Perhaps all litigants in person are incapable of making a convincing case? No, I don't believe it either.

It is not what you know, but simply who you know - or who you can afford to know.

Gadawodd Jason anodiad ()

Yes, that has been my experience too, albeit in the Employment Tribunal and Employment Appeal Tribunal.

The situation is also worsening all the time due to austerity and legal aid cuts etc. In most cases, there are no incentives for legal aid solicitors to take on cases, and only profound disincentives such as cost risks and very poor remuneration. Of course, every litigation carries some risk, as no outcome is guaranteed. Needless to say, all this is hardly going to attract the most highly skilled solicitors. In my experience, all the other side needs to say is 'boo' and my legal aid solicitor would run a mile.

Britain’s most senior judge, Lord Chief Justice Thomas of Cwmgiedd, has even argued, “our justice system has become unaffordable to most”. This is a remarkable statement about a country whose founding document, the Magna Carta, in a statute that still stands in English law, states that “We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Gadawodd M Boyce anodiad ()

Yes totally agree.

I see that the FTT website is down again. It has crashed more times this year than a boy racer covered by diplomatic immunity.

Gadawodd Jason anodiad ()

Any significant updates, M Boyce?

Here is some alarming news:

https://www.theguardian.com/commentisfre...

Gadawodd M Boyce anodiad ()

Significant enough Jason.

I contacted the First-tier Tribunal last week to ask what was going on with appeal EA/2019/0032 since 11/02/21 marks the second anniversary since the Tribunal acknowledged receipt of the case. So I am now entering the third year of this case being considered by the Tribunal.

The judge responded and said she had more important things to deal with! Other cases that had been waiting for more than two years? Don't know.

It's interesting because the FTT themselves said that justice delayed is justice denied.

The Government's attack on the FOIA is very worrying. It's clear that they would love to abolish it, but might find that a little bit difficult.

Gadawodd J Roberts anodiad ()

'105. As a matter of practice, I am also aware that like many tribunals GRC is heavily reliant on fee-paid part-time tribunal judges whose first commitment is necessarily to their 'day job’... Furthermore, at the time in question I believe (and take judicial notice of the fact) that the Chamber had just one salaried judge and one registrar in post.'

https://assets.publishing.service.gov.uk...

DVLA-v-Information Commissioner and Williams (Section 31)[2020] UKUT 334(AAC)

Gadawodd M Boyce anodiad ()

Having done a little research one of the more important things may well be the judge's involvement in what looks like being a landmark case for the 'victory for free speech and openness'. In a hearing in late January 2021 a tribunal decided against restrictions limiting access to the FOIA to UK citizens living in the UK.

Gadawodd Jason anodiad ()

That delay is very concerning, M Boyce. I note, however, that many public services have ground to a halt due to the pandemic, including the ICO, who have not responded to any of my enquiries for quite a while.

The PHSO have also sat on cases of mine for circa 2 years, not that I am expecting a positive outcome there. It also appears they have no one monitoring or acting on subject access requests etc.

Needless to say, while the pandemic continues, public bodies and quangos are seemingly getting away with murder, not that this is anything new.

That sounds like positive news, though, regarding that landmark case. Hopefully it is a step in the right direction.

Gadawodd M Boyce anodiad ()

Yes Jason, I agree with what you're saying.

Authorities like the PHSO and the ICO have little excuse for such delays during the pandemic, especially non-NHS work. They work from the safety of home, unlike many others. If you point this out to them they just get their vexatious card out.

An even bigger problem with the PHSO, the ICO and the courts and tribunals is that they have been starved of money under austerity for over ten years. This is leading to huge backlogs of cases and rushed and botched cases.

Justice delayed is justice denied, and equally justice on the cheap is justice denied. That is not a vexatious opinion, just a simple statement of the truth.

Gadawodd Jason anodiad ()

Totally agree, M Boyce.

The irony is the government and government agencies have very deep pockets when it comes to defending their decisions in court and at the pre-action stage, including the egregious and/or botched ones that you have alluded to that are ultimately caused by austerity, albeit indirectly and in part.

Sadly, given the current state of affairs, and the financial situation attributed to the pandemic, it seems very likely that this awful situation is going to remain for quite some time. It may even get worse. Very depressing…

Gadawodd J E Garner anodiad ()

Please see recent ruling by Judge Wikeley
https://panopticonblog.com/2021/02/19/bu...
Bundles of Fun
February 19th, 2021
Not infrequently in the Tribunals an issue will arise about the handling of documents or evidence disclosed in the course of an information rights appeal, in a context where the GRC and UT Rules do not contain an equivalent to CPR r.31.22. Some useful guidance has now been given from the Upper Tribunal in DVLA v Information Commissioner & Williams [2020] UKUT 310 (AAC).

Mr Williams wished to post online the entire open hearing bundle for his appeal in the FTT, along with the skeleton arguments, in order, he explained, to solicit assistance with his response to the DVLA’s appeal to the Upper Tribunal. He wanted comments on their arguments from a wider audience given he was acting in person. Mr Williams considered that he did not need the permission of the UT to do so, but agreed to wait until DVLA’s application for a direction preventing him from publishing was considered.

Judge Wikeley dealt with the matter in a separate judgment. He held that Mr Williams did require the UT’s permission before he could publish the bundle on the internet, to the world. He agreed with Moss v Information Commissioner & Cabinet Office [2020] UKUT 242 (AAC) that there was no Article 6 ECHR right engaged in a FOIA appeal, and the right to seek legal assistance did not require publication of the hearing bundle. The UT Rules do not contain the provisions of the CPR, but it was appropriate to import the same solution where CPR r.31.22 (and r.31.12) codified the implied undertaking at common law not to use documents disclosed in legal proceedings for a collateral purpose. The same approach had been taken in the Employment Tribunals, where the rules were equally silent. Accordingly, Mr Williams required permission to depart from that position.

Judge Wikeley accepted that there were distinctions between the case and those which permitted disclosure of documents referred to in open court to non-parties: this was not an open justice matter at all, it pre-dated the hearing and did not involve a request from a non-party. Judge Wikeley did not quite answer whether or not the UT would have the power to permit Mr Williams’ request, or what the power might be if it existed.

He did, however, address the power to restrict publication in rule 14 of the UT Rules, which he agreed could be used to prevent wider publication of material in an open bundle if it was interest interests of justice to do so. Judge Wikeley agreed that he should make a direction doing so, as requested by the DVLA. In particular, he accepted the data protection concerns of publication of all the material in the bundle to the world at large – a rather different proposition to providing copies of some documents to journalists reporting on proceedings, without limitation and without any possibility of subsequent control. The direction made prohibited publication of all documents in the bundles, save for the FTT judgment, but including (in the circumstances) the skeleton arguments.

In an era of remote hearings and electronic bundles, the judgment in DVLA is likely to be of real practical significance, although it will also doubtless give rise to concerns about the ability of the Tribunals to address cases in which a party publishes without notice or application. Revision of the Tribunal Rules to provide clarity would be no bad thing.

I am constantly being referred to the PHSO for my long running case, but will not budge....
J E Garner

Gadawodd M Boyce anodiad ()

Sadly, this precedent just goes to show how out of touch with reality many judges are. Judge Wikelely says that poor litigants in person can just pop down to their local lawyer and get pro bono legal advice. Not a chance. Access to pro bono legal advice is very rare and very limited and not available to ordinary folk - and I know because I tried. The Government have also abolished legal aid over the past ten years for public law cases especially - they don't want the plebs, and that certainly includes me, to know what they are really up to.
So public authorities can get the very best legal advice (£400 per hour), all paid for by me and you, but now judges are denying the most vulnerable people access to ANY legal advice - legal advice from the public for free.
I have obtained essential legal advice from others about my case(s), especially via the public forum that is WDTK.

I do agree that it might not be fair to publish ALL documents on the web, particularly disclosing things like email addresses. But stopping litigants in person discussing their cases, and therefore eliciting advice, is a step way too far.

This country is becoming more and more unequal and more and more authoritarian: you get justice if you can afford to pay for it, or in a public authority's case, the tax-payer pays for it.

Gadawodd M Boyce anodiad ()

Notice as well that the Judge Wikeley precedent is not just about data protection principles, or even about data protection principles, but is about preventing any discussion of a case before a hearing whatsoever. He says that 'skeleton' arguments must not be published. But what exactly constitutes a 'skeleton' argument? Is is just the bare bones of an argument/case? Surely that would cover any summary of a case - the whole skeleton? What if it was just some of the bigger bones that were mentioned? The logical extension is that to mention even your funny bone would be illegal? Only the Government and many judges would laugh at that.

Gadawodd M Boyce anodiad ()

Judge Wikeley makes extremely specious arguments:

(1) It's fine for journalists to publish skeleton arguments, but not Joe Public?
(2) Publication on the web is not allowed, as it is collateral?
(3) Authorities would fail to include documents in a bundle if they thought that an appellant might discuss them?
(4)Open justice can not include an appellant asking for free legal advice from the public?
(5) A tribunal could not control publication if Joe Public published a skeleton argument, but they could control it if journalists published it?

None of those arguments stand up to proper scrutiny.

Gadawodd Jason anodiad ()

Yes, I am inclined to agree, M Boyce. Due to the abject lack of legal provision afforded to the poor or ordinary person, litigants are left with no choice but to reach out to others on the internet. Judge Wikeley’s judgment fetters this and restricts access to justice further, whether so intended or not.

You refer to rates of £400 per hour, however, I have recently been quoted £500 per hour in regards to a matter I requested assistance with. Needless to say, that just relates to the cost of one solicitor, and when barristers are instructed the figures easily enter into the hundreds of thousands as you know, especially in regards to litigation in the High Court, or when claims are allocated to the Multi-Track in the County Court.

As you and I both know, all this sits very comfortably with public authorities and the government, especially the unscrupulous one we currently have, who won’t lose a second’s sleep over the issue of costs.

That judgment also raises the following questions:

1) What if the information published is already in the public domain, or should be?
2) Is publishing to cloud-based services also forbidden (this is, for all intents and purposes, the internet)? Clients and solicitors use 3rd party services like that all the time when sharing documents relevant to a litigation.

Gadawodd J Roberts anodiad ()

'Sadly, this precedent just goes to show how out of touch with reality many judges are.'

A recent tweet by Jo Maugham of the Good Law Project:

'The Law Lord, Devlin, captured the innate conservatism of the judiciary in his description of them as a "body of elderly man (sic) who have lived on the whole unadventurous lives… old-fashioned in their ideas." But even they are likely to be further reigned in by this Government.'

https://mobile.twitter.com/JolyonMaugham...

Regarding prohibitive judicial review legal costs, the Good Law Project provides an excellent example:

'In the four cases we have brought its costs are £207k, £500k+, c£1m and £450k+... '

https://mobile.twitter.com/JolyonMaugham...

Tomorrow the government sends 12 lawyers to the hearing of an interim application.

https://mobile.twitter.com/JolyonMaugham...

Gadawodd Jason anodiad ()

Yes, I've been keeping an eye on those developments too, and have been following Jo Maugham on Twitter for a little while.

The whole system is a joke, but the only people who are laughing are the government, public authorities and their cronies.

Gadawodd Jason anodiad ()

I see the PHSO is refusing to deal with complaints due to any of the following:

• delays with complaint responses.
• delays in service delivery which are non-critical and are the result of an organisation coping with COVID-19.

So, it doesn't matter if the delay was intentional or avoidable, the PHSO will automatically reject your complaint it seems.

Further, it appears no adjustments are being made to the deadlines in which the complaint should be escalated to the PHSO.

So, true to form, the PHSO are bending over backwards for public authorities.

Gadawodd M Boyce anodiad ()

https://ico.org.uk/media/action-weve-tak...

And now we have the above case just published by the ICO.

The simple and inescapable fact remains that the PHSO are functus offico when they have issued their FINAL report. The law should prevent them from any further action on that specific case - reviewing or re-opening the case. The PHSO have themselves publicly admitted that they are not acting in accordance with the law. So why is the ICO upholding this non-legal behaviour?

In this request the ICO rely on three exemptions: section 40, 42 and 44.

Section 40 concerns personal information. It must be possible to release some information on functus offcio without identifying anyone.

Section 42 concerns legal professional privilege. The PHSO have publicly stated that reviews of decisions are funcus offico and therefore not legal. How can the ICO claim it is in the public interest for public authorities to behave non-legally?

Section 44 concerns release of information allegedly about investigations. Not all information on functus offcio was obtained for the purpose of an investigation.

What is the point of the law if authorities can just ignore it as and when they choose?

Gadawodd Jason anodiad ()

Yes, you make compelling arguments, M Boyce.

I am also at a loss as to why personal information cannot be redacted. Indeed, this happens all the time when one makes subject access requests.

Do you know if the ICO actually identified any personal information in any documents which relate to the request in the first instance, or whether they just took the PHSO decision etc. at face value?

We also both know that the ICO will close ranks with public bodies, and they will essentially just rubber stamp their decisions, whilst looking the other way in terms of their dubious conduct. I also suspect the likes of the PHSO are alive to this fact, together with the fact that they know you want to publicise/gain any details which adds credence to the fact that they may be acting unlawfully. Clearly there is an intention to make this is as difficult for you as they can, particularly given the seriousness of the consequences if you were able to prove, without doubt, that the review process was/is unlawful.

Maybe crowd funding a JR may be worth thinking about. I’m sure there are many profoundly aggrieved people who may want to contribute. The only problem is, given the scale and seriousness of the problem, any litigation could easily reach 500k or more in terms of costs, though you may be able to get a cost capping order.

Gadawodd Jason anodiad ()

Incidentally, the Government is trying make JRs more difficult to bring, including making them more costly (as if things weren't bad enough). See around 5:45 into the below video:

https://www.youtube.com/watch?v=ERkU9FW5...

Gadawodd M Boyce anodiad ()

Thanks Jason.

You talk about proving that the PHSO is acting unlawfully. I have sent voluminous evidence on this fact to the FTT, and of course it's not just me saying that the PHSO review/re-opening process is not lawful, the PHSO say it themselves!
In the PHSO December 2017 Board Minutes it states in paragraph 12.8:

'Karl Bannister [the senior lawyer at the PHSO] explained that our legislation did not allow for reviews.'

We have it from the horse's mouth.

Statute law does not allow for reviews/re-openings and case law has proscribed such behaviour.

Crowd funding is certainly an idea to consider.

The proposed reforms of JR are also worrying. Yes JR is difficult enough, and I speak from experience, but the plans to make it more difficult are a clear attempt by the Government to further silence those who are not rich. It must be said that judges are only interested in how much money you have and not the merits of your case. Fancy lawyers are like peacocks that flatter the eye of the judiciary.

Gadawodd M Boyce anodiad ()

https://informationrights.decisions.trib...

And then we have the above case from late last year.

The judge says:

'...I am puzzled as to why the PHSO did not just get hold of the documents from the LGSCO and pass them over to Mr Mc Dougall, thereby saving a great deal of unnecessary time and expense.'

Anyone who has had any dealings with the PHSO would not be puzzled by the PHSO's deeply obfuscatory, unhelpful and wasteful actions - it is what they do.

And anyone who has had any dealings with the ICO would not be puzzled to find them four square behind their friends, the PHSO, in supporting such obfuscatory, unhelpful and wasteful actions.

Gadawodd Jason anodiad ()

Yes, it does seem they are up to no good.

You refer to the below Board Minutes:

'Karl Bannister [the senior lawyer at the PHSO] explained that our legislation did not allow for reviews.'

My interpretation of that is because there is no statutory provision which allows for the PHSO to conduct reviews, they are acting unlawfully in respect to the same. However, could it also in any way be interpreted as although there is no statutory provision in respect to PHSO reviews, the PHSO is still able to exercise its powers in respect to the same?

Do you know in what context that was said?

Yes, the case law seems to support your argument further.

Maybe you could crowd fund the opinion of a QC who is an expert in public law? If that is successful, it would add further credence and merit in respect to crowd funding a JR etc.

Yes, I totally agree with your comments regarding the proposed reforms of JR.

Yes, the PHSO is most certainly deeply obfuscatory, unhelpful and wasteful. I was also thinking that another reason for this may be, particularly when it comes to complaints against the NHS, it could open the door to a negligence claim. Usually the PHSO is obliged to get an expert opinion in regards to clinical errors, and this could be very helpful in terms of a clinical negligence claim. Of course, the last thing our rotten government wants to do is aid negligence claims against itself.

Gadawodd M Boyce anodiad ()

'Karl Bannister [the senior lawyer at the PHSO] explained that our legislation did not allow for reviews.'

You state that:

My interpretation of that is because there is no statutory provision which allows for the PHSO to conduct reviews, they are acting unlawfully in respect to the same. However, could it also in any way be interpreted as although there is no statutory provision in respect to PHSO reviews, the PHSO is still able to exercise its powers in respect to the same?

Do you know in what context that was said?

The context was a discussion of the PHSO review process.

Because there is no statutory provision the PHSO has no power to conduct reviews/re-openings of its final reports. Of course it continues to do just that, but its actions are ultra vires - beyond their legal powers and therefore not legally allowed for.
There is a distinction between illegal and not legally allowed for, but it must also be stressed that there is case law (Ex Parte Monica Dyer, 1993) with regard to the PHSO re-opening of its final reports - that case law very clearly proscribed such action.
The PHSO have argued at length that a review is not the same as a re-opening. They would say that and I completely disagree, but ultimately that is for the Tribunal to decide. I have argued that there is at least a significant overlap between a review and a re-opening.

If the Tribunal agree and find that reviews are simply a form of re-opening a final report then this also transforms not legally allowed for behaviour - which is itself completely unacceptable - into illegal behaviour -by virtue of the PHSO not acting in accordance with case law.

So the PHSO's actions are either not legally allowed for - acting outside of statutory provision, or are illegal - acting against case law.

As I've said many times before, I am not against final reports being 're-investigated' where warranted, but this has to be legal, simply because when an authority acts in a way that is either ultra vires or is plainly illegal then that has very serious consequences for the complainant in terms of further legal action and also the way and extent that any re-investigation is and can be conducted.

The PHSO has had ample time to get their house in legal order, and it would be a relatively simple thing to do, but they have repeatedly turned a blind eye to this issue.

Gadawodd Jason anodiad ()

Yes, I vaguely remember a discussion about the reopening of cases and reports on the other thread.

It does sounds like you’ve got many compelling arguments there. It is a damn shame it is taking so long for the Tribunal to make a final decision here.

I think if the review process scuppers an action etc. then it is no surprise that the PHSO is happy to look the other way.

Gadawodd M Boyce anodiad ()

It is indeed a great shame this case is dragging on for so long. I have researched the FTT website have only found one other case with such a similarly long delay (so far) of five months from hearing to promulgation - Gillian Weston EA/2018/0227. Remember as well that my case had been with the Tribunal for a long 18 months before the hearing.

Gadawodd Jason anodiad ()

Hopefully that means it is being given full and proper consideration, but we can only hope.

Keep us posted.

Gadawodd Nicholas Wheatley anodiad ()

Slightly off topic but David Allen Green is writing an article on the PHSO and looking for information from people who have experienced the service. Would be useful if anyone can contribute.

https://twitter.com/davidallengreen/stat...

Gadawodd M Boyce anodiad ()

Thanks Nicholas

This could certainly be a very useful contact, and I have put his name in my little black book. I would be happy to help him with his research.

Gadawodd Nicholas Wheatley anodiad ()

Thanks Mark.

Rob Behrens is giving evidence online to the Pascoe Hearing on Southern Health on Friday if anyone is interested.

You have to apply for a link in advance. Details can be found here.

https://www.england.nhs.uk/south-east/pu...