Causation

J Kumar made this Freedom of Information request to Parliamentary and Health Service Ombudsman

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Dear Parliamentary and Health Service Ombudsman,

Would you please let me know how the PHSO deals with the issue of causation of loss.

Does the PHSO apply the same approach as the Courts? If the PHSO adopts a different approach to the Courts, what approach does the PHSO adopt?

In cases of loss of opportunity, what method does the PHSO use to calculate the value of the lost opportunity?

Yours faithfully,

J Kumar

foiofficer@ombudsman.org.uk, Parliamentary and Health Service Ombudsman


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InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear J Kumar

 

Your information request: FDN-257285

 

I write in response to your email dated 5 May 2016 and submitted via
website What Do They Know. You requested information held by the
Parliamentary and Health Service Ombudsman (PHSO) the following terms:

 

“Would you please let me know how the PHSO deals with the issue of
causation of loss.

 

Does the PHSO apply the same approach as the Courts? If the PHSO adopts a
different approach to the Courts, what approach does the PHSO adopt?

 

In cases of loss of opportunity, what method does the PHSO use to
calculate the value of the lost opportunity?”

 

Response to your request

Please find enclosed all the information I am able to release to you under
the Freedom of Information Act 2000 (FOIA).

 

PHSO’s work is governed by the Parliamentary Commissioner Act 1967 (PCA)
and the Health Service Commissioners Act 1993 (HSCA). 

 

Under section 5(1) of the PCA, PHSO may investigate any action taken by or
on behalf of a governments department or other authority where a complaint
is made by a member of the public who claims to have sustained injustice
in consequence of maladministration with any action (or failure to act).

   

Under section 3 of the HSCA, PHSO may investigate any injustice or
hardship in consequence of the alleged failure or other action. 

 

Those sections set out that the test for remedy does not regard causation
of loss, but injustice or hardship in consequence of the actions of those
involved in to complaint. Therefore, PHSO does not have the same approach
as the courts.

 

PHSO will assess remedy on a case-by-case basis considering any
information that is relevant to the particular case. PHSO staff also
utilise several sources of guidance when considering and calculating
remedy. This guidance is available on our website, and I have attached it
for your ease of reference:

 

·         PSHO [1]Principles for Remedy: guides our approach to securing
remedy for injustice which was found to result from the maladministration
or service failure.

 

·         PSHO [2]Typology of Injustice: contains definitions of the types
of injustice that have been identified from our casework. It is used to
help identify relevant precedent when determining recommendations for
financial redress. 

 

·         Relevant pages from the PHSO [3]Investigation Manual: guides the
investigation process which includes determining appropriate outcomes to
remedy the findings in the complaint.

 

I hope this information is helpful. If you have any queries, or would like
to ask for a review of my decision, you can do so by email to
[4][Parliamentary and Health Service Ombudsman request email].

 

Yours sincerely,

 

 

 

 

 

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Dear InformationRights,

Thank you for your reply.

However, please would you re-post he link to 'PSHO Principles of Remedy.pdf ', as the text attached is incomplete.

Thank you.

Yours sincerely,

J Kumar

Informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman


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InformationRights, Parliamentary and Health Service Ombudsman

1 Attachment

Good afternoon J Kumar

Please find the Principles for Remedy attached. You can also view them on our website here:

http://www.ombudsman.org.uk/improving-pu...

Kind regards

Caitlin Murray
Legal Assistant
Parliamentary and Health Service Ombudsman
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 'Causation'.

I cannot find the information I requested in the document you posted.

Please will you pinpoint the relevant section for me.

I note that you state that the PHSO does not apply legal principles of causation, but, in the interests of consistency, the PHSO must surely have some method of determining if maladministration has caused loss, where the consumer's opinion on causation differs from that of the public authority.

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

Yours faithfully,

J Kumar

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman


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CA Purkis left an annotation ()

I await the outcome of this request with interest.

InformationRights, Parliamentary and Health Service Ombudsman

Dear J Kumar

Thank you for your email expressing your dissatisfaction with the way that the Parliamentary and Health Service Ombudsman (PHSO) handled your information request. We will now conduct an internal review. You can expect a response within 40 working days (by 25 November 2016).

Kind regards

Freedom of Information and Data Protection Team
Parliamentary and Health Service Ombudsman
www.ombudsman.org.uk

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InformationRights, Parliamentary and Health Service Ombudsman

Dear J Kumar

 

Your internal review (FDN-257285)

 

Further to your email of 29 September 2016, I am writing with a response
to your request for an internal review.  This review will look at whether
your information request was dealt with in compliance with the
requirements of the Freedom of Information Act 2000 (FOIA).  I gather that
your dissatisfaction stems from the fact that you feel the information we
directed to you in the public domain did not fully address the questions
raised.

 

Was the request responded to in time?

 

We received the request on 5 May 2016 and responded to it on 3 June 2016. 
As this was within the time limit of twenty working days stipulated by
section 10(1) FOIA, we responded to the request in a timely fashion. 

 

Was the request complied with fully?

I have concluded that the response provided to you, comprising a narrative
along with links to information already available in the public domain
(PHSO policies and a document explaining the typology of injustice tool),
fully complies with the terms of your request.  Our response explicitly
addresses the questions that you raised about PHSO decision-making and
explains that it does not use the same approach as the courts.

 

It might be helpful if I confirm that that PHSO does not determine issues
of legality or losses or damages in the sense of the concepts that exist
in the common law.  Each decision taken will depend on the evidence in any
given case.

 

Section 21 FOIA allows public authorities to redirect requestors where the
information requested is reasonably accessible by another means.  Please
note that FOIA only entitles a right to information which is recorded.  I
have concluded that you have been made aware of all recorded information
relevant to your request.

 

You may wish to note that all of PHSO’s current policies are available as
part of our publication scheme here:
[1]www.ombudsman.org.uk/about-us/being-open-and-transparent/our-publication-scheme/our-policies-and-procedures  

Outcome of review

 

For the reasons set out above, I have concluded that your request was
dealt with in a legally compliant manner.  I do not uphold your complaint.

 

I hope that this response is helpful.  If you remain dissatisfied with our
handling of your request, it is open to you to complain to the Information
Commissioner’s Office ([2]www.ico.org.uk).

 

Yours sincerely

 

 

Aimee Gasston

Freedom of Information and Data Protection Officer

Parliamentary and Health Service Ombudsman

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

 

Please email the FOI/DP team at: [4][Parliamentary and Health Service Ombudsman request email]

 

From: J Kumar [mailto:[FOI #333071 email]]
Sent: 29 September 2016 23:15
To: InformationRights
Subject: Internal review of Freedom of Information request - Causation
FDN-257285

 

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 'Causation'.

I cannot find the information I requested in the document you posted.

Please will you pinpoint the relevant section for me.

I note that you state that the PHSO does not apply legal principles of
causation, but, in the interests of consistency, the PHSO must surely have
some method of determining if maladministration has caused loss, where the
consumer's opinion on causation differs from that of the public authority.

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

Yours faithfully,

J Kumar

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Dear Information Rights

Thank you for your response.

However, surely it contradicts the following principle expounded in your literature?

'Public bodies should provide CLEAR guidance about the criteria they use for deciding remedies. Staff should know the circumstances in which they may offer remedies, and what they may and may not offer'.

If the PHSO's only obligation is to act fairly, this is not clear guidance at all, as it means that an individual investigator has the discretion to make whatever decision he wishes, resulting in a wholly unpredictable outcome in each case and inconsistency between the outcomes of similar complaints.

Please confirm that, in relation to causation, the only principle contained in your documentation is the obligation to act fairly, with the result that, even if on the balance of probabilities, a loss has been caused to the consumer by the public body, it is open to the PHSO to refuse an award by applying a more stringent test than 51 per cent.

Yours faithfully

J Kumar

Informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman


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J Kumar left an annotation ()

As far as I can see, the PHSO is in breach of its Principles for Remedy, as it has no recorded guidelines for dealing with causation of loss. This means that some investigators will uphold a claim where there is a chance that the public body has caused loss, whereas others will refuse a claim where it is more likely than not that a public body has caused loss. How can this be an acceptable and transparent complaints process?

InformationRights, Parliamentary and Health Service Ombudsman

Dear J Kumar

Your internal review (FDN-257285)

 

Thank you for your further correspondence. 

 

You may be aware that the Freedom of Information Act 2000 only entitles a
right to an opinion where that opinion is already recorded.  I can confirm
that we hold no information relevant to your questions beyond that in the
public domain to which we have already directed you.

Yours sincerely

 

Aimee Gasston

Freedom of Information and Data Protection Officer

Parliamentary and Health Service Ombudsman

W: [1]www.ombudsman.org.uk

 

Please email the FOI/DP team at: [2][Parliamentary and Health Service Ombudsman request email]

 

 

 

From: J Kumar [mailto:[FOI #333071 email]]
Sent: 24 November 2016 13:34
To: InformationRights
Subject: RE: Internal review of Freedom of Information request - Causation
FDN-257285

 

Dear Information Rights

Thank you for your response.

However, surely it contradicts the following principle expounded in your
literature?

'Public bodies should provide CLEAR guidance about the criteria they use
for deciding remedies. Staff should know the circumstances in which they
may offer remedies, and what they may and may not offer'.

If the PHSO's only obligation is to act fairly, this is not clear guidance
at all, as it  means that an individual investigator has the discretion to
make whatever decision he wishes, resulting in a wholly unpredictable
outcome in each case and inconsistency between the outcomes of similar
complaints.

Please confirm that, in relation to causation, the only principle
contained in your documentation is the obligation to act fairly, with the
result that, even if on the balance of probabilities, a loss has been
caused to the consumer by the public body, it is open to the PHSO to
refuse an award by applying a more stringent test than 51 per cent.

Yours faithfully

J Kumar

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Jt Oakley left an annotation ()

The PHSO is a tad stroppy about giving you links which don't work - and then blaming you if they don't.

It will be arrogantly stated that the link works and your word will not be taken that it doesn't.

Even when the PHSO sends you semi- blank pages to your home address - its denied and obviously it's all your fault that they cannot be read.

::

This has happened several times to me.

But there is a silver lining to the critical contempt for your description of what you are able to see at your end.

Fortunately I was able add these clearly unhelpful and arrogant instances to the evidence in FOIA Tribunal court to show that the PHSO was not handling the request response correctly.

My case was upheld.

Brenda Prentice left an annotation ()

Dear J Kumar,
You are not the first to think the PHSO 6 Principals have been breached, I doubt you will be the last.

The problem is as you have found the PHSO has 'discretion' built into the Act and so can do as it likes.

There is no justice and nothing we can do about it. I have been told by PHSO to take a JR if I don't agree with their decision. No JR has ever won and PHSO always ask for costs, therefore I could become homeless if I took their advice.
This from the last bastion of Justice....I wonder what other countries are like.... I've heard some are much better...

Jt Oakley left an annotation ()

It's run in the continental system of justice. - without there being any qualified judges.
That why UK residents think it unfair.

J Kumar left an annotation ()

Thank you both for your annotations. I have noticed that so many reputable consumer complaints champions direct the consumer to the PHSO. When this happens, I invariably cringe - that poor consumer is in for a rude awakening. How can the Ombudsman be operating a fair complaints process where, amongst other things, depending upon the whim of the investigator, a claim can be denied in circumstances where it is more likely than not that the public body's failings have caused the consumer loss? Does this not mean that, depending upon the whim of the investigator, the consumer may be required to satisfy a criminal burden of proof, (and more), in relation to his civil complaint?

Brenda Prentice left an annotation ()

That may depend on which day of the week it is. On one occasion I was told, it isn't your investigation it is ours, PHSO that is. If that is the case, 'they' should be looking for the evidence and not relying on the complainant.
As it's their investigation, how can the complainant know what evidence PHSO want?

No rhyme or reason, and no accountability. It's the way it is.

Jt Oakley left an annotation ()

Basically yes.

All the PHSO does is inspect the paperwork that the kindly organisation have happily given you (!) NB the bits of it you have managed to fight your way to receive- and the PHSO's unqualified caseworker makes the first judgement on that.

If this caseworker makes a botch up of it , no amount of pointing the error/s out seems to shift opinion.

The only hope is to get the case to a qualified external investigator. But then it's a real fight to get to that point.

The PHSO has a high turnover of staff and naturally it's embarrassing for it to refer matters to external investigators all the time.

You might be lucky enough to get a 'I'm sorry,sorry, sorry, sorry,sorry, sorry.,sorry,sorry, sorry' letter from the head of customer services who 'understands your problem'. But that's about it.

Good luck -but prepare for the long haul before anything is done.

Fiona Watts left an annotation ()

Well done J Kumar for identifying and then opening this can of worms.

Jatroa; your regular use of the word "arrogant" is definitive of the PHSO and all those agencies who are supposed to regulate and review failures in the NHS.

Arrogance only exists IF one knows that they can keep getting away with their conduct!

Della's PHSO-The-Facts Group rumbled the discretionary powers of the Ombudsman a few years ago and the response of MPs, Law Commission and the PHSO has been seemingly arrogant and indifferent too.

So, where was the victim of NHS negligence warned about this on the PHSO website between 2011 and 2016?

   #lawcommipo

J Roberts left an annotation ()

J Kumar,

I don't know if I would describe it as an investigator's whim, but number 11 on this list had perfect consistency in rejecting complaints. Not one upheld - https://www.whatdotheyknow.com/request/2...

Jt Oakley left an annotation ()

Having had my father's death investigated by the Welsh ombudsman - which was difficult emotionally, as you can imagine, I had nothing but understanding, fairness and clarity. It wasn't easy but the Welsh ombudsman demonstrated real compassion. It was even possible to speak to the ombudsman's own office - by phone.

After the Welsh ombudsman had upheld my complaint, I took an ICO complaint case to the PHSO because it monitors the ICO. This involved an FOIA argument about a external company giving the NHS wrongful advice on the Access to Health Records Act. And making personal remarks about me as it did so.

I was simply astounded by the different attitude. At the PHSO. The caseworker didn't understand the case -and denied she that I'd ever used the term 'public interest' .... external investigator later pointed out that it was on Page 2.

::

But the general feeling that I got was that complainants were a nuisance and not worth listening to if they pointed out a nonsensical decision. The appallingly rude way that I was spoken to by a senior officer doesn't bear repeating. If she had bothered to listen to me quietly ( she rang me) rather than braying rudely at me, it would have saved me around nine months work towards the external investigator.

So it wasn't the initial botch up that annoyed me ( it's a complex issue) it was the astonishing arrogance and lack of humanity encountered from two senior officers. The other one was the Review officer who you might have thought would have checked page 2 ... And that's realising the ombudsman is tasked with independence.

From working 17 years in a corporate environment, my opinion was that there was seriously something wrong with this ombudsman - also having had a comparator Ombudsman to judge it against. As you know the external investigator judged in my favour - and it cost the PHSO £500 for two officers arrogance.

I also think that Dame Julie Mellor made a big mistake in only clearing out the top corridor.

The 'we are untouchable to peasants like you - and we never wrong ' rot was well into the middle layers of the PHSO. In fact, the officers concerned showed every sign of enjoying their dismissive attitudes and so consequent abuse of power.

:::

I would have been happy to go after the external investigation had the PHSO not driven me to court with a ridiculous Vanity Vexing of a FOIA request that I made to help other bereaved people - who had not been able to put their cases forward to an external investigator. They had been ghosted (totally ignored ) by the PHSO and were so ignored.
( My own case was already being investigated, so it was not about creating an email reception point for me).

As you know the court ruled in my favour - and criticised the handling of the request by the PHSO FOIA team.
Naturally I complained on the back of its criticism. The PHSO was still exactly the same. Arrogant enough to ignore a critical Tribunal court decision.

....As it went on to do with Mick Martin Tribunal court criticism - you know the rest. It wasn't until the press picked up the case that he resigned and then Dame Julie Mellor, who had read the Tribunal verdict which was sent to her and,presumably like my Tribunal verdict, ignored it.

:::

So even the fact that her deputy had manoeuvred a woman out of her job after rejecting a NHS chairman's sextexts wasn't enough to disturb the PHSO's 'We don't pay attention to critical Tribunal verdicts' innate arrogance.
And EVEN with an ex-equalities head at the helm.

The critical factor seemingly that the PHSO thinks it can get away with ignoring court criticism of it - unless its reported in the press.

And that's REAL demonstrable arrogance - as the Alex Allen report outlined.

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