Compensation Awards in Maladministration

C Rock 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.

The request was partially successful.

Dear Parliamentary and Health Service Ombudsman,

I recognise that there have been previous FOI requests relating to compensation amounts awarded by the PHSO in certain upheld cases. I did not see that sufficient information was released on exactly how a compensation amount is arrived-at or suggested or prescribed by the PHSO as a reasonable sum likely to achieve fair recompense or resolution. There may also be additional questions of importance.

Therefore I would be interested to see up-to-date information (or instruction) which might help complainants understand likely outcomes and hence the value of actually undergoing the onerous task of making a complaint.

Please may I see or be referred-to:

1. Any internal document held of scales or specific levels of compensation awarded (as a result of maladministration and/or negligence within a Service), as ‘recommended’ or ‘defined’?

2. The defined means you use to determine harm and hardship caused when assessing the level, in other words:
• Your definitions in rating the level of hardship; for example from minor inconvenience to major physical or mental harm, etc. up to death of an individual.

3. What evidence is assembled to assess the level?
• How is the degree of harm assessed?
• Is the harmed person (or aggrieved; or executor) consulted on the level of harm?
• Are medical assessments ever commissioned to assess the harm?

4. The defined adjustment made, if any, to the ability of the mal-administered Service to allow the payment?

5. Your award level review mechanism; and your means of levelling awards across cases?

6. Finally, your means of tracking if the recommendation is carried out, and whether the mal-administered Service complied; or indeed altered an amount downwards or upwards?

Please will you assume that for the purpose of my question, maladministration includes negligence i.e. failure to administer a process (or please indicate any specific distinction).
I refer here only to any financial award part of your recommendations in an upheld complaint.

Thank you for your attention to this enquiry.

Yours faithfully,
C Rock

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


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foiofficer, Parliamentary and Health Service Ombudsman

Dear C Rock

 

Your information request (FDN-248067)

 

I am writing in response to your information request of 11 February 2016,
in which you asked a number of questions about ‘compensation awarded’ by
the Parliamentary and Health Service Ombudsman (PHSO).  I should firstly
explain that PHSO does not award compensation at all, but in some
instances we may recommend an organisation to make a payment where
maladministration has occurred.  I will now address each of your questions
in turn.

 

1. Any internal document held of scales or specific levels of
     compensation awarded (as a result of maladministration and/or
     negligence within a Service), as recommended or defined?
    

We do not have a defined scale of compensation, or any guidance on
specific amounts of compensation.  Instead of working to a scale,
investigators are expected to use their judgement to identify precedents
by referring to previous cases with similar circumstances and/or
combinations of injustice, using a tool we have called the ‘Typology of
Injustice’ spreadsheet.  You can read more about this tool on our website
at the following link:  

 

[1]www.ombudsman.org.uk/__data/assets/pdf_file/0003/33735/Typology-of-Injustice-2.pdf

 

In addition, in the annex to this response, please find general guidance
on PHSO’s approach to financial remedy, which I hope is useful.

     2. The defined means you use to determine harm and hardship caused
     when assessing the level, in other words:
     Your definitions in rating the level of hardship; for example
     from minor inconvenience to major physical or mental harm, etc. up
     to death of an individual.

 

Please see my response to question 1. 
    
     3. What evidence is assembled to assess the level?
     How is the degree of harm assessed?
     Is the harmed person (or aggrieved; or executor) consulted on the
     level of harm?
     Are medical assessments ever commissioned to assess the harm?
    

Please see my response above to question 1.  In determining a payment to
recommend, we do not assess a level of harm.  However we would usually
expect caseworkers to discuss the injustice with the complainant or
aggrieved and for such discussions to inform our findings and decisions on
remedy.  

     4. The defined adjustment made, if any, to the ability of the
     mal-administered Service to allow the payment?
  

We have no recorded information which would answer this question. 
However, an organisation’s ability to pay would not generally be a
consideration in determining an appropriate amount of financial remedy.

     5. Your award level review mechanism; and your means of levelling
     awards across cases?

 

Complainants (and organisations) may seek reviews of our decisions on
financial remedy in the same way as they may seek a review of any other
aspect of our handling of their complaint.  However, there is no formal
mechanism for ensuring consistency across recommendations.  Individual
managers would be expected to have a role in ensuring consistency in
decisions made by their team. In addition, part of the Outcomes and
Compliance Caseworker’s role is to assist staff seeking advice on
appropriate remedy, including identifying appropriate precedents within
the Typology of Injustice.  
    
     6. Finally, your means of tracking if the recommendation is carried
     out, and whether the mal-administered Service complied; or indeed
     altered an amount downwards or upwards?
    
     Please will you assume that for the purpose of my question,
     maladministration includes negligence i.e. failure to administer a
     process (or please indicate any specific distinction).
     I refer here only to any financial award part of your
     recommendations in an upheld complaint.

We monitor compliance with all recommendations for remedy, including
financial remedy, in line with the guidance contained in annex D of PHSO’s
Investigation Manual, which is available on our website at the following
link:
[2]www.ombudsman.org.uk/__data/assets/pdf_file/0003/32925/Investigation-Manual-6.pdf
 

 

Year on year, we secure compliance with over 99% of remedies, of which
60-65% are secured within the timescale recommended in the investigation
report.  

 

I hope that this information is helpful.

 

Yours sincerely

 

 

Aimee Gasston

Freedom of Information / Data Protection Team

Parliamentary and Health Service Ombudsman

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

 

Please email the FOI/DP team at: [4][email address]

 

 

Annex

 

PHSO’s approach to financial remedy

 

Where maladministration or poor service has led to injustice or hardship,
public bodies should try to offer a remedy that returns the complainant to
the position they would have been in otherwise. If that is not possible,
the remedy should compensate them appropriately. Remedies should also be
offered, where appropriate, to others who have suffered injustice or
hardship as a result of the same maladministration or poor service.

 

There are no automatic or routine remedies for injustice or hardship
resulting from maladministration or poor service. Remedies may be
financial or non-financial.

 

An appropriate range of remedies will include:

 

o an apology, explanation, and acknowledgement of responsibility

 

o remedial action, which may include reviewing or changing a decision on
the service given to an individual complainant; revising published
material; revising procedures to prevent the same thing happening
again; training or supervising staff; or any combination of these

 

o financial redress for direct or indirect financial loss, loss of
opportunity, inconvenience, distress, or any combination of these.

 

Factors to consider when deciding the level of financial compensation
should include:

 

o the impact on the individual. For example, did the events contribute
to ill health, or lead to prolonged or aggravated injustice or
hardship?  This should also include consideration of the individual’s
circumstances. For example, the impact on a vulnerable individual or
one with caring responsibilities may have been greater;

 

o the length of time taken to resolve a dispute or complaint; and

 

o the trouble the individual was put to in pursuing the dispute or
complaint.

 

Remedies may need to take account of injustice or hardship that results
from pursuing the complaint as well the original dispute. Financial
redress may be appropriate for:

 

o costs that the complainant incurred in pursuing the complaint

 

o any inconvenience, distress or both that resulted from poor complaint
handling by the public body.

 

Remedial action may include improvements to the public body’s complaints
policy or procedures.

 

 

Consistency

 

The financial remedies obtained by the Ombudsman are based upon a
consideration of the injustice or hardship sustained by the individual
that has arisen in consequence of maladministration or service failure.
This will involve consideration of their individual circumstances.  We do
not apply a standard tariff dependent on the type of fault, because the
same fault may impact upon different individuals in different ways. In
some cases we may identify that other people have suffered injustice as a
result of the same maladministration or service failure and may ask bodies
to provide a financial remedy to those others similarly affected.  Such
remedies for those similarly affected would also be determined by the
impact of the injustice to the individual.

 

Nevertheless we need to ensure that we take a consistent approach to the
financial remedies obtained as a result of our work. This means ensuring
that our recommendations for financial remedy are based on similar cases
where similar injustice has arisen.    

 

To support out investigators, we have developed a casework tool called the
Typology of Injustice, which is a list of types of injustice identified in
our casework.   This can be used to identify previous cases with similar
combinations of injustice, together with information about our
recommendations for financial remedy on those cases.   Investigators can
use this information to ensure that decisions on compensation are
consistent with our approach on previous similar cases.    

 

Where appropriate we also take account of external reference points for
financial remedy, for example the National Health Service Litigation
Authority (NHSLA) and the Judicial Studies Board Guidelines for the
Assessment of General Damages in Personal Injury Cases.  However these are
only applicable in limited circumstances.  

 

 

 

 

 

From: C Rock [mailto:[FOI #316090 email]]
Sent: 11 February 2016 16:46
To: foiofficer
Subject: Freedom of Information request - Compensation Awards in
Maladministration

 

     Dear Parliamentary and Health Service Ombudsman,
    
     I recognise that there have been previous FOI requests relating to
     compensation amounts awarded by the PHSO in certain upheld cases. I
     did not see that sufficient information was released on exactly how
     a compensation amount is arrived-at or suggested or prescribed by
     the PHSO as a reasonable sum likely to achieve fair recompense or
     resolution. There may also be additional questions of importance.
    
     Therefore I would be interested to see up-to-date information (or
     instruction) which might help complainants understand likely
     outcomes and hence the value of actually undergoing the onerous
     task of making a complaint.
    
     Please may I see or be referred-to:
    
     1. Any internal document held of scales or specific levels of
     compensation awarded (as a result of maladministration and/or
     negligence within a Service), as recommended or defined?
    
     2. The defined means you use to determine harm and hardship caused
     when assessing the level, in other words:
     Your definitions in rating the level of hardship; for example
     from minor inconvenience to major physical or mental harm, etc. up
     to death of an individual.
    
     3. What evidence is assembled to assess the level?
     How is the degree of harm assessed?
     Is the harmed person (or aggrieved; or executor) consulted on the
     level of harm?
     Are medical assessments ever commissioned to assess the harm?
    
     4. The defined adjustment made, if any, to the ability of the
     mal-administered Service to allow the payment?
    
     5. Your award level review mechanism; and your means of levelling
     awards across cases?
    
     6. Finally, your means of tracking if the recommendation is carried
     out, and whether the mal-administered Service complied; or indeed
     altered an amount downwards or upwards?
    
     Please will you assume that for the purpose of my question,
     maladministration includes negligence i.e. failure to administer a
     process (or please indicate any specific distinction).
     I refer here only to any financial award part of your
     recommendations in an upheld complaint.
    
     Thank you for your attention to this enquiry.
    
     Yours faithfully,
     C Rock
    
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Dear foiofficer,
Thank you for your mainly comprehensive answer: I think I gathered you had no actual guidance on monetary amounts.

I saw difficulties in the reply I'll assume you have stated or what 'guidance' ther is for caseworkers when estimating an award; the sticking point being possibly identifying the need for a payment as appropriate in the first instance, before assessing a monetary value.

I since found that elsewhere on this website a reference to monetary values was given against certain cases as examples, here as extract https://www.whatdotheyknow.com/request/2... (examples from previous cases - not guidance). I am therefore left with a difficulty on that question: how to judge a reasonable monetory amount without guidance with such wide injustices from 'inconvenience' to 'death'.

The remainder of my question is generally answered by reference but I thought somewhat open to interpretation by casworkers. I will not persue that question at this time.

I have closed the enquiry as completed but I did not find it particularly satisfactory in settling the main question with regard to deciding payment value.

I invite comment.

Thank you,
C Rock

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


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J Roberts left an annotation ()

Given all the things included in the "typology of injustice" -

http://www.ombudsman.org.uk/__data/asset...

you'd think the payments would be a bit higher.

Here is something I have previously written:

"For the most recent month (February 2015), one-third of the payments the PHSO recommended in cases involving a death were for less than £501; one-third between £501 and £1,000; and the remaining third between £1,001 and £2,000.

"This response does not specify actual amounts. A previous FOI request did. It revealed that payments in similar circumstances were as low as £100. The lowest third of payments could be for sums of £100. These small sums are in stark contrast to the sum of £40,000 awarded to a farmer:

http://www.ombudsman.org.uk/make-a-compl... "

[Name Removed] (Account suspended) left an annotation ()

It would be interesting to know if the payments have kept up with inflation since 1967.

For instance, £100 in 1967 wouid now be £1,564.19.

£100 today wouid be £15.64 in 1967.

Was the PHSO giving out £15 award payments in 1967?

D. Speers left an annotation ()

Thank you for all your helpful contributions.....appreciate your time!

C Rock left an annotation ()

I did not really get my answer here - or perhaps I did. The wording looked familiar, and predictable.

So it all exists 'on paper' (the publishable bits) but it's not realistically defined nor then carried out as a transparent procedure. Since the business of the PHSO is patently NOT to admit to, or learn from, peoples honest and possibly desperate experience, I can not see any future for PHSO as a resolution path for those dared complain, and the legal claim must be the path for tangible result.

Even that way guarantees neither satisfaction or resolution, maybe not even likely with usual denials then a 'standard' settlement. But it's all in the open, and may get to be examined by an independent specialist - or at least a specialist not in the PHSO's pay, then interpreted by untrained caseworkers.

If the PHSO is going to deny people's expectation of resolution and then -only rarely- 'back this up' with derisory awards for the minor fails (and likely NOT negotiated in any degree with the complainant, I might add), at least the mounting legal claim bills will make government sit up and question more actively: Why?

No problem to that - just ask the complainants; and the sooner the better. Then listen, and learn.

IMHO and, I hope, not a rant.

J Roberts left an annotation ()

"To assist us in considering an appropriate level of financial remedy, as well as casework policy and guidance, we use our severity of injustice scale (our scale). We also refer to previous cases where we have made similar recommendations.

This is called our Typology of Injustice. In determining an appropriate amount to recommend, we take into consideration financial amountsrecommended or already paid by other organisations,awarded by courts, or paid following mediation before legal action.

Our scale allows us to ensure the recommendations we make are consistent and transparent for everyone who uses our service."

You can view the scale on page 180 of the Service Model Policy and Guidance: main guidance Version 16.0:

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

There are 5 scales. Level 2 (£100 - £450), for example:

"A level two injustice will typically arise when what has gone wrong has had a relatively low impact on the person affected. This will often result in a degree of distress, inconvenience or minor pain. This could also include instances where an injustice was more serious but onlytook place once, or was of short duration. In this case we have to consider an apology is not suitable by itself."

C Rock left an annotation ()

Yes, now at
https://www.ombudsman.org.uk/sites/defau...

B1 and B2 cases now starting at £10,000. But totally at discretion of PHSO of course and whether they 'discover' and 'agree' to the negligence committed.

C Rock left an annotation ()

In my case there was not an inkling of "we would usually expect caseworkers to discuss the injustice with the complainant or aggrieved" and they never did; so that is more PHSO rubbish.

It's the same old game of the PHSO having their own translation or interpretation - in this case of "... usually...". Utter whitewash as usual.