Maladministration- exactly what is it?

Jt Oakley made this Freedom of Information request to Parliamentary and Health Service Ombudsman

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Dear Parliamentary and Health Service Ombudsman,

I've tried to find a clear definition of what 'Maladministration' means in the UK - and how it is interpreted by the PHSO.

Because it seems that the ordinary interpretation used by the public - 'it's clearly wrong' - doesn't comply with how maladministration is defined by the PHSO.

And this may be the cause for the widespread concern and discontent about the failure and incompetence of the PHSO.... rather than the actions of it's employees, in trying to interpret and deal with this amphorus concept.

This is the definition laid down by the New Zealand government:

http://www.ombo.nsw.gov.au/__data/assets...

It has clarity, and exhibits a common sense attitude, which complies with the general public understanding of what maladministration is. With the ongoing effect of three times the percentage of cases investigated - at a tenth of the cost per UK case.

This may be due to less confusion about the remit of the NZ Ombudsman, as the public concept of maladministration has been simply stated as 'That which is wrong'.

Which saves time and energy for all those in the system - both complainants and investigators.

Is there a similar sensible guide produced by the PHSO - to which complainants can refer?

If there is not, does the PHSO intended to provide a comparative document that clarifies what it can, and cannot, investigate.

Yours faithfully,

JT Oakley

foiofficer, Parliamentary and Health Service Ombudsman

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Dear Parliamentary and Health Service Ombudsman,

Apologies, it is the New South Wales Ombudsman... Not the New Zealand Ombudsman, to which I refer.

Also..
The link does not seem to work in the message above.

It should be:

http://www.ombo.nsw.gov.au/__data/assets...

Please let me know if this second message link also does not work and I will send a copy to you via standard email.

Yours faithfully,

Jt Oakley

foiofficer, Parliamentary and Health Service Ombudsman

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Ombudsman. This return e-mail shows that we have received your
correspondence.

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foiofficer, Parliamentary and Health Service Ombudsman

Dear Jt Oakley

Your information request FDN-181237

I write further to your email of 5 January 2014, in which you raise questions about how we, ‘interpret’ maladministration.

You suggest that the general public interpret maladministration as: ‘it is clearly wrong’ and referred to the New South Wales Ombudsman who note the term maladministration has been defined in their Protected Disclosures Act 1994. They have set that out in a document titled Maladministration. You say you’ve tried to find a definition of maladministration and also asked if we have a similar guide for complainants. I shall respond to each of these in turn below.

What is maladministration?

Ultimately, there is no one definition and whether or not a particular set of circumstances amounts to maladministration is a matter for the Ombudsman to determine on a case by case basis. It might be helpful to note that there is case law which considered this very issue:

In R v Local Commissioner for administration for the north & east area of England, ex parte Bradford Metropolitan City Council [1979] QB 287 Lord Denning (interpreting equivalent provisions of the Local Government Ac t 1974 that apply to the LGO) noted that:

‘...Parliament did not define “maladministration.” It deliberately left it to the ombudsman himself to interpret the word as best he could: and to do it by building up a body of case law on the subject’.

In that case, Lord Denning looked at the debates in Parliament on the subject and endorsed the so called ‘Crossman catalogue’ in which a list of instances that might constitute maladministration was provided. The list identified that it would cover things such as ‘bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on.’

Our guidance on maladministration

We do not hold any specific guidance for staff which defines maladministration for the reasons above. However, I will refer you to the Ombudsman’s Principles, which can be found on our website at: http://www.ombudsman.org.uk/improving-pu.... I should explain that when we investigate, we use the Ombudsman’s Principles and any other relevant specific standards in order to make a judgment on whether maladministration or service failure occurred. (Other specific standards may include, for example, relevant legislation or clinical guidance.) We do this by comparing what did happen, with what should have happened. As you will see, the Ombudsman’s Principles are broad statements which demonstrate good administrative practice and good customer service and complaint handling practice. The relevant standards for each investigation – the ‘what should have happened’ are considered on a case by case basis alongside the evidence of what did happen. We decide on a case by case basis whether a particular set of circumstances amounts to maladministration or service failure.

I hope this information is helpful.

Yours sincerely,

FOI Officer

W: www.ombudsman.org.uk
E: [email address]

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Dear foiofficer,

Thank you.

Your comprehensive answer gives me a better understanding of the Ombudsman's position.

:::

Personally I think it's a pity that the ordinary member of the public can only make a complaint about something which is undefined and unknown to them because of the difficulty they must have in framing their complaint.

Even the concept of a unicorns is better understood and defined.
....And they don't exist.

So it is no wonder there is so much confusion and upset as to exactly what the Ombudsman will - and will not - investigate.

But your answer helps me recognise that the fault lies in the initial UK legislation, which may not be the equivalent of other countries.

Or, if it us, implemented less for the benefit of the citizen (either by the choice or tradition of PHSO), than it is in other countries - such as New Zealand, as the UK has the lowest case investigation rate of any of the 12 countries that I compared.

So with this 'maladministration' confusion I now appreciate the difficulty that Ombudsman must have in providing a coherent explanation to a disappointed complainant.

And why the PHSO consistently has to dodge the issue ...by not explaining to complainants why their complaint failed.

Yours sincerely,

Jt Oakley

foiofficer, Parliamentary and Health Service Ombudsman

Thank you for your e-mail to the Parliamentary and Health Service
Ombudsman. This return e-mail shows that we have received your
correspondence.

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Jt Oakley left an annotation ()

Apologies... New South Wales Ombudsman.

Jt Oakley left an annotation ()

The PHSO doesn't seem to use this definition in its own principles..

'All public bodies must comply with the law....' as being maladministration.

Presumably because the investigators are not legally trained - and therefore do not pick up on the law being broken.

CA Purkis left an annotation ()

I always thought you could find the meaning of a word in the dictionary. Clearly I was wrong - The Ombudsman makes up her own meaning to words.

Jt Oakley left an annotation ()

What we've got is the Inquisitorial system, so beloved of corrupt governments the world over.

......'A method of legal practice in which the judge endeavors to discover facts while simultaneously representing the interests of the state in a trial'

Instead if the British Adversarial system, where the two sides have parity to argue it out.

You have to ask why..

And the reason is that it wasn't in the government's interests to adopt the British system of justice as it would have given the citizen a fair chance of succeeding. Because everything would have been above board, as it is in British courts.

Add in the ridiculous undefined 'maladministration' and the absolute 'discretion' and you've got an government controlled organisation that seemingly supports the citizen by taking complaints - but absolutely controls the ability of that citizen to receive justice against any state organisation.

And that's why the citizen is in the wrong 98.6percent of the time.

Della left an annotation ()

An unidentified FOI officer wrote:

We do not hold any specific guidance for staff which defines maladministration for the reasons above. However, I will refer you to the Ombudsman’s Principles, which can be found on our website at: http://www.ombudsman.org.uk/improving-pu.... I should explain that when we investigate, we use the Ombudsman’s Principles and any other relevant specific standards in order to make a judgment on whether maladministration or service failure occurred. (Other specific standards may include, for example, relevant legislation or clinical guidance.) We do this by comparing what did happen, with what should have happened. As you will see, the Ombudsman’s Principles are broad statements which demonstrate good administrative practice and good customer service and complaint handling practice. The relevant standards for each investigation – the ‘what should have happened’ are considered on a case by case basis alongside the evidence of what did happen. We decide on a case by case basis whether a particular set of circumstances amounts to maladministration or service failure.

'What should of happened' in my case was that legislative policy documents instructed that the student is provided with an agreed assessment plan and record of achievement which is signed by both tutor and student. 'What did happen' is that no plan/record existed. A clear breach of procedure and therefore maladministration. NO not according the the PHSO assessor who helpfully pointed out that although no plan/record existed, it was never stated that it needed to be in writing.

No wonder you don't have a clear definition of maladministration or you would have difficulty shoe-horning all the facts into 'no case to answer.'

Jt Oakley left an annotation ()

Statistically, you would gave a better chance of winning playing poker with a group of five cardsharps.

C Rock left an annotation ()

"We do this by comparing what did happen, with what should have happened. As you will see, the Ombudsman’s Principles are broad statements which demonstrate good administrative practice and good customer service and complaint handling practice".

The 'Principles' demonstrate nothing but spin until proved working. Responses have shown they are not working. Hence these questions.

"The relevant standards for each investigation – the ‘what should have happened’ are considered on a case by case basis alongside the evidence of what did happen. We decide on a case by case basis whether a particular set of circumstances amounts to maladministration or service failure".

Even this falls at the first hurdle because there is no evidence gathering process. No relevant questions are asked. There just is no attempt to clarify what happened, and what the PHSO considers should have happened is not based on fact but on assumption. No amount of so-called 'independent advice' will be relevant to what actually happened. Money is then thrown away in the efforts of denial rather than trying to understand the failures which obviously are at the root of the complaint.

phsothefacts Pressure Group left an annotation ()

A failure to determine 'maladministration' even in the broadest terms is also the reason why no case is ever proven against them at judicial review.

"It is for the Ombudsman to decide and explain what standard he or she is going to apply in determining whether there was maladministration, whether there was a failure to adhere to that standard, and what the consequences are; that standard will not be interfered with by a court unless it reflects an unreasonable approach."
http://www.bailii.org/cgi-bin/markup.cgi...

J Roberts left an annotation ()

As long as the Ombudsman avoids irrationality her decisions stand:

"The question whether any given set of facts amounts to maladministration or causes injustice to a complainant is a matter for the Ombudsman alone. Whatever it may think about the conclusion reached, and even if it fundamentally disagrees with that conclusion, the Court may not usurp the statutory function of the Ombudsman. It can only interfere if the decision reached was irrational."

Reaching an irrational decision would be where "the Ombudsman fails to apply the standard that they say they are applying". Not very difficult to avoid.

Jt Oakley left an annotation ()

It is a reasonable statement if you believe the Ombudsman was set up to be independent of politicians and the judiciary..in an amateur fashion.. to help those who had suffered from maladministration/injustice and who don't - or can't want to go to court.

But over the years, the Ombudsman has become so arrogant by its independence that it has lost the ability to criticise itself by assuming whatever it ( and by extension its employees) do , it cannot make mistakes.

And so defends this inappropriate idea of its own perfection to the detriment of complainants - even justified ones.

Which is a shame.

Because non self-criticism is a short term defence.

Long term, it will leave itself open to more political control - because of its arrogant and inflexible reputation on cases. The government can't have a series of cases proving its not functioning to stop cases that should have been investigated properly before they reach the media.

http://www.telegraph.co.uk/news/health/n...

It seems that political efforts are already being made to curtail its influence by criticism.

Because when Minister of Health Jeremy Hunt starts criticising it publicly, there's already a break with traditional respect between politicians and the Ombudsman.

E. Colville left an annotation ()

Until recently there was public access via the PHSO's webpages at:
http://www.ombudsman.org.uk/reports-and-... to a report: 'The Parliamentary Ombudsman: An Evaluation' by Dr Richard Kirkham, Lecturer in the School of Law University of Sheffield.

The section on 'Maladministration' includes the following extracts:

'The most important area in which the PO has been able to exercise considerable discretion is in determining whether or not maladministration leading to injustice has occurred in any given investigation.[23] For some years many saw this test as granting the PO insufficient power and lacking in any true meaning.[24] To rectify this, various proposals have been put forward for the PO to be given wider powers, such as being able to report on unreasonable, unjust or oppressive decisions.[25]

Today the arguments that the PO should have a wider mandate are much less prominent than they were, mainly because it is now appreciated that the maladministration test is extremely malleable.[26] ….
But coming to a conclusion on maladministration can be a tough task for the PO given the politically sensitive nature of some of the decision–making investigated. Ordinarily, therefore, the skill of the PO is to concentrate a finding of maladministration on the manner in which the policy decision has been made or implemented and not on the merits of the decision itself. …

Although most ombudsman investigations focus on administrative procedures, this does not mean that ombudsmen cannot investigate the merits of decisions of public authorities. The 1967 Act left a degree of flexibility on the issue. Section 12(3) prevents the PO from questioning 'the merits of a decision taken without maladministration' (added emphasis). This implies that where a decision is taken with maladministration then the PO can legally consider the merits of the decision. More controversially, an administrative decision that is wholly unreasonable to most rationally minded people is a clear example of maladministration.[30] Either way, the PO is entitled to explore the merits of a particular administrative decision during the course of an investigation. Were this not the case, it would often be impossible to come to a conclusion as to whether maladministration or an injustice had occurred.[31]

A further key aspect of the concept of maladministration is that it can be used to resolve complaints where legal grounds could also be argued.[32] For instance, in the Debt of Honour report,[33] the PO found that the manner in which an exgratia compensation scheme had been announced by the Ministry of Defence amounted to maladministration due 'to the misleading impression that it created'.[34] For the Ministry of Defence, this finding was not easy to accept, partly because the Court of Appeal had previously found that the same announcement lacked sufficient precision to create a legitimate expectation according to the law.[35] Such a finding demonstrates that the duties that can be inferred from the maladministration test can actually go further than equivalent doctrines in law. This principle is supported by the courts[36] and is one to which public authorities should pay more attention.

The test of maladministration, therefore, has proved to be a powerful and adaptable tool for the task to which the PO was assigned. In other countries ombudsman legislation provides more detail on the powers granted to the ombudsman, but it is questionable whether the result is necessarily a more intense scrutiny of administrative decisions.[37] The lack of clarity as to the meaning of the maladministration test is problematic, however, as it effectively grants the PO a high degree of autonomy. But there are ways that this criticism can be tackled.

First, as with any decision–maker in the public sector, there is an onus on the PO to explain the reasoning behind her findings. In this regard, comprehensiveness has always been a feature of PO reports.

The second response is for the PO to be more transparent about the Office's understanding of maladministration. Here the Office has not always been so helpful, but following a consultation exercise, in 2007 it is introducing a set of Principles of Good Administration.[38] How this is to be applied is going to be crucial to the future of the Office. The expectation must be that from now on ombudsman reports will ordinarily refer back to elements of the Principles in explaining findings of maladministration. This is a step to be encouraged and is evidence of the maturing of the post now that the full force of the maladministration test has been recognised. In fact, in terms of the development of administrative law more generally, it could represent the beginning of one of the most important innovations in recent years.'

I must Dr Kirkham's academic Conclusion and final paragraph that:

"A few required amendments aside, the Parliamentary Commissioner Act remains a good piece of legislation and the constitution is much stronger for the Parliamentary Ombudsman. As well as improving the power of the citizen to gain redress, as was originally intended, Parliament itself has gained a valuable tool in the ongoing process of calling the government to account."

He has clearly never had personal dealings with the Ombudsman involving an unresolved complaint of maladministration.

E. Colville left an annotation ()

Worth noting in addition are the disingenuous musings of Ann Abraham in the Foreword of the Kirham Report. She said:

"At a time when the public sector is in a seemingly permanent state of flux, the achievement by a statutory office of its 40th anniversary is notable indeed. To be able to record widespread recognition as part of the constitutional fabric is an additional pleasure. Yet this happy task falls to me as the 8th holder of this office, the first woman and the first appointment from outside the previously established nurseries of the Bar and Senior Civil Service.

I mention my ground-breaking credentials not from any misplaced sense of iconoclasm but as a sign of the way in which this now venerable institution has begun to embrace the modernising agenda that has swept through public life in the last decade and more. That process of modernisation promises in the case of the Parliamentary Ombudsman a regime ‘fit for purpose’ well into the 21st century. It is my privilege to oversee the first stage of implementation.

It is a pleasure too to introduce Richard Kirkham's 40th anniversary publication, The Parliamentary Ombudsman: Withstanding the test of time. As Richard's paper demonstrates, the life and times of the Parliamentary Ombudsman have not been without their challenges. Born of a political climate in the 1960s that placed the emphasis firmly on modernisation, this innovative statutory office brought to these shores an institution conceived on foreign soil, the product of a Scandinavian legal and administrative ethos unfamiliar to the common law and UK constitutional settlement. In ways somewhat reminiscent of the reception 30 years later of the Human Rights Act, detractors feared the consequential decline of nothing less than parliamentary democracy itself. Even the office's supporters lamented the tendentious legislative framework within which it would operate, its ‘botched’ fabric and ‘limping’ gait. The jibe of ‘Ombudsmouse’ still wounds 40 years later.

Yet readers of Richard Kirkham's fine survey will discover that much has been achieved since that somewhat precarious start. The Parliamentary Commissioner Act 1967, despite, or perhaps because of, its brevity, has withstood the test of time: the‘MP filter’ and the unenforceability of the Ombudsman's recommendations have not been so restrictive as to impede significantly the effectiveness of the office; and the central concept of ‘maladministration’ has proved over the years sufficiently malleable to allow the Ombudsman's role to adapt and grow. From its first major investigation, Sachsenhausenin 1967-8, when the Foreign Office was persuaded to reconsider its position on compensation payments, right through to my recent report on occupational pensions in 2005-06, when the Department for Work and Pensions was not quite so easily persuaded to provide a remedy for the complainants' loss of pension rights, the office of Parliamentary Ombudsman has shown itself a constitutional force to be reckoned with.

The particular service provided by the paper that follows is to help with the task of defining the nature of that ‘force’ as it has evolved over time. It is this perspective that makes the history of the office of more than antiquarian interest: just what the Parliamentary Ombudsman is, where her remit starts and ends, what her relationship with the courts and tribunals should be, are questions still very much with us.

Let me draw upon Richard Kirkham's paper to suggest some answers.

The original purpose of providing an aid to Parliament in its constitutional scrutiny of the Executive has evolved alongside the increasing sophistication of administrative law in the intervening period. Whilst the office would not expressly espouse a role as ‘people's champion’ in emulation of some overseas models, it has certainly carved for itself a distinctive niche in the judicial landscape, as a source of dispute resolution, as a guardian of good public administration, and as a systematic check upon departmental effectiveness.

These three distinctive, but inter-related, roles define much of what the office is currently about and where its future challenges lie. The investigation and resolution of individual complaints remains the staple diet of the office's work, the evidential base against which patterns of good and bad practice can be mapped. To that task I increasingly bring the sort of ‘strategic’ approach expected of any modern Ombudsman system: early diagnosis; appropriate levels of response (not the‘ Rolls Royce approach’ for its own sake);the ability to use the intelligence yielded to aid future prevention as well as immediate cure. The Ombudsman is not a court or tribunal, certainly not a court or tribunal of the sort familiar to lawyers of a common law jurisdiction. Ombudsmen and courts are like chalk and cheese: superficially similar, but of very different texture and ingredients. Liberated from the burden of imposing enforceable remedies, with wide discretion, the Ombudsman is free to establish a very different relationship between the disputing parties, based upon trust and shared understandings, not formal compliance. It will remain the task of the office to uphold its distinctive tradition and practice whilst simultaneously forging stronger links with the rest of the system of administrative justice, including the courts and tribunals.

Central to that linkage is a shared understanding of respective roles in exercising good guardianship of public administration more generally. The Ombudsman has a special part to play. It is in recognition of that special role that I have embarked upon the creation of Principles of Good Administration to help shape consensus on what modern public service delivery should look like, to create expectations against which it can be judged (by my office and by others), and to act as a catalyst for reflection and future development. In the end, the task of delivering high quality public services rests with government departments themselves. My role is to facilitate that process, to enable the emergence of well-founded principles of behaviour and better delivery. It is by being if not quite a ‘champion of the people’ then at least a serious ally of the people that I can best exercise my function of ‘aid to Parliament’. The two go hand in hand, the one effortlessly enveloping the other.

It is here that the role of ‘systematic check’ is of particular value. Unlike the courts and tribunals, I am not constrained by the need to be concerned exclusively with the isolated or particular incident. Where clear justification arises, I can issue a special report to highlight systemic shortcomings, identify remedies and propose longer-term change. The authority of such reports comes from the quality of their findings and the compelling nature of their arguments. Once again, trust and shared understanding rather than formal compulsion are the essential conditions of success.

The paper quite rightly identifies various themes that recur down the decades: the need for more ‘joined-up’ complaints handling across the public sector; the need for the Ombudsman to demonstrate the impact of her work; and the question of how the office can be made properly accountable to Parliament. It is gratifying to read the conclusion that 'the Parliamentary Ombudsman has proved to be an effective addition to the system of administrative justice in the UK'. It is certainly the case, nevertheless, that a few touches of modernisation would still be very welcome: more clarity about the relationship between the Ombudsman and the courts and tribunals; more recognition that in a devolved environment there is even greater need for Ombudsmen in Scotland, Wales, England and Northern Ireland to work together from time to time in the best interests of complainants. It might even be about time we allowed citizens direct access to the Ombudsman. Just about everyone else in the world seems able to live with that idea. Yet direct access would not be warranted at just any price: the present relationship between the Ombudsman and Parliament is valuable and something to be conserved; to disturb that constructive relationship just for the sake of it would be an act of reckless folly.

On the underlying question of whether we need new substantive legislation, I remain unconvinced that we do. I do not, for example, see any genuine need for a power to make my recommendations enforceable. This is a system that relies on shared understandings and mutual trust. The courts are not the place to make the system work. There is, however, one important proviso. If government departments were ever regularly and systematically to reject the Ombudsman's findings, I have little doubt that the calls from the public, and indeed from Parliament, for enforceable recommendations would become too loud to resist. That would be a sad day, and a sign that the delicate balance achieved these past 40 years had been irrevocably damaged.

As Richard Kirkham's paper demonstrates, there is much in the present arrangements to celebrate and to nurture. The key is trust amongst the various constitutional players. With that trust, an active and positive Ombudsman can only be good for public administration and public services. Without it, we might just find ourselves stumbling into a crisis that nobody wants.

Ann Abraham
March 2007"

I profoundly disagree with Ann Abraham's self-congratulatory assertion that: "As Richard Kirkham's paper demonstrates, there is much in the present arrangements to celebrate and to nurture."

The "trust" to which she refers has irretrievably broken down.

Parliament has closed its ears to this unpalatable truth.

Jt Oakley left an annotation ()

Thank you Elaine.

Very comprehensive information..

An interesting quote:

'In this regard, comprehensiveness has always been a feature of PO reports'.....

::::

Clearly this person had never had a 'Case closed because I say so ..and I am not telling you why' letter.

The reason that complainants can't know exactly why a case has been closed ( and an insult which puts everyone on the FOIA, DPA path) is because if the review team had to explain the logic for its decisions, it might be very embarrassing if you took it to court where it might get an airing... Or the media. Especially if loads of deaths are reported in the interim.

Even if you take a case to court the odds are that you will lose because maladministration/ injustice isn't a solid concept in the PHSO's T&C's.

Therefore the review team hopes that you will give up - and go away tamely and without a logical resolution.
Shame so many don't...

:::

But what other organisation has in its T&C's?..

'Don't bother looking at dictionary definitions of 'maladministration' or 'injustice' - because dictionaries won't tell you that these terms mean.

What these terms mean is : What we say they mean - But we are not telling you that.

And, on top of these mystery definitions, each case worker will have his/her own personal ideas to add.

So you will have to eventually agree to whatever we say they mean.

Whether it's logical or not - so there'.

::::

If government organisations suddenly had to find alternative businesses to run.. the PHSO would be ideal for being shady car dealers and appearing on Watchdog on a regular basis.

C Rock left an annotation ()

In the reply (dated 31/1/14) “Our guidance on maladministration: We do not hold any specific guidance for staff which defines maladministration for the reasons above.

“However, I will refer you to the Ombudsman’s Principles... I should explain that when we investigate, we use the Ombudsman’s Principles and any other relevant specific standards in order to make a judgement on whether maladministration or service failure occurred. (Other specific standards may include, for example, relevant legislation or clinical guidance.)

“We do this by comparing what did happen, with what should have happened. As you will see, the Ombudsman’s Principles are broad statements …”

Yes, they are just that: broad statements. End of story.

They "demonstrate" nothing except a wish to appeal optimistically to Readers (and Backers), but MIGHT “demonstrate good administrative practice and good customer service and complaint handling practice” if they were seen to be carried out. The complaint is that they are not carried out. The questioner is, I believe, trying to establish some solid ground where there can be agreement. Yet each “broad statement” is wide open to interpretation, and the Ombudsman appears to be proud of not wanting to establish anything.

The inadequate and flawed reply goes on:

“The relevant standards for each investigation – the ‘what should have happened’ are considered on a case by case basis alongside the evidence of what did happen. We decide on a case by case basis whether a particular set of circumstances amounts to maladministration or service failure.”

In my main case no reference was made to what should have happened, and the 'lay' persons involved in the “assessment” had no hold on what relevant standards were involved (relevant legislation, clinical guidance - for example), and in any case did not begin with the 'start point' of understanding the “particular set of circumstances”.

It is unbelievable to think that with all the benefit of feedback and comment given freely to the PHSO that there is still such resistance to the culture change that is desperately needed to close the massive gap between actual operations and the “Principles”. This year is the seventh of my submitting a health services complaint to the PHSO, yet waiting still for resolution and closure. It is not clear to me that much has changed, despite being recently invited to recount anew my dreadful experience.

Sorry; I do not think that the question asked here was answered fully, or with a genuine wish to resolve.

Jt Oakley left an annotation ()

You're right C Rock.

What it boils down to is amateurs guessing - without knowing the rules.

And those guesses cannot be challenged in court.

No wonder complainants are so dissatisfied.

Jt Oakley left an annotation ()

According to internal documents , the PHSO gives caseworkers a brief training course on what it is.

Yet lawyers still argue about its definition.

::::

Personally I'd say it stems from that the public vote for politicians to carry out their election mandates.

The government then gives directions to public authorities which may, or may not, be based on election promises (that's politicians for you ).

What it boils down up to is the public authority doing what's expected of it - towards an individual/ or individuals, given its direction from the government.

So if public authorities flout government directions and carry out practices against the public interest, then that's mal - -
( Bad)administration. For example ignoring new safety rules, after new legislation.

Common sense would also determine that a Trust breaking the rules, within the given NHS medical framework - so that a patient is injured or dies, would be wrong . And not carrying out ( administering) what both the public and government expect. Bad administration of the rules set up for of of us. And in fairness to all citizens.

However, if the public authority - say the NHS - correctly administers its own rules but an individual employee (say a doctor) makes a mistake in treatment, that is probably not maladministration if s/he has followed fair administrative rules, that normally protect the public against such a mistake.( giving a 50g medicine dose by mistake - even though a 20g dose is specified by the Trust).

Likewise if the doctor deliberately igores the administrative rules by stating s/he doesn't the agree with the administrative rules and takes a personal decision to give an extra medicine dose anyway. Because that is not what the Trust administrators - acting for the public safety -expects.

Maladministration would be the administrators accepted that an employee was NOT following its rules ( The deliberate overdosing, or single mistake ) ...and did nothing to stop it, or provided circumstances in which the employee was not able to follow the rules.

Complex. And it's still up for debate. There are academic books on it.

:::

Injustice maybe an easier concept.

I think that it's just plain unfair.

And an individual suffers from a public authority's (defective ) mal- administration in not carrying out government directives, or its own rules based on these.

And the PA will not admit it, so organisation will not provide redress. Or minimises a serious issue into a pedestrian one

phsothefacts Pressure Group left an annotation ()

When NICE guidelines are only 'guidelines' then a breach would not be deemed 'maladministration'. Similar with GMC guidelines or local policy guidelines. All can be breached without crossing the threshold of maladministration. If the law is broken the PHSO state they cannot determine the law as they are a lay organisation. So effectively it is possible to breach all the guidelines and the law and still not be held to account for maladministration. This is the fundamental flaw in the investigation process. Maladministration is whatever the Ombudsman wants it to be on a case by case basis.

Instead of determining maladministration the Ombudsman should be looking to see if harm was caused. Once harm is recognised then an uphold is triggered automatically in order to prevent future harm.

Jt Oakley left an annotation ()

Thanks - quite happy to be wrong on this, seems to be a 'whatever I think that the rule is' thing by PHSO caseworkers.

What's worrying is that - in the absence of a firm definition - that there doesn't seem to be much of an application of common sense.

Amateurs - defining the undefinable, and having to complete cases to reach targets .....what could possibly go wrong?

Jt Oakley left an annotation ()

IMO It's not just 'harm'...

Because there can be a ( not necessarily by a single person) mistake..... which unfortunately led to someone being harmed.

I think that would be the legal route - via a private civil case, or police investigation, if the harm was deliberate.

::::

This is the definition of administration:

administration
ədmɪnɪˈstreɪʃ(ə)n/
noun
1.
the process or activity of running a business, organization, etc.
"the day-to-day administration of the company"
synonyms: management, managing, direction, directing, command, commanding, control, controlling, charge, conduct, conducting, operation, regulation, regulating, handling, running, leadership, government, governing, superintendence, supervision, supervising, overseeing, oversight, orchestration, orchestrating, guidance, care; archaicregiment
"the administration of the army was divided between a number of bodies"

:::

A mistake, or flouting to of the rules by an employee, would therefore not automatically be an 'mal- administrative' failure because the administration should of set up clear and sensible guidance, or rules, which must be followed as part of an employee's job description.

( If something went wrong - because the correct given process wasn't followed ...that's not maladministration).

Because the administrative job is a process - to 'administer' , or direct, the organisation well.

So it's not a hands-on role , like a nurse wouid undertake.

Although a sister would be an administrator, having a supervisory role in seeing that nursing rules were followed.

So if administrators have provided clear procedures, then that's not a mal - 'bad ' - administration.

Although if there were several mistakes of the same kind - that would point to an systemic administrative failure in lack of supervision or guidance. It is the administrative role to pick up any poor practices and put them right.

But the administration has covered up any flouting of rules or guidance with or consequential mistakes, then I think that wouid be bad administration too.

Bah! All so complicated.

fFaudwAtch UK (Account suspended) left an annotation ()

Is this any help?

(Annex A at bottom of post)

http://legalbeagles.info/forums/showthre...

Colin Hammonds left an annotation ()

"bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on"........Ring a bell ?

Jt Oakley left an annotation ()

Thank you Colin, but the definitions that you quote are a view of past Ombudsman William Reid.

His opinion does not a change the Act. Which can be interpreted differently by each ombudsman.

.....Which is why a change in the wording of the Act needs to take place.

Jt Oakley left an annotation ()

Thanks to to fFaudwAtch UK.

Demonstrates the complexities of applying non- legal and legal definitions.

Jt Oakley left an annotation ()

Here's what the Scottish Ombudsman says:

While the SPSO Act does not give a definition of maladministration, we use the following as examples of the kind of failings that come under the heading of maladministration:

unreasonable delay
rudeness
failure to apply the law or rules properly.
There may be other failings that are also ‘maladministration’ – the most quoted definition is that of a Cabinet Minister, Richard Crossman, who in 1967 who listed 'bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and so on'. However, as a judge - Lord Denning - noted in 1979 'and so on would be a long and interesting list, clearly open-ended, covering the manner in which a decision is reached or discretion is exercised ...'.

phsothefacts Pressure Group left an annotation ()

The problem is that it is all denied. You show evidence of delay and it is dismissed as 'reasonable'. You show evidence of rule breaking and you are told the rules are only guidelines. In my case 'malpractice' which had to be investigated by an independent body was converted to 'bad practice' - a totally made up term which Ofqual decided didn't need any investigation.

Jt Oakley left an annotation ()

Mal practice Is only bad practice? I can't follow that.

Mal translates from the French as 'wrong'....as well as 'bad'.

So if a PA gets it wrong..unintentionally ...it's still maladministration.

Definitions:

Wrong

[UNCOUNTABLE] behaviour that is morally wrong or that breaks a rule.

:::

Basically, it's a botch up, paid for by the public, maybe a mistake against the rules but which works against the general public interest.

In that a good government administration is carried out in the same manner - with each member of the public being subject to the same administrative rules.

It seems that the PHSO is inflating its definition to 'bad' - excluding something that was just 'wrong'.

:::

'Bad'

not pleasant or enjoyable
causing problems/harm
of low quality or skill
not suitable
painful/injured
evil/behaving badly
no longer fresh/good

Which has a more of a heavyweight definitive frame - than a botch up .

(But happy to be logically corrected on the definition, as clearly bad is not an absolute).

::::

It doesn't matter if it was a wrong decision, or a bad one..because the effect that it has had on the complainant is just the same.

As an analogy, in the criminal cases of both manslaughter & murder .... someone has ended up dead.

Yet manslaughter has a lesser sentence.

:::

The PHSO decision should therefore be upheld on both 'wrong' and 'bad' acts - but it should reflect the difference in the degree of maladministration.

Not just write off wrongful botch ups, even though they may not have been intentional.

Ryan Niccolls left an annotation ()

GOJ.pdf Guidance on Jurisdiction - Including Maladministration Guidance

Introduction
Jurisdiction - the right or power to administer justice and to apply laws (from the Latin ius iuris "law" and dicere "to speak")
LGSCO undertakes independent and impartial investigations which provide an effective means of resolving complaints. Our approach is proportionate in each case and pragmatic wherever possible but we must also take care that we operate in line with the legislative framework which gives us our powers.

This guidance has been produced with the input of investigators and other staff across LGSCO, in order to provide a clear and consistent interpretation of the Local Government Act 1974 and other legislation which affects our work on a day-to-day basis. It is not comprehensive and we expect it to be updated on a regular basis, not only to take account of changes in the law but also to take account of feedback and suggestions from LGSCO staff (a table detailing the changes can be found on the intranet – available to Ombudsman staff).

This builds on earlier versions of our Guidance on Jurisdiction but, where relevant, this version also tries to be clear about the emphasis LGSCO would generally apply where the law could be interpreted in different ways, or where we are given an element of discretion. Investigators will always need to look at each individual case on its merits and have a wide degree of flexibility in deciding the best approach to take. This Guidance is intended to assist that process, and we encourage everyone who uses it to contribute to its further development by telling us whether it is useful and how it can be improved.
Please email MB with any suggestions or queries.

Maladministration and Service Failure Introduction
The term ‘maladministration’ is deliberately not defined in law and similarly there is no explicit threshold for what constitutes maladministration. Our jurisdiction allows us to investigate alleged or apparent maladministration or service failure. Our investigations often touch on both, and we interpret maladministration to include service failure. As long as we present our findings clearly, we should not need to go in to a detailed explanation of the differences. Case law R(ER) v Local Government Ombudsman [2014] EWCA Civ 1407) has confirmed that we do not have to make separate findings for maladministration and service failure. In our decision statements, we refer to fault rather than maladministration or service failure as this is a simpler term for the public to understand.

What is maladministration?
It is for the Ombudsman to decide whether a particular set of circumstances amount to maladministration. In general terms, it is ‘administrative fault by the body in jurisdiction’ or ‘fault in an action taken by a body acting on behalf of the body in jurisdiction’.

There is no threshold for maladministration, and we should always identify where something has gone wrong in our reports and decision statements. Regardless of how serious the maladministration is, we should not consider it by itself. We must assess the effect the action had on the complainant (the injustice) and whether a remedy should be provided.
Maladministration in broad terms might include:
• flaws in policies or decision making
• poor administrative practice
• failure to adhere to or consider properly statutory guidelines
• failing to consider properly the exceptional circumstances of an individual or a situation
• not properly considering statutory powers or duties
• failing to give an adequate service.

Assessing maladministration
In deciding whether there has been maladministration or service failure causing injustice, we must weigh up all the evidence, including any mitigating factors, to come to a view. In doing so we will make a judgement about what actions (or inactions) were reasonable, fair or appropriate in all the circumstances.
Our role is to identify whether there was any fault and our conclusion should never be that the BinJ’s actions were or were not ‘reasonable’. This confuses reasonableness (or unreasonableness) with maladministration. If we consider the BinJ’s actions have been unreasonable, there must be cause for us to think that (e.g. bias, irrelevant considerations, improper motive in reaching a decision etc). Similarly, if we think the BinJ’s actions were reasonable, there will be reasons we think that and these are what we should set out in our decision.

Investigators must explain their analysis and give full reasons for the decisions that they reach.

What is “Wednesbury unreasonable”?
We should not say that we find no fault because a BinJ’s actions were not ‘wholly unreasonable’ or ‘utterly unreasonable’. We would be applying the Wednesbury unreasonableness test, which is a test developed and used by the courts for a different purpose. Something is “Wednesbury unreasonable” if it is:
“so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374)

In a more recent case the judge used a more moderate definition of Wednesbury unreasonable:
“the decision does not have to be so bizarre that its author must be regarded as temporarily unhinged but must be ‘irrational’ in the sense that it does not add up, or in other words, there is an error of reasoning which robs the decision of logic.” (R (on the application of Newman) v The Parliamentary and Health Service Commissioner [2017] EWHC 3336)

Very occasionally we may consider that a council’s decision was ‘wholly unreasonable’ (described by the courts and in the Crossman catalogue as ‘perverse’, which follows a similar test to that of ‘Wednesbury unreasonable’). However, such cases are rare, usually very serious and would generally require legal advice. If a decision looks perverse, carefully check the decision making process, as the likelihood is there will be fault at some point in the process itself.

Jt Oakley left an annotation ()

It’s deliberately not defined in law because, like other countries, it was assumed that legally trained officers would be assessing complaints..following other countries.

This is not so with the PHSO.

It has call handlers, who clearly cannot understand the complaints when they are complicated. And because of the pressure to hit targets, write them off.

This is not justice for bereaved complainants, or those who are pointing out that the authorities concerned are not following the law.... but their own in-house versions of what they perceive to be the law.

And that is why the PHSO falls so badly. It is clearly maladministration ( bad administration) when organisations do not follow the law and guidance of the government, not their own interpretations of what they might do ... for their own benefit, not the General publics.

So the term...after all these years of failing to determine it, should be defined clearly,following government law and guidance, instead of tinpot, handy interpretations of that , which the PHSO seems to measure them against.

J Roberts left an annotation ()

[2018] EWCA Civ 144:

“28. Although the ombudsman's primary function is to investigate maladministration, as set out above, that remit was specifically enlarged by Parliament by the amendments made to the 1993 Act in 1996. The ombudsman's functions now include a power to investigate the merits of action taken by a medical practitioner in the exercise of his or her clinical judgment. Furthermore, the discretion whether to treat information as a complaint and whether to investigate that complaint are matters for the ombudsman.”

http://www.bailii.org/ew/cases/EWCA/Civ/...

It is understandable why members of the public would lack faith in the ability of the Ombudsman to exercise his discretion well.

Trustpilot:

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

Nic Hart's blog on the tragic death of his daughter, Averil:

http://www.averilhart.com/

WDTK request on the Ombudsman's apology to Mr Hart:

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

“phsothefacts”:

https://twitter.com/phsothefacts

Only 0.6% of enquiries concerning parliamentary complaints in 2018/19 were upheld to some degree (38 out of 5,744):

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

Jt Oakley left an annotation ()

Falls at the first fence.

It really doesn’t know what maladministration is and the intervening years haven’t improved the shakiness if the concept.

Or the professionalism if it’s level of investigation.

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master—that's all."

==

Incidentally, why is the PHSO answering this now?

The request is very old.

J Roberts left an annotation ()

"Falls at the first fence."

Agreed; but there is no vet walking solemly towards it with a bolt gun at the ready.

It wasn't the PHSO who 'reactivated' the thread; it was someone on WDTK.

Jt Oakley left an annotation ()

Yes, I asked WDTK too ...as I couldn’t reply to the PHSO.

Apparently PHSO read what I wrote to the Parliamentary Select committee - about the PHSO still not defining maladministration - and as this was used as a link to demonstrate that fact, someone at the PHSO perked up.

Too bad it doesn’t put the elements of justice via defining maladministration in Complaints over its box-ticking, target reaching process.