Names of senior staff

D. Moore 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,

1. Please provide the name of each senior member of staff and their corresponding job title. Please also state the pay grade for each. Previously, senior pay grades were '0', '1' and '2'.

2. Please provide the job title of each unfilled senior position. Where interviews have been carried out for positions as yet unfilled, please state the date(s) of the interviews.

3. Please indicate all new senior staff employed since 10 September 2018.

4. If you have used recruitment agencies to recruit senior staff since 10 September 2018, please provide their names.

Yours faithfully,

D Moore

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

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
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InformationRights, Parliamentary and Health Service Ombudsman

1 Attachment

Dear D Moore

 

PHSO reference R0000398

Your request for information

 

Thank you for your correspondence of 7^th December 2018 in which you
requested information from the PHSO.

 

PHSO response

 

1. Staff names and grades:

 

Please see the attached spreadsheet.

 

Please note that Rob Behrens is paid through Her Majesty’s Treasury rather
than PHSO. His name has on the list, but we do not hold his grade or
salary.

 

Please note that the names of Grade 2 staff has been withheld under
Section 40(2) of the Freedom of Information Act 2000. This is because the
information is third party personal data, and disclosure would contravene
the first data protection principle. This states that disclosure of
personal data must be lawful, fair, and transparent.

 

PHSO does not consider that it would be fair to disclose this information.
We do not consider that staff in these roles would have an expectation
that their names would be released for the purposes of transparency and
accountability, and so it would not be fair to infringe on their privacy
rights. As this has been our position for some time, the relevant members
of staff would have a reasonable expectation that their names would not be
placed into the public domain in response to a freedom of information
request.

 

 

2. Unfilled senior positions and dates of interview:

 

Assistant Director for Casework (Grade 2). No interviews have been carried
out.

 

 

3. Please indicate all new senior staff employed since 10 September 2018.

 

Richard O’Connell – Director of Resources

Hazel Waddington – Assistant Director of Policy and Service Quality

Kathleen Eisenstein - Assistant Director of Insight and Public Affairs

Senior Lawyer

Solutions Architect

 

Please note that the names of Grade 2 staff have been withheld under
Section 40(2) of the Freedom of Information Act 2000 for the reasons
stated in response to item 1 of your request.

 

 

4. Recruitment agencies since 10 September 2018:

 

Hays.

 

 

Right of appeal

 

If you have any queries about this response, please contact the
Information Rights Team. Please remember to quote the reference number
above in any future communications. If you are unhappy with the service
you have received in relation to your request or wish to request an
internal review, please respond to this email and explain why you are
dissatisfied.

 

If you are not content with the outcome of your internal review, you may
apply directly to the Information Commissioner’s Office for a decision.
Generally, the Commissioner will not make a decision unless you have
exhausted the complaints procedure provided by the PHSO. The Information
Commissioner’s Office can be contacted at:

 

The Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

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

 

Regards,

 

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

E: [2][email address]

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

 

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Dear 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 'Names of senior staff'.

In my view the names of grade 2 staff should be disclosed. You torpedoed me with:

"Please note that the names of Grade 2 staff has been withheld under Section 40(2) of the Freedom of Information Act 2000. This is because the information is third party personal data, and disclosure would contravene the first data protection principle."

I dispute that disclosure would contravene the first data protection principle. Grade 2 staff are senior staff who are paid handsomely from the public purse. I contend that the public has a right to know how frequently PHSO is changing senior staff in its effort to provide a satisfactory service. Knowing the names of grade 2 staff would make it easier for members of the public to find out the full facts regarding PHSO staff turnover, which in 2017/18 was an eye-watering 43 per cent:

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

In an email to the WDTK team on the subject of staff anonymity you contended that the identity of clinical advisors should be kept hidden " to safeguard their objectivity and privacy so that they are not exposed to public pressure or harassment":

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

Such a risk does admittedly exist, but I consider your concerns overblown. Judges, for example, continually disappoint appellants with their decisions. If the names of judges can be disclosed so to can those clinical advisors and senior lawyers (and I see no reason why the 'Solutions Architect' should be granted anonymity, either).

Also, my request does not relate to any specific PHSO case. There may be arguments in favour of protecting the privacy of Grade 2 members of staff in respect of cases they have worked on, but such arguments can not be applied simply to the matter of their employment status.

I have two quick final points.

I note that since 10 September 2018 you have employed one senior barrister and that no senior barrister's post is unfilled. You advertised for two senior barristers, both with the closing date of 17 July 2018:

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

Can you please explain this apparent discrepancy?

Can you confirm that the post of 'Solutions Architect' in your response corresponds with that of “Solutions Enterprise Architect”? This post had a closing date of 20 July 2018 and a starting salary in the range of £56,130-£68,513:

“The successful candidate will be have a strong technical background and will be responsible for innovation, consolidation and integration of our IT environments covering any aspect of the IT architecture (Application, Data, Infrastructure, Networks, Integration and Security). You will work across multiple technologies and platforms and will recommend and lead the introduction of appropriate technologies to deliver improved services to our complainants and staff. As a senior member of the ICT team you’ll do this whilst developing and maintain strong relationships with key business stakeholders. ”

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

Yours faithfully,

D. Moore

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

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

Since 10 September 2018 PHSO has used only one recruitment agency (Hays).

During 2016/17 it used seventeen:

Catherine Johnstone Recruitment (CJR), Customer Management, Resourcing (CMR), Hays, Kennedy Pearce, Law Absolute, Michael Page, Morgan Hunt, Morgan Law, Oakleaf, Red Snapper, Tiger Recruitment, Baseline Recruit, CIPFA –Penna Plc, Search, Gatenby Sanderson, Verudus Keystream.

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

Despite using seventeen recruitment agencies, staff turnover hit a record high in 2017/18 of 43 per cent. Taxpayers didn't seem to benefit from PHSO's considerable use of recruitment agencies.

InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear D Moore,

 

Internal Review of Freedom of Information Request

 

I write in response to your email of 10 January in which you request an
Internal Review of our response to your request for information. I have
reconsidered your correspondence and our response to you.

 

In respect of the refusal to provide senior staff grade 2 names. For the
Solutions Architect and Senior Lawyer although the names are the personal
information of those concerned I can see no overriding reason for
non-disclosure. The s40(2) exemption is no longer relied upon and those
names are provided below.

 

I have also reviewed the refusal to provide Clinical Advisor names in our
response to you. The first condition of section 40(3)(a) of the Freedom of
Information Act states that personal data of 3^rd persons is exempt from
disclosure if disclosing it would contravene one of the data protection
principles. Our response to you determined that disclosure of Clinical
Advisor names would breach the first data protection principle (disclosure
of personal data must be lawful, fair and transparent).

 

A response to a freedom of information request is a response to the ‘world
at large’. My view is that Clinical Advisors would reasonably expect their
personal information not to be disclosed to the world at large and that it
would be unfair to release this information, which would breach the first
data protection principle. Clinical Advisors also work in the NHS, to
provide their names in response to a Freedom of Information request could
result in them being contacted in relation to PHSO matters at their place
of work and be at risk of intrusion or harassment. As such I maintain the
use of Section 40(2) in withholding these details.

 

In answer to the queries in your email of 10 January I can confirm that
the Solutions Architect corresponds to that of Solutions Enterprise
Architect. Since the date of your request a second Senior Lawyer has
commenced their employment. Their details are provided below along with
the names of the staff members that are no longer withheld.

 

Solutions Architect – Peter Hastings

Senior Legal Officer – Laura Foster

Senior Legal Officer – Catriona Granger

 

For the reasons given above I partly uphold your complaint.

 

If you remain unhappy with our response, it is open to you to complain to
the Information Commissioner’s Office ([1]www.ico.org.uk).

 

Yours sincerely,

 

 

Andrew Martin

Freedom Of Information/Data Protection Manager

Parliamentary and Health Service Ombudsman

W: [2]www.ombudsman.org.uk

 

Follow us on

[3]fb  [4]twitter  [5]linkedin

 

 

 

 

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D. Moore left an annotation ()

ICO contacted.

D. Moore left an annotation ()

Confirmation received from ICO that my complaint has been accepted as eligible for further investigation.

D. Moore left an annotation ()

I meant to write 'consideration' and not 'investigation'.

D. Moore left an annotation ()

The IC has not upheld my complaint:

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

I have appealed the decision.

M Boyce left an annotation ()

D.Moore

I've just read the ICO DN. As usual they have found in favour of the PHSO. No surprise there then.

Good luck with your appeal.

D. Moore left an annotation ()

Thanks M Boyce. The tribunal service has informed that the Commissioner's response to my appeal is due by 13 August 2019.

D. Moore left an annotation ()

The tribunal service has contacted me to inform me that PHSO on 30 July 2019 requested a copy of my Grounds of Appeal in the folowing terms:

"Dear Sirs

I am informed that the above matter is an appeal of the ICO decision which relates to a PHSO disclosure.

It is not yet clear whether PHSO can helpfully add any information but it would be of assistance if we could please have sight of the Grounds of Appeal in order that I can take instructions as to whether it would be appropriate for PHSO to seek permission to join the proceedings.

Apologies for any inconvenience caused."

D. Moore left an annotation ()

I have received and replied to the Commissioner's Response.

The case will be considered on the papers only.

J Roberts left an annotation ()

D Moore,

You might be interested in this ICO decision concerning the Ministry of Justice and the release of Magistrates' full names:

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

'33. The Commissioner noted that, in Felixstowe, Watson L J said in judgment:

"... I would regard and I believe the general public likewise would regard a policy such as that maintained by the Felixstowe justices and their clerk to be inimical to the proper administration of justice and an unwarranted and an unlawful obstruction to the right to know who sits in judgment. There is, in my view, no such person known to the law as the anonymous JP.”'

D. Moore left an annotation ()

Thanks for that, J Roberts.

My annotation dated 17 August has been called into question. It seems that a hearing is now on the cards. Those interested in tribunal procedure may find the following interesting:

"1. As the Parliamentary and Health Service Ombudsman(“PHSO”) appear to neither have responded to the appeal or consented to consideration without a hearing, the Tribunal will have to arrange for a hearing to take place.

2. ...

3. It is a requirement of the rules that a respondent responds to an appeal (see rule 23). The PHSO is given until 18 November 2019 to respond; if they fail to do so the Tribunal will consider whether to:

3.1 Remove the PHSO as a party to the appeal;
3.2 Waive the requirement in rule 23.

4. The PHSO should note that, if the requirement is waived they may find it difficult to, later on, say that it is fair and just for them to be permitted to raise additional issues and submissions."

J Roberts left an annotation ()

Knowing the names of senior staff is important. Without knowing their names it would not have come to light that this individual whose recruitment cost taxpayers £11,000 lasted less than 5 months in the job:

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

Senior positions usually require an extended period of notice. Started in September and handed in his notice in October?

J Roberts left an annotation ()

PHSO are seeking a new Assistant Director of Communications:

"Closing date: 11 November 2019 10:00am
Length of contract: 12-month Fixed Term Contract
Salary: £63,791 (London) or £60,180 (Manchester)
Location: Manchester or London

As Assistant Director of Communications, you will be joining us at an exciting time and have the opportunity to make a real impact on our work.

You will lead on managing our external and internal communications functions. This includes managing a team that, in addition to its core communications work, delivers activity ranging from our all staff event, our annual Open Meeting and our regular Radio Ombudsman podcast.

You will also be joining us as we start developing our next corporate strategy. The Ombudsman and Chief Executive have made clear their ambition for us to raise our public profile. You will have an important role to play as a key adviser on how to shape our new corporate strategy to achieve this. You will also play a lead role in designing our new communications strategy that will sit alongside it.

An experienced leader and people manager, you will help develop and lead the communications function and our people into the new direction set out in our strategy.

You will also work closely with other Assistant Directors to help maximise the benefit of our ambitious current work programme, both externally and with our staff.

Sound judgement and an excellent understanding of the media is essential for this role.

Please submit your CV and supporting statement by 10am on 11 November."

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

J Roberts left an annotation ()

I asked about the staff turnover of 43%:

"3 If Rob Behrens or any other senior PHSO figure has commented on the figure, please provide the recorded information you hold."

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

PHSO responded:

"3. No recorded information is held for this element of your request."

I found it strange that no recorded information existed on the thoughts of senior staff on the figure - it is huge. Perhaps those senior staff with responsibility for staff had moved on too.

Jt Oakley left an annotation ()

PHSO states:

PHSO does not consider that it would be fair to disclose this information.
We do not consider that staff in these roles would have an expectation
that their names would be released for the purposes of transparency and
accountability, and so it would not be fair to infringe on their privacy
rights.

==

Staff ‘expectations’ do not come into it.

Their contracts determine whether they are Public facing,...their work means that in contact with the public- representing the PHSO - or not.

If these staff are well paid to be public facing, why are they shy and unwilling to face the public, via Wdtk?

Surely it’s: Take the money, take the responsibility?

D. Moore left an annotation ()

JT Oakley,

PHSO have said that there is a real risk of clinical advisors being harassed, so the names cannot be released. I've statded that I think they are exaggerating.

Update:

19 Nov. 2019 – ICO responded to GRC to say that the Commissioner will not be represented at the oral hearing and will rely on submissions already made.

20 Nov. 2019 - PHSO indicated that they are also content to rely on the submissions they have made.

22 Nov. 2019 – GRC kindly suggested that I could attend via telephone. (I said that I would prefer a normal oral hearing near to somewhere I can get to without difficulty – am awaiting response).

My understanding is that when an appeal is decided on the papers the normal procedure is something like this:

1. The appellant provides his grounds of appeal;
2. The Commissioner provides her Response;
3. The appellant can reply to the Response;
4. The public authority, if added as the Second Respondent, then deals with the appellant's reply;
5. The appellant can then respond to what the public authority writes.

In my case, stages 1-3 have occurred. The PHSO were also added as the Second Respondent, but have provided nothing for me challenge.

One concern I have is that a highly paid legal expert representing the PHSO (could be over £200 an hour) will present carefully prepared rebuttals to my reply (3), sprinkled with references to legal cases I know nothing about.

Jt Oakley left an annotation ()

Ask them how many staff have been threatened ...and what’s did the threats consist of?

- anonymously of course.

Jt Oakley left an annotation ()

Ask that their costs be limited.
Information ...saw that on another PHSO thread.
Don’t ask me where.

Personally I found that once you get into court, the panel realise that you are at a disadvantage and guide you through it by asking fair questions. But obviously you... can't count on it tho’

Also number all your evidential pages, that helps - if you still have a chance to do so.
You’re right to go to court because then you are in the British system, where you get to see their evidence.

And not the Continental - which is what The PHSO operates, where you don’t.

That’s what upsets so many complainants.

Make sure you’ve got everything that is listed to be given to the panel by the PHSO.

In my case, the PHSO thought it could slip the panel secret information , like it does to the ICO.
It’s the ‘ old pals’ act.

It can’t.

So watch that list like a hawk ...and ask for anything that you don’t have.

Good luck.

J Roberts left an annotation ()

'Ask that their costs be limited.'

I can't find anything specific on the PHSO and costs related to FOI tribunals, but I found these UT and F-t T decisions concerning seasoned appellant Dr Kirkham. The UT one concerns an unsuccessful attempt to claim expenses, and the F-t T one concerns his being hit with costs:

'40. Section 29 of TCEA 2007 provides as follows:

“Costs or expenses

(1)The costs of and incidental to—(a) all proceedings in the First-tier Tribunal, and (b) all proceedings in the Upper Tribunal, shall be in the discretion of the Tribunal in which the proceedings take place.

(2)The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid.'

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

'G: Costs

48. It seems to me that the Appellant’s conduct of these proceeding may have been such as to engage the Tribunal’s costs jurisdiction under rule 10. I regard many if not most of his interlocutory applications in this matter as having been entirely without merit.”

50. I invite the Respondent [Commissioner] to make an application under rule 10 (1) (b) or to inform the Tribunal within 14 days that she does not wish to do so. I refer both parties to the Decision of the Upper Tribunal (LandsChamber) in Willow Court Management Co (1985) Ltd v Alexander [2016] UKUT 290 (LC)5, which sets out the principles I would apply in determining an application for costs under the Tribunal Procedure Rules.'

http://www.bailii.org/uk/cases/UKFTT/GRC...

J Roberts left an annotation ()

Latest senior job vacancy on PHSO site:

"Senior Financial Accountant
Closing date
29 November 2019 10:00am
Length of contract
Permanent
Salary
£52,020
Location
Manchester

An exciting opportunity has arisen to join our Finance Team in the Manchester office. We are looking for a financial professional who can demonstrate that they have solid financial accounting skills and knowledge, as well as the ability to transform systems and ways of working to deliver high quality financial services."

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

J Roberts left an annotation ()

The PHSO's legal costs can be considerable.

In this case from 2014:

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

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

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

The Defendant is the 'The Health Service Commissioner', but this is the PHSO:

"The Health Service Commissioner for England still retains the post of Parliamentary Commissioner for Administration and is more commonly called the Parliamentary and Health Service Ombudsman."

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

The same person made a second claim against the PHSO earlier this year:

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

D. Moore left an annotation ()

JTO and JR,

Thanks for you comments. There's been a development...

The PHSO have told the GRC that they will not be attending the oral hearing. Given that the ICO have indicated that they will not be attending either, the prospect of my attending on my own would be unusual.

In light of the PHSO's decision not to attend, the PHSO have consented to the matter being dealt with on the papers only. Given that this is what I wanted in the first place, I have agreed.

The PHSO have said that they are willing to rely on their own submissions. I am currently seeking to discover whether I have received all of their submissions. Documentary evidence points to the PHSO being aware that they had to make submissions by a particular date, but I have not received a copy of any submissions they made.

Will keep you informed.

J Roberts left an annotation ()

D Moore,

You may be interested in this story concerning what a clinical advisor wrote in a report:

'The Parliamentary and Health Service Ombudsman (PHSO) has admitted its findings on Benjamin Bowdler, who died while in a vegetative state in 2012, “may not be robust” due to “significant” failings.

Mr Behrens’ letter reveals the review of the case found Mrs Whalley had offers to meet with the PHSO to discuss her complaint withdrawn for no good reason.

One clinical adviser was also found to have made “entirely unacceptable comments”.

Evidence was not gathered properly, the coroner’s report into Mr Bowdler’s death was incorrectly omitted from the investigation and concerns about incorrect guidance being used by those probing Mr Bowdler’s death was not properly scrutinised.'

https://www.wigantoday.net/news/people/n...

Jt Oakley left an annotation ()

You might be interested to know a PHSO clinical advisor ended up in court..

https://www.hamhigh.co.uk/news/health/di...

D. Moore left an annotation ()

Jt Oakley,

Thanks for the link.

I received two bundles today (one relates to the hourly costs of lawyers used by the PHSO).

It appears that the PHSO made no submissions after I replied to the Commissioner's Response, but one communication does point to the ICO and the PHSO working collaboratively to create the content of the Decision Notice.

I presented a rebuttal to a PHSO argument contained in another ICO decision notice (see below). The ICO not only challenged my rebuttal, but asked the PHSO if the challenge was up to scratch and whether they would like to add anything:

'Is there anything further you would like to add to this argument before the notice is issued?'

The communication in question can be viewed here:

https://informationrights.home.blog/2019...

Other ICO decision notice referred to above:

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

Jt Oakley left an annotation ()

If the threat to clinical - and other advisors - is real, the PHSO will be able to prove it.

If it can’t substantiate its opinion, then it would seem it is a false argument.

J Roberts left an annotation ()

On 22 November 2019, I referred to a F-t T decision concerning Dr Kirkham and costs:

“48. It seems to me that the Appellant’s conduct of these proceeding may have been such as to engage the Tribunal’s costs jurisdiction under rule 10”

Dr Kirkham has successfully appealed the decision in Kirkham v Information Commissioner (GIA): [2019] UKUT 381 (AAC):

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

The Upper Tribunal decision focusses on the refusal of the F-t T to provide him with a transcript of the hearing.

M Boyce left an annotation ()

All this is very worrying when a judge who doesn't know what they are doing then imposes costs on an appellant.

J Roberts left an annotation ()

M Boyce,

It is indeed very worrying. I do not know whether the Commissioner accepted the FTT's invitation to make an order for costs.

Dr Kirkham's paper on the appropriateness of computer searches used by public authorites in dealing with information requests - How long is a piece of string? - can be found here:

https://www.sciencedirect.com/science/ar...

Jt Oakley left an annotation ()

Oddly enough I found that I’d written a request - which was turned down, as council employees would take too long to read documents - today.

So I went in and searched myself.

It took me about a quarter if the time specified by the council.

And that was when the council’s machine kept breaking down.

The only conclusion that I could come to was that the council employees were very slow and inefficient.
And estimated to be unintelligent - by their own managers .

J Roberts left an annotation ()

I have asked the ICO for information on the number of invites it has received from the FTT to pursue appellants for costs:

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

M Boyce left an annotation ()

Very interesting FOI request J Roberts.

What is also interesting is that not all of the seven First-tier Tribunal chambers have a Rule 10 for the pursuit of costs. The GRC (information rights) does allow the pursuit of costs, but, for example, the Social Entitlement Chamber does not allow the pursuit of costs. Why do some Tribunals allow for the pursuit of costs, but others do not? Surely this is unfair.

J Roberts left an annotation ()

M Boyce,

I don't know much about how active the courts are chasing appellants for costs. ' Kirkham' is the only instance I've come across where the Commissioner was invited to pursue costs. With regard to the Social Entitlement Chamber, most claimants will be on their uppers and will be appealing a decision either refusing them benefit or cutting it (PIP, ESA UC etc). If these claimants faced the prospect of costs it would seem unduly harsh.

Here is one example of a decision of the Social Security Commissioner showing how facts can get garbled in an ESA report and of the importance of an appeals process. The report included this:

‘Occupational History

Has not worked in the last 5 years.
Last occupation: Bar man.
Worked full time.
The main reason for leaving work was alcohol use.
Description of a Typical Day

Walks alone a 10 minute walk every 3 days to the local shop without difficulty’

The appellant’s representative stated something very different, however:

‘… his last employment was as a labourer with the Barnabas trust not a Bar Man.  Reasons for leaving work was because the Barnabas Trust closed down....It would take him 2 minutes not 10 minutes to walk to his local shop as it is just across the road.’

http://www.bailii.org/nie/cases/NISSCSC/...

M Boyce left an annotation ()

J Roberts

I take your point about appellants and the Social Entitlement Chamber, but the costs issue cuts both ways. If the DWP know that they can never face costs in a case then there is no incentive for them to engage properly, or indeed at all, with the Tribunal process. I speak from personal experience. I currently have an appeal with the Social Entitlement Chamber and the DWP are completely ignoring the Tribunal's overriding objective by not responding to the Tribunal's repeated requests for a response and associated documents. This is what the latest Directions Notice states:

'The Department has not sent in a response. The Tribunal needs the appellant's help to decide the appeal.
If it is possible, please can the appellant send the Tribunal all documents related to the case.'

I am in the process of doing this now, but the DWP know that I cannot possess all documents and they can and are withholding crucial documents. I should be able to claim my costs for this sort of behaviour, but I can't and the DWP know this full well. This green lights their non-cooperative behaviour.

J Roberts left an annotation ()

M Boyce,

I'm sorry to hear about how you have been treated. It is unfortunately not uncommon. You might be interested in this decision:

“2. '...7. The experience of this DTJ is that the SSWP routinely ignores directions from both UTJ’s (on remittals) and DTJ’s/TJ’s [sic] for DLA records. Some examples are illustrated below.

8. I have recently sent a case back to UKUT where the directions of the UTJ have been ignored.

9. Last week I have had approximately 10 appeals in which there had been non-compliance by SSWP. In one case the adjournment requesting DLA records had been issued in March 2018. Those records have still not been provided.'”

NW v SSWP (PIP)[2019] UKUT 150 (AAC)

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

On the question of costs, can the “remedy” referred to in the paragraph below be found in the County Court?

“34. Finally, the Appellant seeks damages to be assessed to compensate him for the frustration, humiliation and distress which he has experienced. Such a remedy would have to be sought elsewhere, as the Upper Tribunal has no power under TCEA 2007or otherwise to make an award of damages on a statutory appeal.”

S B v South London and Maudsley NHS Foundation Trust[2020] UKUT 33 (AAC)

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

M Boyce left an annotation ()

Thanks J Roberts for the very interesting links.

It seems that many authorities regard the Tribunal process with undisguised contempt, and partly because they know that there is no real consequences for them.

Jt Oakley left an annotation ()

Same for the PHSO and Information Commissioner’s Office.

The percentage of public ‘wins’ is so low, it’s hardly worth bothering.

J Roberts left an annotation ()

JT Oakley,

The proportion of PHSO public 'wins' for parliamentary complaints is very low, according to this disclosure:

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

“1. There were 5,744 Parliamentary complaints received in 2018/19.

2. There were 38 Parliamentary cases upheld or partly upheld at investigation in 2018/19 (3 upheld, 35 partly upheld).

3. There were 52 Parliamentary cases not upheld at investigation in
2018/19."

That's 3 fully upheld complaints out of 5,744 (or almost 1 in 2,000).

I pointed out elsewhere that it might be fairer to consider the number of fully upheld complaints in relation to the number that had passed through the MP filter (2,428):

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

(This would increase the fully upheld rate to just over 1 in every 1,000).

The perceptive response to my comment was:

“If most complaints don’t get past the MP referral then where does the 5,744 figure come from?”

https://phsothetruestory.com/2019/09/30/...

M Boyce,

You make a valid point. Another example concerning benefits:

“10. If I may say so, I find it astonishing that such plainly relevant guidance was not made available to the First-tier Tribunal which decided the appeal on 20 February 2013. Just as worryingly, the guidance has only been disclosed at thevery tail end of these Upper Tribunal proceedings and after several submissions from the Secretary of State....

“11. All that I berated the Secretary of State about in NM v SSWP[2016] UKUT 351 (AAC)about ‘hiding’ her guidance applies with equal force in this case.”

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

SSWP v DM (rule 17) (JSA)[2018] UKUT 424 (AAC)

Frank Zola has made a request to the ICO illustrative of the point you have made:

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

Jt Oakley left an annotation ()

That’s astonishing. 🙄

The public CANNOT be that wrong.

It proves that the PHSO is not just churning complaints through to hit the target stats ...but it’s covering up its mistakes too.

I hope you will forward the stats to the Select Committee, as evidence.

Jt Oakley left an annotation ()

You might be interested in this request ..for the names of ‘public facing employees’.

As the description stares, they face the public and are PAID for this constituent part of their work.

According to the PHSO, although they are paid to do so, the public are not allowed to know who they are.

No, I don’t understand the logic either...

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

M Boyce left an annotation ()

Very Illuminating links J Roberts.

It is worrying enough (though not surprising) when government departments actively hide important material from appellants and tribunals, but it is perhaps even more worrying when the ICO - who are supposed to be impartial - also actively work to 'hide' material from tribunals.
In my PHSO review case currently with the FTT, the ICO claim that none of the legal advice sent by the PHSO to it and the Tribunal is 'within scope'. But instead of then asking the PHSO to send it the legal advice that is 'in-scope', they merely ask the Tribunal to dismiss my appeal without that Tribunal ever seeing the 'in-scope' legal advice. This is what the ICO call justice; it is not what any right-minded person would call justice.

Jt Oakley left an annotation ()

To be fair to the Information Commissioner’s Office lawyers, once they were told that the PHSO was withholding evidence, they wrote to the PHSO and got it for me.

Once again, if you can get your case to a lawyer, instead of a caseworker, it alters outcomes significantly.

The PHSO went on to blame the Information Commissioner’s Office for not turning up...of course.

M Boyce left an annotation ()

Jt Oakley

The ICO lawyers did also write to the PHSO to ask for the withheld legal advice in my case, but only after they were told to do so by the First-tier Tribunal. But then according to the ICO, the PHSO only supplied them with entirely irrelevant advice. On receiving this irrelevant advice you might expect that those lovely ICO lawyers would then ask for the RELEVANT legal advice, which is what I had asked for all along. Not a word of it. Instead, they directed the Tribunal to dismiss my case as not in the public interest on evidence that they and the Tribunal had not seen! They really are a class act.

Jt Oakley left an annotation ()

That is the PHSO strategy.

Deny it exists.

Because short of raining their offices , you can’t get it.

And the PHSO knows that it has power over the Information Commissioner’s Office- as It investigates it.

So the relationship is mutually self protective.

J Roberts left an annotation ()

M Boyce wrote:

"In my PHSO review case currently with the FTT, the ICO claim that none of the legal advice sent by the PHSO to it and the Tribunal is 'within scope'. But instead of then asking the PHSO to send it the legal advice that is 'in-scope', they merely ask the Tribunal to dismiss my appeal without that Tribunal ever seeing the 'in-scope' legal advice. This is what the ICO call justice; it is not what any right-minded person would call justice."

It is indeed very concerning that the ICO has deemed the information provided by the PHSO as not being in scope and simply left the matter at that. According to this FTT decision, the FTT can't order disclosure of information falling outside the scope of an appellants request:

“54. ...However, we are not able to order disclosure of information which falls outside the scope of the appellant’s request in this case. Our role is to decide whether the Commissioner’s decision was in accordance with the law. We are considering her decision based on the request which the appellant actually made - which was for contractor rates used in the tender process for Area 10, not for specific DCP information.”

http://www.bailii.org/uk/cases/UKFTT/GRC...

M Boyce left an annotation ()

It is very concerning J Roberts. The ICO has said that the information sent by the PHSO is not in scope. They refuse to even outline in the broadest sense what the information is that the PHSO has sent to them and the Tribunal. It could be a cartoon of Bob on his yacht for all I know - and it probably is! I asked for all legal advice (internal and external) about the PHSO review process. If this has not been sent to the ICO and the Tribunal then why has the ICO not asked for this requested information? How can the ICO even pretend to be fair and impartial when it behaves as outrageously as this.

J Roberts left an annotation ()

Revealing the names of senior clinicians might help allay the concerns some have about the quality of medical reports. How fast can a doctor write a report?

'6. Dr Zafar was at all material times employed within the NHS as a General Practitioner. In addition, however, he engaged on his own account in private practice, providing medical reports for low-level personal injury claims. He, remarkably, seems to have developed a system where he apparently could examine a patient or client and produce a report in the space of approximately 15 minutes. He was to say that he might produce some 5,000 reports a year, with an annual gross income of around £350,000. Quite how he was able to fit all this around his NHS responsibilities is not clear: and at all events it seems that his NHS premises were frequently used for his private medico-legal practice. The judge, in his sentencing remarks, in fact was to describe this medico-legal practice as a “report writing factory.” '

Neutral Citation Number: [2020] EWHC 846 (Admin)

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

D. Moore left an annotation ()

I am still awaiting a decision on this appeal, but here is something of interest.

In support of my argument that the public should know the names of senior clinicians working for the PHSO, I referred to the MPT case of psychiatrist, Dr Jane McLennan, whose name was erased from the medical register for dishonesty:

https://www.mpts-uk.org/hearings-and-dec...

I cannot find details of the case on the MPT website, so I presume it has been removed after one year in line with what I understand to be MPT policy.

Dr McLennan, however, appealed the decision to the Court of Session in Scotland ([2020] CSIH 12XA35/19). Three judges heard the appeal. The majority decision, promulgated this month, rejected it. It is a good read, which clearly shows the difficulty a person has is proving that he did not say things attributed to him by a doctor:

https://www.scotcourts.gov.uk/docs/defau...

In a nutshell:

2014 – Mr A brought a case of disability discrimination against his employer. He had to be examined by Dr McLennan, who produced a report. The report included glaring untruths. The appellant covertly recorded the encounter.

2015 – Mr A failed in his employment tribunal appeal. The tribunal was not interested in his recording and placed little weight on the transcription he provided.

2015 – Mr A complained to the GMC about Dr McLennan. He was told his complaint would not be taken any further. After requesting a review, he was told in 2015 that it would be taken further.

2018 – The MPT hearing did not start until three years later. It lasted 26 days over the course of a year. The tribunal found that Mr A did not say things like 'these fu...ing girning bastards' when referring to his employer (para. 32). Dr McLennan wrote:

“94. … “Mr A said he had kept exceptionally well in the past, prior to working with CICA. He said he had never had problems with anxiety, depression or his bowels prior to commencing work with them in 2009.This is not consistent with the evidence in his case notes.””

The significance of this paragraph is explained:

“95. It was accepted before the Tribunal that the statements attributed to Mr A were never said by him, and indeed that he stated the opposite. The effect of this paragraph was to cause the reader to regard Mr A as lacking credibility, or at least as being unreliable. This laid the foundation for other observations in the report which were more or less critical of Mr A, and were generally unfavourable.”

Jt Oakley left an annotation ()

The most extraordinary thing is that the PHSO will not provide the names of public facing staff..

Those who are employed TO face the public. PAID. ..With public money.

I really don’t know how they keep them secret.

Presumably they wear masks and give pseudonyms?

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

D. Moore left an annotation ()

Correction to previous comment:

“The appellant covertly recorded the encounter.” It was Mr A who recorded the encounter.

JT Oakley,

If PHSO was less reluctant to name staff, we would have a better picture of staff turnover. I have also be confounded by frequently changing job titles.

Latest:

PHSO was required to comply with Case Management Directions by 14 March 2020. It doesn't seem to have done so. HMTS has recently sent a chaser.

It appears that PHSO contacted GLD* in connection with the Case Management Directions, and not a set of chambers.

This made me think about my recent dismissed appeal concerning PHSO legal costs, in which it was held that the information I requested was commercially sensitive and therefore PHSO was correct to apply section 43(1):

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

It's a long shot, I know, but if PHSO were now using GLD for all of its external legal provision, this would arguably call into question the argument that hourly rates (anonymised) would undermine the commercial interests of PHSO. After all, it was the publicly available rate of a GLD lawyer (£230 an hour):

https://www.whatdotheyknow.com/request/5...

that I used to compare with the usual rate of a QC linked to PHSO (£275 an hour plus vat):

https://www.whatdotheyknow.com/request/4...

* https://en.wikipedia.org/wiki/Government...

J Roberts left an annotation ()

In this case, a serially dishonest doctor tried to cover up his dishonesty.

It is indeed concerning that a doctor who failed to disclose important truths when required to do so was able to remain in his job for some time:

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

[2019] EWHC 3283 (Admin)

If the dishonest claims of a doctor seeking to work directly with patients is not discovered before he is offered a job, I think the possibility that the same thing can occur in a PHSO setting is very real indeed. A doctor desperate for money might be inclined to follow Dr Olatigbe's example. Here's what the MPT found (paragraph 20):

"The Tribunal finds that Dr Olatigbe's dishonesty is fundamentally incompatible with continued registration. He has shown negligible insight into his dishonesty and the Tribunal is not satisfied that his dishonest conduct will not be repeated. There are four instances of dishonesty which span over two years and include an attempt to cover up the dishonesty. He has subsequently failed to give a candid explanation for his motivations."

Jt Oakley left an annotation ()

We’ve been down this road before...

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

J Roberts left an annotation ()

At today's PACAC annual PHSO scrutiny hearing, Rob Behrens said:

“Sir Liam [Donaldson] said that after we had had consultation with regulators it would be appropriate for us to give serious consideration to naming the clinical advisers that we use in specific cases. If we did that it would make a fundamental change to the perception of transparency that the organisation currently holds. The issue, though, is sensitive because some of our clinical advisors fear as a result of experience if their names were published they would be trolled by some irresponsible complainants who would use their dissatisfaction with the handling to report them to the professional body.”

He stressed he was looking at the matter with great care.

But look at what he means by 'trolling': it's reporting a clinical advisor to their professional body. If the clinical advisor has done her job well she has nothing to fear.

D. Moore left an annotation ()

The PHSO lawyer has responded to the Directions of the Judge. I will post a link to the decision when it becomes available.

Details of my yet-to-be-considered complaint to the ICO concerning the alleged pressure and harassment experienced by clinicians are available here:

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

J Roberts left an annotation ()

Latest response from PHSO to request relating to clinical advisers:

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

Sir Liam Donaldson is quoted (in very big letters) in the PHSO's response to the review on naming clinical advisers:

'introducing a policy to name clinical advisers could have unintended negative consequences even though it would fit with the PHSO’s commitment to transparency.'

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

Sounds a bit like Boris Johnson's 'following the advice of the experts' tactic. Had Sir Liam not expressed caution but instead suggested that all names should be published immediately, how would his words have been taken!