New Evidence (Handling)

C Rock made this Freedom of Information request to Parliamentary and Health Service Ombudsman

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

The request was refused by Parliamentary and Health Service Ombudsman.

Dear Parliamentary and Health Service Ombudsman,

(1) I am given to understand that when a Complainant forwards evidence which he/she considers NEW, or additional and perhaps supportive of original allegations (possibly disputing an original outcome in denial of those allegations) it will only be given perfunctory assessment.

(2) I am also led to believe that no matter how extensive or detailed the evidence or how many key issues are substantiated, it is not PHSO Reviewer practice to complete notes or any written assessment e.g. as considered judgements alongside previous claim and comment.

(3) I then make the assumption that no external specialist reviewer is again consulted for written input?

FOI officer, please can you confirm or clarify the above practices?

--------------------------------------
Footnotes (as illustration only):

This echoes an experience whereby sight of such document (new evidence assessment) was requested under the DPA, yet applicant was told that it did not exist. i.e. nothing in writing was produced for file. And, for example, it was not clear how a medical practitioner’s lack of candour was deemed irrelevant: there were other matters of maladministration instanced).

Does the PHSO appreciate it commonly difficult to obtain supporting evidence in cases where the defendant is reluctant to honestly engage, and may in fact have provoked the very situation as subject of the Case, by withholding or failing to advise such information? Hence it is unlikely that full disclosures will be available in the time-scales dictated by the Complaint Process: does not the PHSO have to be open to late evidence, therefore? (This is a presumption, not an FOI question).

Yours faithfully,

C Rock

foiofficer, Parliamentary and Health Service Ombudsman

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

I just want one PhSO employee ..in the spirit of openness,transparency and candour ....to state:

1. If we botched it the first time, we won't admit it.

2. If we botched it - and anyone comes up with new evidence..tough!

3. Because there is no such thing as new evidence.

It ranks with unicorns and fairies in the PHSO handbook.

It would be so much easier for everyone concerned.

foiofficer, Parliamentary and Health Service Ombudsman

1 Attachment

Dear Mr Rock

Your information request (FDN-180621)

The Freedom of Information Act 2000 provides you with the means to request and access recorded information. Requests for clarification about policy matters or requests that we confirm your understanding about aspects of our office are not requests for recorded information.

As we have previously explained to you, once a review is closed, we will consider future correspondence on the matters, we will only respond with our standard acknowledgement unless we believe the matters raised are new. If we believe the matters raised are new, we will decide the most appropriate way to deal with them. That decision is taken depending on the circumstances of the individual case.

Section 4.2.30-31 of our review Casework Policy and Guidance document is the only recorded information we hold in relation to you request and outlines our general approach to post review correspondence. I have attached this section of the policy to this email. Please note that whilst this approach still applies, the Ombudsman’s Casework Team no longer consider the correspondence. That responsibility now lies with the Review Team. External reviewers are not usually passed post review correspondence. However, decisions made at post review are made on a case by case basis.

You may find my response to two similar information requests helpful.
(https://www.whatdotheyknow.com/request/n...
https://www.whatdotheyknow.com/request/e...)

Yours sincerely

Claire Helm
Freedom of Information/Data Protection Officer
Parliamentary and Health Service Ombudsman

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

This response should obviously be rephrased to read current practice.:

Once the complainant has pointed out several mistakes, provided new evidence and hopefully asked for a review.....

4.2.30 Once a response to the complaint has been sent, the Head of the Review Team, or the Ombudsman’s Casework Management Team, will arrange for the relevant screen in Visualfiles to be completed to close off the review. Any lessons learnt will also be noted.

As the PHSO is never wrong in any investigation.. No, not even a small element of it.. obviously this never happens so 'lessons will not be learnt' .

(Nb The phrase 'Lessons will be Learnt' only applies to negligent health bodies, caught in the act. Thus the PHSO continues in its noble tradition of continued for support them, until the media catches the It out ..and eventually has to rustle up a 'scathing ' report to cover up its own mistakes.

4.2.31 Once the complainant has received a response to the complaint, we will always draw a close to the correspondence (how we intend to handle future correspondence will have been explained in our reply to the complaint about us – see The 'Get lost Dimbo ' letter.

Further correspondence will be binned by the Ombudsman’s Casework Management Team.

Even if such correspondence is considered to raise issues which require a reply, we will not send any further response beyond an acknowledgment slip.

Emails from puzzled, innocent complainants, who still trustingly believe in justice will be ignored, as we are still in 1980's paperwork mode - and therefore don't reply to emails.

The PHSO brief is to ignore all pleas for a fair decisions, as we are too busy shooting lots of new, easier cases through the system to reach the new randomly chosen target.

Dear foiofficer,

Thank you for the Section 4.2.30-31 Casework Policy and Guidance document – it is noted.

You also mention CPG para 4.2.25 from a separate FOI request which apparently relates to complaints about PHSO and is not the topic of this FOI request.

I am sorry you were not able to clarify my understanding on these questions by reference to recorded information on PHSO process. Thank you for trying.

In answer to my question for clarification, I did not see any reference as to how the evidence will be dealt with in respect of my question regarding scrutiny and documentation of work, and how the justification of a ‘nil’ response is arrived at.

You were unable to justify why reviews of evidence might only be documented on an as-and-when basis per case. Consideration of a transparent outcome seems irrelevant, as does independence of evaluation.

(As an aside I also did not see any duty of responsibility in how lessons learnt (4.2.30) is communicated to the complainant. Again, a ‘nil’ response is likely to be taken as ‘nothing to learn’.)

I find it inconceivable that a Reviewer is under no instruction in this matter. In the light of the above, I have concluded that the content of your answer is not sufficiently robust to withstand scrutiny, and is a refusal to address the question with the lucidity required.

I would like this to be addressed firstly by the internal FOI reviewer.

Yours sincerely,

C Rock

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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C Rock left an annotation ()

Further Illustration as annotation:

I illustrated the FOI request with an unnamed (hypothetical even,) case experience. I understand this is not a forum for airing specifics of an individual’s complaint but that is difficult to suppress when requesting clarification not otherwise forthcoming due to PHSO policy of non-communication. Personalised illustrations are necessary. (I also accept that ‘defendants’ might also seek the same recourse – but I have not seen this happen.)

I have asked for a review of a case and its evidence twice (that in my case was firstly in 2010). I justified that request in 2010 and that testimony was ignored.

I have never asked for a review of PHSO process, which is what is recorded as “Review completed”. That procedure would naturally follow resolution and redress: PHSO procedures are PHSO concern and, hopefully, are reviewed at the “lessons learnt” stage.

So I have never had a review. With new information I approached PHSO in 2013. Some of this new information could have been accessed in 2009 had the PHSO shown an interest in fact-finding.

Some of the information was gained post 2010 (from research; from legal action) and was therefore NEW, supportive of previously disregarded evidence, and corroborative of NHS maladministration. Nevertheless the PHSO chose to not respond and, astonishingly, did not even see fit to commit an appraisal of it to record (a DPA request for sight of this was denied).

With regard to this FOI topic of new evidence, it would be thought natural that all ‘old’ evidence is re-assessed within the context of new evidence, and that PHSO assumptions on the accuracy of testimonies be checked in the first instance. The current situation of sending non-validated information to external advisers is unmitigated nonsense destined for failure.

Yet PHSO say they do not reconsider new alongside original evidence – in fact it is disposed of in short interval (under the can’t-wait document disposal scheme). It is unlikely that any new review will be objective and the lack of any written record will obscure the trail and traceability.

I have not yet had a justified review (unresolved case now of 5 years) - hence my search for evidence, veracity and redress elsewhere. The PHSO failed, in having deficient procedures right from the start, and that has to-date cost the State a lot of money.

Grand PHSO Principles are published yet the back-up documents, guidelines, policies, retorts; do not say how they will be achieved.

Elsewhere quoted (CPG par 4.1) “The Principles of Good Complaint Handling flow from the Principles of Good Administration and also take into account the Principles for Remedy. Our Principles are intended to help us, and other public bodies, deliver first-class complaint handling to customers.”

I agree with the intentions – but it’s clear that the Principles and guidelines are not cutting-it, and until the PHSO gets to grips with failing procedures, failing administration and failed respondents, cries to stop this madness will continue. No that’s not a rant - it’s evidence-based deduction and sense.

The PHSO has to desist from hanging its procedural problems on innocent victims who are looking for understanding and redress no small part of which would be early corrective action on procedures to get things fixed for others before they too are let down.

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

Tha problem is that the PHSO seems to have different word definitions from the rest if the English-speaking world.

'New evidence ' to everyone else is evidence that wasn't presented during the initial complaint.

But the PHSO seems to interpret it as: 'Evidence which may prove the PHSO was wrong in the First Place ....and therefore has to be Ignored'.

D Rapp left an annotation ()

Another problem is that this policy, not telling complainants why their appeal has been rejected, leaves complainants utterly in the dark.

It allows for a suscpicion that the evidence has been mishandled or that the complaints team has acted in bad faith or that the evidence has not actually been considered. This further damages the relationship between an obviously aggrieved complainant and the Ombudsman.

This could be changed by the Ombudsman simply sending out a brief letter detailing why the post review correspondence will not lead to a re-review of a decision. The Ombudsman should make a record of whether the evidence is or is not material or is or is not new.

This could be a basic form letter, setting out:

"You submitted the following information as post-review correspondence to the Parliamentary and Health Service Ombudsman. Having considered the evidence we are of the opinion that (delete as appropriate) it is not material to the facts of your complaint/it was evidence we had already seen. Because of this we will not re-open your complaint."

Of course they may be reluctant to do this, because if they make a decision and you disagree with it, it becomes subject to judicial review.

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

That is the problem for the PHSO. If the case hasn't been run fairly then it gives the complainant more material for a judicial review.

And why you get the 'Because I say so' letter instead of an explanation of its decision.

Complaintsphso, Parliamentary and Health Service Ombudsman

RESTRICTED

Dear Mr Rock

I am writing in response to your email of 3 February 2014. I apologise for the delay in responding to you. I am sorry that you are dissatisfied with our handling of your information request entitled ‘New evidence (handling)’.

Under our internal complaints procedure, your complaint has been passed to the Head of Risk, Assurance and Programme Management Office, Mr Steve Brown.

Mr Brown will consider your concerns and will send you a full reply once his review is complete. This review of your complaint is the only review that we will undertake.

We aim to reply to such complaints within 40 working days.

Yours sincerely

Tanya Jackson
Business Support Officer to the Review Team Parliamentary and Health Service Ombudsman
E: [email address]
W: www.ombudsman.org.uk

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

Sending decisions not to investigate to complainants, MPs and aggrieved parties
1. If the Ombudsman decides not to investigate a complaint then we are required
to send a statement of our reasons for not investigating to (Statutory
requirement):
 the referring MP (Parliamentary)1
 the complainant and any MP who assisted in making the complaint (Health)2.
2. It is a PHSO policy requirement (but not a statutory one) to:
 send the complainant a copy of our decision not to investigate (Parliamentary)
 decide on a case-by-case basis if any separate aggrieved party should be sent a
copy of a decision not to investigate (Parliamentary and Health).

Apparently the Ombudsman thinks that stating that a reason for rejecting a complaint is that it ' hasn't found any maladministration'.

That's the Pantomime logic of 'Oh yes it is..oh no it isn't'.

That isn't a reason at all. A reason would be how the PHSO came to the decision of 'no maladministration'.

The Decision Letter should to say:

'We have not found maladministration for the following reasons...1.2.3.4 etc. addressing the arguments in the complaint.

Not just sending complainants a 'Case Closed' letter without this reasoning - as this supports any bias, or even corruption.

(As well as the commoner reasons.. Not grasping what the case was about, not properly investigating it - or just shooting it through to reach a target).

C Rock left an annotation ()

It has just occurred to me that PHSO may not respond to new evidence requiring an advised, justified and reasoned decision because it in effect it resets the clock for inviting a judicial review each time a decision is admitted to have been made? Just a thought. Better to just ignore it under so-called PHSO discretion.

The problem is that without the complainant ever getting a resolution, the matter is put off to come back and haunt the PHSO ad infinitum. It certainly shows up the weaknesses of the system and it's no way to deal with victims of medical or any other abuse.

D. Speers left an annotation ()

You've got it C Rock...

The reason that 'Case Closed' is shrouded in mystery is that it is intended to close complainants down from going to a judicial review.

The PHSO can bin cases on completely faulty reasoning and then refuse to let an 'impartial' investigator take a look at them without a tremendous fight.

...Which is necessary because the Review Team (Motto: 'We are never Wrong') doesn't seem to be functioning as it should - on the grounds that it doesn't review even screamingly 100-feet-high neon 3D wrongs and injustices.

If the PHSO had to explain its reasoning, it would open it up to the scrutiny of the courts, which seem to be a lot more favourable to complainants than the PHSO.

If you remove 'Discretion' ( aka 'PHSO Self Protection ' ) from the mix and add Reasoning for Decisions, it's likely that the PHSO would lose most of the time.

JT Oakley

D. Speers left an annotation ()

Clearly there is a huge problem reassuring you of current outcome....will DJM offer a meeting?

Brown Steve, Parliamentary and Health Service Ombudsman

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Steve Brown

Head of Risk, Assurance and Programme Management Office

Parliamentary and Health Service Ombudsman

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Dear FoI Officer,

I am in receipt of your response dated 31/03/14; thank you.

(A) Beginning with your statement (irrelevant in the context of the questions):

“As we have previously explained to you, once a review is closed, we will consider future correspondence on the matters, we will only respond with our standard acknowledgement unless we believe the matters raised are new. If we believe the matters raised are new, we will decide the most appropriate way to deal with them”.

I should point out from the complainant's standpoint:

(1) The complainant only knows if a review is closed if advice of that is received, with for instance an explanation of why specific evidence has been discounted. No information and advice is exactly that: no information and no advice. I received no such advice on my request.

(2) A case will be seen and agreed to be closed when resolved and not before – there will always be a circumstance for New evidence. No such resolution has been forthcoming.

(3) A complainant will be quite aware what constituted Original evidence and what constituted New evidence – it is not a matter of PHSO belief. The key is in the title ‘New evidence’. The PHSO was well aware at the time of a certain case in question that ‘Old evidence’ was not exhaustive, and the reasons for that being so. It was not questioned at the time (2010) and the case was progressed without such evidence.

(4) Procedures for New evidence require the same detail of consideration and in the same context whatever the PHSO believes as the PHSO intention is to be “independent and fair” including taking unbiased counsel. No such independence is demonstrated via PHSO secret counsel.

(5) As far as I know it is reasonably expected, and understood in law, that new evidence can affect the entire original interpretation of a case, and the PHSO (by charter?) has to demonstrate independence and fairness in consideration as per responsibilities to Parliament and as per (e.g.) patient expectation under NHS Constitution/Charter, and as per Human Rights charter. No such counsel was permitted or respected.

(6) Finally, there is no such single instance as "once a review is closed": a review is demanded every time new evidence is available, which is likely to be an ongoing occurrence whilst caseworkers make no effort to gather and question accuracy of evidence right at the start (contrary to certain assertions made elsewhere by J Mellor, Ombudsman).

(B) You added: “That decision [what PHSO thinks is appropriate] is taken” (and as previously established without any declared specialist training) “depending on the circumstances of the individual case”

(1) See (4) and (5) above. In at least one case to my knowledge you have not been able to provide any evidence of consideration of New Evidence in the case referred-to, and no information as to why. The PHSO has case-review pro-formas for recording assessments. It is not a matter for caseworkers/reviewers to indifferently pre-judge and discount evidence when deciding what is “appropriate" for purpose, without recording their reasons in a formal manner, and courteously communicating that reasoning to the complainant waiting resolution (the Purpose).

(I requested those reasons in a case a where the reviewer Ms N Smith told me that my substantiation of GP incompetence and deceit “made no difference” to the original assessment by the caseworker Ms G. Kedie, which was that an investigation would “have no worthwhile outcome”. I questioned that assessment too, with justified reasoning, and have since then tendered corroboration that facts not collected originally by the PHSO were material to the case. Against PHSO Principles, this was deliberately unheeded and pressed ahead with an own-agenda 'Review'.)

(C) Your definition of a review in the context of the answer given is therefore not accepted. Any judgement of case evidence will be a review, not defined by a particular organisation (PHSO) for its own ends. Any new evidence has to be reviewed just as it would be in a legal case. The process does not end with a PHSO ’Review’. We have established in previous questions that any complainant may submit new evidence and it is expected duty of the PHSO to review and assess whole evidence, and report, as above.

(D) Failing simple answers to my questions I will accept that the department FoI officer is not empowered or in fact obliged to give due response to repudiate my experiences with PHSO since it would not form part of recorded information. My views are therefore not altered and the apparent maladministration in handling new evidence, and lack of explanation for not complying with PHSO Principles, NHS Charter and Human Rights will be progressed elsewhere.

I apologise for having apparently to take FoI officer to task over lack of explanation and procedure within the PHSO but find this channel useful where other access for explanation of PHSO policy is consistently declined. I believe much is revealed by reading 'between the lines', and responses may help other readers. It grieves me that ineffective and petty procedure is costing lives for the sake of preserving an institutional obduracy. My view.

Thank you for your response.

Yours faithfully,

C Rock

C Rock left an annotation ()

I further note that according to NHS England complaints procedures (and now for CCG implementation) that " 'Resolution... ' is interpreted as meaning that an agreement is reached with the complainant to attempt to achieve an agreed and acceptable outcome...'.

Ths PHSO has redefined this for own-purpose it appears: another definition for the PASC to be made aware of.

E. Colville left an annotation ()

Instead of presumptively "investigating" complaints, and, as the case may be, reviewing decisions, under the current governance framework, set out in the 2011 Statement of Responsibility (see link below), the PHSO have now only to "consider" complaints to meet their responsibility obligations.

In the 2007 Statement, paragraph 5: "Role and Purpose" started out as follows:

01.03.07

"The role of PHSO is to provide a service to the public by undertaking independent investigations into complaints about government departments, a range of other public bodies in the UK, and the National Health Service in England.

PHSO aims to:

- make its services available to all who need it;
- operate open, transparent, fair, customer-focused processes;
- understand complaints and investigate them thoroughly, quickly and impartially and secure appropriate outcomes;
- and share learning to promote improvement in public services."

Two years later it was amended to read as follows:-

01.08.09

"The role of the PHSO is to provide a service to the public by undertaking independent investigations into complaints [that government departments, a range of other public bodies in the UK, and the National Health Service in England have not acted properly or fairly or have provided a poor service.] (i.e. now attaching specific conditions to trigger an investigation without reference to any other definition of maladministration)

[The aim and vision of PHSO is to provide an independent, high-quality, complaint handling service that rights individual wrongs, drives improvements in public services, and informs public policy"]

And a further two years down the road it was reduced to this: -

01.11.11

[PHSO considers complaints] that government departments, a range of other public bodies in the UK, and the National Health Service in England, have not acted properly or fairly or have provided a poor service.

PHSO's [vision is to provide an independent, high quality, complaint handling service that rights individual wrongs, drives improvements in public services, and informs public policy"] - (i.e. even the "aim" is dropped and what's left is just a "vision")

So there you have it. It's official. They don't have to investigate. They just have to "consider" complaints to fulfil their responsibilities and so keep the Cabinet Office etc. happy -at an annual cost of £32 million to the taxpayer.

Copies of the Statement of Responsibility for 2007, 2009 and 2011 are available here:

http://webarchive.nationalarchives.gov.u...

http://webarchive.nationalarchives.gov.u...

http://webarchive.nationalarchives.gov.u...

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

They certainly seem to be intent on minimising the PHSO's responsibilities.

No wonder so few cases receive proper investigation.

The next logical step must be to require the PHSO to simply look away at any government wrong-doing.

C Rock left an annotation ()

So PHSO front page needs another update:

"Our role is to investigate complaints that individuals have been treated unfairly or have received poor service from government departments and other public organisations and the NHS in England. We work to put things right where we can and to share lessons learned to improve public services."

So it isn't even accurate now. From the attitudes and responses of staff there it's actually nowhere near what they do for individuals treated unfairly: 'Insult to Injury is Us' - could be a new banner.

E. Colville left an annotation ()

Meanwhile, according to PHSO Tweets this weekend, "Consider Complaints Is Us" would be a more accurate corporate slogan than "Investigate Complaints Is Us"

https://twitter.com/PHSOmbudsman?origina...

Corporate relations really needs to insist on getting whatever is the right message right all of the time.

C Rock left an annotation ()

My attention has been drawn to the fact that this FOI is unresolved and long overdue in clarification since apparently it is not the purpose of FOI to clarify policy or provide explanation. Failing provision of a clear and unambiguous response I am closing this request to keep things tidy for WDTK: my apologies for delay but I see no purpose in extending this enquiry. Information provided to-date has not matched current practice as experienced and this will have to stand as-is for further comment or further enquiry framed in different terms.

..