Ombudsman powers to reopen an investigation

phsothefacts Pressure Group 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.

Response to this request is long overdue. By law, under all circumstances, Parliamentary and Health Service Ombudsman should have responded by now (details). You can complain by requesting an internal review.

phsothefacts Pressure Group

Dear Parliamentary and Health Service Ombudsman,

Please can you provide any or all internal documents which;

1. show what the Ombudsman's powers currently are to re-open or start a new investigation into a complaint that has already been investigated.

3. give guidelines as to the criteria which would currently need to be met for it to be decided 'that a procedural requirement was not followed'

4. show at what level the decision would currently be taken that the criteria had been met for opening or starting a new investigation into a complaint that had already been investigated.

5. Also any current guidelines as to how such a re-opened or new investigation would be conducted including time scales, what level of staff would oversee these etc.

6. explain under what powers the Ombudsman can currently implement proposed provisions ahead of their being accepted by Parliament by means of proposed bill.

Yours faithfully,

Della Reynolds

phsothefacts Pressure Group

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


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micky mouse left an annotation ()

I am interested in this request, as my complaint was refused outright on the basis it was investigated by PHSO and they found the Trust had fully complied, despite there being no proof. I asked for the PHSO requests to & from the Trust asking for the proof of destruction & when. PHSO SAR replied, cannot send you anything, as nothing was asked of the Trust.

I proved my case had never been investigated, & demanded a legal answer to my points raised. Mick Martin refused to re-open or re-investigate my case on basis that only the physical files remained.

When I proved the electronic files also remained, PHSO was forced to reopen the case. For all the good it did, in the end, It was established the last officer terms of opening was just 1 out of 14 issues the PHSO had agreed needed investigating, The officer refused to explain, why he would not ask the Trust anything factual as to destruction, & proof as is legally required on destruction, To the legal requirement, he said, I am the PHSO, I decided to ask for nothing, I am in charge with the final say. He wrote to the Trust telling them what to say, say nothing, give nothing, or you will open a can of worms.

Basically, the PHSO said it was above the law, as it was the law.

Brenda Prentice left an annotation ()

In responding to my foi request, 'phso makes final decision' phso says two board members review complaint cases, both open and close.
Might be worth asking them to review your case?
I have asked for the names of the 2 board members. If you are unable to find a contact address for the members try this web site.
CEO Email.

InformationRights, Parliamentary and Health Service Ombudsman

Dear Ms Reynolds

 

Your information request: FDN-274362

 

I write in response to your email of 2 February 2017, in which you
requested information held by the Parliamentary and Health Service
Ombudsman (PHSO) the following terms:

 

“Please can you provide any or all internal documents which;

1. show what the Ombudsman's powers currently are to re-open or start a
new investigation into a complaint that has already been investigated.

 

3. [sic] give guidelines as to the criteria which would currently need to
be met for it to be decided 'that a procedural requirement was not
followed'

 

4. show at what level the decision would currently be taken that the
criteria had been met for opening or starting a new investigation into a
complaint that had already been investigated.

 

5. Also any current guidelines as to how such a re-opened or new
investigation would be conducted including time scales, what level of
staff would oversee these etc.

 

6. explain under what powers the Ombudsman can currently implement
proposed provisions ahead of their being accepted by Parliament by means
of proposed bill.”

 

Your request has been considered under the provisions of the Freedom of
Information Act 2000 (FOIA). Please find the enclosed documents and
information in response to your request below.

 

 1. Ombudsman’s powers

 

The Ombudsman’s powers are derived from the Parliamentary Commissioners
Act 1967 (PCA) and the Health Service Commissioners Act 1993 (HSCA) (the
Acts). The Acts are publically available on the Ombudsman’s website here:

 

[1]https://www.ombudsman.org.uk/about-us/wh...

 

Under section 5 of the PCA and section 3 of the HSCA, the Ombudsman has
the authority to decide whether or not to conduct an investigation and,
under section 7(2) of the PCA and section 11(3) of the HSCA, the Ombudsman
has the authority to conduct an investigation as she considers
appropriate. 

 

Having made a decision on whether to conduct an investigation or conclude
an investigation, any appeal is by way of judicial review. The Ombudsman
has developed a process of internal review to identify any material issues
arising from her public law decisions using criteria. Where appropriate,
the Ombudsman may consider that a fresh investigation may be
appropriate.  

 

3. Criteria for decision that ‘procedural requirement was not followed’

 

Our existing guidance provided to complainants (attached) sets out the
criteria we use:

 

-      Did we make our decision based on evidence that contained facts
that were not accurate and which could change our decision;

-      Has the complainant provided new and relevant information that was
not previously available and which might change our decision; or

-      Did we overlook or misunderstand parts of the complaint or not take
account of relevant information, which could change our decision.

 

4. What level would the decision to re-open or start a new investigation
be made?

 

The decision to propose a new investigation is made by the Ombudsman, the
Chief Executive or the Executive Director of Operations and
Investigations.

 

5. Guidelines for a re-opened or new investigation

 

The decision to conduct a fresh investigation means that the normal
statutory processes for carrying out an investigation apply. These cases
are allocated to a new investigator and supervision is provided by an
Assistant Director or Director and the final report is approved by a
Director or Executive Director.

 

      6. Ombudsman’s powers and proposed draft Public Services Ombudsman
bill

 

As I have outlined above in response to your first question, the
Ombudsman’s powers are derived from the Acts currently in force.
Information about the powers of the Public Service Ombudsman is outlined
in the draft bill which is publically available on the gov.uk website
here:

 

[2]https://www.gov.uk/government/publicatio...

 

I hope that this information is useful. If you believe there has been an
error in the processing of your information request, it is open to you to
request an internal review.  You can do this by writing to us by post or
by email to [3][Parliamentary and Health Service Ombudsman request email]. You will need to
specify what the nature of the issue is and we can consider the matter
further. Beyond that, it is open to you to complain to the Information
Commissioner’s Office ([4]www.ico.org.uk).

 

Yours sincerely

Freedom of Information and Data Protection Team

Parliamentary and Health Service Ombudsman

 

 

From: phsothefacts Pressure Group
[mailto:[FOI #387095 email]]
Sent: 02 February 2017 19:36
To: InformationRights
Subject: FDN-274362 Freedom of Information request - Ombudsman powers to
reopen an investigation

 

Dear Parliamentary and Health Service Ombudsman,

Please can you provide any or all internal documents which;

1. show what the Ombudsman's powers currently are to re-open or start a
new investigation into a complaint that has already been investigated.

3. give guidelines as to the criteria which would currently need to be met
for it to be decided 'that a procedural requirement was not followed'

4. show at what level the decision would currently be taken that the
criteria had been met for opening or starting a new investigation into a
complaint that had already been investigated.

5. Also any current guidelines as to how such a re-opened or new
investigation would be conducted including time scales, what level of
staff would oversee these etc.

6. explain under what powers the Ombudsman can currently implement
proposed provisions ahead of their being accepted by Parliament by means
of proposed bill.

Yours faithfully,

Della Reynolds

phsothefacts Pressure Group

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phsothefacts Pressure Group

Dear InformationRights,

Thank you for your prompt reply to my FOI request. Please could you clarify your answer at point 6:
I have searched the sources you have referred me to and I cannot see that the answer to my question is available in the existing legislation or the draft bill.
If I may clarify the information I am asking for by giving an example:
In the draft bill:
64 Subsections (6) and (7) allow the Ombudsman to re-open or start a new investigation into a complaint that has already been investigated if it is in the interests of fairness to do so. This power might be used, for example, if an investigation turned out to have been flawed because a procedural requirement was not followed. Without this provision, the Ombudsman would have to apply to the courts to set aside the first investigation.

It is a matter of public record that, since 2015, you have re-opened or started new investigations into complaints that had already been investigated.

These were cases where investigations had been found flawed because a procedural requirement was not followed (such as new evidence at draft stage not taken into account by investigators) and you had decided it was in the interests of fairness to do so.

However, the proposed provision, as laid out in the draft bill, as above, has not yet been passed by Parliament.

1. I repeat my request that you refer me to the specific references in the legislation which makes clear:

Under what powers has the Ombudsman implemented and can the Ombudsman currently implement proposed provisions of the proposed draft bill ahead of their being accepted by Parliament by means of the proposed draft bill?

2. In addition, please can you point me to the page and reference number of the current existing legislation which:

a. enables the Ombudsman to currently apply to the courts to set aside the first investigation when the Ombudsman has found the first investigation to be flawed

b. stipulates that the Ombudsman may not, unilaterally, make the decision to withdraw
an Ombudsman’s report when the Ombudsman has found this to be flawed.

If no such legislation exists covering a) b), please say so.

3. In addition, please state how many such applications have been made to the courts, and on what dates these were made.

Yours sincerely,

Della Reynolds

phsothefacts Pressure Group

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

Dear Ms Reynolds

 

RE: Your information request - FDN-274511

 

I write in response to your email of 7 March 2017, in which you requested
information held by the Parliamentary and Health Service Ombudsman (PHSO)
in the following terms:

 

1. I repeat my request that you refer me to the specific references in the
legislation which makes clear:

 

Under what powers has the Ombudsman implemented and can the Ombudsman
currently implement proposed provisions of the proposed draft bill ahead
of their being accepted by Parliament by means of the proposed draft bill?

 

2. In addition, please can you point me to the page and reference number
of the current existing legislation which:

 

a. enables the Ombudsman to currently apply to the courts to set aside the
first investigation when the Ombudsman has found the first investigation
to be flawed

 

b. stipulates that the Ombudsman may not, unilaterally, make the decision
to withdraw

an Ombudsman’s report when the Ombudsman has found this to be flawed.

 

If no such legislation exists covering a) b), please say so.

 

3. In addition, please state how many such applications have been made to
the courts, and on what dates these were made.

 

Your request has been considered under the provisions of the Freedom of
Information Act 2000.

 

In response to part 1 of your request I can advise that no statutory power
exists enabling the PHSO to implement the provisions of the draft Public
Service Ombudsman Bill before it comes into force. In addition and in
response to part 2 of your request, I can confirm that no legislation
exists that enables the PHSO to apply to the courts to set aside an
investigation or that states that the PHSO cannot withdraw an
investigation report.

 

Lastly in response to part 3 of your request, I can confirm that since
2015 there have been no applications by the PHSO to the courts to set
aside an investigation. Please let us know if you are also interested in
whether there were any such applications prior to January 2015.

 

I hope you find this information useful. If you believe I have made an
error in the way I have processed your information requests, it is open to
you to request an internal review.  You can do this by writing to us by
post or by email to [1][Parliamentary and Health Service Ombudsman request email]. You will need
to specify what the nature of the issue is and we can consider the matter
further. Beyond that, it is open to you to complain to the Information
Commissioner’s Office ([2]www.ico.org.uk).

 

Yours sincerely

 

 

 

Freedom of Information and Data Protection Team

Parliamentary and Health Service Ombudsman

 

From: phsothefacts Pressure Group
[mailto:[FOI #387095 email]]
Sent: 07 March 2017 12:12
To: InformationRights
Subject: FDN-274511 Re: FDN-274362 Response to your request for
information

 

Dear InformationRights,

Thank you for your prompt reply to my FOI request.  Please could you
clarify your answer at point 6:
I have searched the sources you have referred me to and I cannot see that
the answer to my question is available in the existing legislation or the
draft bill.
If I may clarify the information I am asking for by giving an example:
In the draft bill:
64 Subsections (6) and (7) allow the Ombudsman to re-open or start a new
investigation into a complaint that has already been investigated if it is
in the interests of fairness to do so. This power might be used, for
example, if an investigation turned out to have been flawed because a
procedural requirement was not followed. Without this provision, the
Ombudsman would have to apply to the courts to set aside the first
investigation.

It is a matter of public record that, since 2015, you have re-opened or
started new investigations into complaints that had already been
investigated.

These were cases where investigations had been found flawed because a
procedural requirement was not followed (such as new evidence at draft
stage not taken into account by investigators) and you had decided it was
in the interests of fairness to do so. 

However, the proposed provision, as laid out in the draft bill, as above,
has not yet been passed by Parliament.

1.      I repeat my request that you refer me to the specific references
in the legislation which makes clear:

Under what powers has the Ombudsman implemented and can the Ombudsman
currently implement proposed provisions of the proposed draft bill ahead
of their being accepted by Parliament by means of the proposed draft bill?

2.      In addition, please can you point me to the page and reference
number of the current existing legislation which:

a.      enables the Ombudsman to currently apply to the courts to set
aside the first investigation when the Ombudsman has found the first
investigation to be flawed

b.      stipulates that the Ombudsman may not, unilaterally, make the
decision to withdraw
        an Ombudsmans report when the Ombudsman has found this to be
flawed.

If no such legislation exists covering a) b), please say so.

3.      In addition, please state how many such applications have been
made to the courts, and on what dates these were made.

Yours sincerely,

Della Reynolds

phsothefacts Pressure Group

show quoted sections

phsothefacts Pressure Group

Dear InformationRights,

Thank you for your response to my request of 7 March.

Please could you clarify the following points?

In your response to part 2 of the request, you state that no legislation exists that states that the PHSO cannot withdraw an investigation report.

Please can you advise as to whether the PHSO has ever withdrawn an investigation report? If so, in what year / s and in what circumstances?

In your response to part 3 of the request, you ask if I am also interested in whether, prior to January 2015, there have been any applications to the courts to set aside an investigation

Yes. I would be grateful if you could supply this information from the time the Ombudsman's office was instituted.

Yours sincerely,

Della Reynolds

phsothefacts Pressure Group

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


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