Public body right to challenge the jurisdiction of the Ombudsman

Della 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,

In your Interim Casework Policy and Guidance - Section 5: Conducting the investigation on p3 you state that:

"In circumstances where the organisation challenges the Ombudsman's jurisdiction then the risk rating should be reviewed and advice sought from the Legal Team where necessary before a decision is taken on whether or not to proceed with the investigation."

1. Can you clarify the legal jurisdiction provided to the Ombudsman for investigation into organisations?

2. On what basis might an organisation be able to challenge the legal right of the Ombudsman to carry out an investigation?

You also state that:

"If a case does not proceed to investigation then it must be dealt with as if the case was being declined at case assessment. Our decision letter should include a full response to the whole complaint"

3. Given that an investigation can only be triggered by evidence of unremedied injustice caused by public body maladministration is the complainant told that the public body have challenged the jurisdiction of the Ombudsman or instead is the complainant told that there is no evidence of maladministration which is not strictly true?

It does appear that the Ombudsman is open to 'intimidation' from public bodies and this would not provide a fair and impartial assessment for the complainant.

Yours faithfully,

Della Reynolds.

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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foiofficer, Parliamentary and Health Service Ombudsman

Ms Della Reynolds

By email only

 

 

FDN-189300

 

 

20 May 2014

 

 

Dear Ms Reynolds

 

RE: Freedom of Information request - Public body right to challenge the
jurisdiction of the Ombudsman

 

I write in response to your email of 19 April 2014 in which you requested
information in the following terms:

 

‘In your Interim Casework Policy and Guidance - Section 5: Conducting the
investigation on p3 you state that: "In circumstances where the
organisation challenges the Ombudsman's jurisdiction then the risk rating
should be reviewed and advice sought from the Legal Team where necessary
before a decision is taken on whether or not to proceed with the
investigation."

  
1. Can you clarify the legal jurisdiction provided to the Ombudsman for
investigation into organisations?

2. On what basis might an organisation be able to challenge the legal
right of the Ombudsman to carry out an investigation?

 

You also state that: "If a case does not proceed to investigation then it
must be dealt with as if the case was being declined at case assessment. 
Our decision letter should include a full response to the whole
complaint" 

3. Given that an investigation can only be triggered by evidence of
unremedied injustice caused by public body maladministration is the
complainant told that the public body have challenged the jurisdiction of
the Ombudsman or instead is the complainant told that there is no evidence
of maladministration which is not strictly true? 
It does appear that the Ombudsman is open to 'intimidation' from public
bodies and this would not provide a fair and impartial assessment for the
complainant.’

 

First I should say that that I have not considered your questions under
the Freedom of Information Act 2000. The Freedom of Information Act only
provides a right of access to recorded information held by public bodies.
We are not obliged to answers questions where the answers are not already
recorded. You may find it helpful to see that the Information
Commissioner’s advice on making information requests available here:
[1]http://ico.org.uk/for_the_public/officia....

 

However, given your interest in our office and to be helpful, I will try
to respond to your queries.

 

The legal jurisdiction of the PHSO is provided by the Parliamentary
Commissioners Act 1967 and the Health Service Commissioners Act 1993.  The
list of public bodies falling within the PHSO jurisdiction are contained
at Schedule 2 of the Parliamentary Commissioners Act 1967 and section 2 of
the Health Service Commissioners Act 1993.

 

We cannot comment on the basis an organisation might challenge the
jurisdiction of the PHSO. That would likely depend on the circumstances
giving rise to their concerns and would be a matter for the organisation
itself.  However, though a body may question our jurisdiction it is
ultimately for the Ombudsman’s service to decide how we interpret our
remit. If a body was obstructive or prevented us from resolving matters
for the complainant then the legislation that governs our work allows us
to lay the matter before Parliament so that they may consider the issues
and take the matter up with the organisation directly.

 

As you know, the PHSO investigates complaints about a complex range of
bodies within its jurisdiction. If we were to establish (at any point)
that a matter was not in our jurisdiction then we would explain that to
the person asking us to investigate their complaint. We carry out our
casework fairly, transparently, and in line with the Ombudsman’s
principles. This being the case, there is no reason why we would not tell
the complainant if a body has questioned whether they, or a complaint
about that specific body, are in our remit.  

 

I hope you find this explanation helpful.

 

Yours sincerely

 

David Thomas

FOI/Data Protection Officer

Parliamentary and Health Service Ombudsman

E: [2][email address]

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

 

 

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Dear David Thomas,

Sorry for the delay in replying to your correspondence. I am surprised to learn that you don't have a record of valid reasons why a public body can question the jurisdiction of the Ombudsman. You state that 'it is a matter for them' when in fact it must also be a matter for PHSO, as you have to decide on the validity of the claim.

Can you tell me how many times PHSO have put a report before Parliament so that Parliament can take the matter up with the body concerned?

It is clear that you would not initiate an investigation into a public body which is not within your remit according to the legislation quoted. So having started an investigation against a body which is within remit what reasons could that public body use to challenge the legal position of the Ombudsman to carry out an investigation?

Why would you decline as if at 'case assessment' when you have found maladministration sufficient to trigger an investigation? You will already have informed the complainant that an investigation is to take place and named their investigative officer. It would then be necessary to complete a report. Do you complete a report for these cases?

How many cases have been declined due to a challenge from the public body?

As you are fair, transparent and work in line with the Ombudsman principles I am sure that you will not have any difficulty answering these clarification points.

Many thanks,

Della Reynolds

[name removed] left an annotation ()

Very well put! Not surprised they do not want to answer.
Will be very interested in the response!

foiofficer, Parliamentary and Health Service Ombudsman

1 Attachment

Ms Della Reynolds

By email only

 

FDN-192440

 

24 June 2014

 

Dear Ms Reynolds

 

RE: Freedom of Information request - Public body right to challenge the
jurisdiction of the Ombudsman

 

I write in response to your email of 26 May 2014 requesting information
regarding the right of a public body to challenge the jurisdiction of the
Parliamentary and Health Service Ombudsman (PHSO).  Your queries along
with my responses are set out below.

 

Can you tell me how many times PHSO have put a report before Parliament so
that Parliament can take the matter up with the body concerned?

This information, including links to the relevant reports where available,
is contained in the attached document.

 

It is clear that you would not initiate an investigation into a public
body which is not within your remit according to the legislation quoted.  
So having started an investigation against a body which is within remit
what reasons could that public body use to challenge the legal position of
the Ombudsman to carry out an investigation?

 

As stated in our response to your previous request (FDN-189300), we cannot
comment on the basis an organisation might challenge the jurisdiction of
the PHSO.  That would likely depend on the circumstances giving rise to
their concerns and would be a matter for the organisation itself.  A
decision to challenge the legal position of the PHSO can only be made by
the organisation itself, and is not a consideration that the PHSO could
undertake.  There is nothing further that we can add in relation to this
subject, and will be unable to answer any further questions on the topic.

 

Why would you decline as if at 'case assessment' when you have found
maladministration sufficient to trigger an investigation?  You will
already have informed the complainant that an investigation is to take
place and named their investigative officer.  It would then be necessary
to complete a report.  Do you complete a report for these cases?

The Freedom of Information Act 2000 (FOIA) provides a right of access to
recorded information held by public bodies. We do not hold any recorded
information that would answer your questions.  However, if you are able to
revise your request to clarify the information you are seeking, I would be
happy to reconsider this part.

 

How many cases have been declined due to a challenge from the public body?

 

The information you are seeking in this part of your request is not
recorded in a distinct data set, and only recorded on individual case
files.  Therefore it is not possible for this information to be provided
to you without interrogating each individual case file held by the PHSO to
retrieve the relevant data.   To do so would exceed the appropriate limit
outlined in the Fees Regulations and section 12 of the FOIA.

 

I hope you find the information I have provided helpful. However, if you
are unhappy with my decision not to give you all the information you
requested, you can ask for a review by email to:
complaints[1][email address].

 

If you still have concerns after that, you can ask the Information
Commissioner’s Office to look into your case.  Their contact details are
available on their website at: [2]www.ico.org.uk.

 

Yours sincerely

 

David Thomas

FOI/Data Protection Officer

Parliamentary and Health Service Ombudsman

E: [3][email address]

W: [4]www.ombudsman.org.uk

 

 

 

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Dear David Thomas,

This is becoming a very familiar theme with PHSO. The open and transparent organisation which likes to 'put things right'. You either 'have no record' of data or you have 'no access' to data as you have to sift through every case file (by hand?)to obtain it.

It's a clear case of whitewash as ever I've seen. We all live in a computer age now Mr. Thomas and we know that you can search with ease for 'key words' and find the information required at the touch of a button. Except at PHSO apparently.

You may as well give the response, 'we know but we're not telling you', as that is effectively the message received. Whether you give the information or not your continual stonewalling on Whatdotheyknow is doing your reputation no good at all.

It is clear from your failure to answer this request that PHSO carry out 'investigation by negotiation' with the public bodies concerned. If they kick up a fuss with a legal challenge, then your risk analysis hits the roof and you back off. This is no way to protect the public and yet another sign of the systemic corruption of this service.

Yours sincerely,

Della Reynolds.

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.

show quoted sections

All email communications with PHSO pass through the Government Secure
Intranet, and may be automatically logged, monitored and/or recorded for
legal purposes.
The MessageLabs Anti Virus Service is the first managed service to achieve
the CSIA Claims Tested Mark (CCTM Certificate Number 2006/04/0007), the UK
Government quality mark initiative for information security products and
services. For more information about this please visit www.cctmark.gov.uk

Alistair P Sloan left an annotation ()

A large number of annotations have been removed from this request which did not comply with our published annotations policy, which can be found at: https://www.whatdotheyknow.com/help/requ...

Alistair
WhatDoTheyKnow volunteer

R. Davies left an annotation ()

Dear WhatDoTheyKnow volunteers,

In respect of the above, please understand that when a public office is repeatedly evasive in responding to a question since 2011, it is very challenging for those victims of that ongoing evasive attitude - not to react to it!

Their wish was to not offend but please know that the dialogue that followed that PHSO response was empowering for those who were clueless that a PHSO action group even existed!

Many of us are grateful for this website and those genuine volunteers who help manage the site.

phsothefacts Pressure Group left an annotation ()

I must agree with R. Davies. The dialogue following a request or reply is extremely valuable and informs others. When annotations are removed there is no way to assess the reason why they were considered inappropriate as they are no longer available to be read. I appreciate and value the fact that volunteers monitor this site but can you explain why a comment is inappropriate and send the offending comment via email for the individual to see?

R. Davies left an annotation ()

Hear Hear Della! By the way - anyone who feels beaten down by any injustices that the PHSO has failed to review and correct - really should get in touch with the support action group that Della represents. Be ready to have your eyes opened ......

Brenda Prentice left an annotation ()

The mental health trust I complained about told the PHOS the complaint was out of date, and the PHSO agreed, but it wasn't! But no investigation.

It has take 5 years of 'negotiation' with PHOS and this historic case has been reopened. Will be interesting to see the out come.