Reduction in time to apply for a review at PHSO

The request was successful.

phsothefacts Pressure Group

Dear Parliamentary and Health Service Ombudsman,

1. Can you confirm that PHSO has reduced the time available to apply for a review of the final decision from three months to one month?

2. Can you confirm whether it is both policy and practice to send the evidence relied upon at the same time as releasing the final report?

3. Can you confirm whether it takes 20 working days or 40 calendar days to respond to a Subject Access Request?

4. Can you confirm that if PHSO does not send the evidence relied upon with the final report and then takes 40 calendar days to provide the information following a subject access request then the complainant will have run out of time to apply for a review of the final decision?

5. Can you confirm that this change in policy will disadvantage complainants who are dissatisfied with the final report?

Yours faithfully,

Della Reynolds

phsothefacts Pressure Group

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:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear Della Reynolds

 

RE: Your information request: R0000593

                            

I write in response to your email to the Parliamentary and Health Service
Ombudsman (PHSO) dated 27 March 2019 requesting information under the
Freedom of Information (FOI) Act 2000.

 

Request

 

1.  Can you confirm that PHSO has reduced the time available to apply for
a review of the final decision from three months to one month?

 

2.  Can you confirm whether it is both policy and practice to send the
evidence relied upon at the same time as releasing the final report?

 

3.  Can you confirm whether it takes 20 working days or 40 calendar days
to respond to a Subject Access Request?

 

4.  Can you confirm that if PHSO does not send the evidence relied upon
with the final report and then takes 40 calendar days to provide the
information following a subject access request then the complainant will
have run out of time to apply for a review of the final decision?

 

5.  Can you confirm that this change in policy will disadvantage
complainants who are dissatisfied with the final report?

 

Response

 

Please be aware that there is no requirement under the FOI Act to answer
questions which would mean creating new information or giving an opinion
or judgment that is not already recorded. However, to clarify in line with
Section 16 of the Act:

 

1.The position regarding time limit for reviews is explained within the
RaFT guidance published on our website. I have provided a link to this
guidance below:

 

[1]https://www.ombudsman.org.uk/sites/defau...

 

As you will see, the time limit for reviews has two stages. Firstly, the
person should contact the original caseworker within a month of their
decision. If they do this, the caseworker should first try to resolve
things. If the caseworker can’t resolve things first and they send a
review form out to complete, the person then has one month from getting
the form to sending it to us. There are circumstances where we can extend
the time limit and one of these is relating to the person/organisation
requesting the review needing more time to get the relevant evidence. All
of this is detailed within the guidance.

 

2.It is practice that, if requested, material evidence is released at
provisional views stage. It is a policy requirement that all parties to
the complaint are given the opportunity to see the material evidence which
is communicated as part of the provisional views letter. This is detailed
at section 8.17 of the Service Model Main Guidance.

 

3.The legislative timeframe for responding to a Subject Access Request
(SAR) is detailed within the Data Protection Act 2018 and Article 12
paragraph 3 of the GDPR. To confirm, responses to SARs should be provided
within one month with the option of an extension by a further two months
if the request is ‘complex’.

 

4&5. No information is held. See the answer provided for Question 1 above.
Additionally, if a person, for some reason, was not given the opportunity
to receive the material evidence at provisional views stage and
subsequently had to request the material evidence from us at a later point
then we would consider this when deciding whether to apply our time
limit. 

 

If you believe we have made an error in the way I have processed 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
[2][Parliamentary and Health Service Ombudsman request email]. You will need to specify that 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 ([3]www.ico.org.uk).

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

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

 

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References

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M Boyce left an annotation ()

PHSOthefacts, have you had a chance to look at the FOI request: :'Average length of time to carry out a review'?
11 months just to decide whether to conduct a review or not, and then probably about the same length of time if they did decide to conduct a review. That's almost two years, whereas the strict time limit for judicial review is 3 months, and the PHSO have clearly stated in correspondence to me that 'if you go over that 3 month time limit then you will likely be out of time with court.'

phsothefacts Pressure Group

Dear InformationRights,

The fly in the ointment here is the phrase "if requested, material evidence is released at
provisional views stage." There are a number of problems with this as your standard policy.

1. Why would the complainant request the material evidence at that stage? They have not read the 'draft report' which is the equivalent of the 'provisional view stage' so would probably trust PHSO to have carried out a fair analysis of the evidence. It does not state that this option is offered in advance so it probably wouldn't even enter their heads to request the material evidence.

2. The complainant cannot request a review until they have read the final report. This could take some time to fully digest and at this point they need to see the material evidence relied upon to cross-reference. But they would need to request it as it is not available automatically and that would take them over the one month to make their initial concerns to their caseworker.

3. PHSO has rigged the system in their favour and as pointed out by M. Boyce the Ombudsman can take many months to consider and/or hold a review yet the complainant who is working through the system for the first time must be on their toes or they will miss their chance to have their concerns recognised.

4. You state; "Additionally, if a person, for some reason, was not given the opportunity
to receive the material evidence at provisional views stage and
subsequently had to request the material evidence from us at a later point
then we would consider this when deciding whether to apply our time
limit." This gives PHSO total discretion as to whether to take action or not. The chances are that the person was not given the material evidence because they didn't know they could request it. Now they are at the final report stage and they need to read the report, fully consider it, know to ask for evidence, and know they can ask for extra time and then be at the mercy of the Ombudsman as to whether this is granted. PHSO give public bodies months/years to consider a report and public bodies are able to make comments to PHSO in direct, face to face or telephone conferences. This is not a level playing field and you need to change this policy and provide automatically all the evidence relied upon.

Yours sincerely,

Della Reynolds

phsothefacts Pressure Group

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:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

M Boyce left an annotation ()

Yes PHSOthefacts, these are very valid concerns. I would just add the following, that if the material evidence is not automatically released alongside the provisional views decision, then at the very least the cover letter, or at the end of the provisional views decision, it should state very clearly and unequivocally that the complainant can request the full material evidence, and then receive that evidence, before the final decision is made.

phsothefacts Pressure Group left an annotation ()

Agreed M Boyce but I very much doubt that this happens.

M Boyce left an annotation ()

Me too.

phsothefacts Pressure Group left an annotation ()

PHSO do offer the chance to apply for the material evidence with the 'provisional view' report but give a very short time for the complainant to respond to this report before the final report is automatically triggered. If you have to apply for the material evidence, then wait for it to arrive you would miss the deadline to respond to the provisional report and probably find that the final report arrives alongside the material evidence requested.

Caroline Hanman left an annotation ()

This is an interesting FOIA request and PHSO response which I have only just seen. Thank you for posting it, phsothefacts.

My comments are as follows:

1. I note the link provided by the PHSO is to the RaFT policy document dated April 2019: my understanding is that PHSO policy documents are now updated electronically (as and when this is considered by the PHSO to be appropriate) rather than formally reviewed and ratified. This raises issues regarding the reliability of such official documents in FOIA requests.

2. The date of the RaFT policy document (April 2019) supersedes my personal experience of having first viewed the one month deadline on the PHSO website (January 2019) and of initially having been advised by the PHSO that I had one month after publication of the final report (January 2019) to submit a review directly to the RaFT team. The idea of the review process being a two stage process, each stage with a one month window within which to appeal, was not explained to me at any point and was not clear from the (then online) RaFT policy. To be honest, I still don't think the PHSO RaFT Policy document makes this point clear.

3. The PHSO was aware from the outset of the complaint investigation that we wanted regular updates on relevant information and developments. By definition this included sharing key information on the progress and direction of the investigation as well as sharing, for considered and informed comment, the material evidence the PHSO caseworker had access to and was using to inform his thinking. This was not our experience. The level of PHSO communication was extremely poor: only two phone calls took place throughout the entire 18 month+ investigation; and key material evidence (ie clinical advice in a different medical discipline to that sought previously) which the PHSO obtained after our comments on the draft report had been submitted, was not discussed with us at any time. The first sighting we had of the newly obtained clinical advice was when we found it was appended to the final report (issued four months after the draft report).

4. The PHSO CEO verbally assured PACAC (January 2019) that if complainants want to see material evidence, they can. This comment was at odds with our experience just days beforehand. We believe that most reasonable people would consider the surreptitious PHSO practice of seeking new clinical advice in response to complainant comments and not sharing it before issuing a final report to be a clear breach of natural justice by an ombudsman. It is an entirely legitimate expectation for all information relied upon by the PHSO to inform it's decisions, and the reports that are produced, to be shared with complainants before final decisions are made.

5. The PHSO responded to our DPA SAR (January 2019) after two months (March 2019). However, the PHSO did agree to extend the review application deadline by also giving us two months within which to digest the information and to submit a fully worked up review request. We submitted the review request in May and the final PHSO decision on our complaint is, to date, still ongoing.

6. It is unclear what is considered a reasonable period for a review is. The RaFT Policy document (April 2019) suggests 40 working days. This seems extremely generous for a straightforward decision on whether PHSO fault exists given the fact that all information is already in the system. By definition, if further clinical advice or information is required, this should warrant a new PHSO investigation and complainants should have the opportunity to comment accordingly.

phsothefacts Pressure Group left an annotation ()

Caroline Hanman, thank you for the update on this issue as it is only by people sharing their experience that we can see if any of the PHSO rhetoric becomes reality. As you have witnessed what they say and what they do are two different things. This phrase in your comment stood out to me:

"We believe that most reasonable people would consider the surreptitious PHSO practice of seeking new clinical advice in response to complainant comments and not sharing it before issuing a final report to be a clear breach of natural justice by an ombudsman."

I agree that this is a breach of natural justice and the only reason PHSO fail to share before issuing a final report is because they know that the complainant will take exception to the way the evidence has been framed. Framed to protect the body under investigation in most cases. Once the final report has been circulated there is a less than 1% chance of having the decision overturned. So good luck with your review. The length of time waiting for the outcome should not be confused with the amount of effort going into getting it right. The endless delay is simply to wear you down.