The legal minefield of the PHSO re-opening of cases and the PHSO commencement of fresh/new investigations.

M Boyce 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) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of the re-opening of PHSO investigations after a case has been closed.

(2) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of fresh/new investigations after a case has been closed.

Yours faithfully,

M Boyce

InformationRights@CMSPHSOLGO.mail.onmicrosoft.com,

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 M Boyce

 

RE: Your information request: R0000929

 

I write in response to your email dated 11 October 2019 regarding your
request for information to the Parliamentary and Health Service Ombudsman
(PHSO) which has been handled under the Freedom of Information Act 2000.

 

Your request has been considered vexatious under Section 14(1) of the Act.
Section 14 (1) states: ‘Section 1(1) does not oblige a public authority to
comply with a request for information if the request is vexatious’.

 

We consider that your request is burdensome with a level of unjustified
disruption. To respond to this request is considered to be disruptive,
burdensome and the PHSO would have to expend a disproportionate effort to
meet the request which engages section 14(1) whereby we cannot reasonably
be expected to comply.

 

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
[1][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 ([2]www.ico.org.uk).

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

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

 

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References

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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 'The legal minefield of the PHSO re-opening of cases and the PHSO commencement of fresh/new investigations.'.

I do not agree that my request is vexatious.

The ICO have stated that the PHSO failed to provide relevant legal advice to the First-tier Tribunal regarding the review process. This current request is simply in response to this confusion.

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

Yours faithfully,

M Boyce

InformationRights@CMSPHSOLGO.mail.onmicrosoft.com,

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.

J Roberts left an annotation ()

M Boyce,

You might like to read this recent UT decision:

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

“7.14 Public authorities should avoid using section 14 for burdensome requests unnecessarily. On this basis they should always consider whether section 12 applies in the first instance. For example, if a public authority considers that locating and extracting the information in scope would exceed the cost limit, section 12 is likely to be most appropriate."

Did the PHSO consider whether section 12 was applicable? If so, when did they decide that it was not? If they did consider it, presumably a record would exist confirming that they did. You could make a 'meta request' asking for a copy of the record which confirms that section 12 was considered.

'8. The Commissioner has issued guidance on meta requests. Her guidance advises:

“A meta request is a request for recorded information about the handling of a previous information request...Meta requests do not have any special status under FOIA or the EIR, nor are there any specificexemptions (or exceptions) for this type of request. This means that an authority should treat meta requests in the same way as any other information request”.'

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

J Roberts left an annotation ()

Link to the Freedom of Information Code of Practice:

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

M Boyce left an annotation ()

No J Roberts the PHSO have not considered section 12. My submissions so far have not raised your particularly perceptive point. If I get chance to make a further submission that submission most certainly will.

Jason left an annotation ()

Something very strange has happened to the other thread:

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

At around midnight, a significant number of posts/annotations mysteriously disappeared (not just mine).

I also can't add any more annotations.

M Boyce left an annotation ()

Yes Jason this is very strange and worrying. I will get in touch with WDTK to try and find out what has happened.

M Boyce left an annotation ()

I've sent a message to the WDTK team to ask them to look into or explain what is going on.

M Boyce left an annotation ()

What has now happened to the post from whatyoudontknow, or whatever it or who it was? I didn't open it because I thought it looked dodgy.

Jason left an annotation ()

Yes, something very strange is going on.

I opened it, as it was just a PDF. It was a letter from mySociety.org to a WDTK user threatening to take legal action if they continued to use the site. I'm note sure about the legitimacy of it though.

Jason left an annotation ()

Have you had any response to your enquiry?

M Boyce left an annotation ()

Yes, the WDTK Support Team have told me that they have disabled the annotations function from this request. It would have been nice to have been informed beforehand, so I wasn't worrying about malicious intent etc..

The Team say:

'We would respectfully suggest that the use of our annotation functionality may not be the best way to exchange advice on the matters that you are seeking to address with the PHSO.'

It might not be the best way, but I truly believed it was of real value and benefit to the public and myself - I've learnt much from the exchange of information and I hope others have gained something from it too.

Jason left an annotation ()

That is really saddening news, M Boyce. I thought that thread was an extremely invaluable tool to exchange information of significant public importance.

I've also learnt a lot from that thread.

I wonder if someone maliciously reported it? Why were certain posts deleted and not others?

M Boyce left an annotation ()

Thanks very much Jason, and for sending me the OneDrive information.

The WDTK Team have elaborated further and said that they decided to remove the annotation function from the request because the discussion was straying too far towards criticising the PHSO. In any case, they have said that when I get my Tribunal decision they would be happy to let me post that outcome on that request. I will do that and I will post the decision on here too. I will say that the Tribunal have informed me that they will not be able to assign it to a panel until mid-January 2020 at the earliest.

Thanks everyone for their advice and assistance.

InformationRights, Parliamentary and Health Service Ombudsman

Dear M Boyce

 

PHSO reference R0000929

Internal review of your request for information

 

Thank you for your correspondence of 29^th October 2019 in which you
requested an internal review from the PHSO.

 

PHSO response

 

Request:

(1) Please provide all relevant documents (commissioned legal advice,
discussions, emails, legal briefing notes, unabridged Board Meeting
Minutes etc..) that the PHSO possess with regard to the legal status of
the re-opening of PHSO investigations after a case has been closed.

 

(2) Please provide all relevant documents (commissioned legal advice,
discussions, emails, legal briefing notes, unabridged Board Meeting
Minutes etc..) that the PHSO possess with regard to the legal status of
fresh/new investigations after a case has been closed.

 

 

Response to your request:

 

PHSO refused this request as vexatious under Section 14(1) of the Freedom
of Information Act 2000.

 

Time for response:

 

The request was received on 11^th October 2019 and PHSO’s response was
sent on 29^th October 2019. This is within the 20 working-day limit
established under Section 10(1) of the Freedom of Information Act 2000.

 

Request for an internal review:

 

“I do not agree that my request is vexatious.

 

The ICO have stated that the PHSO failed to provide relevant legal advice
to the First-tier Tribunal regarding the review process. This current
request is simply in response to this confusion.”

 

 

Review of your request:

 

PHSO has reviewed its decision and has upheld the refusal of the request
as vexatious as per Section 14(1) of the Freedom of Information Act 2000.

 

 

Context of the request:

 

Since 24^th January 2018 PHSO has received 20 requests (containing 36
questions) from you on the subject of reviewing PHSO’s decisions, and the
legality behind its decision making. Nine of these have gone to internal
review, and four have been to the ICO. None of these appeals have been
successful. One is currently at First Tier Tribunal, but no decision has
yet been reached.

 

The request is similar to PHSO request R0000153, which asked for the same
document types regarding the legal status of PHSO’s reviews, and the
application of refusing a request because an alternative legal remedy was
available. This request was refused under Section 42(1) of the Freedom of
Information Act 2000 as it was legally privileged, and the ICO upheld the
refusal of this request.

 

The request is also similar to PHSO request R0000532, which asked for
whether PHSO obtained and received external legal advice on its review
process. This request was refused under Section 14(1) of the Freedom of
Information Act 2000 as vexatious, and the ICO upheld the refusal of this
request.

 

 

Arguments request is not vexatious:

 

The subject matter of the request concerns PHSO’s function. This has a
wider interest as it has implications for the individuals who bring
complaints to PHSO, and the wider public who benefit from the work of
PHSO’s complaint handling.

 

Arguments request is vexatious:

 

The context of this request shows that this subject has been looked at
previously on numerous occasions by PHSO. Most requests were complied with
in full, but you have previously shown what the ICO have referred to as
“unreasonable persistence”, and this request is your attempt to pursue the
subject further. Request R0000532 asks for confirmation of information
held, this was refused as vexatious by PHSO and this decision was upheld
by the ICO. That this is then followed up with a wider request asking for
a copy of the actual information – and further documents - shows that you
are misusing the formal procedure afforded to you under Freedom of
Information Act 2000.

 

You have stated this request is intended to address a matter concerning
your appeal of request R0000532 to the First-Tier Tribunal. However, any
disclosure to a request under Freedom of Information Act 2000 is to the
world, and is not the appropriate process for ensuring the Tribunal has
all the material it needs before proceeding with an appeal. This provides
further evidence that the purpose of this request is unjustified, and that
the request is vexatious.

 

PHSO considers that this request creates further work to a subject it has
already diverted significant resources to. There have been many requests
on the subject of PHSO’s reviews, and several appeals through internal
review, the ICO, and the First Tier-Tribunal. The PHSO’s only has a small
team to handle freedom of information requests, and a significant amount
of time has been spent dealing with information regarding the review
process. However, PHSO considers the threshold was crossed with R0000532
when it refused a request from you as vexatious (and the ICO agreed), and
yet you have submitted a further request with a wider scope, which would
involve further work. This burden is an unjustified disruption and shows
the request can be considered vexatious.

 

Having considered the above PHSO has upheld the refusal of the request as
vexatious as per Section 14(1) of the Freedom of Information Act 2000.

 

 

Right of appeal

 

If you are not content with the outcome of your internal review, you may
apply directly to the ICO for a decision. The ICO 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

 

References

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http://www.ombudsman.org.uk/

Dear InformationRights,

I completely disagree with everything you say.

One point is worth highlighting in particular, because it is displays an astonishing lack of understanding by the PHSO. In your response you state:

'...any disclosure to a request under the FOIA 2000 is to the world, and is not the appropriate process for ensuring the Tribunal has all the material it needs before proceeding with an appeal. This provides further evidence that the purpose of this request is unjustified, and that the request is vexatious.'

Really? Then what is the APPROPRIATE process for ensuring that the Tribunal has all the material it needs?

Ask the PHSO directly for this information? This would be refused/ignored.

Wait for the PHSO to publish this information? That would never happen.

Wait for the Tribunal to ask for this material? The burden of proof lies with appellant, who has to obtain the information themselves.

It is quite clear that the PHSO would never volunteer much information to the public. The FOIA is the ONLY process for obtaining information from the PHSO.

So, I ask again: what is the APPROPRIATE process for obtaining information from the PHSO that would be crucial in an appeal to the First-tier Tribunal?

You won't answer, because you don't have an answer.

I will now appeal this request to the ICO. The ICO will, with a tedious inevitability, agree with everything you say and disagree with everything I say. Then off to the FTT.

Yours sincerely,

M Boyce

M Boyce left an annotation ()

No Jason the case has not been heard by the Tribunal yet. I hope it will be assigned to a Tribunal panel in late January 2020.

I'm sorry to hear about your continuing problems with the PHSO. All we want is justice, and it seems that this is in very short supply if you are not rich and well-connected.

Jason left an annotation ()

Any further news, M Boyce?

M Boyce left an annotation ()

Jason
The Tribunal informed me several weeks ago that my case would now be assigned to a Tribunal panel. Unfortunately they do not let you when the case will be discussed.

As soon as I hear the outcome I will post it on this site.

M Boyce left an annotation ()

I've just asked the GRC whether a tribunal panel has now been found to consider my appeal. I was informed that they were still looking for a panel. It has now been well over a year since my case was sent to the Tribunal and sadly it seems it will be many months or possibly years before it is considered.

Jason left an annotation ()

That's very worrying news, M Boyce. Why are they struggling to put together a panel?

M Boyce left an annotation ()

I don't know Jason, but I suspect it is because they have a backlog of cases. As soon as I hear more I'll let you know.

M Boyce left an annotation ()

This case has now been allocated to an ICO caseworker.

If anyone thinks that the ICO behave in a fair and impartial way, let me just relieve you of that misapprehension.

Today I received a response from the above ICO caseworker, which states EXACTLY the following:

'I was allocated the case on 27 February and have not yet had the opportunity to review it in detail. HOWEVER, from the information I have seen so far it does appear that PHSO has correctly cited section 14 [vexatious] in response to your request.'

And there we have it: the ICO have already made up their mind in just a couple of days that an authority is always right and a complainant is always wrong before they have even looked properly at the evidence. The ICO just look at what the PHSO say and they just completely ignore what a complainant says. Now I have the proof in black and white.
And off to the Tribunal I go... again.

Jason left an annotation ()

That says it all, M Boyce. Seems they are closing ranks with the like of the PHSO and other government agencies, true to form.

When I get 'review' decisions from the PHSO I don't even read them anymore, apart from the final paragraph - I just put them straight in the bin.

What a total waste of taxpayers' money...

J Roberts left an annotation ()

The 'similar request' (R0000153) argument:

“1) Please provide all relevant documents (discussions, legal briefing notes, unabridged Board Meeting Minutes, guidance etc.) that the PHSO possess with regard to the legal status of reviews of decisions.

(2) Please provide all relevant documents (discussions, legal briefing notes, unabridged Board Meetings, guidance etc.) that the PHSO possess with regard to Alternative Legal Remedy."

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

This compares to:

(1) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of the re-opening of PHSO investigations after a case has been closed.

(2) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of fresh/new investigations after a case has been closed.

I don't think the similarities in the following are sufficient to render your request vexatious:

i. “with regard to the legal status of reviews of decisions” and “with regard to the legal status of the re-opening of PHSO investigations after a case has been closed”.

ii. “with regard to Alternative Legal Remedy” and “with regard to the legal status of fresh/new investigations after a case has been closed.”

Jason left an annotation ()

I have just had another horrid experience with the PHSO:

I sent them a complaint over a year ago. They contacted the respective Trust for some curious reason and were told the matter was with the ligation team, which was not entirely accurate as I raised a matter of a contravention of the Equality Act 2010 with the Trust (matters the PHSO should not concern itself with).

The PHSO then allege they wrote to me a year ago informing me of the same, however, I never received the said letter. In that letter, which I have only now received, they closed the complaint pending a response to the issues raised with the Trust, which is certainly curious.

I recently chased the matter up with them, and they have now responded by purporting that I they have now permanently closed my complaint, and will not re-open it, because I didn't chase them up sooner, notwithstanding the fact that the complaint was submitted in time.

This is your trusty PHSO, folks...

M Boyce left an annotation ()

Sorry to hear about this awful experience Jason. I obviously understand why you do not trust what the PHSO have said.

J Roberts, my requests are similar, and deliberately so. The latter is merely wanting clarification of the response and sequelae to the former. I know it's not vexatious, but the ICO only listen to what the PHSO have to say and not what I have to say. It's not what you know or can show, but simply who you know - and the ICO know the PHSO and the PHSO know the ICO.

J Roberts left an annotation ()

'I was allocated the case on 27 February and have not yet had the opportunity to review it in detail. HOWEVER, from the information I have seen so far it does appear that PHSO has correctly cited section 14 [vexatious] in response to your request.'

Your experience reminds me of this PIP claimant who fell victim to 'what is known as a “protective essay”'. In this case, the judge included in the decision something specifically aimed at discouraging the claimant from appealing further:

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

A caseworker “arrogating to himself the right to decide on the adequacy of his own reasoning” does not seem right.

CH v Secretary of State for Work and Pensions (PIP) [2020] UKUT 19(AAC)

Jason left an annotation ()

Indeed, M Boyce.

I believe the fact that the likes of the ICO and the PHSO exercise shameless bias has become no secret. This is something that was discussed and alluded to in the other thread.

The sad reality is we can't expect a fair and proper decision from this rotten bunch; all we will get is bias and layer after layer of whitewashing.

What saddens me is now the Tribunal are also seemingly dragging their heals. It really beggars belief the lengths that the ordinary person has to go through to get a modicum of justice.

M Boyce left an annotation ()

Today I received an email from the ICO in response to my query about anonymity of ICO caseworkers and decision notices. It stated the following:

'I can advise a number of years ago due to the delays in decisions being signed off and the growing backlog of cases, it was agreed the Senior Case Officer (SCO) could sign off their own decision notices. This was on a voluntary basis and for a variety of reasons not all SCO's volunteered, including myself.'

I asked for this information because I wanted to research potential 'bias' in ICO decision notices. It is my belief that certain case officers may well be 'interpreting' the law, instead of applying it correctly. Since most DN's are now signed off by ICO managers, it is obviously difficult to see who has actually made the DN. Difficult, but not impossible. I aim to make an FOI request to the ICO shortly asking for information to see if this 'bias' is substantial or not. I fully expect the ICO to refuse to provide the names of SCO's associated with particular DN's, so I will instead ask for this data to be anonymised, for example, the initials of each SCO associated with a particular DN.
I am only concerned at this stage with section 42 FOIA cases, as this is where some SCO's correctly regard this exemption as qualified, whereas others 'interpret' the law in their own way and regard it as absolute. At the moment, from the published information, there is no way of knowing whether such an apparent 'bias' can be substantiated.

J Roberts left an annotation ()

I have just done a quick search of FTT upheld/partly appeals where the appellant was the complainant and not the public authority. The earliest appeal I looked at was dated 28/10/19. Between that date and today I found eighteen relevant appeals.

In seven instances, the name on the related Commissioner's DN was the same. One individual's name appeared on DNs three times. The remaining eight appeals were each associated with a different ICO employee.

To read the DN of the earliest one I looked at (it's not on the ICO website) go here:

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

(I didn't spend a lot of time doing my search, so my figures could be slightly out!)

J Roberts left an annotation ()

Clarifications:

The person with 7 is a 'Group Manager' and the person with 3 is also a 'Group Manager'.

I incorrectly referred to appeals upheld and partly upheld. I should have said 'allowed' and 'part allowed':

http://informationrights.decisions.tribu...

M Boyce left an annotation ()

Thanks J Roberts.

So the 10 Group Managers could all be the same Senior Case Officer, or they could all be different. That's why it would be informative to find out. I can understand why some Senior Case Officers would wish to remain anonymous - and they can remain so - as I only want the anonymised data.

M Boyce left an annotation ()

What's happened to the Review and Feedback Team Guidance on the PHSO website? It seems to have completely disappeared.

M Boyce left an annotation ()

I phoned the PHSO 'helpline' this morning, but they couldn't help me with this query. They said they knew nothing about technical matters (page 404)and couldn't put me through to anyone that might know. They did say that there is now no Review and Feedback Team (RaFT) with the PHSO anymore. Why has this not been publicised on the PHSO website? Where do complainants go for guidance? Where is the much publicised openness and transparency here? The PHSO appear to be putting up shutters upon shutters.

Jason left an annotation ()

That's alarming as I've recently had correspondence from the purported Review and Feedback Team.

This page also still applies it would seem:

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

M Boyce left an annotation ()

Yes Jason the review form page still exists, but the detailed RaFT guidance has disappeared.
If the PHSO continues to hide this guidance from the public then another FOI request will unfortunately be necessary to try and make it public again. They will, of course, refuse the request as vexatious!

Jason left an annotation ()

They must be up to something.

Let me know if you would like me to make a FOI request, as they seem to be defining all your request as 'vexatious'.

M Boyce left an annotation ()

Thanks for your offer of assistance Jason, it is very kind. I wouldn't, however, wish to put you at risk of being 'vexatious' by association. In any case, the PHSO did reply to my email yesterday and stated that the guidance had been removed because 'it was out of date' and that the new updated guidance would be published shortly. Let's see.

Jason left an annotation ()

No worries, M Boyce.

One wonders what cynical changes they will be making to their guidance on this occasion.

Keep us posted with any developments your end.

M Boyce left an annotation ()

In the above DN paragraphs 19 and 26 are crucial.

In paragraph 19 the ICO state that they cannot comment on an ongoing tribunal case. This is utter nonsense. They regularly comment on tribunal cases - and indeed, it is essential that they do, as the tribunal process simply could not function if the ICO said nothing on cases - ongoing or otherwise.

In paragraph 26 the PHSO say that it is not appropriate, and is vexatious to use the FOIA to obtain information for a tribunal hearing. This is also utter nonsense. The FOIA exists to afford this provision of information.

The PHSO and the ICO are simply wanting to pervert the course of justice. I will vigorously challenge it through the tribunal system, and we will see if they agree with what is happening.

Chris Hunter (Account suspended) left an annotation ()

I wonder if one of the officers listed in the below correspondence under the heading "Information Commissioner's Office (ICO)" was involved in the Decision Notice.

https://tinyurl.com/tedyxt8

M Boyce left an annotation ()

Not that I am aware of. If a Senior Case Officer does not want their name published with a particular decision, then I will respect that. I do of course know who the SCO is. What I am concerned with is that decisions are made fairly and with as much transparency as possible. This transparency could be largely achieved by anonymising decision notices, but still including the initials or some other unique identifier of the SCO so that patterns in decision making - good or bad - can be seen.

Jason left an annotation ()

Yet another shamelessly bias decision. Were you truly expecting any different, M Boyce?

It seems the only way to obtain a crumb of justice is go though the judiciary I'm afraid, and these cynical government agencies will do everything they can to make that as difficult, risky and laborious as they possibly can.

M Boyce left an annotation ()

No, it is exactly what I was expecting.

J Roberts left an annotation ()

“So the 10 Group Managers could all be the same Senior Case Officer, or they could all be different. That's why it would be informative to find out. I can understand why some Senior Case Officers would wish to remain anonymous - and they can remain so - as I only want the anonymised data.”

It would indeed be informative to find out. Their identities could be completely anonymized using numbers to prevent a 'motivated intruder' finding out something they shouldn't!

I was alerted to the possibility of improperly trained staff preparing decision notices for Group Managers by this:

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

M Boyce left an annotation ()

The ICO DN for this FOI request is now also with the First-tier Tribunal. I have been left with no choice as it is now almost fifteen months since my appeal EA/2019/0032 was sent to the Tribunal. The PHSO and the ICO have both worked to make sure that the Tribunal do not get to see the relevant legal advice. I will never accept that trying to make sure that the Tribunal has all the relevant information it needs to make a fair and balanced decision is vexatious. I only want fairness and transparency; I'm not asking for the world.

I will make the FOI request to the ICO shortly about receiving anonymised data on those caseworkers who fail to use the 'correct rule' (act contrary to the law), in the words of the FTT, with regard to section 42 of the FOIA.

J Roberts left an annotation ()

Here is a recent 'finely balanced' decision that was allowed by the FTT. It relates to Section 14 and raises further serious questions about the ICO:

http://informationrights.decisions.tribu...

“11. ...At two places in the decision notice (paras 24 and 42), the Commissioner reports that the Council argues that the stress has led to the resignation of a number of clerks. We should record here (and see below) that the Council has subsequently stated in writing that this is not an allegation it has made.”

The DN is not available on the ICO website, unfortunately, but I have requested a copy:

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

Chris Hunter (Account suspended) left an annotation ()

This is apparently the Decision Notice ref: FS50697903 but is is not in any obvious way publicly available

https://www.gov.uk/government/publicatio...

M Boyce left an annotation ()

Yes this is a deeply worrying case.

What if the Tribunal had believed the incorrect allegation made by the ICO of resignations in this 'finely balanced case'?

What if the Tribunal had agreed with the ICO allegation that the complainant was 'passive-aggressive' in this 'finely balanced case'?

What if the Tribunal agrees with the ICO that it is OK for them to ignore the law with regard to section 42 of the FOIA - effectively turning a qualified exemption into an absolute exemption?

As far as the ICO is concerned anyone asking these sort of quite legitimate questions would be branded vexatious, and therefore would be silenced.
The requestor wanted to obtain information to help improve public services. That is what most of us want to do, and it is what I want to do. I'm not the slightest bit interested in annoying anyone, or engaging in any of the other vexatious 'indicators' - my interest is purely and only to obtain information to improve public services. I notice in this Tribunal decision that it states that a request merely has to be 'burdensome' to be vexatious. Of course the burden on an authority is an important consideration, but I believe that THE most important consideration is the JUSTIFICATION for the request. If the request is fully justified, then that should trump the alleged burden, especially when that burden is self-imposed by an authority by not proactively, or even reactively, publishing important information (as in this case), or not adequately answering previous requests, or not considering that answers to previous requests may quite legitimately lead to further requests as part of a reasonable 'drilling-down' investigation.

J Roberts left an annotation ()

Chris,

Thanks for unearthing the DN reference number. I've provided it to the ICO to assist it in its search.

M Boyce,

You are right, it is deeply worrying. The 'finely balanced' outcome might have been different had the appellant not opted for an oral hearing.

M Boyce left an annotation ()

Yes, but there is now not likely to be any oral hearings for a very long time.
It is also the case that many requests are refused as vexatious due to being an alleged 'burden'. But this 'burden' is often completely unavoidable. If a requestor has a number of 'questions' they wish to ask they know that they can only ask for a very small amount of information at any one time, otherwise the request would be refused under section 12 cost exemption. So they may need to make more than one request, but then the authority and the ICO consider this to be vexatious under section 14. You are damned if you do and you are damned if you do.
One of my FOI requests on the subject of PHSO reviews concerned the promised publication of the new Review and Feedback Team (RaFT) guidance last year. The PHSO had been promising to publish this guidance 'soon' for nearly a year. The ICO intervened and made the PHSO finally publish it. Now the ICO are using this request as an example of my being vexatious! Incidentally, the same situation is now happening all over again. The PHSO removed all its detailed RaFT guidance from its website nearly a month ago. They assured me that the new guidance would be published 'soon' - the exact same promise made over a year earlier. Complainants are again left with no detailed guidance on the PHSO review process - and if anyone dares to ask for it they will be shouted down as 'vexatious'. This is a growing and repeated scandal. The PHSO are failing people over and over and over again in clear and plain sight, and the ICO are actively encouraging this by labelling people as 'vexatious' in an attempt to gag them.

J Roberts left an annotation ()

“If a requestor has a number of 'questions' they wish to ask they know that they can only ask for a very small amount of information at any one time, otherwise the request would be refused under section 12 cost exemption. So they may need to make more than one request, but then the authority and the ICO consider this to be vexatious under section 14.”

A DN from the SIC you might be interested in:

“35. In the circumstances, the Commissioner concludes that the Applicant’s request of 10 August 2018 is not identical or substantially similar to the requests of 5 June 2018 or 14 May 2018.

36. The Commissioner considers it reasonable for the Applicant to use the information obtained from the Council to inform further requests, particularly where previous wide-ranging requests have been refused on grounds of costs. This information has justifiably been used by the Applicant to ascertain the nature and extent of the information held by the authority and to inform subsequent requests.”

https://www.itspublicknowledge.info/uplo...

LPP is also considered (para. 153 and others):

“153. The Commissioner acknowledges that there will be occasions where the significant public interest in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing the information.”

Some examples are included of when the public interest may favour disclosure.

Chris Hunter (Account suspended) left an annotation ()

https://www.itspublicknowledge.info/uplo...

In the above decision, the Commissioner looks to have followed a pattern which is pretty routine whenever a public interest consideration is a factor.

It starts with an acknowledgement that there might be exceptional circumstances that would favour the public interest in disclosure (they are seen to be acting impartially). They follow this by asserting that after careful consideration they are satisfied that none of the circumstances apply. They then bring the reader's attention to previous decisions and that the courts have long recognised the strong public interest in withholding the information, accompanying this with the citing of a High Court case on which they routinely rely as leverage for their argument.

M Boyce left an annotation ()

The ICO's agenda is to convert the Freedom of Information Act (FOIA) into the Refusal of Information Act (ROIA). I firmly believe that the Government deliberately directed the ICO to effectively neuter the FOIA - to use its power to do everything it could to prevent public access to information. The Government grudgingly enacted the FOIA because it could no longer refuse to implement this long overdue piece of legislation. It knew, however, that the ICO, which was set up to administer this legislation, would dance to its tune.
Refusal under section 14 is supposedly a 'high hurdle' to surmount, and yet the ICO surmount it with the facility of a kangaroo jumping over a garden gate.
Section 42 is a qualified exemption, but the ICO always endeavour to make it an absolute exemption. Their clarion call is that under common law legal professional privilege is 'a fundamental right', and therefore cannot be assailed. But Parliament chose to make section 42 qualified, and probably because public authorities have a special duty to act with transparency. The ICO know full well that statute always prevails over common law - and yet they choose to ignore this central legal doctrine. It remains something of a legal irony and a quandary that a 'fundamental right' (LPP) can be disapplied by statute, but that is what Parliament legislated for, and that is the pre-eminent law, whether the ICO like it or not.
The ICO should follow the law, not make it up as they go along.

J Roberts left an annotation ()

You may like to read this FTT decision. The Appellant was the former MP Justine Greening. It concerns EIR.

“33. In our view to aggregate the requests in this case would also not be in accordance with the Commissioner’s guidance at paragraph 25 where the Commissioner urges public authorities, when considering aggregation, ‘to be sensible about this issue and to only use this approach when dealing with multiple requests would cause a real problem...there must be an obvious or clear quality to the unreasonableness’.

36. In addition, in our view not all four requests should be viewed in the same light...

37. Even if aggregation is applied, then taking a restrictive approach to the manifestly unreasonable test would lead, in our view, in this case to some of the information being subject to disclosure...

38. That seems to us to be a sensible way to approach a case even where aggregation applies, where there is a presumption in favour of disclosure: if there are parts of a request, or parts of an aggregated request, which can be disclosed without breaching the ‘manifestly unreasonable’ test, then that is what should happen.”

The part I'm not sure about is the implication in para. 38 that the Tribunal would not find the approach sensible under the FOIA:

“10. '...40. This is evident also in the fact that the EIR contains an express presumption in favour of disclosure, which the FOIA does not...'”

http://informationrights.decisions.tribu...

M Boyce left an annotation ()

Yes it is interesting that the FOIA and the EIR employ quite different terminology and quite different presumptions. The FOIA uses 'vexatious', whereas the EIR uses 'manifestly unreasonable'; the EIR has an explicit presumption in favour of disclosure, whereas the FOIA has no such explicit presumption. This seems unfair, especially given the imprecision in what constitutes environmental information and what does not. In any case, as I've said before, the ICO treats both information regimes with a presumption of refusal and not disclosure - it is embedded in their very DNA.

M Boyce left an annotation ()

Last Tuesday the PHSO published its 'Equality, Diversity and Inclusion Strategy 2020 -2024.' All good and proper, but it clearly shows that the PHSO does fully expect still to be around in four years time. The PHSO has been 'calling', albeit with an increasingly muted voice, for itself to be replaced by a fairer Public Service Ombudsman (PSO). Will the PHSO raise the issue of the PSO being put on the back burner now for six years so far, or will it ignore this completely unacceptable delay? I spoke to PACAC today to find out when the 2020 annual scrutiny shindig would be happening. I was told it would likely not be before June at the earliest - obviously done remotely.

M Boyce left an annotation ()

The extremely worrying thing about the above decision, which on the whole appears comprehensive and well argued, is what Judge Holmes states in paragraph 103:

'....It would have been open to ANY such party [an enquiring individual] to seek judicial review...'

This sadly shows that some judges are out of touch with reality. Most people could not afford, and would never dare risk, applying for judicial review. The bill could easily reach a six figure sum. The FOIA exists to allow ORDINARY people to obtain information from public authorities - the clue is partly in the name - FREE -dom of Information Act. The judge has refused the above request because he believes, amongst other things, that everyone can just apply for judicial review at the drop of a hat. With that 'reasoning' section 42 of the FOIA slips dangerously towards becoming a de facto absolute exemption by virtue that an alternative legal remedy is 'readily' and 'easily' 'open to any such party'. If only it was.

Jason left an annotation ()

Totally agree, M Boyce. It's a chequebook justice system we have sadly, and most of use don't have big chequebooks.

I've also found that, notwithstanding the above, solicitors with legal aid contracts just are not interested in carrying the risk and working for peanuts.

M Boyce left an annotation ()

Thanks Jason.

I totally agree with what you say too.

I should have an update on my case shortly.

Another couple of issues with the above recent tribunal decision. Firstly, the ICO said in paragraph 45 that legal advice was just 'guidance' - implying that it is unimportant/irrelevant. Then why do authorities waste public money on legal advice if they regard it as unimportant/irrelevant, and then just ignore it? If they are treating it so glibly they are guilty of profound misconduct/misuse of public money.

Secondly, in paragraph 95 of the above decision in relation to the well known 'Mersey Tunnel Users' tribunal case it states that:

'...disclosure [of the legal advice] was the ONLY way for anyone to understand the basis of the authority's actions.'

Funny that, given that later in the above recent decision the judge then completely contradicts this by saying that anyone can just apply for judicial review. Why couldn't anyone just apply for judicial review in the Mersey Tunnel Users case? This was never suggested in that case, and probably because it is simply not a realistic option, and the fact that a possible JR at a later date should never be regarded as a bar to disclosure in section 42 of the FOIA - even the ICO publicly state this in their guidance on section 42 FOIA!
The PHSO and the ICO use the same arguments in my case - the legal advice is just advice - nothing more than a casual conversation, albeit a hugely expensive one. They also state that anyone can just pop round to their lawyer (because we have all got one of them in our back pocket) to apply for judicial review. Perhaps we could if we weren't paying a fortune in taxes to pay for a PHSO that regards its legal advice as nothing more than a casual chat, and its ability to use unlimited tax-payer money to employ the most expensive and showy lawyers in the land to defeat anyone who had temerity or stupidity to apply for JR - and in any case in law, it is not what you know that matters, but simply who you know: the establishment always looks after the establishment.

J Roberts left an annotation ()

"This sadly shows that some judges are out of touch with reality. Most people could not afford, and would never dare risk, applying for judicial review. The bill could easily reach a six figure sum."

“14. As noted by the Clementi review, ‘high quality legal services are important to society, but of limited value if available only to the very rich or those paid for by the state’.”

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

M Boyce left an annotation ()

How true J Roberts.

In the above Tribunal case the judge says that anyone can just waltz down to their lawyer and get a judicial review, and that is why the legal advice should not be disclosed under the FOIA. Most people would profoundly disagree.
In my case the PHSO told me and the Tribunal that if I wanted to find out if their review process was legal or not I should go and get my own legal advice because their advice was theirs and theirs alone - even though it was paid for by me and every other taxpayer. They knew full well that I could never afford to get legal advice because my case was about tax credits for the working poor, and that included myself. They also knew that legal aid had been decimated under the ConDem Government. Oh how they laughed when they told the Tribunal to dismiss my case because I was at liberty to get my own legal advice. They knew this was utter tosh. I did previously apply for judicial review, but I was able to get legal aid for the application process - several hundred pounds. Little did I know at the time that this legal aid did NOT extend to costs if I lost. My case was refused, but the PHSO incompetently failed to provide a schedule of costs to the judge, so I didn't have to pay. If I had had to pay I would have been paying it off for the rest of my life.
So here we have the PHSO, and then some judges just telling people to get their own legal advice and judicial review. The PHSO knew I could never afford it, and the Tribunal judge in the above case just didn't understand that we are not all paid a fortune - 'judicial review is open to anyone!' It most certainly is not, and that is why the FOIA is the ONLY option for gaining information for most people.

J Roberts left an annotation ()

Paragraph 14 of the Clementi review was clearly not at the forefront of the judge's mind.

I have previously mentioned on WDTK the two cases brought by Morris against the PHSO. In one of them the PHSO asked for costs of £80,654.35:

"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...

'judicial review is open to anyone!'

Like the Ritz Hotel.

M Boyce left an annotation ()

Yes that figure concretely illustrates exactly why judicial review, or obtaining legal advice, is demonstrably NOT available to everyone, or in indeed most people. That is why section 42 of the FOIA and the refusal to disclose legal advice should NEVER occur because everyone can supposedly obtain an alternative legal remedy. It also raises the question of why the more than half a dozen Tribunal cases that have favoured disclosure under section 42 actually came to that conclusion. They clearly did not regard section 42 as a de facto absolute exemption - by virtue of the supposed ready availability of alternative legal remedy.
Most people do not obtain legal advice or apply for judicial review simply and almost entirely because of the serious costs involved. The FOIA SHOULD allow ordinary people access to information, but this basic right, and something that we have all paid for, is being wrongly denied to people by some judges.

Jason left an annotation ()

Any further updates, M Boyce?

M Boyce left an annotation ()

Hi Jason.

With regards to the most substantive case, EA/2019/0032 - the sham review process - the PHSO are still dragging this out. It is now around 18 months since the case went to Tribunal and still the PHSO has not sent the Tribunal all, or perhaps not even any, of the relevant withheld legal advice. There have been well over a dozen Case Management Directions issued by the Tribunal so far, and the way the PHSO are behaving there is likely to be many more.

The Tribunal recently reiterated that delay of justice is denial of justice, and the PHSO are happily embracing this.

Jason left an annotation ()

That is truly egregious, M Boyce. The lengths that the ordinary person has to go through to get a modicum of justice in this country really boggles the mind.

I also think that it is reasonable to infer that, based on what you have said, the PHSO are looking to hide something pretty damning.

I can only commend you again for all your valiant determination, and for so bravely taking on this rotten bunch.

M Boyce left an annotation ()

Thanks Jason

It's not brave, not really, though it is very stressful; it's just an attempt to get justice and to try to make a highly deficient system a little bit better and a little bit fairer.

All over the world many people are trying to make things better for themselves and others, and it is ALWAYS an uphill struggle against the establishment that wants to keep ordinary decent people down-trodden and acquiescent to authority and unjustified privilege.

All lives matter, and all people matter - not just the rich and powerful.

Jason left an annotation ()

You're being a tad modest there me thinks. You must have known the likes of the PHSO would make things as stressful and difficult as possible for you, but you ploughed on regardless. You also issued JR proceedings at one point, which was immensely brave.

I agree wholeheartedly with your comments regarding unethical and high-handed authorities etc.

We do really need more people like you in this world.

M Boyce left an annotation ()

Thanks my friend. It is nice to have supportive comments.

I'll keep you updated on what happens.

M Boyce left an annotation ()

A quick update on Tribunal appeal EA/2019/0032.

The Judge decided around three months ago that this case could not proceed without an oral hearing. The ICO declined to take part and the PHSO have now twice failed to inform the Tribunal whether they will take part or not.

The Tribunal have also asked the PHSO for a number of pieces of clarificatory information/documents. These have not been forthcoming from the Ombudsman.

I have no idea what is going to happen next, but what I am certain about is that both the ICO and the PHSO have always regarded this case as 'in the bag'. Why else would they have been so disengaged with the whole process ?In fact, their only real engagement has been to procrastinate and to frustrate the case for nearly nineteen months so far.

Both the PHSO and the ICO must have taken huge succor
from my Appeal EA/2019/0334 where Judge Shanks declared that he did not need to see crucial evidence from myself. Justice cannot be done, and importantly, seen to be done, if evidence is not provided when requested, and neither can it be done when evidence is ignored.

It is not hard to see where the PHSO and the ICO's confidence in their assured success and good old 'British justice' comes from.

Jason left an annotation ()

Thanks for the update, M Boyce.

This sounds a bit concerning. Either they are complacent, or they are looking to hide as much as they can, which is reflected in the fact that they are not disclosing documents etc. Perhaps a combination of both. Can you not get an ‘unless order’, or something along those lines?

I have very little faith in the justice system in this country. For the most part, the only people that benefit from litigation are solicitors and barristers who generally get paid a fortune. As you know, the justice system clearly favours the rich and powerful too.

M Boyce left an annotation ()

Yes Jason, it is definitely a combination of both.

I think instead of an 'unless order', a 'useless order' or a 'couldn't care less order' might be more appropriate.

J Roberts left an annotation ()

The latest ICO annual report was published a few days ago. From page 45:

'Openness by Design also commits us to making the case for legislative reform to improve transparency in the public sector, as set out in our Outsourcing Oversight? report published last year. Our focus here will be about building a debate about the importance of openness and transparency as a fundamental part of a healthy, functioning democracy.'

https://ico.org.uk/media/about-the-ico/d...

Indeed!

M Boyce left an annotation ()

Openness and transparency from either the PHSO or the ICO?

Both organizations have never been less open and less transparent and all this does is undermine the rather fragile liberal democracy that we live in.

J Roberts left an annotation ()

Dr Bruce Newsome writes:

'According to heart-breaking testimonials, most complainants are treated by PHSO staff as time-wasters, liars, idiots, fantasists, egotists, and objects of ridicule. The victims have nowhere else to go. Parliament’s Select Committee on Public Administration has complained since 2015 that the PHSO is unaccountable to Parliament except through annual reports. The PHSO’s only practical accountability is to the executive, which controls its funding and appoints its person, but every executive has said that the PHSO is “independent.” Its own solution to criticism is to demand more powers.'

https://thecritic.co.uk/democracys-accou...

M Boyce left an annotation ()

Yes J Roberts it makes very depressing reading.

John C, if you read this I would like to help if I could, but I hope you understand that I am wary of divulging my email to people via the internet.

Obviously I don't know your case, but if you are thinking of going down the PHSO route I would just advise you to think very carefully about it. You will need the patience of a saint and the constitution of an ox, because they will do anything and everything to grind you down.

It does not matter whether your grievance is genuine, and I don't doubt that it is, or how eloquently you make your case, the establishment will deny everything.

Persistence in the fight for justice should be a virtue, but the establishment will turn that virtue into an accusation of vexatious behaviour.

If you are prepared for a very long and stressful battle, then go for it. If not, don't.

Jason left an annotation ()

That article was a very interesting read, J Roberts. This paragraph was also quite pertinent:

"Then there are the QUANGOs you hear even less about despite their impressive powers. Take the Information Commissioner and its Office (ICO), which are regulators, investigators, and enforcers of criminal laws relating to data protection. Formally, they are accountable to the Select Committee on Digital, Culture, Media, and Sport, but the DCMC is hardly a paragon of virtue itself, and has taken little interest. "

This was very good advice, M Boyce. The more I learn about the PHSO, the more I form the view that they are an unaccountable whitewashing machine.

To add insult to injury, they tend to treat the genuinely aggrieved with disdain and contempt in my opinion. Just recently, they denied receiving an important e-mail from me (requesting a review from the caseworker as she was obliged to carry out insofar as I can remember), which is very curious because they certainly received all other e-mails from me over the course of many years. It took a letter before claim for them to reverse their position, whilst allegedly a "technical error", which is probably a euphemism for "we just couldn't be asked to respond". Incidentally, I noted a very similar issue posted by a Google reviewer in respect to exactly the same caseworker. Mere coincidence?

J Roberts left an annotation ()

Jason,

It is indeed an interesting article. You mentioned the ICO as well as the PHSO in your comment. To complain about the former QUANGO you must contact the latter QUANGO. In 2018/19 not a single complaint made against the ICO to the PHSO was accepted for investigation:

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

The actual PHSO document from which I extracted the figures appears to have been taken down from the PHSO website because of a data breach, but D Moore has requested the figures:

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

For anyone considering legal action:

https://phsothetruestory.com/going-to-co...

Judicial Review:

https://phsothetruestory.com/judicial-re...

Potential costs:

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

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

[2014] EWHC 4364 (Admin)

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

(and getting legal aid to bring a JR does not rule out the possibility of your being pursued for costs)

J Roberts left an annotation ()

Frompage 44 of the annual report:

'We received and responded to 17 pre-action letters in 2019-20. Ten did not convert into legal proceedings. There were a total of 16 new applications for judicial review of our decisions. Two claims were withdrawn and eight claims were refused permission to go forward to a full hearing. Three of those decisions were appealed but were not successful. Six of those claims have been recently issued and are pending.'

'In 2019-20, we carried out 942 reviews of our decisions and upheld 120 of them. In 2018-19, we completed 1,199 reviews of our decisions and upheld 43 of them.'

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

Jason left an annotation ()

That is very interesting indeed, but also somewhat unsurprising, J Roberts.

Based on my experience, the PHSO purported that it only looks at where the ICO didn’t follow the procedure (e.g. not completed an assessment or not followed the complaints procedure). This, however, is not the impression given by the ICO:

“If, having exhausted our case review and service complaints procedure, you remain dissatisfied about any aspect of any service you have received from us or think we have not acted properly or fairly, you can take the matter to the Parliamentary and Health Service Ombudsman.”

https://ico.org.uk/make-a-complaint/comp...

Yep, these QUANGOs certainly close ranks.

As for avoiding the PHSO altogether and pursuing a clinical negligence claim for example, the risk of costs is also astronomical:

“NAO 2017 Report found that in 61% of cases (involving the NHS) the Claimant’s legal costs of pursuing a claim is greater than the value of the damages the Claimant recovers.“

https://www.mills-reeve.com/insights/pub...

Another demonstration of how access to justice in this country is appalling, especially if you are not rich and/or powerful.

christina evans left an annotation ()

I made a complaint to phso. Despite extensive evidence and another organization saying I should go to the police my complaint was not upheld. Subsequently because the public body got away with what they did now any engagement with them is bias. This despite the fact the one organization Cygnet Coventry is under special measures and the innacurate misleading information passed on to St Georges hospital Stafford by Cygnet still been used. I have requested a review because of the bias. Also because if it wasnt because of us our relative would still not be well and would not have their liberty.

M Boyce left an annotation ()

Good luck with your request for a review Christina. Stick with it and fight for the justice you deserve.

Today I contacted the FTT to ask why they had published so few decisions over the last four months. They informed me that there were 105 decisions that had been 'disposed of' -presumably made - over the last four months. They have promised to upload the remaining 70-80 or so cases to the website over the next few weeks. Some of these will be PHSO V ICO cases.

M Boyce left an annotation ()

Another quick update on appeal EA/2019/0332 - legal advice about the PHSO review process.

The Tribunal judge stated that the case was not suitable for a paper hearing and that there should be an oral hearing.

Both the PHSO and the ICO have now confirmed that they do not want to attend any hearing.

Neither the PHSO or the ICO want to be asked any difficult and illuminating questions from the judge.

The Upper Tribunal has today asked for the papers in both Appeals EA/2019/0032 and EA/2019/0334.

So the PHSO and the ICO don't want the First-tier Tribunal to be able to ask any probing questions, and Judge Shanks in appeal EA/2019/0334 ignored the most important evidence that I presented.

Justice can't be done if judges don't have, and don't consider, the full evidence from which to make a fair decision.

J E Garner left an annotation ()

It is par for the course for many Judges to adopt a Nelsonian approach to written evidence, in order that us pond life do not succeed. Well done you for your tenacity. As for the ICO? Just check out their reviews on Trust Pilot!

M Boyce left an annotation ()

Thanks GE Garner

We are supposed to have the best justice system in the world, but when judges are turning a blind eye to evidence sent from the little people then they should be sacked.

The ICO are a government quango that is only interested in shielding the establishment from scrutiny and criticism, and most people's dissatisfaction with this organization proves this.

J Roberts left an annotation ()

The link I provided to a SIC decision on 5/4/20 appears to be broken. Here is the content of the paragraph I referred to dealing with LPP:

'153. The Commissioner acknowledges that there will be occasions where the significant public interest in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing the information. For example, disclosure may be appropriate where:

· the privileged material discloses wrongdoing by or within an authority

· the material discloses a misrepresentation to the public of advice received

· the material discloses an apparently irresponsible and wilful disregard of advice

· a large number of people are affected by the advice

· the passage of time is so great that disclosure cannot cause harm.'

Maybe this link will work:

http://www.itspublicknowledge.info/Appli...

Decision Notice 039/2020
Public authority: Glasgow City Council

M Boyce left an annotation ()

The factors favouring disclosure of the legal advice about the PHSO review process are compelling:

Large of number of people potentially affected.

Large amount of money involved.

The legal advice is now around 4 years old.

This legal advice may never have been followed or relied upon.

Contradictory information supplied to the public: PHSOthefacts told the review process is legally allowed for; the PHSO Board Minutes say the review process is not legally allowed for.

A judge has recently described the review process as in a muddle and needs sorting out and the legislation is unclear.

He also states that the reasons for disclosure are weighty.

An important consideration is what would be the benefit of disclosing this legal advice?

It is not just a question of transparency; far more importantly it is a matter of empowering complainants with knowledge: if the review process is not legally allowed for then no-one can be forced to use it, instead of a judicial review. It is simply a matter of giving people a choice or denying people a choice.

This is about holding the PHSO to account AND even more importantly, giving information to people for them to make INFORMED choices.

How can any of this not be in the overwhelming public interest?

M Boyce left an annotation ()

Another very important consideration is that the PHSO know full well that there is a serious problem with the legal ambiguity/uncertainty/peril around their review process, and now a judge has stated this. So what do they do about this? Yes, that's right, absolutely nothing.

Over the past few years Rob Behrens has gone on record many times to call for reform of PHSO legislation. He has repeatedly called for 'own-initiative powers', for the removal of the MP filter, and other reforms to the 50 year old legislation.

So why has there not been a single mention - not a murmur - from Mr Behrens about the PHSO review process, which is causing so much trouble?

The reason must be that the process greatly benefits the Ombudsman by putting complainants in a dire legal no-man's land.

Why else would the Ombudsman have never even mentioned this much needed reform? Why else would PACAC never mention this much needed reform and tell me directly that they would never ever do so?

If it smells bad, it is because it is bad.

M Boyce left an annotation ()

29. The PHSO is part of the legal and judicial landscape of the UK and public
confidence in the system is of primary importance. It is vital that the Ombudsman,
as a public official, is seen to act with honesty and integrity. Any suggestion that he
might act unlawfully is harmful to his office and the legal and judicial system. It
would not be in the public interest to withhold information that might reveal
unlawful conduct by a public official and to allow that conduct to continue. If the
information is released it will hopefully show that the Ombudsman has behaved
lawfully and will restore public confidence.

The above is from a First-tier Tribunal decision that should be published on the GRC website by this coming Wednesday. It concerns the PHSO 'quashing' of reports. What is says is vitally important. The most important sentence is perhaps where it says:

'It would not be in the public interest to withold information that might reveal unlawful conduct by a public official and to allow that conduct to continue.'

In relation to the PHSO review process the PHSO themselves openly state in the December 2017 Board Minutes that their review process is unlawful.

How can it therefore be in the public interest for the legal advice around this unlawful behaviour to be witheld and to allow this unlawful conduct to continue?

J Roberts left an annotation ()

'29. The PHSO is part of the legal and judicial landscape of the UK and public confidence in the system is of primary importance. It is vital that the Ombudsman, as a public official, is seen to act with honesty and integrity. Any suggestion that he might act unlawfully is harmful to his office and the legal and judicial system.'

I don't think there is much public confidence in the PHSO. The number of complaints on Trustpilot keeps increasing:

https://www.trustpilot.com/review/www.om...

And disappointed PHSO service users frequently talk of the PHSO's lack of accountability and of their evidence being ignored:

https://phsothetruestory.com/

https://thecritic.co.uk/democracys-accou...

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

The 'Miller' appeal concerned two GPs, but the 'not written down, it didn't happen' bit may explain much of the misery experienced by numerous PHSO victims: missing records.

'59. It is also conceded that the ombudsman’s evidence from one of her most experienced Directors, Mr Kellett, contained an unfortunate use of language when he said “if it is not written down it didn’t happen unless there is other corroborating evidence”. I do not accept that this was an erroneous use of language: it reflected the practice of and language used by officials in the documents to which this court was taken ie unless the doctor had noted something in the clinical records, poor practice is assumed. Aside from reinforcing an impression of pre-determination, that is an inappropriate way to conduct an investigation'.

https://www.bailii.org/cgi-bin/format.cg...

Staying with the Miller judgment, I detect less emphasis on the strength of the relationship between the Ombudsman and the 'legal and judicial system' in it:

'55. I would also emphasise that it is important that this court does not import into the informal, non-judicial process of administrative and complaints adjudicators like the ombudsman the procedures of courts and tribunals. The adjudication process is an informal resolution of a complaint or problem where other remedies are not reasonably available or appropriate. The procedure is a matter entirely within the gift of the ombudsman provided that her decision making process is lawful, rational and reasonable.'

Using judicial review to prove that the Ombudsman acted unlawfully requires very deep pockets.

Figures have just been released revealing that NHS compensation for medical negligence amounted to £1.4 billion last year:

https://www.dailymail.co.uk/news/article...

“Ministers are planning a so-called ‘fixed costs’ plan to cap legal fees in cases where damages are less than £25,000 and Mr Dilks said: ‘We hope a way can be found to significantly reduce the cost to the public purse at no detriment to justice.’”

The PHSO is free to use but does it contributes to justice?

M Boyce left an annotation ()

No the PHSO does not contribute to justice. The only thing it seems to contribute to is the prolongation of misery and futility when someone takes a complaint to them.

If it acts within the law, then sadly there is nothing that can be done about this misery and futility. But if it acts outside of the law then something should be done about this.

Jason left an annotation ()

Indeed, Boyce.

I am very concerned to learn that Judge Shanks has ignored the most important evidence that you presented. Will you get another opportunity here, and what evidence was it?

M Boyce left an annotation ()

The evidence that Judge Shanks ignored (not overlooked) was my entire PHSO review. This 8 page document is central to both my appeals because they are about the review process in general, and particularly the legality of it.
The Judge said the review document was not important, but how could he possibly know that without seeing it? After I appealed his decision he then decided to obtain a copy of the document, and very unsurprisingly found he was 'right' all along. Well he would say that wouldn't he. This is not justice, it is a joke - except the Judge is the only one laughing.
Justice not only has to be done, but it has to be seen to be done. Ignoring evidence ticks neither of these boxes.

The Judge also at the very least overlooked a great deal of other evidence too.

My appeal to the Upper Tribunal has been acknowledged and that Tribunal has asked for all the papers from the two related First-tier Tribunal appeals to be sent to it.

Jason left an annotation ()

I see.

Yes, it is very concerning that he failed to even read the document, and then maintained his view to save face no doubt. Unfortunately, based on both our experiences, there seem to be many judges that are just not up for the job, as if access to justice in this country wasn’t bad enough already.

Have you seen this news?

https://www.legalcheek.com/2020/07/staff...

There may be a principle there that also applies to PHSO reviews. It is also good to see someone like that taking on the establishment.

Jason left an annotation ()

J Roberts left an annotation ()

M Boyce,

You are certainly shining a stark light on how our judicial system works. Am I right to say that you are now waiting to find out whether permission to appeal will be granted? I hope your're in the 15!

'The AAC received 59 applications for permission to appeal in 2019/20 relating to the ICO, of which 15 were granted.'

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

Dr Bruce Newsome's criticism is as sharp as any surgeon's scalpel in his latest article on the PHSO entitled 'Healthcare Needs an Ombudsman':

https://thecritic.co.uk/healthcare-needs...

'Your final champion is supposed to be the Parliamentary & Health Services Ombudsman (PHSO), but this is mistermed in so many ways. It is unaccountable to Parliament, except to submit annual reports. It is unaccountable to the Prime Minister’s Office, except through long-term funding cycles and appointments. It can choose for itself which complaints to investigate or reject. No parliamentary committee or politician can overrule it.'

Jason,

I made a request related to the judgment:

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

M Boyce left an annotation ()

Thanks Jason

Yes I am now waiting to hear from the Upper Tribunal.

I wasn't familiar with the Michael Connor Judgement, and it makes very interesting, and not entirely unrelated, reading.

From my initial understanding the Judgement says that ESA Mandatory Reconsideration (MR) is a 'disproportionate interference with the right of access to court.'

Mandatory Reconsideration is somewhat analogous to a PHSO review: both are internal review processes. Both can take a long time, and both can interfere with the right of access to court. The major difference is, however, that MR is provided for by statute, whereas the PHSO review process is not. The PHSO review process does not just interfere with access to justice, it acts to derail it by virtue that it is not legal, and with all the legal consequences that follow.

I'll certainly scrutinise the Michael Connor Judgement more closely over the next few days.

I am also presently appealing a Universal Credit decision on a matter not dissimilar to the Michael Connor Judgement by the First-tier Tribunal and I fully expect this to also go to the Upper Tribunal.

I've been down this road before and won another case with the UTT. That case was very protracted and involved numerous judges, each one successively 'erring in law'.

I've also had extensive experience of challenging the UK Government's EU law breaking with the help of the European Parliament and the European Commission. Sadly the UK Government will be free to act however it wants by the end of the year. But that's a different matter and a different story from a different time.

Jason left an annotation ()

J Roberts,

That is certainly another interesting article. This paragraph was pretty apt:

“Since its employees are not civil servants, we have no idea how they are qualified. They often turnover quicker than the cases they’re handling. One complainant told me that a PHSO report on his complaint “seemed to have been written by a 12 year old.””

Alarming, but somewhat unsurprising, to also note that over the past year the PHSO only upheld or partially upheld 0.6 percent of the enquiries (complaints) it received:

“Remember that 96% of all enquiries did not even get registered as complaints. Thus, the true rate of uninvestigated enquiries in 2019-2020 is more than 99 percent. A different measure confirms this scale: the number of investigations ending in a partial or full uphold is just 650, or 0.6 percent of enquiries received that year.”

I also suspect those were cases where the organisation in question made concessions, which does happen very rarely.

Regarding the Michael Connor case, it seems you’re really on the ball.

M Boyce,

Yes, indeed. I agree that the situation with the PHSO is worse in comparison, particularly in the respects you have alluded to.

Let us know how you get on with your Universal Credit appeal. It is interesting to learn that you’ve been fighting many other serious legal battles too, all whist tackling the PHSO and the ICO matters, which is really impressive. Kudos to you, and more power to your elbow!

J Roberts left an annotation ()

Dr Newsome wrote an article a few years ago concerning the PHSO about which another requester sought information. The PHSO provided copies of emails created by his article:

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

M Boyce left an annotation ()

http://informationrights.decisions.tribu...

I wasn't aware of the above FTT decision until now, but it has interesting parallels to my case EA/2019/0032.

It is also about the PHSO review process.

The PHSO did provide the Appellant with some legal briefing notes on the review process. They have refused to do so under section 42 FOIA - legal professional privilege in my case.

The Appellant above believed that the PHSO held more information, but was concealing it. In my case the PHSO has been forced to provide more and more information to the Tribunal over a period of a year or so. I fully suspect they are concealing much more.

The above FTT case involved a hearing where the PHSO were represented by legal counsel. In my case the PHSO are declining to attend any oral hearing, which has now been tentatively listed for late October this year. The ICO have also declined to attend. This means that I am the only party willing to attend. The Tribunal has stated that my case cannot be heard without an oral hearing, but I now need to find out exactly why this is the case: is it my fault the case has to have an oral hearing, or is the fault with the PHSO and/or the ICO?

To my knowledge my case appears quite unique in that the Tribunal are insisting on an oral hearing which the First Respondent (ICO) and the Second Respondent (PHSO) are not wanting to attend.

J Roberts left an annotation ()

A familiar story, unfortunately:

'18. As to whether she told the Appellant, in response to requests for further documentation, "You can't have that" during that conversation she was certain that if she did say that (which she specifically could not remember saying) it would have been in the context of the fact that the PHSO had no further documents to disclose. She states that she could only assume that the Appellant misinterpreted her meaning if he thought there were other documents that she was refusing to provide.'

21. The Tribunal concludes that Ms Beazley's account is straightforward, cogent and credible.'

I suppose the moral of the story is to record everything, but even then tribunals seem reluctant to admit covertly recorded evidence.

If the Judge has said there must be an oral hearing, then it seems that you cannot be hit with any costs.

FTT powers:

'3) The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the Tribunal—

(a) to attend at any place for the purpose of giving evidence;
(b) otherwise to make themselves available to give evidence;
(c) to swear an oath in connection with the giving of evidence;
(d) to give evidence as a witness
(e) to produce a document; or
(f) to facilitate the inspection of a document or any other thing (including any premises).'

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

Have you seen this FTT decision? (ICO rubber stamp not working!)

'77. Whilst these communications have been annotated “legal advice provided”, the Tribunal cannot see how they can be so characterised... This was not legal advice, but rather practical advice

88. A central feature of this appeal, it seems to us, is that there has been much weight afforded to the fact that much of the material involves communications to and from Sumera Shabir, who is a solicitor with RMBC. To that extent RMBC,and to some extent the ICO, have approached communications to and from her as being legally privileged, almost by virtue of that very fact.'

https://www.bailii.org/uk/cases/UKFTT/GR...

M Boyce left an annotation ()

To my understanding a party can only be hit with costs if they have behaved unreasonably. I don't believe that I have behaved unreasonably. I have always responded to the judges directions in full and on time. This is not the case with the PHSO. If any costs are imposed it should be against them.

The FTT can summons any party to appear at a hearing, but will it and what might be achieved by this? I have said I am willing to appear, but both the PHSO and the ICO have stated that they do not want to appear and have nothing further they could add. So even if they were forced to appear they would likely just play the 'no comment' card - since THEY consider the case is in the bag anyway.

When is legal advice legal advice, and when is it advice given by someone who is legally qualified? This is indeed more than just a question of semantics. Certainly the PHSO regard any and all information they have sent to the Tribunal as 'closed' simply by virtue that it has been provided by someone who is legally qualified. This is not what should happen, and it is not fair.

I need to find out as soon as possible why my appeal cannot proceed without an oral hearing, because that way I'll have a better idea of what is going on.

J E Garner left an annotation ()

Legal advice is only ever between the Client and their Solicitor or Counsel. Once the advice has been shared with a third party, or somebody else has been copied into the advice via an email for example, then it is no longer deemed "privileged".

As for "unreasonable" of course this is at the Judge's discretion, mainly what side of the bed he gets out of that morning!

M Boyce left an annotation ()

If costs were imposed on appellants simply because a judge had got out of the wrong side of the bed then there would be countless examples of such cost orders. Cost orders from the FTT appear to be rare, and rightly so because if they weren't people simply wouldn't risk taking a case to the Tribunal.

J E Garner left an annotation ()

Costs are meant to be rare in all Tribunals, but that doesn't stop some Judges awarding punitive costs because they can, on the flimsiest of evidence, the only effective remedy after this is to Appeal, and get another lot. I am of course referring to Employment Tribunals, hopefully FTT are fairer!

Jason left an annotation ()

Indeed, M Boyce.

It sounds like the PHSO have cynically sought to delay and frustrate the litigation process, unreasonably refused to attend an oral hearing, and failed to disclose documents that are pertinent, albeit to the FTT only. That is unreasonable conduct based on any right-minded assessment.

J Roberts, the article written by Dr Newsome lost me at the moment I noted it was published on a Tory website. I am no fan of the Tories, not least because of what they have done to the justice system e.g. unlawfully introducing Employment Tribunal fees and decimating the legal aid system.

Jason left an annotation ()

J E Garner, yes, I would say that is correct. I have had a lot of experience in Employment Tribunals. In one case, a very unprofessional judge tried to make me pay a Deposit Order without any written reasons, all whist failing to take into account the fact that I couldn't afford it. The reason he did so was plain to me - it was simply because I had brought other cases, which is plainly wrong.

Consequently, my case was struck out because of my financial circumstances, and I was unreasonably denied access to justice.

M Boyce left an annotation ()

I've never had any experience of an Employment Tribunal, but the concept of the deposit order does sound very unfair.

I'm sorry to hear about your experience Jason. Have you had a similar experience JE Garner?

I can only speak from experience of the Information Rights Tribunal and the Social Security Tribunal. The latter cannot impose costs to my knowledge. I am not aware of any case where the Information Rights Tribunal has imposed costs on an appellant. I would be interested to hear if this has happened.

Jason left an annotation ()

Thanks M Boyce. Yes, it was profoundly unfair, and one of many egregious experiences I had at the Employment Tribunal. There are unfortunately many serious problems with the so-called justice system in this country as you know.

J Roberts left an annotation ()

Jason,

Dr Newsome used to work for the RAND Corporation:

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

M Boyce,

Appellants pursued for costs:

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

Two recent decisions. First, an example of a judge's directions working (the appeal was in fact dismissed but...)

'15. In response to these directions, by letter dated 14 February 2020, the CMC has chosen to release all the requested information it holds to the Appellant without giving reasons for its change of mind, and has not produced a witness statement (but has asked for that direction to now be varied)The only information withheld is personal information in the form of some of the officials who have authored or contributed to reports.'

http://informationrights.decisions.tribu...

I have made a request to the ICO related to DN that was appealed:

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

Second, a problem for appellants.

'11. In her Response [40], the Commissioner, relying on Oates v Information Commissioner and Architects Registration Board, argued that she was entitled to take a denial by a public authority that it did not hold information at face value unless there was some reason not to do so (for example, an indication that shewas being misled).'

http://informationrights.decisions.tribu...

J E Garner left an annotation ()

M. Boyce and Jason
The original concept of an ET was that an employee could bring a grievance against an employer, stating their case before a Judge, however this has morphed into a one sided area, where only those with the means to afford an equivalent lawyer, or those represented by their Union or "body" can hope to achieve redress. Add to this the fact that local ET Judges are often known to the Employer, as was observed a ET Court Observer, who saw an ET Judge greet the Respondent Employer by his first name, needless to say the employee lost, and even though the Appeal was heard some distance away, he lost that too. As for "overlooking" evidence and blatant perjury, yes I am aware of this, to enable the High Profile Respondent to win the case! It is of note that the unprecedented Judgment by ET Judge Ord, in the Mr Ben Plaistow v Ministry of Justice (Prison Service) whereby the Judge accuses the MoJ of corrupting and the forgery of evidence, although widely reported b the press at the time (June 2019) not one Journalist appears to have followed up the outcome, whereby the MoJ were supposed to have conducted an internal Review? This is astonishing. See my FOI to MoJ for details of this "Review" which I am currently awaiting a response, due 1 September!

J E Garner left an annotation ()

J. Roberts re ICO
"argued that she was entitled to take a denial by a public authority that it did not hold information at face value unless there was some reason not to do so (for example, an indication that she was being misled).'"
My experience of the ICO, is that even when they were presented with irrefutable written evidence of the forgery of a judicial document to prevent a Subject Access Request, she took the "Nelsonian" approach....ICO independent? I don't think so. It is of great concern to me that all of these so called "independent regulators" who are meant to rectify the wrong doing of Public Bodies, are an illusion created to make us think we can achieve justice, oh and of course, to waste our time!

M Boyce left an annotation ()

Thanks for the further info on Employment Tribunals JE Garner. It's good to get an idea of how other tribunals work. Good luck with your imminent 'review'.

J Roberts thanks for the link to the Dr Reuben Kirkham case (EA/2018/0036). Although the 'unreasonable bar' seems quite high, it is very poorly circumscribed. Do you know whether the invitation for a costs order was followed-up? Any other cases where the FTT has imposed or invited the ICO to impose costs on an appellant? I know the ICO were, as usual, not forthcoming with your enquiries on this issue.

M Boyce left an annotation ()

It does appear that the Kirkham case has the distinction of being the only appeal where the FTT has asked the ICO to impose costs on the appellant.

It is possible of course to check every case listed on the Information Rights website - to date 2601 cases (although this number should increase as a number of cases from earlier this year have still not been uploaded). Two thousand six hundred cases taking roughly 30 seconds to search each one would take around 20 hours.

J Roberts left an annotation ()

J E Garner

'It is of great concern to me that all of these so called "independent regulators" who are meant to rectify the wrong doing of Public Bodies, are an illusion created to make us think we can achieve justice, oh and of course, to waste our time!'

A very disturbing thought indeed: so many paid handsomely to conceal the truth. I would like to think that you are wrong, but...

M Boyce,

I have no information on actual costs being claimed by the Commissioner. I presume that anyone hit with costs would appeal to the UT. I have yet to come across a decision on the matter.

Recent information rights appeal related to an ET case (just to show the similar nature of case management powers):

'43. Like this Tribunal, the Employment Tribunal has case management powers that would, for examples, allow it to require parties and others to provide information to the Tribunal/a party and to require any person to attend any oral hearing as a witness. If she had raised, or was proposing to raise, her concerns about the incident report as part of her unfair dismissal claim, the Employment Tribunal would be in a position to assess the relevance or otherwise of that issue and, if necessary, ascertain the names of any potential witnesses and require their attendance at an oral hearing. The Appellant would not have needed to know the name of the security officer in order to pursue that issue (and indeed she has not claimed that she would).'

https://www.bailii.org/uk/cases/UKFTT/GR...

J Roberts left an annotation ()

I'm pleased to hear that the wheels ar now turning. You made your request in the second decade of the twenty-first century. The Jarndyce v Jarndyce of FOI!

M Boyce left an annotation ()

Thanks J Roberts.

I like your reference to Dickens and his expert critiquing of the English legal system. The wheels of justice sometimes seem to move just as slowly these days. Having said that, my dissatisfaction is not with the slowness of the Tribunal process in this case, but with both the Respondents - the PHSO and the ICO - who have both dragged this process out for far longer than needed through either their incompetence or calculation.

M Boyce left an annotation ()

https://committees.parliament.uk/publica...

And now we have the PHSO wanting more public money for its 'exemplary' service. Has any person who has used the PHSO service ever described it as exemplary? If they have then perhaps the PHSO deserves a large bonus?

J Roberts left an annotation ()

Mr Behrens makes a big thing of the Covid-19 crisis being responsible for a backlog and the likelihood of being inundated with UC complaints. He told PACAC in June that the pause on investigating NHS complaints would end on 1 July. His letter is noticeably short on detail regarding the extent of the backlog. What was productivity like after 1 July, and were steps taken to enable caseworkers to work with optimal effectiveness? As for UC complaints, it takes ages to go through the DWP and Independent Case Examiner complaints procedures.

Will Rob's Academy of Learning have anything engraved on the door? Plato's had 'Let no one ignorant of geometry enter'. Maybe something less challenging: 'we have a template'.

Jason left an annotation ()

A classic case of throwing good money after bad there.

J E Garner left an annotation ()

There is no greater tyranny, than that which is perpetrated under the shield of law and in the name of justice.
Montesquieu

M Boyce left an annotation ()

Couldn't agree more with the last few comments.

It's interesting how Rob Behrens keeps banging on about the PHSO being or becoming an 'exemplary' service. The dictionary definition of exemplary can mean either serving as a model and worthy of imitation OR serving as a warning. Which definition did Mr Behrens have in mind?

Cleary the PHSO should indeed serve as a warning to those thinking about using this service. Don't take my word for it - take everyone else's.

M Boyce left an annotation ()

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

Why have the appendices not been published?

How does this demonstrate a commitment to transparency?

Jason left an annotation ()

Not sure, M Boyce. Perhaps there is some sensitive personal information therein. Maybe a FOI request is the way to go, as some of that looks like interesting reading.

J Roberts left an annotation ()

Good point, M Boyce.

I consider it highly unlikely that the question: 'Should the appendices be published too?' was not asked.

If the PHSO continues to keep important information from public gaze the public can hardly be criticised for asking to see it.

J Roberts left an annotation ()

Dr Bruce Newsome shoots to bits PHSO figures in his latest hard-hitting article entitled: 'letting another quango mislead parliament?'

https://thecritic.co.uk/why-is-the-gover...

'The PHSO investigated 30.6 percent fewer cases in 2019-2020 compared to the preceding year, even though enquiries fell by 7.4 percent. Yet, the PHSO misreported 13 percent more enquiries, as recently as August this year.'

M Boyce left an annotation ()

Yes Jason an FOI request may well be the way to go, though I suspect the PHSO will use every trick in the FOIA book to defeat it, particularly its favourite: vexatious requestor.

J Roberts, the article makes very disturbing reading. Every day this quango becomes less and less transparent and more and more evasive, secretive and utterly dismissive.

I am still waiting to hear whether all of the PHSO's last submissions to the Tribunal in my case could be fairly classed as 'closed submissions' under GRC Rule 14. The problem is the PHSO can just make submissions to the Tribunal under Rule 14 to make sure that I never get to see those submissions. When all said and done my case involves the PHSO shouting legal professional privilege at every and any opportunity. This allows them to send the Tribunal information that I will never see and can never respond to. Another example of the PHSO's lack of transparency and lack of accountability.

J Roberts left an annotation ()

I understand your predicament.

"39. As foreshadowed by Lord Taylor in Ex parte B in FOIA Parliament has specifically legislated to permit the disclosure of communications to which legal professional privilege attaches. Neither section 2(2)(b) nor section 42 use words which, necessarily, lead to the conclusion that the party seeking disclosure of information to which section 42 applies faces a more onerous task than a party who is faced with exemptions based upon other sections of the Act."

"48. However, that is not the end of the matter. In the light of the consistent line taken by the Tribunal as to the weight to be attached to the public interest against disclosure in-built into legal professional privilege (an approach which I have found to be the correct one) it was incumbent upon the Tribunal in the instant case to give significant weight to that interest. Further the Tribunal was obliged to consider whether the weight to be given to the public interest considerations militating against disclosure were countered by considerations of at least an equal weight which supported an order for disclosure."

https://www.bailii.org/ew/cases/EWHC/QB/...

Case No: QB/2008/APP/0759

M Boyce left an annotation ()

Yes, but I think the main problem is the issue of what information should remain legally privileged DURING the case progression and what should not. Section 42 cases are very difficult for an appellant because they have to effectively fight blindfolded: I don't know what the PHSO have sent to the Tribunal and I don't know all, or perhaps even much, of what they have told the Tribunal. My concerns are of course multiplied by the fact that the ICO have maintained that the PHSO have sent the Tribunal little but entirely irrelevant information, and by the fact that both the ICO and the PHSO have declined an invitation from the Tribunal to attend an oral hearing to presumably shed light on these and other matters.

Am I wrong or paranoid to be concerned?

J Roberts left an annotation ()

You have every right to be concerned: the process is Byzantine. If the PHSO has sent little information of relevance to the ICO why hasn't the ICO requested information within the scope of your request, or if the ICO has requested relevant information, why hasn't it been provided? You are playing Jenga blindfolded.

Latest Section 14 FOIA appeal dealt with in the UT:

https://www.gov.uk/administrative-appeal...

(an exhausting read)

Related DN:

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

I can't find the related FTT decision.

M Boyce left an annotation ()

The Judge Wikeley UTT case is interesting, but as you say exhausting. I was lolling in and out of consciousness near the end of it and nearly ended up with whiplash when I fell out of the chair!

Anyone who has spent considerable time looking through the many ICO decision notices on their website cannot fail to notice just how biased they are and how they will do anything to find in favour of the establishment. That anything I now know for certain includes trying to deceive appellants (they told me they couldn't tell me whether the PHSO had sent them and the Tribunal external legal advice, but were later forced, via the FOIA, to admit that they had, albeit later saying it was irrelevant advice), as well as turning a blind eye to the establishment sending the Tribunal all manner of apparent codswallop (irrelevant information) masquerading as relevant 'legal advice'. You couldn't make it up, and promise I am not, as will be seen when this all does finally come out in the wash.

Jason left an annotation ()

This doesn't sound like a fair fight at all, M Boyce. Perhaps that is why the likes of the PHSO feel they have got it in the bag. Essentially you are putting all your faith in the impartiality, care, diligence and skill of the judge, and we all know how often they get it wrong. It sounds like it has happened already in this case.

Moreover, you can't really appeal if the judge does something stupid or exercising bias that you're unaware of.

You mentioned some time ago (it was on the other thread I believe) that the PHSO may have lost their legal professional privilege, or some aspect of it, due to their foolishness. Do you still have that argument at your disposal?

M Boyce left an annotation ()

I don't know what is going to happen with the Tribunal, and obviously I have put my trust in them, but I do know that fairness is not a word that either the PHSO or the ICO are familiar with.

I have argued to the Tribunal that the PHSO effectively, albeit unwittingly, 'waived' legal professional privilege because they disclosed a string of email and other communications on the 'legality' of the PHSO review process to another FOI requestor. The email communications that were supplied could not possibly have been the complete communications because they stopped about a year before the request. Why weren't the rest of the communications sent to the requestor and therefore the rest of the world?

The doctrine of partial disclosure does complicate things, but in any event the unarguable point is that these communications directly contradict the PHSO December 2017 Board Minutes: the former says that the review process IS allowed in law and the latter says that it is not. Is it in the public interest for the public to be at best clumsily supplied with contradictory and confusing information or at worst deliberately misled on such an important matter? The Tribunal will decide on this matter and other issues relating to my request. Let's hope this happens before the second anniversary of my appeal to the Tribunal!

Jason left an annotation ()

Yes, it is quite ironic that the PHSO are an organisation that are meant to act in accordance with the principles of natural justice.

Something also smacks of dishonesty there with the conflicting information. Dishonesty or corrupt behaviour may, of course, amount to or play a part in misconduct in public office.

"Lying to or misleading the public amounts to an abuse of public trust in that office, hence there is, on its face, evidence to meet the ingredients of the offence. The District Judge broadly agreed.":

https://thesecretbarrister.com/tag/misco...

M Boyce left an annotation ()

The PHSO have most certainly misled the public with regard to their review process. Judge Shanks in my case EA/2019/0334 described the review process as 'in a muddle and needs to be sorted out', but he also said that this was because the review process is not provided for in law. So you might ask why doesn't the PHSO want to get itself out of this muddle and work with PACAC to effect a change in the law to allow for the review process? This muddle has never been discussed with PACAC, in fact it has never even been mentioned. Why?
I spoke to the clerk of PACAC on the phone several times and on the last occasion he angrily promised me that PACAC would never ever discuss this issue with the PHSO, nor with me. Why? I kick myself for not recording that conversation!
So neither the PHSO or PACAC want to sort out this illegal muddle. Why?

Jason left an annotation ()

Those are interesting comments from Judge Shanks. Does he actually posses any powers to rectify the mess though, aside from upholding your appeal?

The clerk of PACAC sounds like an extremely dubious character.

I suspect there are a lot of political reasons behind all the inertia. The NHS is a national treasure (at least to the ordinary person), and the majority of the complaints to the PHSO are about the actual or perceived poor service people receive from the NHS. If the NHS is performing badly, and this is highlighted by the PHSO to some degree, this undermines the party in power.

The review process gives the PHSO, and by association the government, an excellent further opportunity just to brush any shortcomings under the carpet, so to speak, both in terms of the PHSO services and the NHS. This also saves the government money in terms of coughing up compensation.

Moreover, the review process affords the PHSO a belt and braces type system which protects it against a Judicial Review challenge, which also assists the Tories in bringing down public spending and the deficit.

All this is just my speculation though.

M Boyce left an annotation ()

The judge did not uphold my appeal: quite the contrary, he dismissed it as vexatious - despite saying that the review process was 'in a muddle and needed to be sorted out'. Work that one out.

The actions of the clerk of PACAC speak for themselves.

The review process does indeed act to benefit both the PHSO and the government, and the judiciary for that matter, so that makes the PHSO's total unwillingness to get the review process sorted out (made legal) all the more inexplicable.

Jason left an annotation ()

Gosh, M Boyce, what an absolute charade all this is. I suspect the like of the ICO and/or PHSO did a great job of using the "vexatious" tactic and brainwashing that judge.

Yes, agreed. I think you've got an uphill battle here though. I truly hope at lease some justice will prevail.

M Boyce left an annotation ()

My main gripe with Judge HH Shanks is his utter disregard for fair process. We all place our trust in judges to be fair and impartial, but how on Earth can they be if they point blank refuse to look at the evidence from an appellant? It is no good coming back later after the appellant has complained and then saying oh well I have now grudgingly looked at the evidence and come to the same conclusion I did without first seeing that evidence.

It is a clear abuse of trust to prejudge and then ignore evidence. I am quite sure the judge would disagree, but no fair-minded person would agree.

Jason left an annotation ()

I totally agree. It seems that judge was exercising bias, at a conscious and/or unconscious level, towards the establishment and/or he was just slapdash in his approach.

Sadly, these judges get paid vast sums of taxpayer's money whether they do a good job or not, safe in the knowledge that most appeals are likely going to fail. Personally, I think that kind of behaviour is egregious, unethical and unconscionable.

M Boyce left an annotation ()

http://informationrights.decisions.tribu...

The Nicholas Wheatley v PHSO case published today on the GRC website nearly six months after it should have been published.

M Boyce left an annotation ()

29. The PHSO is part of the legal and judicial landscape of the UK and public
confidence in the system is of primary importance. It is vital that the Ombudsman,
as a public official, is seen to act with honesty and integrity. Any suggestion that he
might act unlawfully is harmful to his office and the legal and judicial system. It
would not be in the public interest to withhold information that might reveal
unlawful conduct by a public official and to allow that conduct to continue. If the
information is released it will hopefully show that the Ombudsman has behaved
lawfully and will restore public confidence.

'It would not be in the public interest to withold information that might reveal unlawful conduct by a public official and to allow that conduct to continue.'

Indeed. So how do this judicial statement sit with the PHSO's own declaration that its review process is not legally allowed, but nonetheless the public should not be allowed to know the details of this?

M Boyce left an annotation ()

https://committees.parliament.uk/publica...

The above is described as the 'Government Response' on the PACAC website? Is the PHSO now the Government?

Where is the actual Government Response?

Jason left an annotation ()

There is so much pretentiousness on the PHSO's part in that document that it makes me want to vomit.

I see it has been proposed that the PHSO and the Local Government and Social Care Ombudsman should be replaced with a single Public Service Ombudsman, and a Public Service Ombudsman Bill may be put through parliament. One wonders what will happen to the PHSO's treasured and dubious review process if that happens.

Jason left an annotation ()

This paragraph is pretty alarming too:

"We would also welcome the Committee’s support for PHSO having legal powers to offer and charge for training,
which will enable us to assist with professionalising complaint handling across the bodies in our jurisdiction"

I think the PHSO should really get its own house in order first, and the fact that is trying to grab further legal powers is certainly alarming.

J Roberts left an annotation ()

Jason,

You make a good point. Serious and credible allegations highly critical of the PHSO are just a mouse click away. Public confidence in the organisation is disappearing fast. I have enquired about the impressive-sounding learning academy here:

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

Something else of interest, related to Sir Robert Francis QC and his view that the PHSO should become more involved with trusts:

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

M Boyce left an annotation ()

https://committees.parliament.uk/publica...

The above letter above disclosed to me after a conversation with PACAC this afternoon will be like music to the ears of Mr Behrens. There will be no new Public Service Ombudsman, and no reform of the antiquated, legally unsound, and highly inefficient current system.

We can all 'look forward' to much more of what we have long become accustomed to.

J Roberts left an annotation ()

M Boyce,

This part puzzles me:

"There are budget implications for the PHSO if the merger does not occur as the Committee understands that its previous settlement was based on realising the savings that would come from one organisation."

I don't recall seeing anything to suggest that there ever was any strong likelihood that the merger would take place. And why the word 'understands'; presumably information exists spelling things out?

......................................................................................................

'Call for evidence

Written evidence - Parliamentary and Health Service Ombudsman Scrutiny 2019-20

The Public Administration and Constitutional Affairs Committee (PACAC) is responsible for scrutinising the work of the Parliamentary and Health Service Ombudsman (PHSO).

PACAC is launching its annual scrutiny session into the work of the PHSO in the financial year 2019/20.

As set out in its previous report, the Committee intends to consistently scrutinise the following matters and would welcome evidence relating to them:

• The PHSO’s casework performance, including performance against KPIs.

• Staff management and training.

• Value for Money

• Impact on other organisations.The Committee would also welcome evidence on the following subjects:

• The PHSO’s provision of reasonable adjustments to service users.

• The time taken for the PHSO to respond to correspondence, including Subject Access Requests and Freedom of Information requests.

The deadline for receiving written submissions is Friday 30th October 2020'

https://committees.parliament.uk/call-fo...

J Roberts left an annotation ()

Most recent decision notice related to the PHSO and LPP:

'19 The Commissioner agrees with the PHSO that LPP carries with it a strong inherent protection due to the nature of the information that it covers, and the function that it plays in the administration of justice. The Commissioner has not been presented with any argument in favour of disclosure which is sufficiently strong to overturn the protection that LPP requires. The Commissioner’s decision is therefore that the public interest favours maintaining the section 42(1) exemption.'

IC-45662-G8F3

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

Jason left an annotation ()

Yes, Mr Behrens and his ilk will be undoubtedly tickled pink by the news that there will be no new Public Service Ombudsman.

As of the ICO decision, no surprise they are acting true to form.

M Boyce left an annotation ()

Yes the latest ICO DN on section 42 LPP comes as no surprise. I notice, however, that the ICO seem to have dropped their dogmatic insistence on extreme exceptionality. I wonder why?

Is the requested advice live or not live? Toss a coin and find out.

A new PSO is not in fact necessary for PHSO legislative reform: a simple Statutory Instrument could very quickly and easily amend the outdated and confusing legislation. Why isn't Mr Behrens calling for this simple and cost effective expedient? Could it be that he doesn't REALLY want reform of the Ombudsman and its legislation?

He is to be judged by his actions and not his words.

J Roberts left an annotation ()

The 'very exceptional' criterion appears to have been dropped.

Have you seen this:

“4.1 ...Since April 2013 we have tightened the criteria to provide clarity and to ensure that reviews of decisions are only undertaken where legitimate concerns exist. Since the introduction of the criteria, we have accepted 40% less complaints for review.”

(the document pages are not numbered sequentially, but according to page number of my document reader it is page 77)

https://www.whatdotheyknow.com/request/2...

Increased clarity and wiped out illegitate concerns at the stroke of a pen. Amazing!

M Boyce left an annotation ()

It was never the PHSO that were making and endorsing the 'very exceptional' argument - that was, and maybe still is, the ICO. The PHSO went even further at two-fingering the law: they argued that 'it was NOT POSSIBLE' to use section 42 to obtain legally privileged information from it. The ICO made the 'very exceptional' argument to the Tribunal and the PHSO used the 'not possible' argument. The FOIA simply states that the public interest in disclosure only needs to outweigh the public interest for non-disclosure. Both the ICO and the PHSO are repeatedly corrupting the letter and the spirit of the law to further their agendas.

Jason left an annotation ()

I would be very inclined to agree. The whole thing stinks to high heaven.

Are you any nearer to getting any kind of hearing at the Tribunal?

M Boyce left an annotation ()

Yes Jason I would hope the Tribunal will hear the case fairly imminently. There is now no more (apparent) obstacles to prevent this.

The Tribunal website has been in chaos since the start of the pandemic, but as soon as I get a decision from the Tribunal I will post it here.

J Roberts left an annotation ()

The Tribunal website is still down. It's got a virus worse than Covid!

M Boyce left an annotation ()

Yes J Roberts the Tribunal website has been malfunctioning since the start of the pandemic. I contacted them about this three or four times during the summer, but they just stated that they had reduced staff due to the pandemic and didn't have time to deal with issues such as publishing decision notices.
Six months on the situation appears worse than ever. Justice (such as it ever was), like people's health and sanity, is rapidly going down the pan.

M Boyce left an annotation ()

There are several very serious issues with the FTT website being indefinitely unavailable. Firstly, we now have no idea of how many, if any, cases are being looked at and decided by the Tribunal. Secondly, any appellant wanting to search the Tribunal past cases is now unable to do so and cannot now use past cases to help inform their case.

We currently have high unemployment in this country, and yet the FTT say they do not have enough staff to publish decisions. Why can't they offer some unemployed people a job and simultaneously possibly help to facilitate some justice in this country?

Is this a manifestly unreasonable suggestion?

Jason left an annotation ()

Fair point I would say, M Boyce.

It's not just the FTT that is dragging to a halt - I've been waiting for ages for some progress in regards to my complaints/cases with the Legal Ombudsman and the PHSO. I am certainly not holding my breath in respect to the latter, though, for obvious reasons. Indeed, I have decided that sending the PHSO any further complaints/cases is most likely just going to be a waste of time and energy, and only serves to exasperate my sense of injustice and grievance.

M Boyce left an annotation ()

I agree Jason.

I would say to anyone thinking of taking a complaint to the PHSO to think very carefully about it: if you like endless stress, frustration, disappointment by the bucket load and a miniscule chance of any success whatsoever then go for it; if not then don't bother.

J Roberts left an annotation ()

Unrepresented appellants are now not only hobbled but blinded as well!

As for approaching the PHSO, things seem to be getting worse. Get to a good lawyer before it's too late. Here's what people think of the Ombudsman.

Trustpilot:

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

'What's the Point of the Ombudsman?':

https://www.amazon.co.uk/gp/product/1999...

Latest story by PHSO the Facts on the Ombudsman's venture into radio (spoiler alert: it hasn't gone well):

https://phsothetruestory.com/

Jason left an annotation ()

Yes, the whole thing is an unmitigated disaster. The PHSO claims to be "independent", but it is certainly not impartial. In my humble opinion, it is set up as a whitewashing machine, or has certainly covertly morphed into such an entity over recent years, with the view to protecting government agencies, and by association the government itself, from being held to account and/or challenged by Judicial Review.

M Boyce left an annotation ()

The Tribunal sat this week to hear my case EA/2019/0032 - legal advice about the PHSO review process. The case will be unlikely to be published on the now defunct GRC website, so I will post it here when I get it.

Jason left an annotation ()

Sounds very interesting, M Boyce.

Did you attend remotely, and do you have a sense of how things went?

M Boyce left an annotation ()

No Jason. I wanted to attend a remote hearing, which the Tribunal at first said was absolutely necessary, but both the PHSO and the ICO refused to attend, so the Judge decided it then wasn't necessary!

As for how the hearing on the papers went; well suffice to say that my faith in good old British justice is not strong, but we'll find out soon enough.

Jason left an annotation ()

Yes, I can certainly empathise with your view of good old British justice, as I am been left extremely disillusioned for a very long time.

Jason left an annotation ()

Any further updates, M Boyce?

I would say the way that case has been handled by the respective Judge(s) hitherto is a serious concern.

D. Moore left an annotation ()

Here is an information notice dated 9/11/20 that I came across:

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

"Section 51

Under section 51 of the Freedom of Information Act 2000 (the “Act”), which is set out below, the Information Commissioner (the “Commissioner”) has the power to serve a notice on a public authority requiring it to furnish her with any information she requires to enforce the requirements of the Act."

"18. In view of the matters described above the Commissioner hereby gives notice that in the exercise of her powers under section 51 of the Act she requires that the PHSO shall, within 30 calendar days of the date of this notice, furnish the Commissioner with a copy of the following information:

The withheld information.

Further more detailed arguments to support the application of sections 40, 42 and 44 of the FOIA as outlined in the Commissioner’s email of 14 April 2020."

M Boyce left an annotation ()

No further updates yet Jason, but I believe that the decision is currently being written by the Tribunal judge.

My main concerns with the case are more about how the PHSO and the ICO have worked to drag this case on for almost two years so far. Time and time again the PHSO failed to adequately respond to the numerous directions from the judge, and time and time again both the PHSO and the ICO tried to deny the Tribunal essential information.

In fairness to the judge, she has provided both the PHSO and the ICO more than ample opportunity to cooperate fully with the Tribunal - without total success.

Thanks for the link to the ICO DN D Moore. It quite aptly shows that the PHSO are still continuing to show what can only be described as contempt for requestors. But to make such an obvious statement of fact is to to risk being muzzled as vexatious by the establishment.

M Boyce left an annotation ()

D. Moore, where did you obtain the above ICO DN, dated November 09 2020 concerning the PHSO? I ask because it has not been published on the ICO website.

It now appears that both the ICO and the FTT are not publishing some (in the case of the ICO) or all (in the case of the FTT) of their decisions.

D. Moore left an annotation ()

M Boyce,

The ICO publishes its information notices and practice recommendations here:

https://ico.org.uk/action-weve-taken/inf...

M Boyce left an annotation ()

Thanks for this info D. Moore.

J Roberts left an annotation ()

Recent report by Open Democracy - 'Art of Darkness: How the government is undermining Freedom of Information':

https://beta.documentcloud.org/documents...

"It is unclear why the ICO makes such infrequent use of Information Notices (the ICO’s website states that as of November 2020 it has issued 28 since June 2019 while processing more than 1,000 complaints).

Information Notices give authorities thirty days to submit a copy of the requested information and its arguments for withholding it, which seems a reasonable time frame. After all, authorities should have prepared this material during the request and internal review stages.

It is plausible, however, that public bodies require extensions because they are not responding to requests in good faith and are betting on requesters failing to use the appeals process." (page 23)