Dear Parliamentary and Health Service Ombudsman,

In the PHSO Board Open Session Meeting 14 December 2017 it states the following at paragraph 12.8:

'Jon Shortridge asked about the legal status of CCT [Customer Care Team] reviews, and what was the basis of a review if it did not constitute a new decision. Karl Bannister explained that our legislation did not allow for reviews. There was a risk involved if we did NOT [emphasis mine] follow the legislation. However if we decided that a review was wrong we needed to be PRAGMATIC [emphasis mine]. Ultimately this was a question of our RISK APPETITE [emphasis mine].'

(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.

Yours faithfully,

M Boyce

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

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M Boyce left an annotation ()

The more we delve into the PHSO review process the clearer it slowly becomes that the whole process is nothing but a sham, and a dangerous sham at that. It seems fair to offer a review of decisions, especially when you can prove that the PHSO got substantive things wrong. But the process is one of smoke and mirrors where justice is nothing more than an illusion. Rather than making the PHSO decision-making process more robust, ironically it appears to make it less robust, because case workers know that they don't need to get it right and if people complain then they can just send them to the CCT who will conduct a sham review. What's even more dangerous is that the review process appears to have no legal basis and no legal function. When a review process exists (whether it's legislated for or not) then a complainant is expected/mandated to use it if they then wish to further pursue judicial review - JR is a remedy of last resort and a court will not allow an application if a review option was not utilised first. By the time you wait for a review (more than 3 months) you are out of time to apply for JR, and the PHSO tell you this. The review process appears to function to do nothing more than obstruct legal justice - and this is very dangerous and very worrying.

phsothefacts Pressure Group left an annotation ()

The CCT at PHSO take many months to carry out a review which leads you to believe that they are carefully considering all the evidence. However, it often turns out that they have destroyed, lost or failed to store the evidence in the first place so what exactly are they reviewing? Sham indeed and time for PACAC to take action on this.

M Boyce left an annotation ()

I certainly agree about them destroying most of the evidence.

My MP has written to PACAC twice within the last 6 weeks about the sham review process and so far there has been no reply. I intend to ask my MP to send me all the evidence of his communications from myself to PACAC. I am keeping a detailed record of their unwillingness to scrutinise wrongdoing at the PHSO. This is going to be used when I go to the national newspapers with the full story of the PHSO sham review process and if PACAC continue to ignore this issue they will be seen to be complicit in it.

The clerk to PACAC and Bernard Jenkin's office have told me several times on the phone that the Committee will not investigate this matter and that they will do all they can to obstruct me in my investigations on this matter. Go luck to them on that because they will need it.

M Boyce left an annotation ()

Today I received this from the PHSO legal team:

'The review process is offered not as a statutory requirement but as a process to check that there were no mistakes when reaching a decision that would have changed the outcome of that decision. The purpose is to look at what PHSO did and NOT to investigate the substance of the original complaint.'

So what happens if mistakes were made that would have changed the final decision? A fresh investigation may be conducted. How can anyone conduct a fresh investigation if they do not look at the substance of the original complaint? What exactly are they looking at? Perhaps it is whether the Moon really is made of cheese. Then what happens if someone is not happy with the outcome of the fresh investigation? It cannot be amenable to judicial review because such a provision is not provided by statute. The original flawed decision cannot be quashed by the PHSO and any review is not amenable to judicial review. So what is the point of the PHSO review? The only point is to delay proceedings and to make judicial review of the original decision very difficult - because a review must be undertaken before anyone can ask for a judicial review.

M Boyce left an annotation ()

Outcome so far of my application for judicial review against the PHSO –
My application was refused as ‘totally without merit’.
Chronology and outline of events:
31 October 2017 I received my PHSO Final Decision
19 November 2017 I requested a review of the Final Decision. I was informed it would take at least 12-16 weeks for the Customer Care Team (CCT) to decide whether to conduct a review or not.
03 December 2017 I sent the CCT a letter before claim as part of the Pre-Action Protocol for judicial review.
16 December 2017 I was informed by the legal team at the PHSO that:
‘If you wish to appeal the Ombudsman’s decision then you have a period of three months in which to issue judicial review proceedings, this is from the date of the final decision in your case which is the date of the final report. This is not extended if you request that the decision is reviewed. IF YOU GO OVER THAT THREE-MONTH PERIOD YOU ARE LIKELY TO BE CONSIDERED BY THE COURT AS OUT OF TIME.’
19 January 2018 I made an application to the High Court for judicial review of the PHSO’s Final Decision of 31 October 2017.
31 January 2018 a letter from PACAC to me states the following:
‘…the PHSO have assured me that their general policy is that: ‘where the complainant or body in jurisdiction requests a review of that decision, we would not seek to challenge a late issue of judicial review proceedings…’
Yet the PHSO had already told me that a late application would likely be refused by the court (out of time) so the assurance that the PHSO would not ask the Court to consider the application as out of time is largely academic, and certainly not reassuring.
09 February 2018 the PHSO (now the Defendant) issued me with an Acknowledgment of Service to my application for judicial review. They asked the Court for a stay of proceedings whilst they decided whether to conduct a review of my Final Decision. They also asked the Court that if a stay was not to be granted, and in any case, then my application should be summarily dismissed as totally without merit. Within that Acknowledgement of Service, the PHSO legal team also made extensive reference to the seminal case of Zahid v OIA. This says that a stay of proceedings should almost always be granted by a judge when an application for judicial review has been issued protectively (before the delayed PHSO review process has completed). Equally vitally important is what Zahid v OIA says about the extension of the three-month time limit for applying for judicial review. In paragraph 77 of Zahid it states the following:
‘The courts have indicated that they can be - AND USUALLY ARE – willing to extend time for the issue of judicial review proceedings to allow for an alternative remedy to be explored’ [PHSO review process].
And in paragraph 80 of Zahid:
‘….the court will be driven to exercise its discretion to allow an extension of time..’

So here there could be no clearer example of the guile that the PHSO exhibit in order to behave in a shockingly deceitful way to make their review process unclear and unfair. They tell me by email that an extension of time by the court to allow the PHSO review process to complete will LIKELY be refused by the court, and yet 6 weeks later they inform both myself and the Court, by explicit and detailed reference to Zahid, that a time extension should be, and will almost certainly be, allowed. Obviously by that time I had made my application for judicial review at considerable expense, time, effort and great financial risk. The PHSO lovingly exclaim that they have an appetite for risk – especially when they burden the complainant unnecessarily with enormous financial risk. There is no financial risk to them because they have access to the most expensive lawyers all paid for by the tax-payer. The PHSO deliberately misled me to get me to either not issue legal proceedings or to do so unnecessarily prematurely at my significant cost and risk. For this I will never forgive them and I will pursue this demonstrable injustice to my last breath. The PHSO cannot be trusted to be fair and this fundamentally undermines their whole existence and their whole mission. Without trust there is nothing.
21 February 2018 the Honourable Mr Justice Lavender made the decision that my application be refused as totally without merit, and that I should be refused permission to appeal at an oral hearing. I was aware that the judge had made his decision on the 21 February, but I was not allowed to know what that decision was. This decision was not to be communicated to me until the date of service, which was 28 March 2018.
09 March 2018 the PHSO legal team informed me that they had been in communication with the CCT and had decided that my request met the very stringent conditions required for a review to be granted. Only a tiny fraction of one percent of all requests for a review are granted. These conditions are almost identical to the necessary grounds for judicial review. To my knowledge the Defendant did not know what the outcome of the judge’s decision was at this time; in other words, the PHSO did not know that the judge had already refused my application as totally without merit. So, the PHSO had now decided that they had possibly got it wrong, and the judge had decided that they had in fact got it right! Not that the judge had got it right, because he cannot be trusted to be fair either, as outlined below.
10 March 2018 I asked the Court if I could inform the judge that the Defendant had granted permission for a review of their Final Decision. I was informed that this was not possible because the judge had already made his decision and would not now take this information into account.
29 March 2018 I received the decision from the High Court. In summary it stated that:
Permission is hereby refused.
The application is considered to be totally without merit.
No order as to costs.
The judge’s very brief elaboration on the above is so defective it is almost laughable. I don’t believe he even bothered to look properly at my submissions, but instead just looked at the PHSO’s submissions.
The inescapable question though is: why did the judge just not permit a short stay of proceedings to allow the PHSO ADR process (review) to run its course as it should have done in the first place? Any reasonable and right-minded person would have allowed this, simply in the interests of fairness and justice. The judge also effectively ignored case law on this issue, as outlined below. How mockingly ironic it is that Judge Lavender titles himself ‘Justice’. This fact alone (refusing to stay proceedings to allow natural justice to conclude) proves that the judge has not behaved fairly, and his assertion of ‘completely without merit’ therefore simply cannot also be trusted as fair. The judge remained utterly silent on my being deceived by the PHSO prematurely into this judicial review at great financial risk. TRUST, TRUST, TRUST.
There was no order as to costs because, although the PHSO had asked for costs (almost £2000 for the Acknowledgement of Service), they had in fact failed to provide a schedule of costs to the Court.
I spoke to my solicitor on 28 March 2018 and he informed me that I should not apply to appeal the High Court decision because the PHSO had now agreed to review their decision. An appeal would certainly be rejected by the Court now that the PHSO had agreed to conduct a review. I had been stitched-up like the Christmas turkey – no possibility of an appeal.
The PHSO told me that they aimed to complete their review in about 10 weeks. The further problem was that since the judge declared my case as totally without merit, then this would inevitably determine the PHSO’s review decision. The PHSO ADR process cannot be fair if it has already been influenced by external agency. The PHSO review simply could never contradict the order of the High Court (it would be illegal and unthinkable), which makes any continued review entirely deterministic and entirely academic.
09 May 2018 I received my PHSO review outcome. As I predicted it was not upheld, although the CCT couldn’t tell me this and this was left to the PHSO legal team, who hadn’t even conducted the review! It could not have been upheld because this would then have countermanded the order of the High Court. Despite the review being classed as not upheld it found that the PHSO decision was flawed throughout. It doesn’t matter how flawed or deficient the decision was, the review outcome could only ever have been not upheld because it would contradict the PHSO’s own determination that my JR application was totally without merit, that the court found it was totally without merit, and that a new (fresh) investigation could never have been legally possible, as I explain below.
A further reason why a fresh review was never possible was that it was prohibited by the Parliamentary Commissioner Act 1967 (PCA), section 5(2)(b).
Just as the PHSO have misled and deceived about the need to apply for JR within 3 months if the review process is ongoing, they have also misled and deceived about the PCA, as follows:
In paragraph 39 of their February 2018 Acknowledgement of Service they state the following:
‘There is also an additional complication in that, if this judicial review proceeds before the review request or review is determined, the Ombudsman may be prevented from considering the Claimant’s review any further under section 5(2)(b) of the Parliamentary Commissioner Act 1967, which precludes the Ombudsman considering ‘any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law.’
In reply to my second letter before claim, dated 02 August 2018, the PHSO state this:
‘It is denied that section 5(2)(b) of the Parliamentary Commissioner Act 1967 applies to your case.’
Here we have an explicit denial of what they said to the Court back in February of this year. The PHSO constantly mislead and act to deceive at any and all opportunity if it suits their desire to win at all costs, to satisfy their unwholesome appetite for risk.
In that reply to my second letter it also states the following:
‘Your interpretation of section 5(2) is incorrect, it relates to situations where there may be an alternative remedy [JR] at the point that the original complaint has been made.’
What the PHSO asserts here is utter nonsense, and it again shows that the Ombudsman cannot be trusted. If there is no trust in the PHSO then there is nothing. What the PHSO are saying is that section 5 will only apply when the Ombudsman first receives a request for an investigation. It could apply at that stage obviously, but to assert that section 5 would not apply if a complainant then decided to go to court whilst the PHSO investigation was in process (and later any possible review) would insult the intelligence of even a very small child. TRUST, TRUST, TRUST is what is required of the PHSO, not seriously misleading advice.
This is what the PHSO Main Guidance July 2018 states on this matter:
‘When we consider an alternative legal remedy has already been pursued.
2.167 We do not have the remit to consider complaints where the aggrieved has already resorted to a court or tribunal that did (or could have bit didn’t) provide the full remedy sought. Cases where this has occurred should be closed as ‘out of remit’ – alternative legal remedy achieved.’
The PHSO know full well that section 5(2) applies THROUGHOUT the entire lifetime of the PHSO complaint process - not just at the very start. Why would the PHSO continue with an investigation that was say half way complete if a complainant had then decided to go to court, or indeed had been to court? The PHSO are being deceitful in suggesting that they would continue with an investigation at this time in this circumstance. TRUST, TRUST, TRUST. If we cannot trust the PHSO review process or the PHSO legal team, why should we trust the PHSO investigative process at any stage?
An application for a second judicial review could now never achieve justice because the Court would in any case be prevented from ordering the PHSO to undertake a fresh investigation by virtue of legal prohibition under section 5(2)(b) of the Parliamentary Commissioner Act 1967. The Court could possibly quash the review (although this is also problematic because a PHSO review has no statutory basis in law – how can you quash something that may well not be legally amenable to be quashed), but then that takes me back to square one. This is what PHSO mean by justice and fairness.
Then just when you think it’s safe to go back into the water the PHSO further advise me of the following on 03 August:
‘Our position, therefore, is that were the court to disagree with our argument and quash the result of the review, the outcome should be a new review, rather than a fresh investigation.’
Oh dear, the legal eagles at the PHSO really have got hold of the wrong stick. How can the Court possibly order something that is not provided for in statute? Perhaps they could make it up as they go along, just like the PHSO!
What also would be the point of a further review that the PHSO themselves admit is nothing more than a fault finding exercise that then goes nowhere – no possibility of a new decision, and an original flawed decision that cannot be quashed.

The PHSO pushed me prematurely into judicial review, leaving the tax-payer with a bill of nearly two thousand pounds for court costs, and me at my wits end with worry and stress. They have completely subverted the process of natural justice by doing everything back to front. They have been endorsed by Mr Bernard Jenkin and PACAC who have stated in writing that the PHSO think it is ok to merely not actively oppose a late application for judicial review. They knew the Court would almost always accept a late application if it is to allow the review process to complete, yet they told me in writing the exact opposite. A late application has to be filed at the same time and on the same application for judicial review – the Claimant has to fully prepare and submit all the voluminous judicial review paperwork to the Court; they have to pay the substantial fees for application for JR, and they then also run the risk of having to pay the costs of the Defendant’s Acknowledgement of Service (often up to £5000) – and this on the back of a misled premature or late application. The PHSO and PACAC think this is just fine and dandy. It is not, and I intend to put a permanent stop to this outrage. The PHSO, PACAC and the judiciary will very soon be under the scrutiny of the media with regard to this matter, as it affects not just me, but potentially all those who have appealed, currently appeal, or will appeal to the PHSO, and then possibly to the courts. This sham that masquerades as justice has to stop.
I have arranged to meet with my MP and I will ask him to write to PACAC to request that a full investigation is undertaken into this very serious matter as soon as possible. If PACAC refuse to undertake this investigation then I will ask for my MP to look into the matter of the PHSO denying complainants fair and unfettered access to judicial review of their decisions. Then I will take the entire dossier of evidence I have on this matter to the national newspapers. I and countless other complainants to the PHSO have been ignored or dismissed as ‘totally without merit’ by the collusive establishment for long enough. It has to stop.

M Boyce left an annotation ()

So we now learn that the Customer Care Team (CCT) is now called the Review and Feedback Team (RAFT). An easy to remember name because it is what is thrown overboard when the ship is sinking!

Is this just a re-naming/re-branding or is there any substance to this?
There is no mention of any of this on the PHSO website and the long promised update to the Customer Care Guidance (last updated two years ago) appears to have floated off somewhere over the horizon never to be seen again.

phsothefacts Pressure Group left an annotation ()

It used to be called the review team before but was discredited hence the new and improved customer care team who won an award evidently. Another rebranding won’t improve the process.

phsothefacts Pressure Group left an annotation ()

As your shocking story reveals they make it up as they go along with the impunity of an unaccountable body.

M Boyce left an annotation ()

They are unaccountable because PACAC has never once held them to account. If PACAC refuse to investigate, and properly investigate at that, the PHSO sham review process then they will be held accountable themselves not only for their own failure to act but also for the failure of the PHSO review process.

M Boyce left an annotation ()

What is the point of the PHSO review process?

It is not provided for by statute and is therefore provided voluntarily by the PHSO. Why would they choose to do this? They know that any review outcome has no legal basis because it is not provided for in statute.

It exists for one reason and for one reason only: to deny complainants proper justice.

The Administrative Court Guide, and the Civil Procedure Rules on which it is based, make it very clear that a court will refuse permission to apply for judicial review if an adequate alternative remedy exists. The key word here is 'adequate'. The adequate alternative remedy (PHSO review process) does not have to be coextensive with JR, and it does not have to be provided for in statute, and both are not. So anyone wishing to apply for a judicial review of a PHSO decision has to first use and exhaust the review process. The review process appears never to have resulted in a change of decision (from not upheld to upheld).
Any review outcome is also non-justiciable by JR because it has no statutory basis. Complainants wait over three months for the PHSO to decide whether they are going to conduct a review or not, and by that time the complainant is out of time to apply for a JR of their decision (although the court should allow a time extension for the review to complete, but this is entirely discretionary, entirely legally academic, and this information is withheld from the complainant by the PHSO).
The PHSO review process has always been and will always be a dangerously deceptive sham. Countless complainants have been denied justice by its existence and it should now be scrapped and the PHSO made to explain and justify this sham process.

M Boyce left an annotation ()

This makes interesting reading.

http://www.landmarkchambers.co.uk/userfi...

M Boyce left an annotation ()

Notice how the Landmark Chambers article makes no mention whatsoever about the sham PHSO review process. As far as the lawyers that act for the PHSO are concerned the review process simply does not exist. The PHSO Final Report is just that - FINAL. It is the very end of the investigative process. The deceiving review process exists just to lead a complainant down the garden path to a dead-end, to waste time and to deny access to judicial review by timing-out of the JR application window. It also throws-up the serious issue of parallel jurisdiction as the Landmark Chambers article alludes to but sneakily side-swerves - the parallel and legally conflicting paths of the PHSO review process and that of judicial review This is an issue that LC pretends does not exist.

InformationRights, Parliamentary and Health Service Ombudsman

Dear M Boyce

 

Re: Information request reference R0000153

 

I am writing with regards to your request for information currently being
processed by the PHSO.

 

In accordance with Section 10(3) of the Freedom of Information Act it has
been necessary to extend the time for compliance for your request by a
further 20 working days as Section 42 of the Act is applicable. As this is
a qualified exemption this further time is needed to consider the Public
Interest Test. We therefore aim to provide you with a final response to
your request once a decision has been made on or before 25 September 2018.

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

W: www.ombudsman.org.uk

 

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M Boyce left an annotation ()

So the PHSO is now trying desperately to use the public interest test in order to refuse to provide the requested information.
The net is closing in on the sham PHSO review process, and in fact on the whole of the investigative process.

phsothefacts Pressure Group left an annotation ()

Yes, an interesting oversight. No mention whatsoever of the 'review' stage or customer care team. After the final report, there is only recourse to court via judicial review.

M Boyce left an annotation ()

Is it an 'oversight'?
I don't believe it is. Hannah Gibbs of Landmark Chambers, and author of the public article, was the senior lawyer that advocated for the PHSO in my judicial review case. She went into some detail about how the seminal case of Zahid v OIA was relevant to my case and in particular in terms of arguing for a stay of proceedings to allow the PHSO REVIEW PROCESS to complete. The judge ignored this request without reason, just as he dismissed my case as totally without merit without giving reasons for doing so, in direct contravention to his legal duty to do so. How much Landmark Chambers know about the full extent and labyrinthine deception of the sham PHSO review process (occasionally leading to a new final report that has no legal standing) is as yet unknown. I have contacted Ms Gibbs by email but she is out of office until September. I suspect she will also drop the shutters. We will find out. PHSO, PACAC and Landmark Chambers are all involved in this very very opaque business. It's going to get very messy indeed and that is a promise I intend to keep.

M Boyce left an annotation ()

Thanks for your email Neil.
Sorry I've not replied directly to you because I'm always a bit wary about disclosing my email address.
The good thing about the WhatDoTheyKnow site is that it allows for the public sharing, discussion, and collaborative use of FOIA information that may help to hold public authorities to account for the personal and public good.
Do let me know what happens in your case.

Neil Ingram left an annotation ()

You're very welcome,
I would just like to share with you that there is a delicious irony with all the communiques I have written to both the US and UK authorities over the years. Now I'm not all that smart, not by a long chalk but I am persistent and it has been that persistance which has given each respective authority - the proverbial rope they have eventually hung themselves by.
Had the PHSO not sent me a second delay notification, I would never have spent all night reading your posts and many, many other wonderful pearls of wisdom which seem to contradict their "Principles" (claiming to endorse "legality, flexibility, transparency, fairness and accountability"). So thanks again and it will be my pleasure to keep you advised of my progress.

M Boyce left an annotation ()

I'm 100% with you about just how important persistence is when dealing with public authorities. It becomes a war of attrition as they try to wear you down and make you go away and you will not stop until you get answers and hopefully justice.

M Boyce left an annotation ()

Another thing about persistence is that is can sometimes unexpectedly lead you from something quite small to something that is quite big: from my own individual case to the much broader and more important issue of the PHSO demonstrably breaking the law and misleading EVERYONE.
The PHSO has almost boundless latitude to decide cases on grounds of merit or substance, but that latitude does not extend to breaking the law or generically misleading everyone. All Ombudsmen organisations are legally prevented from investigating matters (and that includes reviews that might lead to fresh investigations) that have already been decided by a court as without merit - that applies across all Ombudsmen organisations and the legislation to which they are bound says so.
Here's what the education Ombudsman (OIA) says on this matter:

'We cannot consider matters that have already been decided by the courts ….We would only accept a complaint for review if the judge has not reached conclusions on the merit of the case.'

And that applies to ALL Ombudsmen organisations - or at least it should. The PHSO by continuing with their review of my case after the judge had decided that my case was 'totally without merit' have shown that they have broken the law and that their review process is a complete sham.
It is almost impossible to use an individual case to hold the PHSO to account, but my case has broadened into something that is soon to spiral out of control for the PHSO. Watch this space if you don't believe me.

Neil Ingram left an annotation ()

Your point is pretty much exactly what the PHSO tried to browbeat me with. But the councillor's assertions made no sense because she quoted matters that were completely out of context and the Foreign and Commonwealth Office's (FCO) 'so-called resolution' the PHSO vigourously shilled, was no more than a catch-22, which if disclosed, would have self-incriminated the FCO. Beautiful! 😘

M Boyce left an annotation ()

In the next week or so I am going to make an appointment to see a lawyer who is expert in the area of judicial review law. I want to see if they can provide some definitive guidance on the legality or otherwise of PHSO review decisions. The specific question I will be asking is as follows:

Is a PHSO review decision amenable to judicial review bearing in mind that reviews are not legally allowed for (provided for in statute) ?

I will ask the lawyer to provide his opinion in writing so that I can hopefully use it in my dossier on the PHSO sham review process that I will be sending to PACAC.
The PHSO are currently trying to refuse to supply me with this information under FOIA exemptions.

phsothefacts Pressure Group left an annotation ()

Go for it!

M Boyce left an annotation ()

M Boyce left an annotation ()

The above case is an important one, but it still leaves uncertainty about whether an ombudsman (any ombudsman) can reconsider a final decision.
'Whilst the relevant legislation contains no express power permitting an ombudsman to reconsider a complaint, such a power is part and parcel of the FOS's [and presumably by extension the PHSO's] duty to consider a complaint that has been properly brought before it...'

It would appear from this ruling that it remains open to seek a judicial review of the ombudsman's second determination (a review decision and then possibly a fresh investigation decision) even though there is no explicit provision for this in statute ? But the Berkeley Burke v FOS ruling also seems to make it clear that any second determination (PHSO review decision/ fresh investigation decision) is dependant on the quashing of the first decision (PHSO final report). Yet the PHSO have stated that they have never themselves quashed a final report, and you simply could not have two final reports on the record that were contradictory as this would make a complete mockery of the law and the ombudsman processes.

I will hopefully be discussing the relevance of this ruling to the PHSO sham review process if I can get to speak to a lawyer about all this in the coming days.

M Boyce left an annotation ()

The question of the legality or otherwise of the PHSO review process appears to be moving towards the former - it appears to be legal.

In February 2018 the PHSO informed PACAC that:

'..it is possible for the Ombudsman to decide to 'quash' a report'.

This change of stance by the PHSO must to some extent have been informed by the recent case law of Berkeley Burke v FOS which stated that reviews of ombudsmen final decisions were to be regarded as implicitly statutorily provided for.
I'm still trying to get further advice on all this.

It must now be the case that the PHSO review process is legal or it is not, and as I said it appears to be legal - it cannot be both. But the PHSO currently behave as it is both. It is legal when it suits them and it is not legal when it does not. The PHSO want to have their cake and eat it. That has to stop. In my review decision the PHSO said that it was amenable to judicial review (statutorily provided for), but then in their response to my letter before claim as part of the judicial review process they claimed that the review process was NOT statutorily provided for and therefore my legal grounds for challenge were not applicable. I'm having none of it.

M Boyce left an annotation ()

Here is a very clear example of the PHSO having their legal/illegal cake and eating it.
In the PHSO's legal team reply to my letter before claim in May of this year they state exactly:

'The review process is offered NOT as a statutory requirement but as a PROCESS to check that there were no mistakes when reaching a decision that would have changed the outcome of that decision.'

The PHSO legal team are clearly stating that the review process is not legal (statutorily provided for), and yet they regard it as amenable to judicial review??? You cannot judicially review something that is not provided for in statute (and sometimes case law) - the law deals with the law and nothing else!

M Boyce left an annotation ()

M Boyce left an annotation ()

If the Parole Board are now to be given the power to reconsider final decisions in a fair and transparent way, then why should complainants to the PHSO, many of whom bring literally life and death cases, be denied a similar recourse to justice?

phsothefacts Pressure Group left an annotation ()

I think you will find that the legality of PHSO quashing a report without recourse to the courts is still a grey area and one which needs to be tested. Just because Rob Behrens decides the Ombudsman can quash reports doesn't mean the legislation would support this and it could provide an opening for a judicial review from the public body concerned.

M Boyce left an annotation ()

It is undoubtedly still a grey area, and although the Berkeley ruling strongly 'suggests' that an ombudsman can quash a final decision, it is far from definitive and appears not to have been tested. It needs either a case law ruling or an explicit clarification to statute. Why is Rob Behrens seemingly just sitting on his hands with all this and not pressing for legislative clarification in statute? This legal uncertainty benefits no-one - including him.

M Boyce left an annotation ()

I came quite close to applying for judicial review of my PHSO review decision, but the threat of very large costs (around £5,000) from the PHSO meant going ahead was just too risky. The PHSO threatened me with both external and internal legal costs. Then there is the possibility of a judge imposing a large wasted costs order on top of that if he was having a bad wig day or the defendant's exceedingly tight briefs were getting under his skin.
My JR would only have been on procedural impropriety, since the substantive grounds were not open to challenge as previously refused on the merits.
The procedural impropriety ground was that the PHSO should not have continued with their review after the court had reached its decision - and particularly a 'totally without merit' order. The continued review was both illegal and entirely academic (any review outcome would never contradict a court order). By continuing with their review the PHSO were in clear breach of section 5 of the Parliamentary Commissioner Act 1967. But this only applies if the review process is statutorily provided for (and this is a legal grey area). If it is legally provided for a judge could then only quash the review decision, but not order a fresh review or fresh investigation because of the original refusal on the merits of the case. I couldn't personally have gained much from applying for a JR of the review decision, but it would probably have answered the question as to the legality or otherwise of the review process and its amenability to judicial review.
I can't get this answer head on, but I will get it side on.

M Boyce left an annotation ()

The letter of 01 February 2018 from PHSO to PACAC state that PHSO can now quash final decisions.
Rob Behrens also briefly mentions how this can inform, and be informed by, the Draft Public Service Ombudsman Bill, December 2016. This Bill aims to abolish the PHSO (yes it can't come quick enough) and it makes it clear under section 4 that the ombudsman may re-open an investigation or begin a new investigation.
So the PHSO appears to have moved to a position that will be embedded within the new ombudsman service.

phsothefacts Pressure Group left an annotation ()

PHSO tight-lipped in regard to these specific questions regarding legislation. Seems they are able to make it up as they go along.

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

M Boyce left an annotation ()

It's time for all this evasiveness and nonsense to stop. Both the PHSO and PACAC are of course paid for by the tax-payer. Rob Behrens and Bernard Jenkin are public SERVANTS who should be serving the public, and not just serving themselves.
It is time for a straight answer to a straight question: is the PHSO review process legal or not? If neither Bob or Bernard are prepared to serve the public as they are paid to do by answering this simple question or obtaining an answer to this simple question then they should go - and go now!

Neil Ingram left an annotation ()

My thanks to you notably M Boyce, phsothefacts Pressure Group, C Rock et all who provide constructive criticism. When I first heard about the PHSO I naively thought that this organisation was my advocate and would help me.

How wrong it appears I was/am.

That's probably why I choose to stay in Thailand as currently with the Ombudsman of Thailand, they have sided with me on two separate occasions - out of two. Once against my Doctor and once against The Royal Thai Police.

In my first and only appeal to the PHSO I recall I got a response approximately 6-weeks after I forwarded my complaint on Good Friday and because I hadn't responded within 2-days, they closed my complaint down.

I now see how the PHSO draws one in to answer their questions but as of writing the complete any 'understanding' by them of what had happened in my case - just wasn't there. And we're not talking rocket science, we're talking civil servants who simply didn't do their job, ignored the law of the land (America in this instance) thus had me detained similarly to the film director Mr Duncan Roy in the landmark case The decision issued in the landmark case in federal court Los Angeles this past February 8th, 'Roy v. County of Los Angeles and Gonzalez v. ICE'.

Thanks again then ladies and gentlemen for all your very helpful advice. It is truly appreciated.

M Boyce left an annotation ()

https://publications.parliament.uk/pa/cm...

Take a look at the above; it makes interesting reading with regard to the current legal ambiguity on reviews and quashing reports.

M Boyce left an annotation ()

No problem Neil.
The UK is going to rack and ruin, with the paralysis in government over Brexit and having no time to do anything else, and with those in charge of the PHSO having about as much leadership, understanding, empathy, and get up and go as a severely disabled snail.
I think it's time I moved to Thailand!

All the best with your current fight for justice.

phsothefacts Pressure Group left an annotation ()

The legal ambiguity is not there by chance but by design. It means that there is no mechanism for altering a final report creating a one-way valve to oblivion for the vast majority of complainants. Given that the investigation must be conducted in 'secret' (according to the legislation), the only time you can complain about flaws in the process is after the final decision when the evidence relied upon can be released. Neat trick which is sure to be repeated in any new legislation. The designers of the system have to take into account that at some point in the future a very keen Ombudsman may be appointed who is willing to overturn flawed historic reports. This legal ambiguity ties their hands nicely.

M Boyce left an annotation ()

'The legal ambiguity is not there by chance but by design'

Yes, but I would also say that it is there by stupidity as well. The drafting of PHSO legislation, with regard to the issue of the finality of reports, was also nothing short of lazy ineptitude. The legislation should have explicitly stated that the final report could not be re-visited by the Ombudsmen. Now case law and 'proposed' new legislation is casting serious doubt on this drafted lack of clarity.
PHSO legislation was always designed to profoundly stack the cards in their favour, and ambiguity benefits them, but of course legal certainty in their favour must surely benefit them more?
In one of my previous posts I said that no-one benefits from this ambiguity. On reflection I think I was wrong: the PHSO have benefitted and would largely continue to benefit. Yes they would get some complaints about this, but by and large they would benefit by having their cake and eating it - as you rightly say, you cannot pin someone down if there is nothing definitive to pin them to. So will any new legislation or PHSO guidance provide real definitive and unambiguous procedures that will benefit the complainant as opposed to the PHSO/Ombudsman? It is unlikely, but we must still fight for it anyway.
It is also necessary to ask why are the PHSO/PACAC/Government thinking about changing ombudsman legislation to make it 'fairer'? Has the establishment suddenly developed a conscience? No. These proposed changes are not about altruism, but are about pragmatism. The PHSO is getting a lot of flack about its poor performance and unfair practices, and perhaps equally importantly the courts are buckling under the strain of a growing line of litigants who want redress (though they are highly unlikely to get it from the courts). Although the Government has all but abolished legal aid, it has not stopped complainants willing to risk it all by going to court. My case cost the tax-payer at least £4000-5000. It should have been resolved by the PHSO, but they wouldn't listen. I may have lost my case in court, but the PHSO are going to lose in the long-run because not only are they in the wrong, but they have got more to lose than I have.

C Rock left an annotation ()

When I, too, first approached the PHSO, I naively thought that this organisation would quickly see the problems; would be professional, and would help me, and others, with the learning gained. I had trust and hope, but was soon dismayed and staggered at the attitude, approach and thinking of PHSO. Nothing made sense. ‘Discretionary actions' were undefined, and permitted the PHSO to pick cherries wherever they wished, with no sense and no logic.

The advertised PHSO 'Principles' were fine but (as with NHS Policies, NICE Guidelines, and their own guidelines), were flexed to the point of breaking or ignoring each one –simultaneously; and justify it, with nothing defensible as evidence.

As a result of their caustic "No worthwhile outcome" in my case of NHS negligence, I was driven to seek legal recourse for the first time ever. It brought neither satisfaction nor 'compensation', as the PHSO has now personally insinuated.

Then, just in case I didn't get the PHSO harmful and discriminatory message the first time, it was repeated after another six years of life-affecting torment, when they had another put-down. Ten years after the negligence, the PHSO’s lay but hostile opinion was "my son would probably have died anyway" - end of argument. To-date, the PHSO has perversely refused to explain or withdraw this vile "Resolution".

After this year’s RB statement re-affirming this statement, I discovered that the NHS Trust had lied to the PHSO -and the PHSO had not queried this. Additionally, the NHS Trust had demanded that the PHSO change the Report, or they would not accept it! I was not informed of these facts, but was not permitted to change the report, as defendants had been easily allowed. There is now no confidence that the PHSO will want to recover from this injustice and breach of partiality, or permit quashing. This agency's actions have to be made illegal - in my opinion. The PHSO can simply not be trusted as it most urgently wishes, according to the spin propagated.

Since the events which led to my son's death, I have heard and read of similar deaths citing exactly the same experience. I can therefore reasonably assert that the PHSO has been responsible for more deaths, since writing off my son's nine years ago.

At what cost does the PHSO continue re-define its purposes and value?

M Boyce left an annotation ()

The draft Public Service Ombudsman Bill , published December 2016, proposes to abolish the PHSO and to create a fair ombudsman in its place. Rarely has a more sensible and worthwhile proposal ever been made. Sadly the Government are too busy cocking-up Brexit to find time to enact this legislation and not surprisingly the PHSO are cock-a-hoop about this legislation being kicked into and then lost in the very long grass.
Leaving complainants stranded in the legal no man's land of the sham review process is music to the PHSO's ears. Why would the PHSO want to do anything but try everything it can to frustrate the enactment of this new legislation? Turkey's wouldn't legislate for Christmas, so why on Earth would the PHSO help to legislate for its own demise?

Neil Ingram left an annotation ()

The "legal ambiguity" that has been discussed recently; well IMHO, throwing the FCO's own words back at them to digest when they demonize; say, for example, the "Russians" IMHO it's "entirely plausible" to run rings around other government departments too if said phrase works with the FCO.

Attempting to get agreement on 28 April this year I asked the FCO to consider "just as you, everyone at the FCO and I could most definitely, indefatigably and undisputable agree upon that The Right Honourable Boris Johnson MP is, as of writing this email today the incumbant Secretary of State for Foreign and Commonwealth Affairs - without any dispute. Similarly the documents I shared with you yesterday most definitely, indefatigably and undisputable prove to you, everyone at the FCO and I - the US authorities' malevolent and illegal actions truly occurred in light of the of the landmark ruling and decision issued in Roy v. County of Los Angeles and Gonzalez v. ICE on 8 February."

With the PHSO I suggested they consider that as we all know that when a traffic light turns RED before one approaches an intersection, and there are no filter lanes to ease the traffic at said intersection, every motor vehicle driving and approaching said traffic light must stop at or before this RED light; unless it is an 'emergency vehicle'; right? This applies in both here the United Kingdom and the US and for the State of California - the "2005 California Vehicle Code Sections 21450-21468 Article 3. Offenses Relating to Traffic Devices" details this FACT. It's the law.

A friend of mine suggested this was a "marvellous analogy" because of the provisions - which basically are not arbitrary.
Similarly confronting other government departments my friend agreed with me could very well stymy the most ardent 'jobsworth' civil servant who logic usually proves that they do not know their proverbial a*** from their elbow.

phsothefacts Pressure Group left an annotation ()

Legal ambiguity is much better than legal certainty when drafting legislation and very clever people spend many hours constructing the text so that convenient loopholes can be found on every page. If the legislation stated clearly that the Ombudsman could not alter final reports then the whole review process would be seen as the public confidence trick it is - the reassurance that there is an appeal process when you can only appeal to the perpetrators of the crime.
I'm afraid to say that the new legislation for the Public Service Ombudsman will be no better. It was largely a 'cut and paste' job from the existing legislation with a few knobs on. The only reason to change the legislation is to allow PHSO and LGO to merge under one Ombudsman and save money. This is not possible with the existing legislation. It is not designed to 'better serve the public' and never will be. You can see the detail here. https://phsothetruestory.com/2017/01/16/...

M Boyce left an annotation ()

I agree that the new Public Service Ombudsman (if it happens at all) will probably be little or no better than the present lot. What's the bet that Bob lands the top job?
The only way to get any justice at all is for determined people to fight for it, and not expect that justice will just be provided by the elites. It's always better to fight, even if only with an outside chance of winning, than to surrender and just let those with power just trample you to death.

phsothefacts Pressure Group left an annotation ()

Yes you have to fight no matter the odds. Helplessness is not an option.

Neil Ingram left an annotation ()

Hear, hear phsothefacts Pressure Group and M Boyce (C Rock too) for your comments.

For what it's worth people and organisations such as yourselves are an inspiration to everyone not to just shrug one's shoulder when confronted by government or departmental road bumps - but to fight.

Thank you. You guys are truly the salt of the Earth.

phsothefacts Pressure Group left an annotation ()

Thanks Neil - want to join us?

Fiona Watts left an annotation ()

Hello

Is there an Alternative Legal Remedy?

The legal insurers ONLY get in touch with the victim at the point that the PHSO and HMCTS seemed to have successfully "broken" you.

The dream of refunding any loss of income, resources and costs due to medical and clinical negligence - is just that - a dream.

@magnacarta300

M Boyce left an annotation ()

Alternative legal remedies to PHSO include things like legal claims for clinical negligence, judicial review, tribunals, and other arbitration bodies. That's not to say that they will afford a complainant with a proper 'remedy' - mostly they won't, and to be honest any pursuit of justice in this country if you are not rich/powerful is probably far more hassle than it's worth. It depends whether you're up for the fight and are prepared to likely get a right good hiding from the establishment. Then again you might get lucky and give them a bloody nose.

M Boyce left an annotation ()

Thanks for your email Pat (I won't use your full name on here unless that is ok).
Like most people I had a shocking experience with the PHSO. Asking the PHSO to investigate a complaint is like sticking your finger in the plug socket, but a damn sight more painful.
My complaint was found to be not upheld and then the court did the same. But I'm not finished yet, not by a lot shot. The PHSO investigation process - from start to finish - is rotten to the core and this organisation must be exposed for the really bad joke that it is.

Let me know about your experience on here or by email.

M Boyce left an annotation ()

The PHSO review process increasingly appears to be legal.
Case law in Berkeley Burke seems to confirm it. Statute law in the form of the Health Service Commissioner's Act 1993 also seems to confirm it. Section 3 (2):
General remit of Commissioner's -

'In determining whether to initiate, continue or discontinue an investigation [and that must include a review] under this Act, a Commissioner shall act in accordance with his own DISCRETION.'

So when the PHSO state that reviews (a review is by definition an investigation into what might have, or has, gone wrong with a previous investigation) are not allowed for in statute, they are not correct.
Reviews appear to be allowed for both in statute and in case law.
But of course there is always a fly in the ointment. No such statutory provision occurs in the parallel Parliamentary Commissioner's Act 1967.
So under statute you can have a review of your final report if you complain about your local hospital, but if you complain about HMRC then you can forget it.
The PHSO surely cannot be using apparently parallel, but contradictory legislation? Its advice is thoroughly schizophrenic, ambiguous or down-right contradictory, so why shouldn't its legislation be the same?

Neil Ingram left an annotation ()

This message is for Ms Fiona Watts:

Personally, I have not looked into 'juditial reviews' with the Ministry of Defence and/or the Foreign and Commonwealth Office because; well put quite simply, I just don't have the money.

My understanding is that as I am without funds then technically; 'THAT'S IT'! That's as far as I can go with 'British Law' per se.

And once this happens, I am reliably informed that Article 9 of the International Covenant on Civil and Political Rights (ICCPR) comes into effect. Is this perhaps a viable alternative for anyone else; other than 'yours truly' please? Thank you.

M Boyce left an annotation ()

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

As of the end of August 2018 the PHSO are still publishing information that describes their investigative process as ending with the Final Report. The possibility of a review and then a further fresh investigation is completely ignored. The sham review process continues.

M Boyce left an annotation ()

All of the couple of dozen ombudsmen organisations throughout the UK have statutory legislation that follows a very similar template: decide whether to investigate, and if there is an investigation then a 'final report' is produced. All very legally clear up to that point. But what if a complainant wants to appeal/challenge the final report? Well then we are in very muddy legal waters indeed. All ombudsmen organisations say that their final report is final, and that there is no right to appeal/challenge that decision, other than judicial review. But then they all contradict themselves by saying that you can appeal/challenge the final report if you can demonstrate that the final report was based on inaccurate information etc.. So which is it: no right of appeal or right of appeal? Final report or not final report?

Below is a link from the Service Complaints Ombudsman for the Armed Forces

https://www.servicecomplaintsombudsman.o...

This says something that is really quite profound:

'Because those decisions [final reports] are binding, the only way to challenge them is through Judicial Review, there is no mechanism for appeal. An appeal would involve another individual or body looking at the decision made and making a finding as to whether or not it was the right decision. HOWEVER AS I HOLD THE HIGHEST POSITION IN MY OFFICE AND ALL OF THE DECISIONS ARE EITHER MADE BY ME OR UNDER MY DELEGATED AUTHORITY, THERE IS NO ONE THAT CAN DO THIS INTERNALLY.'
I have capitalized the sentence above because it is of revelatory importance in what it suggests. It is saying that all decisions that are made are decisions that have been 'made' by the Ombudsman himself (by direct delegation), and therefore no-one else can make another decision on appeal because no-one else has the authority to do so; even the Ombudsman himself, because he cannot be above himself! This is quite an astonishing thought to get your head around. In terms of the PHSO this means that Rob Behrens cannot challenge Rob Behrens because to do so would be to directly challenge the authority of the PHSO itself, which he cannot do.
Where does all this leave the review process of final reports? Surely the review process is an appeal/challenge? What is it if it is not? How can a review potentially arrive at a fresh investigation if it is not an appeal/challenge? A rose by any other name is still a rose.
The legality of the review process at times appears legal, and then at other times it recedes away and appears not legal. Even Lewis Carrol would have found all this stranger and stranger indeed.

Neil Ingram left an annotation ()

Dear M Boyce,

Thank you very much for your last post. I must be stupid or what? Just because a Mr Vineet K Paul from the Ministry of Defences' (MoD) Director of Business Resilience - Common Law Claims Practice 2b (DBR CLCP Claims 2b) conveniently neglected to mention this, about my rights concerning writing to the Service Complaints Ombudsman for the Armed Forces in his email to me on 21st December 2012. As I have always had incontrovertible proof that my human and civil rights were violated by the Royal Air Force in 1985, I am now going to see what this Ombudsman is able to do for me, bearing in mind the MoD's Directorate of Judicial Engagement - Common Law Claims & Policy are now ignoring me. A million thanks to you, Sir!

phsothefacts Pressure Group left an annotation ()

It would appear that the review process is just a nod to natural justice. PHSO decisions are not binding just advisory. It would be interesting to know how many public bodies ask for a review and whether they get a new investigation.

M Boyce left an annotation ()

The review process is indeed merely a nod to natural justice. It is a sham.
PHSO final reports are legally binding if the complainant accepts a decision. Obviously most complainants don't accept a decision of not upheld, and can then ask for a review and/or pursue JR.
Bearing in mind that the PHSO is inherently biased in favour of public bodies and that most investigations are not upheld, very few public bodies would appeal.
In terms of the Service Complaints Ombudsman for the Armed Forces (and for all other Ombudsmen), the idea that it is not possible for the Ombudsman to investigate itself (by way of appeal of a final report) is pure dissimulation. Such a power is fully implied in statute and recent case law (as now recognised by the PHSO).
The Armed Forces Ombudsman states that:

'If you receive a decision from us and believe that a fundamental mistake has been made which has led to an incorrect decision....you can ask for a review of the decision.'

So the Ombudsman is saying that you cannot appeal the final decision because the Ombudsman cannot look at the appeal, but you can ask for a review and the Ombudsman can look at the review? This logic is so idiotic it beggars belief. It represents pure deceit and nothing less. This exposes the review process as a simple, unalloyed sham, meant to deceive and fool the public.
I am not deceived and I am not fooled and neither are many other people. This exact same dissimulation is practised with equal facility by the PHSO. But not for much longer!

phsothefacts Pressure Group left an annotation ()

I don't think that many public bodies disagree with the final decision and therefore suffer the sham review process because PHSO don't determine a final decision until they are certain it will be complied with. They negotiate with the public body as to what would be acceptable to them but the complainant just gets the final report and has to suffer it - it's final - take us to court.

The language used is where all the smoke and mirror work comes in. An appeal would be an appeal of the decision - is it wrong - is it right? A review is a review of the process - did we follow our procedure - even if the final decision is flawed as long as they followed their procedure then no uphold. Crazy stuff!

M Boyce left an annotation ()

The CCT Guidance, October 2016 say that a review is a review of the decision. They don't say it is only a review looking at the process.
Following my review (after JR) the PHSO legal team stated that the review process was:
'NOT to investigate the substance of the original complaint.'
But the CCT review of my final decision then went on to look in detail at the substance of the original complaint! More PHSO lies and deceit. Yes our friends at the PHSO really are the stars of the show - only the show is a very unfunny pantomime.
I sent PHSOthefacts a copy of my review decision, and I will post this review decision on here over the weekend. Anyone that wishes to see what a review decision looks like can look at it, and they will clearly see how the PHSO say one thing and then do the exact opposite: they lie and deceive in equal measure.

M Boyce left an annotation ()

Next steps
Given the failings identified, we considered whether we should reopen our investigation into the AO. To do that we have considered the case along the lines of our usual assessment process – we describe this step on our website as ‘deciding whether to investigate’. Our previous assessment of your complaint looked at whether there were any reasons we could not investigate it, and there were none. We have therefore considered whether we should reopen the investigation. For the reasons we shall go on to explain, we have decided not to do so.
While our investigation report failed generally to set out the relevant standards and what the AO considered, your dissatisfaction with it related specifically to the AO’s alleged failure to consider the gov.uk website. You did not ask us to review our broader findings about the Tax Credits Technical Manual (TCTM) or the TC600 form. Notwithstanding the failing in our investigation report, it is clear the AO did consider those two pieces of information.
We have therefore considered whether there are any indications the AO did anything wrong in relation to the gov.uk website that might warrant us now investigating that specific point.
In your complaint letter to the AO of 22 August 2015 you complained about the contradiction between the TC600 notes and the (TCTM). You said ‘it is simply not credible to say, as HMRC asserts, that they are both [my emphasis] correct’. You had mentioned the gov.uk website in your complaint to HMRC, but not in your letter to the AO. An AO hand written note dated 22 August 2015 notes the key issue as being the contradiction between TC600 and the TCTM.
In your letter to the AO of 26 April 2016 you did make reference to the gov.uk website. You said HMRC had said ‘We can confirm that we have requested changes to the TC600 notes, along with our GOV.UK website guidance to ensure that customers in receipt of benefits know they need to ask for their claim to be backdated’. You said this missed the point you were making – which was to highlight the difference between how backdating worked for those with and without children. You said the TC600 notes and gov.uk website had been changed a little. You said ‘I want the adjudicator’s office to fully investigate why this did not happen before I forced HMRC to finally obey the law’. You asked why HMRC did not explain on gov.uk and TC600 what the effective date of a claim is. The AO acknowledged this letter on 12 May 2016 and said it would take account of the points raised.
Towards the start of the AO report, the AO set out the points you had clarified about your complaint, including your question as to why it had taken HMRC so long to put the website
right. In response to your question as to why HMRC had not updated its website sooner, the AO said it was not part of its role to comment on tax matters generally, rather its role was to consider specific complaints made by individuals about how HMRC has handled their own tax affairs.
We cannot see any indications of failings by the AO here.
The AO’s role, as explained on its website home page, is to resolve complaints from individuals about the way their affairs have been handled.
The gov.uk website was not part of the complaint you originally made to the AO about HMRC. When you did mention it you did not say explicitly that you wanted the AO to investigate the gov.uk information being incorrect. Rather, you asked why HMRC had not amended it until you ‘forced’ it to. The AO made reference to that complaint in its report. It essentially decided it would not look at that point because it did not directly impact on your own tax credits affairs. Given the AO’s role, we cannot see any indications of failings in that approach. Having taken that approach, we also cannot see any indications of failings in it not considering the content of the historical gov.uk website.
We have assessed your complaint about the AO’s consideration of the gov.uk website in line with our usual assessment process. We saw no indications of failings and have therefore decided not to investigate this point further.
Final remarks
Thank you for bringing your concerns to our attention. We are committed to learning and improving as a result of the feedback we receive.
This letter marks the end of our review process.
Yours sincerely
Glenn Fairhall
Senior Caseworker

M Boyce left an annotation ()

The above represents the copied and pasted final third of my review decision (PHSOthe facts have the full report and could confirm all this). I have not included the first two-thirds because it contains personal details. The substantive issues discussed are not important in the wider context of what the PHSO legal team assert is the remit of the review process, as follows:

It is 'NOT to investigate the substance of the original complaint.'

And this limited investigative remit of the review process has been stated (and then contradicted) elsewhere by the PHSO.

The above shows without any doubt whatsoever that this assertion was, in my case at least, a complete lie. The senior caseworker clearly DID look at the substance of my original complaint in his 'next steps' part of his review decision.

Why did he do this? The answer is fairly obvious: if he had just said that the PHSO had indeed failed to consider information of central importance to my complaint, then he could not realistically just leave it at that and say that no fresh investigation should be conducted. The solution was for him to investigate the substance of the original complaint (against PHSO legal team assertion) and to then try to clumsily force the round peg into the square hole - which he fails to do of course.

Again what matters most here is that the PHSO continually flout/contradict their stated processes. They dissimulate and lie to protect their reputation at any and all costs.

I will fight tooth and nail to expose their venal practices. If they are allowed to continuously get away with all these lies and deceit then they will inevitably continue to treat present and future complainants in the same way. They say they learn from their mistakes, but this is a shameful lie - their mistakes become embedded and reinforced in a culture of self-perpetuating lies, deceit and cover-up. For the sake of all future complainants and the damage that the PHSO will inflict on them this morally bankrupt organisation must be stopped.

M Boyce left an annotation ()

The other vitally important point that I forgot to mention was that the senior caseworkers' hands had been legally tied behind his back. The PHSO were running a simultaneously parallel process of contesting my application for judicial review in the High Court with their review process - which should never be allowed. You simply cannot have non-stayed court proceedings running alongside a review process - except in my case the PHSO decided it could! The Court found my application to be 'totally without merit', meaning that it was simply impossible for the review process to contradict this - hence the not upheld review outcome, coupled with the 'not-allowed' review investigation into the substantive matters to attempt to close-down the process.

The PHSO had tied themselves into knots and would do anything it could to contrive a way out of this mess. I've got more rope for them to hopefully (and metaphorically) hang themselves with.

phsothefacts Pressure Group left an annotation ()

Your case study - so well articulated - is very valuable to others who follow you down the 'review' path. Give me the green light and I will put your story out on the phsothetruestory.com website and link to phsothefacts.com We are a public information service and this information is well worth having.

M Boyce left an annotation ()

Please do.

InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear M Boyce

 

RE: Your information request: R0000153

                            

I write in response to your email of 31 July 2018 regarding your request
for information made under the Freedom of Information Act 2000 to the
Parliamentary and Health Service Ombudsman (PHSO). You have requested:

 

(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.

 

1.Section 1(1) of the Act provides that a public authority has a duty to
state in writing whether it holds information of the description specified
in a request. In accordance with our obligations we can confirm that the
PHSO holds the information requested.

 

However, section 42(1) of the Act permits information to be withheld,
subject to the application of a public interest test where information in
respect of which a claim to legal professional privilege is exempt
information.

 

We have now had the opportunity to consider the exemption under section 42
as it applies to the information you have requested; and in particular
whether the public interest lies in favour of maintaining the exemption or
in disclosing this information to you.

 

It is recognised there is a public interest in ensuring decisions have
been made on the basis of good quality legal advice and this could be
extended to discussions relating to the legal status of reviews.

 

However, it is not in the public interest to restrict the PHSO in it’s
ability to speak freely and frankly with legal advisers in order to obtain
appropriate legal advice which is a fundamental requirement of the English
legal system. There must be confidentiality of any communications between
a lawyer and client to ensure complete fairness in legal proceedings. It
is noted that the information requested falls within the definition of a
communication under s42 as ‘a document that conveys information’ which can
include a letter, report, email, memo, note of a conversation, photograph
or an audio/visual recording. Such information in this case has been made
for the main purpose of seeking or giving legal advice which is classified
as a confidential communication between a client and lawyer under the Act.

 

In light of the above, the view is that in all the circumstances of this
case, the public interest in disclosure is outweighed by the public
interest in maintaining the exemption; and therefore this element of your
request is refused.

 

2. You have requested ‘all relevant documents (discussions, legal briefing
notes, unabridged Board Meetings, guidance etc.) that the PHSO possess
with regard to Alternative Legal Remedy’. However, your request is too
broad to enable us to identify all relevant information held within cost
limits as ALR is considered at every step of the complaint process. The
text below refers:

 

The Parliamentary Commissioner Act 1967 and the Health Service
Commissioners Act 1993 both require that the Ombudsman and his staff
consider whether any appeal or reference or review to any Tribunal or
Court existed for the complainant and in such cases where such an
alternate legal remedy exists or did exist, the Ombudsman does not have
authority to conduct an investigation.  Each Act however allows the
Ombudsman to set this prohibition aside if he is satisfied that in the
particular circumstances of that case it is not reasonable to expect that
the complainant does or did take that alternate legal remedy. 

 

As a result, the Ombudsman must ask each complainant whether or not they
have considered or taken legal action, and in some cases may seek further
information about that legal action or lack of legal action in order to
assist this particular part of the decision making process.  

 

Over the years, consideration of the policy approach to these statutory
requirements has taken place, including the drafting of the application
form that complainants are asked to fill out, and various versions of the
casework policy and guidance.

 

Therefore, to try to ascertain all information held regarding ALR where no
time frame for the search is stipulated and the search is for any and all
‘relevant documents’ held would be an extremely labour intensive piece of
work which would involve the manual inspection of a vast amount of files
and documents held across a number of departments. To search our casework
policy folders alone, these folders date from 2009/2010 to the present day
and contain over 4,000 documents across 19 folders. It would take a
minimum of 3 minutes to review the content for each item therefore to
perform this work for over 4,000 documents would take approximately 200
hours. Further documents referring ALR may be held by other teams such as
our feedback and learning team, internal and external communications,
training, external affairs and strategy as well as legal. Searches would
have to be conducted by all of these teams which would add to the time
needed.

 

In light of the above, this work could not be undertaken without incurring
disproportionate cost. Section 12(1) of the Act has been applied to this
element of your request.

 

In accordance with Section 16 of the Act, to provide advice and
assistance, you may wish to consider refining your request to a specific
period of time and/or to a specific document type which may then enable us
perform the search/extract the required information within FOI cost
limits. Due to the sheer volume of information which is potentially held
on this subject we would suggest a short time period and for you to limit
the type of documents to search. However, we cannot provide any guarantees
over what we will be able to provide at this stage as further exemptions
may apply.

 

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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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 no man's land of the sham PHSO review process.'.

Your argument about legal professional privilege exempting the requested information from disclosure is utterly unsustainable. You have not presented a proper, full or coherent balance of argument in favour of exemption. You must now do so. You state that frank and secret discussions between the PHSO and legal advisers far outweighs disclosing the information to the general public. This is utter nonsense. Complainants to the PHSO have a right to know what is the legal status of reviews of decisions, and how this affects a possible resort to judicial review, with all the very serious financial consequences that follow. Leaving complainants in a legal no man's land of not knowing if reviews are legally provided for or not is a sickening affront to liberal democracy. Strong arguments in favour of disclosure include, but are not limited to, the following:

Transparency and accountability;

the large number of people affected;

the large amount of public money the PHSO have spent on legal advice;

the fact that the PHSO has published contradictory and misleading information on this matter;

the fact that the PHSO has supplied me with voluminously contradictory and misleading advice on this matter.

Make no mistake about all of this: I will take this matter to the ICO and then to the tribunal. That is a promise.

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

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

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Dear Parliamentary and Health Service Ombudsman,

With regard to my request for information on alternative legal remedy I am prepared to wait a week to see what your response will be to my further FOI request on this subject.
You might want to consider the following though in informing your response:

In the above reply you clearly state:

'...ALR is considered at EVERY step of the complaint process.'

This fully accords with the advice in the PHSO Main Guidance where it states that:

'ALR should be considered THROUGHOUT the lifetime of a complaint.'

Both of these public statements directly and unequivocally conflict with the advice given to me by the PHSO legal team in their reply to my letter before claim, dated 02 August 2018, as part of the pre-action protocol of judicial review, as follows:

'Your interpretation of S5 (2) [of the Parliamentary Commissioner Act 1967] is incorrect, it relates to situations where there may be an alternative legal remedy AT THE POINT THAT THE ORGINAL COMPLAINT HAS BEEN MADE. Alternative legal remedy is NOT a relevant consideration on assessment of whether it is appropriate to accept a request to review.'

So which advice is correct: the advice contained in the PHSO Main Guidance, and now corroborated by the PHSO Freedom of Information Team, or the contradictory advice given to me by the PHSO legal team on the legal issue of ALR?

Yours faithfully,

M Boyce

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

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

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M Boyce left an annotation ()

The PHSO state above that:

'There must be confidentiality of ANY communications between a lawyer [Landmark Chambers] and client [PHSO] to ensue COMPLETE FAIRNESS in legal proceedings [when any complainant wishes to apply for judicial review of a PHSO review decision]

The PHSO have used vast amounts of tax-payer money to ascertain whether their review process is legal or not. They are now jealously and unfairly keeping this information all to themselves. Tax-payers are denied access to this information that they have paid for in order to create for them maximum uncertainty and maximum jeopardy if they wish to go to court.

Who else would regard this situation as completely fair? We'll see if the ICO does.

M Boyce left an annotation ()

https://www.pdpjournals.com/docs/88363.pdf

The above shows that an authority can be defeated in its attempt to unfairly hide information from the public under the guise of legal professional privilege. The PHSO have failed to undertake a thorough public interest balancing test (PIBT). I fully intend to defeat the PHSO when I take this case to the First Tier Tribunal. This will have the added benefit of disclosing to the wider world how the PHSO want to make their processes more and more unfair for a complainant and more and more biased in favour of public authorities.

I am looking forward to preparing my case for tribunal, and unlike judicial review at the High Court, it is free and costs are almost never awarded against a losing side - not that I have any intention of losing.

M Boyce left an annotation ()

https://www.spso.org.uk/decision-review-...

And then there's the above advice from the Scottish Public Service Ombudsman (SPSO).

They say:

'The law says that people and bodies can only challenge our decisions by judicial review. We know this can be a complicated technical process, and so we have, of our own initiative, established a process for reviewing our decisions. If you want to challenge our decision [not review decision] again, you will only be able to do this using judicial review.'

Think carefully about what this says and means. It means that the Ombudsman is conducting reviews OUTSIDE of the law. It means that any review has no legal status - it cannot be challenged by judicial review, because it is not legally provided for.
The review process is outside the law and is therefore not covered by the law.

This is why the PHSO are refusing to publish information on the legal status of reviews - because they are not legally allowed for and therefore cannot be amenable to judicial review. The review process is just a sham in order to try to appease a disgruntled complainant.
The PHSO would only refuse to publish its legal advice on the legal status of reviews if it had something serious and seriously unfair and misleading to hide.
I didn't apply for judicial review of my review decision because I believed that the review process was not legal and therefore a judge would refuse the application on grounds that a review has no statutory basis. I would then have been landed with many thousands of pounds of costs. The PHSO went along with the charade of the pre-action protocol instead of informing me that it would be pointless applying for JR because you cannot JR a review decision - even though they said I could. They were looking forward to another big pay out.

InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear M Boyce,

 

Internal Review of Freedom of Information Request

 

I write in response to your email of 21 September in which you request an
Internal Review of our response to your request for information. I have
reconsidered your correspondence and our response to you.

 

Timeliness of Response

 

The time for responding was extended in line with Section 10(3) of the
Freedom of Information Act. The response to your request was within the
additional 20 working days allowed.

 

Information Provided

 

I have reviewed part 1 of your request and considered if the use of the
section 42 exemption (legal professional privilege) was applied correctly.

 

Legal Professional Privilege is not defined in the Freedom of Information
Act as it is a common law concept. In common law Legal Professional
Privilege is intended to provide confidentiality between professional
legal advisers and clients.

 

Section 42 provides that, subject to a public interest test, information
in respect of which a claim to legal professional privilege could be
maintained is exempt from disclosure.  In considering the public interest
arguments, I acknowledge that, as a general principle, there is a public
interest in PHSO being as open and transparent as possible and being
accountable for the quality of decision making.

 

However, legal professional privilege is an overriding interest which is
only likely to be outweighed by the public interest in disclosure in very
exceptional circumstances. PHSO should have the ability to speak freely
and frankly with legal advisors in order to obtain appropriate legal
advice. The communications are for the dominant purpose of obtaining legal
advice and there is a strong inherent public interest in PHSO maintaining
the exemption so that full and frank legal advice can be provided.

 

Conclusion

 

My conclusion is, therefore, that in all the circumstances of this case
there is a greater public interest in maintaining the exemption than in
providing the information to you and the section 42 exemption was
correctly applied.

 

For the reasons set up above I do not uphold your complaint.

 

If you remain unhappy with our response, it is open to you to complain to
the Information Commissioner’s Office ([1]www.ico.org.uk).

 

Yours sincerely,

 

 

Andrew Martin

Freedom Of Information/Data Protection Manager

Parliamentary and Health Service Ombudsman

W: [2]www.ombudsman.org.uk

 

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show quoted sections

Dear InformationRights,

Thank you for your prompt response to my request for an internal review.

I have now contacted the Information Commissioner's Office (ICO) to ask them to investigate. You have failed to undertake a proper and thorough public interest balancing test as applied to legal professional privilege.
The factors favouring disclosure outweigh those favouring exemption. Simply put, the PHSO cannot reasonably and fairly hide the legal status of its review process. To continue to do so would be an outrage to natural justice. The public have a right to know whether PHSO reviews of final reports are legally allowed for or not.

Yours sincerely,

M Boyce

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

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

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C Rock left an annotation ()

A public body involved with circumstances leading up to my son's death BSMHFT (an NHS Trust) outrightly disagreed with the meagre draft findings to such an extent that a bartered finding was agreed for their 'acceptance'. Not so for the complainant - told nothing about this in PHSO summing up the excuses found.

The NHS Trust were fairly safe because it was (a) not part of the original complaint and (b) outside the Trust's jurisdiction to legally comply with.

They had not complied with NHS investigation procedures as freely promised, but were let off because the PHSO were misguided to plant this on the GP (who had also failed due to other reasons mind you). The GPs said they would accept this but changed their mind just as the PHSO were issuing the Final to their internal pre-xmas deadline.

Prejudice, collusion and cherry-picking all played their part in a pointless exercise (now covering 10 years since first written complaint).

C Rock left an annotation ()

NB Thinking about the above it was odd that the PHSO just had to issue some sort of Report for xmas (Great News) , when my original complaint (nearly 3 weeks before xmas) was put on the side by the GP and not responded due to "having a Christmas holiday". Though involving a patient death no 'final statement' was received for 5 months, and there still had not been a proper investigation involving peers and NHS procedure.

The PHSO explained all this away, showing an ignorance of NHS complaints procedure itself, and no sign of any haste or empathy - in fact the opposite as many have found out over years.

M Boyce left an annotation ()

Under the s.3(1) of HSC Act (s.5(1) of the PCA Act), the Ombudsman has the authority to commence an investigation upon receipt of a complaint (or referral of a complaint from an MP for complaints received under the PCA Act). In addition, under s.11(3) of the HSC Act (s.7(2) of the PCA Act), the Ombudsman has the authority to conduct an investigation as she considers appropriate.

As such, the Ombudsman has a wide discretion to carry out her work. In order to do that, the Office has, over time, developed procedures that sets out how the Ombudsman will conduct and complete investigations. This includes the procedure whereby the Ombudsman will look at any concerns a party has about how the Ombudsman conducted the investigation, and the investigation decision itself. We currently call this our ‘review’ process.

As a key Principle of Good Administration and Remedy, we would expect any public body to put matters right as soon as possible if it is clear that mistakes have occurred. This is an important principle for the Ombudsman’s work too.

As explained below, we would look at whether the concerns raised meet set criteria. If they do, and the outcome is that we believe this means that the investigation decision is unsound, we would carry out new work on the complaint. This would be done on the basis that the concerns raised by the parties are, in effect, to be considered as receipt of a fresh complaint as described under s.3(1) of the HSC Act (s.5(1) of the PCA Act).

The above is copied and pasted passages from Nicholas Wheatley's request about quashing reports. It is revealing how it confirms that a review WILL include investigating the final decision (report) and not just the PHSO investigative processes. This contradicts their advice to me and others where they state that a review does NOT look at the decision itself. More PHSO deceit.

M Boyce left an annotation ()

And this also copied and pasted;

Hi

You will need to check these via (particularly answer for Q. number 1), but here are my starters for ten on this (in red below):

Question 1 is the key thing here. I have added the bit about us considering a review request (that is eventually upheld) as a ‘fresh’ complaint under s.3(1) etc. as that is what has issued to the MPS on a recent case ( That correlates with what the courts said in an old JR case (Dyer) – who said we cannot re-open but can consider a fresh referral of a complaint under s.3(1) etc.

Yet knows more, and there is a case that, because we have a well established review stage, this should be seen an integral element of the overall investigation process. If so, then it could be the case that it falls under the wide discretion the Ombudsman has (under s.11(3) etc.) to conduct an investigation ‘as she considers appropriate’. That would then link to the fact the Ombudsman refers to ‘re-opening’ powers within the Delegation Scheme.

Yet I’m not sure if that can be argued in that way – and it’s really for to decide.

– anything to add?

Regards Andrew

M Boyce left an annotation ()

So which is it:

Fresh investigation?

or

Re-opening an investigation?

The PHSO are refusing to say. Not to worry, they will be made to do so.

J Roberts left an annotation ()

Just a short comment - not directly related to the one immediately above, but concerning the decision relevant for judicial review. When it suits the Ombudsman, the date of the review refusal decision can be key:

"54. Firstly, I must decide whether the judicial review claim was started promptly and within three months of the relevant decision. On behalf of the Ombudsman, it is contended that the relevant decision being challenged is the review refusal decision dated 20 November 2009 so that the claim lodged on 26 January 2011 was well out of time."

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

M Boyce left an annotation ()

J Roberts

Thanks for this valuable information. It is very relevant to my request and the issue of the legal status of reviews of decisions.
I'll analyse this shortly.
Anybody know how to find the JR case of Dyer v PHSO? This case appears to contradict the case supplied by J Roberts.

M Boyce left an annotation ()

The Walker v PHSO judicial review case proves that the review process is legally allowed for (statutorily provided) because you could not judicially review a review of a PHSO final report it if was not statutorily provided for, albeit implicitly rather than explicitly.
Stated in Walker as follows:

'On behalf of the Ombudsman, it is contended that the relevant decision being challenged is the REVIEW refusal decision dated 20 November 2009..'

If the review process was not legally allowed for then any JR would have to date from the final report and not the review decision.
In my case the PHSO repeatedly told me that the review process was not legally allowed for and that any application for JR had to be made within 3 months of the final report and not within 3 months of the review decision. They clearly lied to me and they will be held to account for this.
Why is the PHSO refusing to say that reviews are legally allowed for(and therefore subject to JR) when they know that they are and have known this for many years? Why are they refusing to publish legal advice/opinion on this?
Because it suits them to sow the seeds of doubt in any complainants mind, to make them believe that the review process is just a quality control feedback exercise and nothing more. This grotesque deceit by the PHSO will be their undoing and we must persevere to make sure it is. Future complainants should never have to endure this deceit, this fraud, and this malicious practice by the PHSO.

J Roberts left an annotation ()

Is this the Dyer judgment you mean?

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

The lack of clarity on the issue serves only the PHSO. If the chairman of PACAC, Bernard Jenkin, is not inclined to address the problem, I doubt that any meaningful change will occur.

Wiki on Bernard Jenkin:

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

M Boyce left an annotation ()

it is indeed. Thank you very much.

Bernard Jenkin is never going to solve the problem of the PHSO because he lies at the very heart of the problem. He if can't be bothered to address PHSO failings he should do the right thing and step down and let someone do the job who will. Fat chance of any self-serving Tory doing this.

M Boyce left an annotation ()

I have now decided that I am going to ask the PHSO to conduct a fresh investigation of my complaint. They will of course refuse to do so and then I can challenge that by judicial review. The reasons for the request for a fresh investigation are that the PHSO review process denied me fair access to judicial review - procedural impropriety in the form of a review taking place AFTER a judicial review finding of totally without merit. The review decision also was significantly and substantively different to the final report. The PHSO also stated that I could not legally challenge their review decision because reviews are not statutorily provided for - they are mere quality control exercises in futility.
Let's see what happens. Should be interesting.

M Boyce left an annotation ()

There is still huge uncertainty about the legality/illegality of the PHSO review process and the PHSO just love this. The following questions still remain:

Complainants are expected/required to exhaust any review process under the Civil Procedure Rules (CPR) before they will be allowed to apply for judicial review. But the review process takes more than 3 months to complete therefore barring access to JR, and the review process is of ambiguous/dubious legality?
This greatly benefits the PHSO and enormously disadvantages the complainant.
The crux of the matter is that the PHSO should NEVER have a review process that is fundamentally unfair to its core in that it ultimately denies complainants fair access to judicial review. The PHSO have known this for many, many years and yet they persist with a sham review process that effectively severely handicaps the complainant in their ultimate quest for and recourse to justice. If the review process did not exist then complainants would not be effectively forced to use this sham process by the courts, and their hands would not be tied behind their back. They could apply for judicial review in good time and the PHSO would be forced to make much more fair and robust final reports knowing that there was no fall-back option of the sham review process implemented with the sole aim of derailing an application for judicial review.
The PHSO review process needs abolishing immediately and all those who have suffered through this sham process of deception should now receive the justice they deserve and the PHSO should be made to apologise and offer compensation.
The PHSO now has two options: either completely open-up about the legality of the review process or immediately scrap the review process.
The time for all this deeply unfair uncertainty to end and for justice to prevail is now.

M Boyce left an annotation ()

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

The above FOI request also shows that the Financial Ombudsman Service (FOS) are also playing the same game of hide the sausage on the issue of the legality/illegality of reviews.
The establishment organisations in this country really are rotten to the core.

M Boyce left an annotation ()

If it turns out to be the case that the PHSO review process is legally not allowed for, as the de facto deputy Ombudsman has stated in the December 2017 Board Minutes, then the Ombudsman is acting ultra vires in conducting reviews and therefore all the reviews and further investigations stemming from reviews are legally invalid, and therefore not subject to judicial review. This would fully explain why they are unwilling to state whether the review process is legally allowed for or not. This really is a growing scandal that will do very serious reputational damage to the PHSO when it becomes widely known - and it is now just a matter of time.

M Boyce left an annotation ()

In a recent FOI request by Nicholas Wheatley the PHSO have stated that during the period 2017 - October 2018 over 1700 complainants asked for a review of their final report. Of that total 56 reviews were carried out.
This is a lot of people that have been deceived by the PHSO. If, as now seems very likely, the PHSO review process is not legally allowed for, and therefore the Ombudsman is acting ultra vires, then where does this leave the review process? The sham review process must be forced to end and the deceit must be forced to end.

M Boyce left an annotation ()

In the above FOI request it also states that 4 complaints were 'further investigation required'. Does that mean a fresh investigation? If it does then this fresh investigation is also invalid/ultra vires because the fresh investigation stems directly from, and is directly linked to, the review process which is legally not allowed for.
It would seem that the only legal way round all this would be to scrap the review process (which as stated is not legally allowed for) and to just inform complainants in their final report that they could challenge the report by making a fresh complaint under section 3(1) of the HSC or section 5(1) of the PCA. Such a route is clearly legally allowed for and would solve the legal ambiguity that is inherent in the sham review process. But of course the PHSO don't want to tell complainants this and still less do this. They would rather persevere with the sham review process, which does not look properly at the complaint (supposedly does not look at the substantive issues of the complaint) and leads to a legal dead-end - that is the review decision is not and cannot be subject to judicial review because it has no statutory basis.

M Boyce left an annotation ()

You are welcome Neil.

Hope your case goes well. Please do let me know how you get on.

M Boyce left an annotation ()

Below is a copy and paste document I have sent to my MP to ask him to send to the PHSO alongside my completed PHSO complaint form asking for another fresh/new investigation.
I expect the PHSO to refuse this request and then I will proceed with another application for judicial review on the grounds that the final report was seriously flawed (which the PHSO admit) but that the PHSO followed improper procedure by conducting a sham review which was neither legally allowed nor adequate.

ATTACHED DOCUMENTS FOR SECOND COMPLAINT TO THE PHSO –

Government cuts and austerity (the PHSO budget has been severely cut over the last few years) should never be used to actively deny, or have the unintended effect of denying, complainants fair and proper access to the legal/judicial review system. Ultimately, however, it is down to the PHSO to effectively manage its still very large budget to ensure that complainants are not denied fair and timely access to the judicial review system in order to challenge highly deficient decisions. That is a duty the PHSO simply should not abrogate. Sadly, in practice they are doing just that.
My case has arisen because of persistent and cumulative excessive delays in PHSO processes. First, I was told it would take more than 3 months to decide whether to begin a review, and that if I was going to challenge the PHSO final report it should be done within 12 weeks, or any court would refuse to accept the application. I effectively could not wait for a review before applying to the court. Once the PHSO had decided to conduct a review (which only happens in a tiny percentage of cases because the strict review criteria has been met) I was then informed it would take another 3 months to conclude, despite the by now parallel High Court proceedings at this time. At this stage there should have been a concerted effort to conclude the review very quickly indeed (simply requesting the court to stay proceedings - which the court astonishingly did not do – was not adequate) in order not to vitiate the review decision – a review decision (even if it had been fully upheld, but did not result in a new investigation) produced after the court decision would be non-legally challengeable and entirely academic. And this is what happened.
I am now asking the PHSO to do what it should have done in late October 2017: conduct a fresh/new investigation, instead of going down the route of the sham review process which is neither legally allowed nor is it fair, sufficient, extensive or robust.

(1) (Doc.1) pages 1-7
PHSO second reply to my letter before claim as part of the pre-action protocol for judicial review, dated 2 August 2018.
Here the PHSO deny the relevance of section 5 (2) of the Parliamentary Commissioner Act (PCA) 1967. It is in fact entirely relevant.

(2) (Doc.2) pages 1-3
Acknowledgement of Service, dated 09 February 2018 to my application to the High Court for judicial review.
Here the PHSO’s legal counsel, Landmark Chambers, contradict the PHSO denial above, by clearly stating that any review cannot continue after court proceedings have concluded.

(3) (Doc.3) pages 1-2
Decision Notice of the High Court, dated 21 February 2018, but served on 28 March 2018.
Here the judge fails to address my grounds for judicial review. The judge also fails, against case law requirement, to state separately the reasons for a totally without merit (TWM) certification. He just says it is TWM without a word of reason. This shows very clearly that the judge cannot be trusted in his overall judgement because he is breaking case law. If someone has not followed correct procedure then why would you trust their judgement and their duty to act fairly in their judicial review decision?
I couldn’t appeal the Court decision because the PHSO was by now very belatedly (almost six months later) conducting a review of my final review. This meant that the review process had now cross-cut and therefore terminated the court process (the court would have refused an appeal when there was an ongoing review) therefore denying me proper access to recourse to legal justice. The processes that the PHSO employ have to be fair and timely and this is clearly not what is happening.

(4) (Doc.4) pages 1-3
The Dyson Judgement outlining that all judges must address all grounds and give reasons for the TWM certification separately.

(5) (Doc.5) pages 1-7
PHSO review decision, dated 9 May 2018
Here the PHSO do a partial analysis of the substantive issues, against their expressed remit (the review process is not supposed to look at the substance of the original complaint). They could not find my appeal/review to be upheld because this would contravene the High Court decision. Their severely delayed review had made the review decision a ridiculously unfair and improper fait accompli.
The review decision substantially differed from the final report, but was not upheld and stated that no fresh investigation would be conducted. In fact a fresh investigation COULD not be conducted because the court decision ensured this. The court of course also did not have access to the review decision, which differed substantially from the final report.

(6) (Doc.6) pages 1-3
FOI request reply outlining the ambiguities in the legal status of PHSO reviews.
Are reviews legal or not? The PHSO refused to say, and still refuses to say.

(7) (Doc.7) FOI pages 1-4
FOI request reply stating that the PHSO were refusing to supply documents, including legal documents, which showed whether their review process was legal or not (ultra vires).

(8) (Doc.8) page 1-1
FOI request reply, dated 16 July 2018.

(9) (Doc.9) page 1-1
Email from the PHSO legal team denying the relevance and importance of information supplied to them by their legal counsel, Landmark Chambers.
(10) (Doc.10) page 1-1
Response to PACAC Annual Scrutiny Report 2016-17
The Public Service Ombudsman draft bill has included explicit requirement enabling the Ombudsman to review (re-open) their decisions. This contrasts with the current legal powers of the PHSO, where reviews are own-initiative acts that have no legal (statutory) basis and therefore cannot be legally challenged (although some case law says reviews are legal and some case law says they are not).Yet the PHSO responded to my letter before claim as part of the judicial review process – thereby fully implying that their reviews are legally provided for (and trying to send me down a very expensive legal dead-end), when they are not.

(11) (Doc.11) pages 1-4
CCT feedback reply stating that reviews would take 16 weeks to conclude.
Email from PHSO legal team outlining that I would only have 12 weeks to apply for judicial review, otherwise I would be out of time (3-month deadline for JR application as stated in the CPR).
Civil Procedure Rules outlining that any applicant for judicial review must first exhaust any review process by a public authority, therefore forcing them to be out of time with the court in the case of the PHSO.

(12) (Doc.12) page 1-1
Parliamentary Commissioner Act 1967, section 5. This clearly shows that once a complainant has had a remedy from the High Court then any review by the PHSO must not continue. The review continued against the law and to purely academic ends.

(13) (Doc.13) page 1-1
Email from the PHSO stating that the outcome of my request for a review process would be relevant to court proceedings. The PHSO then stated that any review would take a further 3 months – the current court proceedings would have been long concluded by then, making any review entirely academic and entirely illegal as the PHSO were fully aware.

(14) (Doc.14) pages 1-2
Minutes of PHSO Board Meeting Open Session, 14 December 2017.
Here it clearly states that PHSO reviews of their final reports are legally (statutorily) not allowed for. Any review is therefore ultra vires and thus cannot be challenged by judicial review because judicial review only deals with matters that are legally allowed for. The review process is therefore a complete sham.

M Boyce left an annotation ()

Couldn't agree with you more C Jones. All the English Ombudsman organisations sing from a very similar legislative and procedural sheet where vagueness, unfairness and explicit deference to bodies in jurisdiction are taken for granted. Bias in favour of authorities is built into the entire system. All Ombudsmen should be under the scrutiny of a panel of ordinary people who would have the power to dismiss those in leadership roles if they are not doing a fair and proper job. There will be no change unless there is accountability.

M Boyce left an annotation ()

https://www.professionaladviser.com/prof...

The above judicial review decision due in a few weeks time should finally answer the question of whether Ombudsman reviews of final decisions are in fact legally allowed for or not. The PHSO are refusing to say one way or the other. They will also be watching the Berkeley case very closely.
Watch this space.

M Boyce left an annotation ()

Actually it's not reviews, it's reconsiderations. The two r's can be quite confusing, but then the three r's are even more so. A reconsideration is a new/fresh investigation contingent upon quashing of a final report. A review is just a sham - no real investigation, no quashing of a final report, and no legal foundation and legally unchallengeable. A reconsideration appears likely to be shown in the Berkeley case , and therefore in all Ombudsmen cases, to be legally allowed for. So far so good in terms of reconsideration, but then where does that leave reviews?

In the case of the PHSO we have a very strange set-up of the three r's in linear sequence: report (final), possibly followed by a review, which is then possibly followed by a reconsideration (new/fresh investigation). The report stage is, and the reconsideration stage is likely to be, legally allowed for; but the interim stage of the review is NOT legally allowed for. But how can the reconsideration stage be legally allowed for or sound if it rests on a previous review stage which is not legally allowed for and is not a proper and sound investigation (does not look at the substantive issues)?
Anybody got any thoughts on this?

M Boyce left an annotation ()

Karl Banister, the PHSO deputy Ombudsman, said the following in an email to me recently, and I quote him exactly:

'In relation to the law, the logic of your argument could see the PHSO refusing to conduct reviews at all.'

The PHSO know what they are doing is seriously and fundamentally wrong and they have been found out. They still refuse to admit it. They will be forced to fess-up very shortly.

M Boyce left an annotation ()

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

To quote an oft used phrase: 'all ombudsmen organisations are in it together.'
Indeed they are.

A.E. left an annotation ()

"Despite the review being classed as not upheld it found that the PHSO decision was flawed throughout."

Not quite getting why they admitted it was so flawed? Surely they leave themselves open to online ridicule and damnation by admitting such a thing, irrespective of the fact that they 'won' in the end.

Your story is shocking. You should have reported the judge for judicial misconduct/bias.

M Boyce left an annotation ()

A.E, it is surprising that they admitted the final report was flawed throughout, but they did cover themselves in 'some glory' by saying that their ultimate conclusion was 'sound'. In fact it wasn't.
In terms of the judge and the TWM certification, I didn't know at the time I received the High Court decision that judge's were under a duty to provide full and separate reasons for a TWM decision, otherwise I would have appealed, at least on that issue.

Your suggestion about making a complaint about the judge is a very good one and I will start making enquires about who to complain to about this.

Complainants need protecting from both the PHSO and judges who are behaving in appalling ways. My case was not about life and death, but what if it is, and many cases brought to the PHSO and judges are? If they can treat me in such a dire way then just imagine the way they would treat (deceive, lie, cover-up) cases of NHS negligence sometimes leading to death. The PHSO would do anything to protect the NHS from negative scrutiny.

phsothefacts Pressure Group left an annotation ()

They have just given the judges a 32% payrise. They keep them sweet and all is well. #corruptbydesign https://www.bbc.co.uk/news/uk-45832727

M Boyce left an annotation ()

Yes judges look set to receive a massive pay rise because they are 'over-worked, underpaid and demoralised'. Poor little things, it must be awful working 3 days a week on £200,000 per year for a High Court judge. It is this 'over-work' that I believe partly explains why judges simply don't look at judicial review cases properly - they are simply too 'demoralised' to bother.
I have now made enquiries with the Judicial Conduct Investigation Office (JCIO), but they have informed me that a judge's decision or order can only be challenged by legal appeal. Sadly I didn't know about the duty to provide separate and full reasons for a TWM decision at the time I received mine, and most other people wouldn't either. You have to be either rich or an expert in law, and usually both, to get a fair legal hearing in this country. The PHSO know that only too well and it is their ace card that they always play knowing that they will always win hands down.

It is sites like Whatdotheyknow and pressure groups like PHSOthe facts that can help us all to become wiser to the nasty little games that the establishment plays on those who 'cannot' fight back. The PHSO think I cannot fight back. Mmm, they will learn otherwise.

Neil Ingram left an annotation ()

You're amazing M Boyce. You're like a 'Duracell Bunny'; you don't stop. How lucky we are here because of your advice.

This is in response to Della though; as remember, this is just a 'possibility' right now; nothing more. I haven't read what the BBC has written because I saw this "32% pay rise" story debated on Sky News over the weekend.

Unlike the British government, you, M Boyce and I can see both sides of a story and we're truly objective. And so most respectfully, IMHO this story and pay rise have merit because applications to become a judge have fallen so dramatically, because of the fact top solicitors and barristers are getting paid so much more in private practice than a current British judge; why on earth would a healthy pay cut be a motivation to become a judge?

The trickle-down effect of this too and probably the main reason the PHSO is such an absolute sham, is because of a direct relationship, as a result of pay. My 'new evidence' detailing and documenting the Foreign and Commonwealth Office perverting the course justice recently, is my proof here.

Once we have this fixed, we then need to fire Mr Behrens and appoint somebody who is able to make the PHSO truly objective, even if it's just for the fact that he's a friggin' Manchester United supporter. I would vote for either one of you; Della, M Boyce to replace him - in a heartbeat.

M Boyce left an annotation ()

Thanks Neil. Not sure about the amazing bit, but I like the idea of the Duracell bunny, as I do like to rabbit on.

S.B. thanks for sharing your experience with me. It adds to the catalogue of the all too real horror stories than keep emerging about the PHSO. Please let me know what happens.

A.E. left an annotation ()

To complain about judicial bias or poor behaviour and it has to be within 3 months of the case and it's only to do with their behaviour, not their judgment.

https://judicialconduct.judiciary.gov.uk...

M Boyce left an annotation ()

Thanks A.E. You are quite right about the fact that you can only complain about a judge's 'behaviour' and not their 'judgement'. And that only includes things like falling asleep during a court session (they are deeply demoralised after all!) or being fouled-mouthed. It does not include things like ignoring case law or just not bothering to look properly at a case - they have carte blanche to do whatever they want as regards to those things.

J Roberts left an annotation ()

The information contained in this recent WDTK communication raises serious questions about the body that deals with judical appointments and conduct:

"Taken together with the details about the use of the false name and the gallantry award, there is something "fishy"  about Kernaghan. He looks a military intelligence-type. The Cabinet Office are the same people who recommended him as JCA Ombudsman. please chase up the Stalker Report and find out what Kernaghan  got up to in Northern Ireland. DPS might go to Cabinet Office to find out more about Kernaghan. "

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

M Boyce left an annotation ()

I have very little trust in the fairness and competence of judges in this or indeed any other country. Judges, politicians, Ombudsmen are all the same - establishment figures that come from highly privileged backgrounds that have no understanding of and no interest in the serious concerns of ordinary decent people. Establishment figures are conservative by their very nature and will do nothing to undermine the status quo of the rich and powerful oppressing the poor and powerless. It is as simple as that. But that does not mean that they should not be challenged on their noxious beliefs and behaviour, however difficult that may be.

A.E. left an annotation ()

Behaviour does include judicial bias however. And you can of course ask the judge to recuse themselves due to bias during the case.

If they are ignoring case law or other law, that would come under judicial bias, because they would be clearly biased against you to do so.

Judicial recusal
https://www.lawgazette.co.uk/judicial-re...

Judicial conduct & complaints
https://www.supremecourt.uk/about/judici...

M Boyce left an annotation ()

What you say is quite right A.E. Sadly, however I didn't realise at the time that the judge had done anything wrong by not giving separate reasons for his TWM certification. After 7 days it is then too late to appeal.

M Boyce left an annotation ()

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

The above Tribunal decision will greatly inform the arguments that I am currently formulating to the ICO with regard to the PHSO's argument that their legal advice sought about the legality or otherwise of their review process is exempt from disclosure under section 42 of the FOIA - legal professional privilege.

The crucial question is why would the PHSO refuse to disclose this information?

The answer must be that the legal advice states that their review process is not legal. If the advice stated that their review process was legal then they would disclose this advice, at least in partial or redacted form. If you've got nothing to hide then why hide It?

M Boyce left an annotation ()

Here's what the ICO says in regard to legal professional privilege (LPP):

'The concept of LPP protects the confidentiality of communications between a lawyer and client. This helps to ensure COMPLETE FAIRNESS in legal proceedings.'

Oh, really?

The ICO thinks it is completely fair to allow the PHSO to hide the truth of the legality or otherwise its sham review process behind the screen of section 42 (LPP) of the FOIA 2000 .
How is it completely fair to expect a complainant to make an application for judicial review of their PHSO review of their final report if they do not even know whether that review is legal or not and therefore whether their JR application will be thrown out of the court as non-justiciable because it is not statutorily provided for? The complainant gets landed with a court bill of tens of thousands of pounds for wasting their time and effort and the PHSO gets to have a good old laugh.
This is completely fair according to the ICO's definition. I don't share that view.

M Boyce left an annotation ()

The Berkeley Burke appeal judgement was published a couple of days ago in the High Court (Judge Jacobs) and now shows definitively - as case law - that an ombudsman can reconsider cases afresh. This is, however, categorically not the same as a REVIEW, which is a complete sham and is both not legal and does not look at the substantive issues of the case.
The Financial Ombudsman Service (FOS) does not conduct reviews, but does conduct fresh investigations. What the PHSO is doing is both not legal, not right, not fair and not on.

phsothefacts Pressure Group left an annotation ()

This is a very messy situation, not least because all Ombudsmen have different rules. PHSO can hide behind the confusion so they don't want to clarify the situation as they can swing one way or another depending on what suits them.

After the final decision, the Ombudsman can decide to re-investigate if new evidence is produced or they agree that they overlooked or misunderstood key points. But, from my understanding, the Ombudsman is reluctant to re-investigate if the public body does not agree for fear of JR from a body with legal funding. So instead the Ombudsman says to the citizen, who has no legal funding, you need to go to court if you disagree with our decision. The court is the appeal process, not the review but inaccessible for most complainants.

M Boyce left an annotation ()

It is a very messy situation indeed. It is also no exaggeration to say that this will become an existential threat to the PHSO's reputation, and quite possibly their existence as we know it.
This continuing uncertainty undoubtedly benefits the PHSO and severely disadvantages the complainant. That is quite plain for all to see if they care to look.
The situation on fresh investigations now appears to be fairly clear and legally established: if the PHSO decides there is enough evidence for a fresh investigation and one is warranted, and BOTH parties in the dispute agree to it, then there can legally be a fresh investigation by an Ombudsman. The statutory position on this appears fully consistent with this approach and case law has now crystallised in this direction also.

But the situation on reviews is very different indeed. There is no statute or case law that is consistent with the legality of the review process. Most Ombudsmen organisations do not offer a review of their final decisions (reports) because they know that the law does not allow for it. It is all very well for the PHSO to talk about risk appetite and pragmatism, but the law deals with the law, and that is that.

The PHSO does not want to admit that its review process is a complete sham because it would be extremely damaging for them. But a complete sham it patently is. Legal professional privilege or labelling my requests on this issue as vexatious will not prevent this truth from becoming widely known and becoming deeply damaging for the PHSO. The PHSO's existence rests on its public reputation for integrity, honesty, transparency and fairness. The futile attempt to cover-up the sham review process will undermine all this.

M Boyce left an annotation ()

Here's a quick resume of the sham review process and why it is so dangerously deceptive, misleading and damaging:

It is not legal, meaning it cannot be subject to JR;

it does not look at the substance of the complaint, and is therefore a blind exercise in futility;

it takes more than 3 months for the PHSO to decide whether to conduct a review, thereby forcing a complainant to be out of time with the court for JR, or to apply for JR prematurely before a review is even decided upon;

a complainant must request a review before they can apply to the court for JR because the court would not accept a case that has not exhausted all internal review processes - JR is a remedy of last resort.

the review process is further designed to derail any JR challenge by the PHSO running it in parallel jurisdiction to the JR - you cannot appeal a JR decision whilst a review is ongoing.

The whole sham review process is a perfect stitch-up of a complainant from the very start to the very finish.

A.E. left an annotation ()

Are you sure requesting a review is mandatory? Maybe PHSO sell it like it is without stating that it is. So if someone has the final decision, surely that is enough for JR?

A.E. left an annotation ()

"We will only quash a report or decision in exceptional circumstances given the very strong public interest in certainty around decisions by PHSO. The circumstances are:

We have missed significant material evidence which we should have considered and/or the report or decision is incontrovertibly and significantly wrong for some other reason and there is no other way to resolve the matter, and it is in the public interest for the report or decision to be quashed, for example because the existence and its findings are having a demonstrable adverse impact. If new and significant material evidence has come to light which could not have been taken into account by us we would consider opening a new investigation in the usual way if requested by a qualifying complainant."

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

The trouble is, that they refuse to do so, arbitrarily stating that you have not stated or shown anything that changes their decision, even in the face of overwhelming new evidence.

I'd love to know the logic of how personal detrimental impact relates to public interest though. It can't only affect a large group of people to make it a just decision to quash.

A.E. left an annotation ()

Whatever case law shows, PHSO were already on record as prepared to reinvestigate:

(Quoted from PHSO accounts and reiterated in Service Model Policy and Guidance: Customer Care Guidance 4.0 P8-9)

"Complaints about our decisions

Our decisions on cases are final, but we will consider whether to review our decision, if we have got something wrong. We will take a further look and conduct a review of the case if someone is able to show us that:

• we made our decision based on inaccurate facts that could change our decision or

• they have new and relevant information that was not previously available and which might change our decision or;

• we overlooked or misunderstood parts of the complaint or did not take account of relevant information, which could change our decision.

If, having looked again at the case, we think we may have made an error, we will take action to put that right. This can sometimes involve reopening an investigation."

But as already stated, they never seem to do it. In name only! Or smoke and mirrors.

M Boyce left an annotation ()

Requesting a review is not 'mandatory', but given that judges treat JR as a remedy of last resort it is a requirement if you don't want a judge to throw out the application as premature. The review is simply a serious distraction/con and should be abolished immediately. People should be offered a fresh investigation and not a sham review.

A.E. left an annotation ()

Since 2010 Parliament has been aware of how utterly rubbish PHSO is:

https://publications.parliament.uk/pa/cm...

And this person even stated then:

"Another method that the PHSO uses to divert judicial review is to offer a PHSO review. This comes up with the same answer in often many more months time, but leaves the complainant up against two decisions instead of one. The reviews are skilfully written for a potential judge and generally seizes on one small aspect of the complaint to eg write a PHSO letter. Thus more delay and frustration is created to put complainants beyond the limitation period for challenge. Fortunately, a recent High Court ruling in the case of the Blue Flash Music Trust v LGO means that complainants should be advised not to accept a PHSO review."

M Boyce left an annotation ()

Thanks for this info A.E.

I still think it would be very risky indeed for a complainant not to ask for a review before going down the JR route. As said before, JR is a remedy of last resort, as clearly stated in the Administrative Court Judicial Review Guide 2018. Judges are almost always biased in favour of the establishment (the PHSO) because they are themselves part of that wider establishment. Most judges would look for any and every excuse to throw out a JR case - not asking for an internal review of a final decision would provide a perfect excuse. Very few judges would allow a JR application to proceed without the complainant having first exhausted the internal review stage. The complainant would then be left with a bill of many thousands of pounds (possibly tens of thousands). The PHSO know this and the Administrative Court judges know this - it is designed to defeat any challenge to the establishment.

M Boyce left an annotation ()

I've recently noticed that the legal article by Hannah Gibbs of Landmark Chambers (LC) about the PHSO investigative process has been removed from the internet. I put a link to this interesting article back on 15 August 2018 above. It is now 'Not found' 404. I wonder why? (Luckily I printed a hard copy of this article). Could it be because I am wanting the full disclosure of the legal advice from LC to PHSO on the legality or otherwise of the sham review process? Absolutely. Watch the proverbial hit the fan in the coming weeks/months.

cathy dunne left an annotation ()

Is that the Hannah Gibbs article called "NHS COMPLAINTS AND THE HEALTH SERVICE COMMISSIONER", March 2018? If so, I could access it by googling her name and the name of the article, then accessing the article via Google's "cached" option, so I now have the pdf article downloaded.

M Boyce left an annotation ()

Yes Cathy that is the article. You're obviously a lot more computer literate than I am. I'm glad you've found the article. The ICO have recently informed me that they are still waiting for the full reasons from the PHSO for refusing my request to disclose all legal documents relating to the legality/illegality of the sham review process. Under the FOIA I have asked the ICO to disclose these reasons to me when they finally receive them.

A.E. left an annotation ()

@M Boyce The cache is only a kind of temporary saved version (which often has rubbish formatting) but when I searched just now it's gone.

If anyone is able to find it please could you post the link there.

A.E. left an annotation ()

However, for it to have vanished overnight that quickly, shows that these comments are being read...

M Boyce left an annotation ()

Thanks for this info A.E. Yes the powers that be are reading this and that is why everything is on lockdown and shutdown.

The LC article is interesting more for what it doesn't say than what it does - simply no mention of the crucial PHSO review process. Ms Gibbs is a very senior lawyer and it was her that dealt with my JR case on behalf of the PHSO. But whereas there is no mention in her article of the review process, in her court submission (which was almost exactly contemporaneous with her published article) she goes into quite some detail about the 'perils' of the PHSO review process - in terms of parallel jurisdiction with the courts.

Don Pedro (Account suspended) left an annotation ()

M Boyce left an annotation ()

Thanks for this Don Pedro.

M Boyce left an annotation ()

Although the LC article does not explicitly mention the PHSO review process it does obliquely allude to it in paragraphs 86-88. To paraphrase (even though these paragraphs explicitly refer to the PHSO main investigation rather than the review) LC are 'hinting' at how the protracted PHSO review process can cause serious difficulties with any subsequent court proceedings. It is however surprisingly muddle-headed when it says:

'If a stay [of proceedings] is granted, the PHSO can consider the matter [a review] before the claimant resorts to judicial review proceedings.'

This is so legally illiterate it almost beggars belief coming from a top lawyer. Once a complainant makes an application for JR that means the complainant has already resorted to (begun) judicial review proceedings. You cannot ask for a stay until you have begun JR proceedings - at great cost and effort to the claimant.

A.E. left an annotation ()

Yes, thanks Don Pedro. Agree about how it's trying to fudge over what is a ridiculous process that PHSO is allowed to get away with.

M Boyce left an annotation ()

Below is a copy of my brief submission to PACAC's 2018/19 Scrutiny Meeting, which I sent today.

SUBMISSION TO PACAC – THE SHAM PHSO REVIEW PROCESS.

My submission to PACAC’s scrutiny meeting of the PHSO concerns the absolutely crucial issue of the PHSO review process of their final reports. I cannot emphasise enough just how important this matter is. It goes to the very heart of the PHSO investigative process and to the very heart of the issue of trust in the PHSO. I regard this review process as a complete sham and for various reasons which I shall now outline, and I implore PACAC to ask the PHSO questions about this issue during its meeting.
The review process at first appears a pragmatic and sensible solution to the problem of what happens if the PHSO get their final report wrong, which does happen from time to time. Despite frequent assurances that the PHSO investigative processes are robust, nonetheless sometimes they are not robust enough. If a complainant believes that their final report is wrong (seriously flawed) then they can request a review from the PHSO Review and Feedback Team (RAFT), formerly the Customer Care Team (CCT), and they may be granted a review if they meet certain very stringent qualifying criteria. I shall now briefly outline where the serious problems lie with this review process.
Firstly, it takes at least 3 months for RAFT to decide whether to conduct a review or not, and then many months more if a review is undertaken. This protracted period of deciding whether or not to review a final report has been happening since the PHSO began reviews over four years ago. A complainant, however, has only 3 months in which to apply for judicial review (JR) of a final report under the Civil Procedure Rules, meaning that the PHSO review process effectively times them out of the JR process, or at the very least seriously jeopardises this process by leaving a judge with a discretionary view of whether to allow a late application or not that is no fault of the applicant. Complainants are expected to exhaust the PHSO review process before considering legal action as JR is a remedy of last resort. The PHSO’s lawyers have recently published an article which strongly advises applicants for JR to issue protective proceedings (stay of proceedings) to further minimise the risk that the dilatory PHSO review process poses, but this in itself has serious cost implications for the complainant. The PHSO have assured myself and PACAC that they would not oppose a late application for JR under such circumstances, but this assurance is utterly inadequate. It is entirely down to the discretion of the High Court whether to accept a late application or not, and it is totally unacceptable that complainants are put in this perilously invidious situation by the PHSO in the first place – any review should be conducted expeditiously and with due regard to the legal problems that may follow from delay.
Secondly, and perhaps even more importantly, the PHSO review process is not legal in the sense that it is not statutorily provided for and nor is there any case law precedent for its use. Put simply, the PHSO are acting ultra vires in their employment of a review process that is not legally allowed for. The PHSO themselves refuse to say whether their review process is legally allowed for or not and they refuse to disclose this information under the FOIA 2000. They refuse to supply any information whatsoever on the definitive legal position of the review process – not even any redacted information or a summary. The following FOI request outlines the dilemma:

Under FOI legislation the PHSO provided the following information to the question:
Please can you provide any or all internal documents which show what the Ombudsman’s powers currently are to re-open or start a new investigation into a complaint that has already been investigated?
‘Under section 3 of the HSC Act (section 5(1) of the PCA), the Ombudsman has the authority to commence an investigation upon receipt of a complaint. In addition, under section 11(3) of the HSC Act (section 7(2) of the PCA), the Ombudsman has the authority to conduct an investigation as she considers appropriate. As such, the Ombudsman has a wide discretion to carry out her work. In order to do that, the Office has, over time, developed procedures that sets out how the Ombudsman will conduct and complete investigations. This includes the procedures whereby the Ombudsman will look at any concerns a party has about how the Ombudsman conducted an investigation, and the investigation itself. We currently call this our ‘review’ process.
As a key Principle of Good Administration and Remedy, we would expect any public body to put matters right as soon as possible if it is clear that mistakes have occurred. This is an important principle for the Ombudsman’s work too.
As explained below we would look at whether the concerns raised meet set criteria. If they do, and the outcome is that we believe this means that the investigation decision is unsound, we would carry out new work on the complaint. This would be done on the basis that such concerns raised by the parties are, in effect, to be considered as receipt of a fresh complaint as described under section 3(1) of the HSC Act and section 5(1) of the PCA.
NOTE TO….. This is our current position, as per Dyer [judicial review case], but it might be argued that our review process is actually part of our ‘conduct of an investigation’ process and falls under section 11(3) and so we have a wide discretion to carry out a fresh investigation if the review criteria is met….. will advise.’

Paragraph 12.8 of the PHSO Board Open Meeting Minutes, 14 December 2017 states the following:
‘Jon Shortridge asked about the legal status of CCT [now RAFT] reviews, and what was the basis of a review decision if it did not constitute a new decision. Karl Bannister explained that our legislation did NOT (emphasis mine) allow for reviews. There was a risk involved if we did not follow the legislation. However, if we decided that a decision was wrong we needed to be pragmatic. Ultimately this was a question of our risk appetite.’

The Minutes directly contradicts the FOI advice above and they make it quite clear that the PHSO review process is NOT legally allowed for. This means that what the PHSO is doing with its sham review process is totally wrong and that such ‘review decisions’ cannot then be subject to judicial review. By the time any review decision has been made it would then be far too late to make an application for JR of the final decision.

In the independent peer review of the PHSO, 12 November 2018 it states:
‘5.5 The panel noted that the transformation programme included multiple strands and was ambitious and holistic in scope. It included a revised system for reviewing casework complaints [reviews of final reports].
10.2 The panel was particularly impressed by the PHSO’s openness to customer feedback.’

The above two quoted paragraphs from the peer review make for extremely depressing reading. The panel have clearly failed to properly look at the PHSO review process. If there is a revised system for reviewing casework complaints the PHSO have failed to publish information about this. I have been asking for the guidance on which the RAFT work since April 2018 and this has not been forthcoming. Where is the ‘openness’ when the PHSO keeps delaying publishing its RAFT guidance? This guidance was signed off for publication back in July 2018 by Karl Bannister and yet it is still not forthcoming.

What both the unnecessarily protracted and apparently ‘illegal’ review process fully reveals is that the sham review process, although maybe well intentioned, is thoroughly harmful and totally misguided. It effectively derails a complainant’s access to justice via the courts. Instead of being a pragmatic solution to a problem, it is in fact a messy and unnecessary problem to a problem. The sham review process should be abolished without delay and the PHSO should fully address its past failings by using this process. The solution to a seriously flawed final report must be a speedy fresh/new investigation, which is both legally allowed for in statute and case law and is eminently fair for the complainant – an ‘illegal’ review process should have no place in this as it only causes unnecessary problems.
I would now please ask that the PHSO provide the Scrutiny Meeting with a full and frank explanation of its review process of final reports, with particular emphasis on the ‘legality’ of this process and whether the review decision can then be legally amenable to judicial review.

M Boyce left an annotation ()

Thanks for your email A.E.

I don't think PACAC will publish my submission or ask any questions to the PHSO about it because they don't want to address this important issue. Let's hope I'm wrong about this. But if I'm not it will further show how PACAC are refusing to hold the PHSO to account. My post above is my entire submission to PACAC and therefore technically does not form the basis of my submission to PACAC.

M Boyce left an annotation ()

When it comes to making a submission to PACAC it also states:

'PACAC will not normally investigate individual cases of complaint or allegations of maladministration.'

So that means that PACAC will not investigate (take evidence from) individual complaints (by definition, complaints by individuals) , but only from groups or organisations, and they will not look into allegations of maladministration. Well that doesn't leave much they will investigate. They will take evidence from other establishment organisations who only have good things to say about the PHSO. If you accuse the PHSO of maladministration (not working effectively, or doing things wrong, or making mistakes) then PACAC will bring down the shutters.

Well there we have it: a sham exercise in scrutiny. It's just as well we don't rely on PACAC to hold PHSO to account, isn't it?

A.E. left an annotation ()

Although "normally" doesn't mean never...

J Roberts left an annotation ()

M Boyce,

Something on the public interest balancing exercise s42(1) that might be of interest:

http://www.bailii.org/uk/cases/UKFTT/GRC...

The appellant got shot down, but:

“19. We consider that there is no strong public interest in the information being disclosed NOW (italicized in original). It is not in the public interest for citizens to be able to influence litigation strategies of public authorities by use of information normally and for very good reason regarded as entirely confidential. We would regard a case of a retrospective request for information such as Mr Fearn’s, made after the relevant litigation was at an end, as a different proposition.”

M Boyce left an annotation ()

Thanks for this J Roberts.

The ICO have now supplied me with the PHSO's 'detailed reasons' for withholding the requested information. They have completely failed to undertake a public interest balancing test. The ICO are still investigating.
The PHSO are withholding the legal advice about their review process for one reason and for one reason only: it is illegal and they don't want this to enter the public domain, and for obvious reasons. It is utter disgusting nonsense for the PHSO to have the temerity to assert that withholding this advice is in the public interest. It is in the interest of only the PHSO and no one else. If the review process was legal they would obviously just say so, and they would agree to publish some or all of the legal advice to confirm this.

A.E. left an annotation ()

@J Roberts It's quite ridiculous for any judge or any other public servant to say that it's not in the public interest, I think that's for the public to decide! All the while they make these decisions for us without our involvement or feedback and without transparency, they have no right to make such a statement!

Jason left an annotation ()

Very interesting thread.

Doesn't the High Court also expect you to exhaust all lines of complaint before bringing a JR challenge? The PHSO themselves regarding the review process as a complaints process.

I once spoke to a Public Law solicitor regarding exploring a JR against the PHSO and he advised the Court would almost always have a deference to the Ombudsman. In any event, if anyone does any risk versus reward analysis in relation to bringing a challenge, the risks would almost always outweigh the reward, which undoubtedly rests very comfortably with the PHSO. Indeed, I understand that only one Judicial Review has been successfully submitted in relation to their decision-making (though times may have changed) and this was done by GPs who probably had comprehensive liability and legal insurance together with extensive financial resources:

https://www.dacbeachcroft.com/en/gb/arti...

Jason left an annotation ()

I also agree that because the Public Administration and Constitutional Affairs Committee does not look at individual cases it effectively gives the PHSO the ability to act improperly with impunity for the most part. Indeed, I understand the Professional Standards Authority at least takes a random sample of cases when overseeing statutory regulators, such as the GDC and GMC (and they still make terrible decisions in my opinion). There appears to be no such mechanism in place in relation to the PHSO.

M Boyce left an annotation ()

Yes Jason, what you say is absolutely right. The PHSO needs to be exposed for its very serious failings. If they are not truly accountable for their actions (which accumulating evidence proves they are not) then they are not fit for purpose and the public is being deceived and public money is being wasted on a large scale.

phsothefacts Pressure Group left an annotation ()

Anyone concerned about the role of PHSO should attend the PACAC meeting on Tuesday 8th January at Westminster at 10.00 am. PACAC need to be aware that public confidence has not been restored in this body simply by changing the leadership.

https://www.parliament.uk/business/commi...

Jason left an annotation ()

I wish I could attend that meeting and have my voice heard, as I have plenty of negative reports regarding this dreadful organisation. In fact, I don't think I've had one positive experience.

Jason left an annotation ()

Have a look at this video:

https://www.youtube.com/watch?v=kTDwXdZ3...

It demonstrates perfectly how unethical this organisation is.

M Boyce left an annotation ()

Yes the video makes interesting viewing. What is also interesting is that James Titcombe used to be one of PHSO's most vociferous critics (and rightly so) and now he is their greatest apologist - he now sermonises in eulogistic tones about the virtues and the integrity of the PHSO. There seems to have been a damascene conversion somewhere along this road, but where and why? Was it because Mr Titcombe has been persuaded that the PHSO is now a thoroughly reformed organisation? From what I and others can clearly see is that it has got even worse and certainly not better. The PHSO will do anything - anything - to protect the interests of the establishment and to protect its own reputation, such as it is.

Thanks for this PHSOthefacts. I'd love to attend, but I will probably not be able to because of work commitments.

Jason left an annotation ()

Oh, I never realised he has changed his tune.

Yes, things have certainly not gotten any better. It seems his change of position is most curious. Perhaps after threatening legal action and coming to an agreement, he signed a non-disparagement agreement.

On the subject of things getting worse, I suspect the current government's obsession with austerity has certainly not helped, as all public services have been cut to the bone and then some. I suspect the last thing they want is the taxpayer claiming compensation out of the NHS and other government bodies, rightly or wrongly.

M Boyce left an annotation ()

Mr Titcombe must look to his own conscience on why he has now become a champion for the PHSO.
The financial crash of 2008 was an absolute godsend to the Tories. Once in government they wasted no time implementing austerity. This was much more about ideology than actually saving money. They could now create more homelessness, more low paid jobs, cut all public services, including Ombudsmen services, and things like legal aid. To the Tories the financial crash was like all their birthday's and Christmas's coming at once.

In terms of the PHSO, they have lost a sizeable amount of money but that should never be an excuse or reason to provide an appalling service; maybe it could explain a reduced service, but not a service that actively deceives people at every opportunity.

Jason left an annotation ()

Yes, you're absolutely correct. I could not agree more.

They used the financial crash for the purposes of a scaremongering campaign to beat the electorate in submission. All that hyperbole about us turning into another Greece was highly mendacious.

This guy is a Professor of Economics at Cambridge:

https://www.facebook.com/theguardian/vid...

Also, look at how incompetent May is in relation to this issue:

https://www.facebook.com/TheDailyPolitik...

Yes, I also agree the PHSO has no excuse for their appalling service and deceitful conduct. The irony is they are meant to be a role model of sorts and set service standards as set out in their various principles. What an absolute farce...

Jason left an annotation ()

Thought I would also let you know the PHSO is currently tightening up its review policy, which will mean that the review/complaints process is going to be further in its favour (as if it wasn't already bad enough). For example, if you request a review and it is denied, you probably will not have another bite of the cherry, even if you make a further request based on different grounds.

M Boyce left an annotation ()

Where did you find out about the change in the review policy Jason?

I notice that the 'witnesses' (is someone getting married?) at the PACAC shindig are fellow Ombudsmen. Oh it would be very funny if it wasn't so seriously unfunny. There is going to be so much black-slapping going on it will be a like drunken line dancing competition where everyone is choking on their integrity.

Jason left an annotation ()

I e-mailed Jonathan Roper, Head of the Review and Feedback Team (Jonathan.Roper@ombudsman.org.uk), and gave him a piece of my mind. In response, he asserted as follows in relation to review requests:

"I thought it important to clarify that we do not have a policy where someone can make as many review requests as they see appropriate. Indeed, the opposite is the case. We are just finalising new guidance which makes this clear." (sic)

That e-mail was sent to me on Friday. Feel free to e-mail him and let him have your thoughts and he appears to be of the view that the PHSO provides a "quality" service and by asking for further reviews or by asking the PHSO to be open and transparent (in accordance with their own Principles of Good Administration: https://www.ombudsman.org.uk/about-us/ou...) one is only wasting their time.

We might also want to make another FOI request in due course.

Yes, the Chair of PACAC is a Tory and, yes, the whole charade absolutely stinks to high heaven. In fact, it makes me rather nauseous.

Jason left an annotation ()

You read this?

https://www.patients-association.org.uk/...

At least there appears to be one organisation fighting in our corner.

M Boyce left an annotation ()

Yes I am familiar with the Patients Association view. I wonder whether they have made a submission to PACAC this year?

As for Mr Roper, he and I have had quite extensive correspondence over the past year, on the phone, email and by letter. He promised a revised review process at the beginning of this year and nearly 12 months on he is still saying that the 'new process' (a simple re-naming of the Customer Care Team to the now magnificently named RAFT) is being 'finalised'. The PHSO obviously want to get the PACAC 'scrutiny' meeting out of the way before they even consider publishing this magnum opus. They don't want any possibility of any awkward questions about this charade, and if it is repeatedly kicked into the long grass then Bernard will be more than happy to look the other way.

Jason left an annotation ()

I certainly hope the Patients Association will be making a submission, as they certainly will be doing patients an injustice if they don't.

Yes, it very much seems a case of keeping up appearances with the name change, which, as you have rightly set out, does absolutely nothing to improve performance.

I see the PHSO have been told to make a 24% real terms reduction (cut) in its spending over the next two years, as per the last report:

https://publications.parliament.uk/pa/cm...

They way I see it, all that does is give them more of an excuse to limit the auspices of their complaints/review handling and inflict further injustice, as they are clearly trying desperately to do. But don't worry, they've now got a new Service Charter (which is not worth the paper it is written on)!

Jason left an annotation ()

I take it this isn't the first cut that the PHSO has been instructed to undertake since 2010? It seems the overwhelming pressures are continuously mounting on the NHS, as it too is being perniciously cut to shreds by the Tories and Tory ideology, and then patients are left with pretty much no recourse if they are not in a position to pursue a negligence claim in a Court. What an absolute shambles...

M Boyce left an annotation ()

In terms of the review process, Mr Roper replied to me by email (he won't speak to me on the phone anymore) about two weeks ago and stated the following:

'We changed the name of the Customer Care Team (CCT) to the Review and Feedback Team in July. Since then, we have made some process changes and no longer have a direct incoming phone service to the team. We are finalising some further changes.'

And the 'award winning' CCT used to be so communicative. You could phone them up and they would actually talk to you. But now we have a new 'improved' service, with a snazzy new name, that does not want to talk to the public, to the very people that pay their wages.

Mr Roper also refused to respond to the crucial issue of whether the review process (old or new) was legal (statutorily and case law provided for) or not.

Welcome to 2019...same old same old.

phsothefacts Pressure Group left an annotation ()

And this is apparently referred to as 'Mr Behrens reaching out' to restore public confidence.

Jason left an annotation ()

So no hint of what those 'process changes' actually are?

Yes, it seems the last thing they want is a member of the public ringing up and asking them to explain their reasoning, so best lock themselves away, whilst ignoring any e-mail that puts them in a difficult position.

I'm not surprised he would respond to your reasonable question. Again, so much for being open, accountable and transparent...

I think Mr Behrens needs to do what his predecessor did and resign, together with a few others in management positions over there.

Jason left an annotation ()

So, in summary, when you complain about the PHSO's service to the PHSO, there are only a very limited amount of things you can complain about (the scope of which is seemingly narrowing as time goes by). You also can't talk to the PHSO about your complaint and once you complaint about a certain issue you have you right to complain revoked.

Does that sound like setting good standards to you?

M Boyce left an annotation ()

Yes and then no.

Notice how PACAC have only published two pieces of submitted evidence to their 'scrutiny' meeting. Where are all the rest of the submissions?

Jason left an annotation ()

The 'Annual Scrutiny' report I linked to states as follows:

"Prior to the evidence session, the Committee accepted 38 written submissions from individuals and organisations relating to their experience of the PHSO as complainants. The Committee is thankful to all those who submitted evidence."

Pages 25 and 26 seem to link to those submissions. Is that what you are alluding to, or have I misunderstood?

J Roberts left an annotation ()

Jason,

Two written pieces of 'Latest Evidence' can be found here:

https://www.parliament.uk/business/commi...

Jason left an annotation ()

Oh, I see. You were referring to an upcoming 'scrutiny' meeting.

Is it actually worth making a submission? Won't Bernard and his crew just look the other way or otherwise just fob it all off?

M Boyce left an annotation ()

Yes PACAC will just look the other way or just fob it off. But it was still worth making a submission because it adds to the growing evidence that PACAC is not part of the solution, but is a large part of the problem.

Jason left an annotation ()

Okay, I see.

I really hope we manage to make some inroads here, as the current state of affairs is nauseatingly reprehensible.

M Boyce left an annotation ()

Below is what John Roper, Head of RAFT, stated in a letter to me dated 31 December 2018:

'I note you have asked for a fresh investigation of the complaint. However, before we investigate a complaint we need to consider if this is something we should do. We do not undertake new or fresh investigations into issues we have already investigated unless we found after a REVIEW (emphasis mine) that it would be appropriate to do so.'

What this now confirms is that the PHSO will not conduct a fresh/new investigation unless and until a review has been completed. But the problem is of course that the review process is not legally allowed for and therefore the review outcome cannot be subject to judicial review. The review process is simply a cynical method for denying complainants recourse to possible legal justice.

Only full publication of the legal advice which PHSO have obtained, and are now hiding, at huge public expense will show that the review process is an illegal sham and that the whole PHSO investigative process is therefore a total sham because it firmly rests on deceit and cover-up.

M Boyce left an annotation ()

As I've stated earlier in this thread, the review process exists merely to derail a complainants access to possible justice. It is now almost certainly the case that a fresh/new investigation is legally allowed for. The PHSO could simply conduct a fresh/new investigation if their final report was shown to be flawed - as in the current criteria for conducting a review - simply conduct a fresh/new investigation and not a sham review, which is not legal and does not look at the substance of the complaint. Proof that the review process exists ONLY to derail access to legal justice.

Jason left an annotation ()

I have just made a further FOI request:

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

I agree, it does seem the review process is a cynical ploy to scupper most complaints/review requests.

It all seems a bit like the Wild West, where the Sheriff has been kidnapped or is otherwise drunk and completely disinterested.

I would argue that even if there was no review process, there would still be an issue of access to justice. As you are no doubt aware, a JR could easily cost you 20K or more if you lose. To the PHSO, they won't lose a minute's sleep as any legal costs will be taken directly from the taxpayer. Also, if you litigate in person, they probably won't have much cost to consider at all.

I even sent the PHSO a letter before claim and their obscurification and opaqueness was quite staggering! They couldn't even be bothered to send me a copy of the JR pre-action protocol, as they were required to do in accordance with the pre-action protocol.

J Roberts left an annotation ()

Something I came across by way of Mrs Justice Whipple - even someone who submits their JR claim within three months can have permission refused:

'11. "1. Proceedings by way of judicial review must be brought promptly and in any event within three months, three months is a long-stop limit: DELAY WITHIN THAT PERIOD GIVES GROUNDS IN ITSELF FOR REFUSING PERMISSION. (emphasis added) It is thus incumbent on the litigant whose claim is not submitted until the last day of that period to use the time within that period to best advantage so as to avoid or minimise further delay, and if for good reason that is impossible to act promptly thereafter. I do not consider that he has done either, and though the extension sought is not long, decline to give it."'

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

Also,

'2. I also told him that I was minded to conclude that the application was also totally without merit, which meant that I WAS COMPELLED TO CONSIDER (emphasis added) whether I should make a civil restraint order against him'.

M Boyce left an annotation ()

I agree Jason. Access to JR is in reality only access to notional justice: the chances of a complainant succeeding in their JR is vanishingly small because judges are complicit in this establishment cover-up and stitch-up. But, however small the chances of winning, it is still incumbent on the PHSO not to put barriers (the review process) in the way of this access to notional justice.

M Boyce left an annotation ()

Yes J Roberts, you make a good point that illustrates just how capricious and unfair judges can be. There isn't a single judge in this country that I would trust to deal fairly with applications for JR against a PHSO decision. But that doesn't mean that such applications should not be made. My advice would be only make an application for JR if you can afford to lose, and you are up for the very unequal fight.

M Boyce left an annotation ()

Has anyone else had their submission to PACAC's latest scrutiny committee doctored by the Committee?
Surprisingly PACAC have published my submission (I didn't expect them to), BUT crucially it is a severely doctored version of that submission. They have omitted the most important part of the submission (omission dots are where this has happened). There can be no reasonable explanation for this because all the information was already in the public domain. Compare my submission above (16/12/18) with that on PACAC's website. Didn't I say that PACAC could not be trusted?

Jason left an annotation ()

That's bloody unbelievable! Are they actually allowed to do that? What an absolute charade!

M Boyce left an annotation ()

They can decide not to publish some or all of a submission if it contains information that is not already in the public domain, but all the information I quote (and it is mostly quoted information which has been omitted) is in the public domain. The December 2017 PHSO Board Meeting Minutes were already in the public domain and PACAC must know this. They have gutted my submission to make it much less damaging to the PHSO. I have asked them to fully explain and justify why they have done what they have done.

Jason left an annotation ()

I see. It sounds very suspicious, but then again what doesn't when it comes to this lot.

I have just come off the phone after arranging a telephone with of the Review Team 'Caseworkers'. They proposed we speak on the phone after they refused to answer my very reasonable questions by e-mail.

I then asked this (not too bright) individual as to whether or not my understanding of her letter was correct, and all she did was repeat the wording in her letter verbatim. She simply refused to answer a 'basic yes or no' question. I then asked to speak to her manager and then she refused to put me through. I then moved on to the next question which she refused to answer and then put the phone down on me.

I have to say this is by far the most unethical and dubious organisation I have ever dealt with in my life! The tragedy is they are meant to be looking at matters relating to people's health! Words cannot describe how much I despise them!

If anyone actually manages to speak to one of these individuals, make sure you record the call (for personal use of course). It really is no surprise they are attempting to hide away from the public.

Jason left an annotation ()

Let us know how they respond to you concerns regarding the amendments. You could potentially challenge the decision by JR if they haven't considered all relevant factors, such as the fact that the information was already in the public domain, but I suspect that is a headache and grief you may not want to endure.

Jason left an annotation ()

I just got the following response to a FOI request I made recently:

"You requested the following information:

‘I am writing to you under the Freedom of Information Act 2000 (“the Act”) to request the following information:

Please direct me to any formal or informal policy document(s), and the specific paragraph therein, that sets out that complainants are not entitled to make further review requests once a review has been carried out by the Ombudsman.

Please kindly also direct me to any formal or informal policy document(s) that state review requests should be dealt with ‘proportionately’ by the Ombudsman, particularly after a previous review request has been made and/or carried out.

I look forward to your response within 20 working days, as stipulated by the Act.’

Response

We can confirm that we do not hold a Policy which specifically sets out or states -

‘complainants are not entitled to make further review requests once a review has been carried out by the Ombudsman’

‘Review requests should be dealt with ‘proportionately’ by the Ombudsman, particularly after a previous review request has been made and/or carried out.’

The current policy and procedure used by the Review and Feedback Team (RaFT), formerly the Customer Care Team (CCT), are published on the PHSO website and are therefore exempt under Section 21 of the Act as it is reasonably accessible via other means. I have provided a link to this information below:

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

So, on the face of it, it seems Mr Roper may be acting less than truthfully or otherwise improperly in relation to limiting review requests based on 'policy' grounds. Does anyone see this differently?

M Boyce left an annotation ()

Yes the advice does seem contradictory, as usual.

The FOI response states:

'The current policy and procedure used by RaFT , formerly CCT, are published on the PHSO website..'

The CURRENT policy and procedure? It is now 2019 and they are referring to CCT 4, dated 2016. The policy and procedure NOW used by RaFT are categorically not the same as in 2016. The PHSO are again not telling the truth.

Jason left an annotation ()

Yes, it looks like we can't trust a word that emanates from their direction.

When I sent them a JR pre-action letter, challenging their decision to automatically reject my review request because I had requested a review previously, the solicitor/PHSO had the gall to assert, in a very curtly drafted letter, that this was "objective" policy, and then refused to deal with any of the factual (such as what is set out in the current "policy") or legal issues I raised. It is plain it not "objective" policy. Indeed, the "caseworker" himself conceded it was down to a matter of "discretion" (though even this much is not clear from the documentation.

Jason left an annotation ()

Is it also not fair and correct to say that until such time any proposed policy is approved and published, it is not current policy? All this seems a cynical ploy to be as opaque as possible, whilst changing the rules and procedures, on an ad hoc basis, as the PHSO sees fit.

Jason left an annotation ()

I am wondering if it's not worth trying to crowdfund a JR. I'm sure the PHSO have left thousands of people feeling extremely aggrieved. I think we need to do something to send a message, as the status quo is they are simply not being held to account and are totally complacent. Food for thought...

Another option may also be try and convince broadcasters to consider doing a episode on the PHSO with programmes like Panorama and Dispatches.

M Boyce left an annotation ()

Yes Jason you make some good points and the media will be informed about what is going on here.

Today I received my Decision Notice from the ICO and as fully expected they have backed the PHSO in non-disclosure of their legal advice on the legality/illegality of the review process. The DN will be published shortly on the ICO website. I am now preparing my submission for the First-tier Tribunal. Below is what I have briefly fired back at the ICO, and that is just a tiny part of the beginning of a very, very lengthy submission to the FTT.

I would just like to make one comment on your Decision Notice FS50788785. You state that 'only in VERY EXCEPTIONAL cases can this [LPP] be overridden..'

That is NOT what is stated in Bellamy v ICO, as stated:

'There is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest.'

Then the ICO state in its guidance on section 42:

'Note that the Tribunal stated that the 'countervailing considerations' must be 'strong', rather than indicating that they should be EXCEPTIONAL.'

Why does the ICO preach one thing and then do the exact opposite? And you go even further by stating that the countervailing considerations must be VERY EXCEPTIONAL, instead of strong. I will be stressing this hypocrisy very strongly indeed in my submission to the Tribunal.

M Boyce left an annotation ()

Just when you think the ICO cannot get any more stupid you soon realise that they can. In my DN it states in paragraph 17:

'The Commissioner agrees with the PHSO that the quality of advice would be diluted if such exchanges were disclosed into the public domain. This would then have a negative impact on the PHSO's decision making and ultimately the STATUTORY functions it is required to perform.'

What utter codswallop. The most important point here though is that the ICO appear not to understand (or they chose to ignore) that the PHSO review process is NOT a statutory function. It is not provided for in statute - and that is the very the point, the very essence of this complaint. The ICO would appear not to know what a statutory function is even if it poked them in the eye with a full description. It is time that I enlightened them.

Jason left an annotation ()

I have to say my experience of the ICO has also not been good. In one case, they refused to carry out an assessment even though they were legally obliged to. They also didn’t even comply with their own policy.

I think there are limited grounds you can appeal to the FTT. Which grounds are you appealing on?

The absurd thing is you will probably have to escalate you complaint to the PHSO, as they are the body that deal with complaints about the ICO. Is this perhaps the reason you are able to appeal to the FTT?

Do you have a link to the DN?

Yes, it would seem there is absolutely no legal process which underpins the PHSO’s review procedure, so it does seem a very poor decision.

It also looks like they seem to be suggesting that if they would uphold your concerns or recommend the disclosure then it would open the floodgates to obtaining the PHSO’s legal advice in relation to any matter. I don’t think that is fair, as there is clearly a distinct public interest in this matter.

Jason left an annotation ()

Okay, I see the FTT is the place to go in relation to FOI appeals. Thank goodness for that...

Let us know how you get on.

M Boyce left an annotation ()

The FTT is unfortunately even more establishment than the ICO. Judges almost always seek to protect the establishment and cover-up their wrongdoing. They really are all in it together. That said it will not stop me appealing because their decision will also be put into the public domain so anyone can see exactly what justice means in this wretched country.
There are extensive grounds on which I intend to appeal. The public interest test weighs very heavily in favour of disclosure simply because all the boxes for disclosure are ticked. I shall put a skeleton argument on here shortly.

The DN will appear on the ICO site in the next few weeks.

So far PACAC have not replied to my request for them to explain why they doctored my submission.

Jason left an annotation ()

The FTT sounds like another charade. I suppose they are very reluctant to rule against government agencies, as they government ultimately pays their hefty salaries. The government also has a lot more resources to challenge their decision.

Might be worth sending a JR letter before claim in relation to the PACAC submission, as they would compel them to respond within 2 weeks.

I have just seen the ‘call notes’ that relate to the recent call I had with a member of the PHSO’s review team. I nearly fell off my chair when I saw what this person had noted – far from what was discussed in my experience. I asked this “caseworker” if my understanding of her statement in her decision letter was correct – she outright refused to answer this very simple question. She then noted after the call that I was asking her “medical questions”, which she was unable to answer (which is extremely mendacious, as that was not the case at all).

I also asked her why her decision was at odds with the original caseworker’s decision, whilst referring to a specific paragraph, at which point she ended the call (no mention of this in the ‘call notes’).

How do these people sleep at night?

Please note that only calls to the PHSO's “helpline” are recorded, so it seems the review team easily continue to get away with murder.

Jason left an annotation ()

Sorry, typo corrected:

The FTT sounds like another charade. I suppose they are very reluctant to rule against government agencies, as the government ultimately pays their hefty salaries. The government also has a lot more resources to challenge their decision.

Might be worth sending a JR letter before claim in relation to the PACAC submission, as that would compel them to respond within 2 weeks.

Jason left an annotation ()

Just go another e-mail from Mr Roper. The PHSO have just published the latest "Review and Feedback Team guidance":

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

I also received further disingenuous comments regarding my recent phone call.

Jason left an annotation ()

I found the following statement quite amusing:

"We encourage contact with the Review and Feedback Team to be by telephone as we want to build a more personal relationship with those using the service."

Didn't you also mention that they were trying to limit their telephonic contact with the public?

Jason left an annotation ()

It it now plain that it is a matter of the PHSO's discretion whether or not to allow a further review to be carried out (so, again, the PHSO have been economical with the truth):

"95. After we have given the outcome of a complaint about our decision or service, the Review and Feedback Team may receive follow up contact about this decision. We will usually only complete a consideration or a review of a case once.

96. The caseworker should consider whether new evidence has come to light since the outcome; whether there is any indication we got something wrong in our consideration of the service or decision complaint or whether this is a repeat of the earlier complaint. (Policy requirement)

97. The caseworker should be customer-focused and decide whether we can give any further explanation about our decision or there is anything further of value that can be added. If the correspondence suggests any flaws in work considered by the team then a Head of the Feedback and Review Team should consider how best to address this. (Policy requirement)"

M Boyce left an annotation ()

My Decision Notice (DN) is now available on the ICO website. Just scroll to the bottom of their webpage and search under Decision Notices. It is dated 14 January 2019.
If you do a search of section 42 (legal professional privilege) of the FOIA on the ICO DN search it brings up over 300 cases. The number upheld/partly upheld is less than a handful.

The ICO almost always favour (cover-up/deceive) an authority over the public. They treat section 42 as an absolute exemption instead of a qualified exemption. Note how they say in my DN that in 'only very exceptional cases' can LPP be overcome. The ICO know full well that the First-tier Tribunal have never said this, instead merely stating that a case has to be 'strong', but NOT exceptional. The case for disclosure in my case is exceptionally strong and not just strong.

I am currently preparing a very lengthy submission to the First-tier Tribunal and will post a brief skeleton argument here shortly.

Jason left an annotation ()

I have to say that it comes as no surprise as to what the ICO have done. Like the PHSO, they will bend over backwards for public bodies as they have far more resources (abundant taxpayer funds) to challenge their decision. It is almost a certainty that the PHSO and their solicitors won't be very pleased about publishing their confidential legal advice in the public domain, and will seek to challenge the decision.

As you have rightly pointed out in an earlier annotation, access to justice in this country strongly favours the rich and powerful. It really is a sad state of affairs.

M Boyce left an annotation ()

My lengthy submission to the First-tier Tribunal is nearly complete and will include the following information:

In the Government's response to PACAC's Third Report on the 2016-17 PHSO Annual scrutiny it states the following:

'The PHSO's letter to PACAC on 1 February explained the Ombudsman has a practical way of dealing with this issue [correcting mistakes] in the absence of the legislation [Public Services Ombudsman] being brought forward. The Government included a provision in the published draft bill (clause 4(6) and (7) which allows the PHSO to re-open [review] reports if they are found to be flawed, and will consider any further findings from any pre-legislative scrutiny.'

It is difficult to imagine a more confused and muddled government statement, even in these days of Brexit. How can a DRAFT bill relating to a possible future Ombudsman (the Public Services Ombudsman) change the existing legislation that relates to a current Ombudsman (the PHSO)? This turns the whole statutory process on its head and makes a complete mockery of the law.

I would be grateful for anyone else's thoughts on this utter nonsense.

J Roberts left an annotation ()

I can't add much at all, but your comment reminded me of something I recently read concerning a review of a fee-paid judge's decision:

“26. The ‘power of review’ is not an expression used in the legislation.

“27. The salaried judge must apply the powers under the rules of procedure fairly and justly. That means that they must be exercised transparently.”

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

If it is simply a matter of the Ombudsman having total discretion, I don't see how that can ensure fair and just decisions. There needs to be transparency in the PHSO's 'practical way of dealing with the issue'. Unfortunately, the current lack of clarity suits a lot people at the expense of individual complainants.

phsothefacts Pressure Group left an annotation ()

My take on this is the government originally designed PHSO as a one-way valve to oblivion. Once the final decision is made it is set in stone and only a new investigation can alter the decision. The Ombudsman can choose to open a new investigation IF he gets the green light from the public body that it will not threaten legal action. New investigations are very rare and will usually change very little but serve to prevent the complainant from taking legal action when they have a very strong case against PHSO. There is no statutory power for PHSO to 'quash' an existing report - final reports are set in stone to prevent comeback from all parties. However, in an exceptional case last year PHSO were faced with 'quashing' the report or facing judicial review due to the failings of the reporting/investigation system. The case against them was strong. The complainant would not accept another investigation so PHSO had no option but to take a chance and 'quash'. That is the solution PHSO have found whilst waiting for the new legislation to determine the matter.

M Boyce left an annotation ()

Thanks J Roberts and PHSOthefacts.

The PHSO review process is not legally allowed, and yet the Ombudsman carries on nonetheless. We all know that there is no real justice for ordinary people in this country, but what I find most annoying is the continued pretence by organisations like the PHSO that they are acting fairly, and most importantly legally. The PHSO's flagrant illegal behaviour is being endorsed by PACAC, the Government and the ICO. Will it also be endorsed by the First-tier Tribunal? We will find out soon enough.

Jason left an annotation ()

I could not agree more.

I certainly hope you have some success at the FTT. I'm certainly rooting for you.

Keep us posted.

Jason left an annotation ()

What annoys me is the thought that we, the taxpayer, are ultimately paying the salaries of those employed by the PHSO, and the MPs who are meant to hold them to account. So, in short, we are paying them our taxes only to be held in contempt and disdain by them.

I also have to say that, based on my experiences, there does appear to be a question of whether or not there is more going on here than mere incompetence, as many of the decisions I have received are so bad that even a person of less than average intelligence could see serious problems with them. I can only speculate as to what that is, but suspect ideologically-driven austerity measures may have a lot to do with it.

M Boyce left an annotation ()

Yes you are quite right. It makes my blood boil to know that honest hard-working tax-payers are heavily funding organisations like the PHSO, who then use that money to provide a service that is not only extremely poor, but is a service that is deceitful and often not legally allowed.
It is my belief that the PHSO is incompetent and deceitful in almost equal measure. The front-line staff are incompetent and the management are down-right deceitful, and they are aided and abetted in a similar way by PACAC and the ICO. I can prove just how deceitful the PHSO legal team are because I have it all in writing. If the PHSO would like to try and sue me for libel, then we can have all this out in the open too.
What is happening with the PHSO review process and their withholding of their legal advice about it is nothing short of an establishment-wide cover-up. If the legal advice states, or even strongly suggests, that the review process is not legally allowed (which I strongly believe it does) and the PHSO have then ignored this and continued to do something they have no statutory authority to be doing, then this would be a scandal that the public rightly need to know about.

If, on the other hand, the review process was legally allowed, then why on Earth would the PHSO not state this? They would be shouting it from the roof-tops. They wouldn't necessarily have to release any legal advice(it could by anonymised and little more than a summary of that advice) and it would help everybody by having this out in the open and ending this legal uncertainty. The PHSO have a 'no comment' (guilty as sin) philosophy to everything wrong they do because they know that the establishment will always cover-up for them and stitch-up any investigation about their wrong-doing.

I'm never going to stop until I get and expose the truth about this.

M Boyce left an annotation ()

I sent off my detailed (over 70 pages) submission to the First-tier-Tribunal (FTT) yesterday. Basically, section 42 of the FOIA (legal professional privilege -LPP) is a balancing exercise between whether withheld information (legal advice about the legal status of PHSO reviews) should be exempt (remain withheld), or disclosed to the public. In all FTT cases that have found in favour of disclosure there is always the commonality of there being 'some clear, compelling and specific justification for disclosure' that outweighs the 'in-built inherent weight' that attaches to exemption in LPP.

The skeleton balancing argument in my FTT submission is as follows:

Arguments in favour of exemption:

(1) The importance of LPP as a significant legal concept.

Arguments in favour of disclosure:

(1) The clear and compelling lack of transparency in the PHSO's reasons, decisions and practices, in relation to their reviews and their review process.
(2) There would be no prejudice/harm to the PHSO by disclosure, if what it is doing is legally allowed.
(3) Disclosure, or possible disclosure, would be unlikely to dilute the quality of advice sought (as the PHSO allege) or received; in fact it would almost certainly enhance it.
(4) Disclosure of the information could provide a benefit to both client and lawyer, as alluded to above. Most importantly it would also provide a very real benefit to the public and the Government in terms not only of transparency and informing a general debate around the review process, but by helping to inform and then possibly expedite the specific move to a more modern Ombudsman service (the Public Service Ombudsman, which is supposed to replace the PHSO) where greater legal certainty and transparency would be enshrined in statute within its processes, and specifically in regard to the possible reconsideration/fresh investigations (not reviewing or re-opening) of decisions. Disclosure could provide certainty on the legal position of the review process, enabling complainants to not only understand the processes involved, but most crucially enabling them to navigate their way through the process more effectively and possibly more quickly and then to make decisions about what to do next. If the review process is shown to be not legally allowed (and therefore not substantively challengeable by judicial review)then a complainant could not be condemned for wanting to by-pass this legal dead-end.

(5) There are very large numbers of people directly affected(tens of thousands every year), and potentially very large numbers of people affected (many millions every year).

(6) There are very large sums of money involved - more than £30 million every year for the PHSO, and countless billions for the NHS and other government departments, that the PHSO is supposedly tasked with putting their wrongs right and feeding-back to promote good practice.

Mary Rains left an annotation ()

I write as a person who, after an extremely lengthy fight, finally managed to get my complaint upheld. I faced problems all along because of lies which were told by the organisation against which I was making my complaint. Sadly the agency's lies were not challenged under oath; thus the agency and PHSO were protected against any legal action I might take -it was basically my word against theirs. In my opinion the ONLY reason my complaint was ever upheld was because I was able to produce the 'signed for' receipt by the agency of the important letter I had sent. Prior to this the agency had completely denied ever receiving my letter.

Jason left an annotation ()

M Boyce, I would be very inclined to agree with your point of view regarding the PHSO etc.

It does look like you make a good argument to the FTT. I take it you have cited all relevant and favourable case law, as that could leave the FTT with no wiggle room?

Jason left an annotation ()

Mary, did you go though the shambolic PHSO review process?

M Boyce left an annotation ()

Thanks Mary. Please do let us know if you had a review.

Yes Jason, I've gone through the legal arguments in substantial detail, paying particular attention to the Dyer High Court judgement, where it cannot state more clearly and emphatically that the PHSO cannot (are not legally allowed) re-open (review) their final decisions.
Established case law (Teare judgement and Berkelely Burke judgement) has made it clear that the PHSO can begin fresh/new investigations, but again, not review a decision.
The internal PHSO lawyers have tied themselves in knots by releasing highly contradictory and confusing legal advice, and external lawyers to PHSO have done the same. Does the withheld legal advice make things any clearer? If it is disclosed we will see.
This has to stop and this shameful situation has to be made public and then fully addressed.

Jason left an annotation ()

That's most interesting. Do you have a link to the Dyer case transcript?

Why on earth are the likes of PACAC etc. not acknowledging those judgements? What an absolute shambles!

Yes, I totally agree. Something definitely needs to bring an end to this charade. Strength in numbers me thinks...

J Roberts left an annotation ()

phsothefacts Pressure Group left an annotation ()

I have recently been reading the 1967 debates in Hansard concerning the setting up of the Parliamentary Commissioner - later to become the Ombudsman. The Ombudsman was set up to relieve government departments of complaint handling. You will see from the quote below that prior to the Ombudsman each government department would investigate and review its own complaints. The review was the final decision so as to prevent dissatisfied complainants from having any further recourse to justice.

"The cases which usually come to hon. Members concern planning decisions, because these are the ones which worry people most. Their livelihoods are affected by them, and yet these are the very cases in which we are utterly powerless to assist. A citizen applies for planning permission to build, say, a bungalow. The R.D.C. turns down his application. He appeals, and waits for five months. His appeal is then heard, and he waits another five months before the gets the result of the appeal. He learns that his appeal has been turned down, and he comes to see us. We then write to the Minister. I have done this on many occasions, as I expect most hon. Members have. We write to the Minister asking him to reconsider the appeal, and we get the same reply each time, "There is no power to look at the matter again".

'There is no power to look at the matter again'.

https://api.parliament.uk/historic-hansa... (1387 section)

This was such a good model for appearing to handle complaints but then disposing of them finally that they incorporated it into the design of the Ombudsman. Making PHSO a one-way valve to oblivion. Consequently, the Ombudsman does not have the power to re-open a flawed final report. He only has the power (in exceptional circumstances) to re-investigate all over again. Which begs the question - what happens to the flawed investigation report which is still in circulation?

A murky area indeed and you are to be commended M. Boyce for poking a stick in the slimy underbelly of the PHSO (sham) process.

Latest blog touches on the powers of the Ombudsman
https://phsothetruestory.com/2019/02/11/...

M Boyce left an annotation ()

Thanks PHSOthefacts, that is a really insightful latest blog, and one I will certainly be studying in some detail.

You mention the PHSO calling for own-initiative powers to begin its own investigations into suspected wrongdoing or serious errors by an authority. What would be the point of this though, bearing in mind the Ombudsman will not even properly and fairly investigate complaints brought to it from the public? I can only imagine the PHSO would like to initiate investigations itself to make it look proactive instead of just reactive (it looks nice and shiny), but its investigations would just be a sham and an establishment cover-up as they are now. This is not just my opinion, but it is based on evidence. On the PHSO website it states:

'Find out more about cases we have investigated and what we have done TO MAKE PUBLIC SERVICE BETTER.'

And:

'But the INDIVIDUAL complaints that people bring to us also help to make public services better for everyone.'

How lovely you might think, but before you start awarding t'old Robert another medal for gallantry you might want to consider what the PHSO stated in their submission to the High Court in my JR case last year, as follows:

'...the Ombudsman's role is to investigate the injustice sustained by the person making the complaint, NOT THE PUBLIC AT LARGE.'

How telling those last words really are. So if the Ombudsman were granted powers to initiate its own investigations, who, according to the above might stand to benefit? Well, not 'the public at large' as the PHSO have so clearly stated, so presumably that leaves our Bob as the beneficiary.

Follow the yellow-brick road indeed!

phsothefacts Pressure Group left an annotation ()

I do believe that own initiative powers is just a badge to wear as Rob Behrens himself says they would be used only in exceptional circumstances. The Ombudsman has nothing to do with protecting the public and that is clear from the 3% uphold rate. It is governments dustbin. So why would an Ombudsman start poking around where there hadn't even been a complaint?

Jason left an annotation ()

Thanks, J Roberts. I've read the Judgement, but note it goes back a few years. It does suggest that once that final report has been sent to all parties, the Ombudsman was functus officio, unless a subsection under the Parliamentary Commissioner Act 1967 was exercised.

If the PHSO has no legal powers to "review" a decision, how does it consider whether or not to open a fresh investigation, or is that outside of its legal powers too? It also seems the "review" process carries two stages (none of which is set out in the statute):

1) A prospects test.
2) A full review.

Is this correct? I do confess that am a bit confused by what the purported PHSO review process actually amounts to (apart from an opportunistic whitewashing exercise of course, which is just my opinion based on my experience).

M Boyce left an annotation ()

At the moment any complainant has to provide evidence/show that their final report was seriously flawed before the PHSO even consider deciding whether to begin a review. The review stage is simply not necessary (as well as not legal and not substantive), because if you can show/prove that the final report was seriously flawed then why do you need to go through a review process which then doesn't even look properly at the final report (it only looks at what the PHSO did wrong and not what the complained about authority did wrong)?In other words it is just a redundant repetition of what happens when you first ask for a review of a final decision? The review stage is merely a large obstacle to possible justice, and it is specifically designed that way. It is a game of smoke and mirrors.

Today I also received a response to my FOIA request: 'Judicial reviews of PHSO reviews of final reports.'

The PHSO response provides even further evidence that their review process is not legally allowed - the contents of that review cannot be subject to judicial review. If a complainant did take their review decision for JR, then a judge would just say that they could not look at it because it is not part of the PHSO legislative scheme. The thing about PHSO decisions is that they should be amenable to JR. Review decisions are not. The review process is designed to prevent complainants going for a JR, because by the time a sham review is completed the complainant would then be timed-out of the 3 month judicial review application window.

Jason left an annotation ()

I see. So what you are proposing is that, once the complainant demonstrated that the decision may be seriously flawed, the next step should be a fresh investigation? I agree that it does seem a very insular and blinkered approach just to deal with the concerns raised, especially if this amounts to not pursuing any further investigation(s).

I thought any decision by any public authority was amenable to JR? Is the PHSO legislative scheme issue something you experienced or got legal advice on? So, for example, you cannot argue the review decision was wholly irrational? That does seem very curious, as that essentially lets the PHSO get away with murder?

M Boyce left an annotation ()

It's simply the case that PHSO legislation does not allow for reviews and the Deputy Ombudsman and chief lawyer at the PHSO has also clearly stated this is so. So why are they are continuing with their reviews? I am wanting the Ombudsman to disclose its external legal advice to either confirm or refute the above. If a public authority is doing something it shouldn't be doing (if it does not have the legal power to do what it is doing) then the public have a right to know. At the very least the PHSO should disclose a summary of their external legal advice about the legal status of their reviews. What is the point of having laws that ordinary folk have to obey or face the consequences, when the likes of the PHSO can just act outside the law with total impunity? Other public authorities have to act within their prescribed law, so what not the PHSO?

phsothefacts Pressure Group left an annotation ()

In theory a review will look again at a disputed case to determine if PHSO followed the correct procedure and evaluated the evidence impartially/fairly. If you have strong evidence that this is not the case (which you need before the review even starts) then a review should not take long as it is not A REINVESTIGATION. If the review finds fault then it is for PHSO to provide a new investigation and to determine the scope of that process with all parties, starting again from the beginning. I did a quick poll on twitter and 15 people responded - 74% of them have been in the review process for more than 12 months. How can it take over a year to determine whether a new investigation is required? This is just a stalling process. No other explanation.

Jason left an annotation ()

Yes, I think you have been arguing all along that the PHSO is acting ultra vires. This could well be the case. Indeed, the review process is written into law when it comes to the likes of the GMC i.e. Rule 12.

Yes, if the above is true, then this certainly begs the question as to why no member of PACAC has so much as raised an eyebrow.

I also think part of the problem is the fact that the ordinary person is not going to risk the costs associated with losing a JR, so this issue may never be tested.

I certainly agree you have a strong public interest argument in getting the disclosure. It will be interesting to see how the FTT respond.

phsothefacts, I have had numerous cases the PHSO have just failed to process at all. In one recent case, I even raised a complaint and still nothing was done many months later. In fact, they just ignored my complaint. It was only until I started speaking to the PHSO on the phone and sending them a further copy of my complaint before the PHSO began to action it. Over a year later, I am still waiting for an investigation (though I have to say, I am not holding my breath in terms of a fair and proper investigation).

I also think the PHSO are legally obliged to tell me the reasons why there has been a delay of over a year (this much is actually written into the statute), but they haven't even granted me the courtesy of that.

Let us remind ourselves that this organisation is meant to be setting standards and "principles" for good complaints handling and administration:

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

What an absolute farce!

M Boyce left an annotation ()

Yes Jason, you have perfectly summed it up in two words: ultra vires.

One of the two trump cards of the PHSO, the ICO, and the FTT is their argument that disclosing legal advice (or even a summary or redacted version of that advice) would seriously harm/prejudice an authority (the PHSO), their lawyers, and even the public! Yes, it is an astonishing argument, but the prejudice argument is used by the ICO and the FTT in every single case of legal professional privilege they have ever investigated.
Neither the ICO or the FTT have ever explain WHY disclosing the legal advice would harm an authority, lawyers, and the public - the argument is simply raised to that of dogma. In my further submission to the FTT I will be asking them to please fully explain why and how they agree that the disclosed information should remain withheld because to disclose it would harm the lawyers and the public. Obviously, if the PHSO is proven to be doing something it shouldn't be doing, then this could harm the PHSO, but is that a fair argument for withholding it?
The classic argument used by the PHSO and the ICO and the FTT is that lawyers would not provide honest legal advice if they believed their advice might become public. The ICO and the FTT have never explained why lawyers would be harmed by providing good-quality and honest legal advice.
The ICO and the FTT have never explained why and how the public would be harmed by the disclosure of honest and good-quality legal advice.
In the final analysis, all lawyers know that their legal advice may be disclosed to the public under the FOIA, so why would they not provide honest legal advice?
If a member of the public made an entirely unsubstantiated, and clearly incorrect statement, as evidence to the ICO and the FTT, then that would be dismissed as carrying no weight. Yet the ICO and the FTT make the dogmatic statement that disclosing legal advice will damage an authority, lawyers and the public without a scrap of evidence to back up their assertions, and it is taken with the weight of Gospel. Is this justice?

Jason left an annotation ()

Yes, agreed, dogma certainly comes to mind. Another two words come to mind: 'establishment bias'.

I also agree that the inherent position is, for all intents and purposes, an assumption. How can the respective bodies be sure that the disclose would cause harm of the kind alluded to without even knowing what the legal advice is? Perhaps the law lacks the necessary powers of scrutiny. This said, Art. 9(2)(f ) GDPR could give the judiciary powers to access these documents (though I am no expert on this).

Have you also perhaps considered making an argument that there is a want of reasoning in terms of how the PHSO etc. would suffer harm? I suppose the ICO argue that this need only be a possibility, albeit a highly speculative one. Is pure conjecture sufficient to outweigh a strong public interest? I don't think it should be.

Even if the judiciary could access the legal advice, how do they then provide reasoning for their decision that does not hint at what was actually contained in the advice, in the event that they decide it should be withheld? I suppose all this sits very comfortably with the likes of the PHSO.

Solicitors have a duty to be honest and "trusted to the ends of the earth" (see Bolton v Law Society [1993] EWCA Civ 32). I am not sure how public interest disclosures are going to change that.

M Boyce left an annotation ()

The Tribunal (which is made up of one judge and two lay members) will have access to the legal advice as part of the closed bundle of documents. The ICO claim to also already have seen this advice.
Lawyers are always SUPPOSED to be honest, but of course they are sometimes not. But the honesty argument is not really the issue here, it is the fact that lawyers who provide advice to public authorities would have absolutely nothing to gain by being dishonest, because as I have said, section 42 of the FOIA provides for public disclosure if it is 'in the public interest' (usually an authority is doing something it shouldn't be doing - PHSO).

M Boyce left an annotation ()

An important point about bringing my case to the Tribunal is that it may force the PHSO to reveal at least a summary of their legal advice in their reply to my detailed submission. The PHSO, as second respondent (the ICO is the first respondent), may well reply to my submission. If they do then they may want to try and explain the legal status of their reviews in an attempt to justify their hiding of the legal advice. Then again, they may decide to adopt a 'no comment' stance because they firmly believe that the Tribunal will ALWAYS find in their and the ICO's favour, no matter how strongly the evidence shows them to be guilty of wrongdoing (conducting reviews that they are not allowed to conduct).

Jason left an annotation ()

I see, interesting that the ICO have actually seen the advice.

Yes, I wholeheartedly agree with you regarding the issue of honesty.

Yes, I would not be surprised if the FTT bend over backward for them, though let's hope you manage to get a half-decent trio.

Any idea of when you may have a significant decision from them?

M Boyce left an annotation ()

My case is now listed on the FTT website, and the respondents have until the second week in March to send their responses. After that it is likely to take the FTT about 2- 3 months to come to a decision (there is a backlog of cases). Lets see what the respondents have to say in early March.

M Boyce left an annotation ()

The PHSO and the Office of the Independent Adjudicator (OIA) are the only Ombudsmen in the UK that conduct non-legally allowed reviews of their final decisions. Some Ombudsmen, such as the FOS, conduct fresh investigations, and some Ombudsmen refuse to do either. But why do the PHSO and OIA conduct non-legal reviews? Is there a link between the two Ombudsmen? Yes there is, and that link is Rob Behrens. He ran the OIA for nearly ten years before moving to the PHSO in 2017. Although the PHSO had begun conducting reviews back in 2015, they clearly had their eyes on what the OIA were up to and with the full expectation that the architect of the non-legally allowed review process, had long been expected, and then shortly after 2015 designated, to move to the PHSO. We know where the buck starts and we know where it stops.

M Boyce left an annotation ()

It turns out everything is not as it first seemed. The ICO have stated that the withheld documents that they have seen (been sent to them by the PHSO) relate ONLY to 'communications between the PHSO client and the PHSO lawyer.'

Has the PHSO commissioned external legal advice on the legal status of reviews?

Has the PHSO failed to send the ICO all of the withheld information (omitting external advice it has received)?

Did the PHSO commission external legal advice and then not record/keep this advice - information that is not recorded does not have to be made public under the FOIA?

The PHSO lawyer - who also happens to be the Deputy Ombudsman - has provided legal advice to himself, as he is the delegated Ombudsman in legal matters! He has already made it public that he regards the review process as not legally allowed. So what does his withheld information say?

Welcome to the wonderful world of the PHSO.

A.E. left an annotation ()

PHSO can quash a report but their process for this only appears to allow for it to happen within a review: https://www.whatdotheyknow.com/request/o...

So what happens if you have had a review which was not upheld and then produce evidence that they got it wrong!

I think even if they couldn't find a reason to refuse to provide details of the legal advice in case it harms them, they would trump another FOI exemption up as these bodies always do. It's a farce.

Jason left an annotation ()

Interesting to learn of the link between OIA and Rob Behrens. That seems like more than a coincidence. I wonder what state he left the OIA in.

It is difficult to conceive that the PHSO relied purely on the advice of the PHSO 'lawyer' aka the Deputy Ombudsman. I have done a Law Society search and it seems she's not a SRA registered solicitor.

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

So, it doesn't look like there is much 'legal advice' to even disclose (unless the PHSO/ICO are hiding something?)

Jason left an annotation ()

A.E., a member of the public has pretty much no chance of the PHSO revisiting a case once a review has been carried out, even in light of new evidence.

Jason left an annotation ()

Does Amanda Campbell even have a law degree? If not, she can't even be regarded as a 'legal adviser'.

Jason left an annotation ()

M Boyce, is that the same person, or is this someone the PHSO have recently parachuted in?

phsothefacts Pressure Group left an annotation ()

Mark Boyce you may be interested to see the response given by PHSO to this request on 'quashing reports'.
https://www.whatdotheyknow.com/request/o...

It would appear that the Ombudsman has given himself the powers to quash a final report even though it has been distributed and agreed. Surely this goes against the Dyer judgement which says that the Ombudsman is 'functus officio' once the report has been circulated. It would seem that PHSO are eating the cake from both sides.

"Quashing of reports or decisions

84.In considering a suitable way to remedy a complaint about a decision, we can
consider quashing our own report or decision. This means that we would treat
the report as invalid (and we would make that clear to all affected parties).

M Boyce left an annotation ()

The PHSO have TWO Deputy Ombudsman under their Delegation Scheme! They don't make this clear on initial search of their website, but they do state the following:

'The Chief Executive, Amanda Campbell, and Director of Legal and Professional Services, karl Banister, are authorised by the Ombudsman to act as Deputy Ombudsman.'

Karl Banister is therefore both a Deputy Ombudsman and chief lawyer at the PHSO.

The PHSO are almost certainly hiding their external legal advice in one way or another - because it is so damning. It is very highly likely that at least some external legal advice on the issue of the legal status of reviews has been provided from a QC at Matrix Chambers, which formed the basis of a PHSO briefing commission on the subject of the legal status of reviews back in 2017.
The question is: has the PHSO simply 'failed' (deliberately or otherwise) to supply this information to the ICO, or has this information been made 'unavailable' by virtue of it not being recorded? The information about the Matrix Chambers connection was provided in response to an FOIA request to Nicholas Wheatley ('quashing of reports'). This information is surprisingly revealing and actually already quite damning for the PHSO.

M Boyce left an annotation ()

PHSOthefacts,

The quashing of reports VIA THE REVIEW PROCESS does indeed go against the Dyer judgement, and later related judgements such as Teare and Berkeley Burke.
The quashing of reports does seem legal if done following a fresh investigation - but not a fresh investigation that is first contingent on a non-legally allowed review .
It is simply the case that judges in judicial review cases can order a quashing of a final report and the that a fresh investigation should commence. Judges cannot quash a review or order another review of a review because this is not explicit/or implicit within the PHSO legislative framework.

M Boyce left an annotation ()

M Boyce left an annotation (19 February 2019)
Nicholas Wheatley

If you decide to take your case to the First-tier Tribunal then you will find the following would be very informative and helpful indeed.

The PHSO have provided you with some legal advice information about their review and fresh investigations process. information on quashing of reports is absent. They have provided the above legal advice under section 36 of the FOIA. This, like section 42 - legal professional privilege - is a qualified exemption and therefore subject to the public interest test (PIT). The PHSO have told you that they have disclosed some LEGAL advice because the PIT favours disclosure. They have refused to provide any LEGAL advice under section 42 because they say the PIT does not favour disclosure? The PIT is the same in both sections of the FOIA.This is fundamentally contradictory and plays enormously into your hands (and significantly to me also in my case to the FTT). It is simply not a sustainable argument to say that some legal information should be released under section 36, but that no legal information should be released under section 42 - they both use the same PIT. Why has the PHSO provided you with some legal advice on reviews and fresh investigations, but then refused to provide you with any legal advice on quashing of reports? The information the PHSO has supplied to you in terms of section 36 really is a major trump card for you (and for me!).

A.E. left an annotation ()

@Jason yes I know...I was pointing out how ludicrous their system is (and of course entirely unjust).

My advice to anyone, is do a SAR before you get to the point of review, otherwise you are scuppered. Unless you go for JR - which IMO you should win (even if in actuality things might be different) on the basis that PHSO failed to discover information/evidence that the complainant then had to discover, meaning the outcome would have been different. Proves how sham their investigations are.

But they do try to cover themselves (all sewn up) by amending the scope of the investigation to help them avoid looking at evidence.

BTW to others on the thread, I think you might find that no matter what, PHSO's "wide discretion" covers them for just about anything and everything - including sham reviews, quashing in any way they see fit (let's face it, they will never quash anyway, it's just to have a process documented) and anything else they choose to concoct under their powers.

M Boyce left an annotation ()

Yes A.E. you're absolutely right that the PHSO's 'wide discretion' appears to give them the right to do whatever they want - however unfair and however illegal. This must be tested and exposed to the maximum - which is what we are doing. EVERYONE needs to know that the PHSO is so thoroughly dysfunctional that it is not only a huge waste of public money, but it is highly dangerous because it is allowing government and government departments to get away with the most appalling behaviour and they are all taking us for gullible and acquiescent fools.

I believe that the PHSO is now completely irredeemable, and the chances of any future Public Service Ombudsman being any better are slim to remote. But we can all live in hope.
It is time for the PHSO sham and charade to be put to an end. If we cannot have a decent, transparent, honest and fair Ombudsman then we would all be better off without any Ombudsman at all. It would save a fortune, and most importantly it would end the misery of people being given the false hope of believing that their genuine grievances will be headed, properly investigated, and then acted upon. It is deeply sad to think that every day people are coming to the PHSO with examples of serious failures and wrongdoing by government departments (in most cases the NHS). Most of these people will not realise that they are wasting their time, energy and often their sanity by trusting in an Ombudsman that exists only to cover-up establishment failure and wrongdoing and to perpetuate the myth that this Ombudsman will conduct a fair and impartial investigation.

The PHSO destroys hope and it destroys lives.

A.E. left an annotation ()

Agree with everything you say M. Boyce. It is a cruel system as it does give people false hope. It leads people up the garden path and PHSO like regulators and other bodies have the illusion of authority so we are supposed to just roll over and accept their decisions as correct, because of their power and supposed authority. To me (and to any reasonable person), authority means knowing what you are doing and doing what you do correctly. By definition therefore PHSO is corrupt, because although they know exactly what they are doing (i.e. stitching people up), it's the wrong thing and not what they claim in their public statements and remit. When people have evidence and have no reason to lie (who would put themselves through this process for the sake of it!!) and nothing to gain, for a body to uphold such a tiny percentage of complaints (and often filtering out the most serious aspects of the complaint even then) is massively illogical and dishonest.

M Boyce left an annotation ()

Yes, and what does all this covering-up of failure and wrongdoing actually achieve? We all use the NHS and other government department services. If more complaints were justly upheld then services might improve. One day the people that work for the PHSO or the ICO may find THEMSELVES on the receiving end of an authority's failure or wrongdoing - and it will serve them right!

Jason left an annotation ()

Yep, I agree with you both.

The sad realty is that some very poorly and vulnerable people are escalating their to complaints to the PHSO in the hope of getting some hint of justice. They wait for ages, and in some cases go though quite some grief (e.g. complaints are regularly lost and/or overlooked). At the end of it all, it seems complainants are regularly treated with disdain and contempt, which only adds to the profound sense of grievance complainants already feel. In other words and in my opinion, the PHSO only adds insult to injury.

I suspect all this grief puts a lot of people off raising complaints, which means the less compensation government bodies need to cough up, and the less resources the PHSO needs to employ in order to process complaints. I suppose all this suits our current government quite well, who clearly want to decimate the public sector, legal aid and any access to justice for the ordinary person.

I'm not sure how many of you also know this, but the Tory government was also found to have acted unlawfully by bringing in Employment Tribunal fees (putting people off tackling unlawful behaviour in regards to employment). If it wasn't for a trade union pursuing the matter all the way to the Supreme Court, things would not have changed.

J Roberts left an annotation ()

Upper Tribunal decision on public interest test (29 January 2019):

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

“9. It [the tribunal] recognised the public interest inherent in the law of privilege, but noted that this was subject to the possibility of disclosure if that is what the balance of interests required. It took into account that the advice was recent and current at the time of the request, and that it did not relate to or affect any individual’s private or public law rights. It rejected as irrelevant the argument that disclosure could undermine the public confidence in the Commissioner.”

M Boyce left an annotation ()

J Roberts

This is an excellent find. You always make informative and useful posts on here. I will certainly be making significant reference to it in my further submission to the FTT in a few weeks time.

From the FTT decision on which the UTT decision was based:

'''...she [the Commissioner] would not be entitled to public confidence on a FALSE PROSPECTUS.'

The Commissioner has seen the withheld legal advice in my case (but only some of the internal and non of the external legal advice has been provided). She knows it confirms that PHSO reviews are not legally allowed. This represents a false prospectus. The fact that the Commissioner knows that the PHSO has not provided her with the full withheld information is also clear evidence of a false prospectus - helping to cover-up wrongdoing.

J Roberts left an annotation ()

M Boyce,

You might also like to read the FTT decision:

http://www.bailii.org/uk/cases/UKFTT/GRC...

"80 In the Tribunal's judgment, Mr O'Hanlon is right to be concerned about the Commissioner's apparent intervention. Since the Commissioner has an inquisitorial function, it is proper for her to suggest to a public authority that the EXISTING facts indicate an exemption on which the authority has not relied might apply, and indeed to find that it does. Similarly, it is perfectly proper for her, in finding against an authority, to rely on arguments which the requester has not put. However, this is qualitatively different from suggesting that a public authority take a step which would, or at least might, lead to the availability of an exemption which was not otherwise available on existing facts. The Commissioner appears to have suggested the creation of a new factual scenario rather than simply drawing conclusions from an existing scenario. When she did so, she knew that there was a question whether the initial QP opinion was valid and that the tribunal might decide that it was not."

(apologies for any typos that I may have made)

Jason left an annotation ()

J Roberts, you have definitely cited some useful precedents!

I'm really hoping you have a positive result, M Boyce! Keep us all posted.

M Boyce left an annotation ()

Yes this is important information, which I shall use.

It proves that the ICO's assertion that they are impartial to be a lie. They will do anything to make sure that an authority always wins and the public always loses, and that wrongdoing and failure by the establishment are always covered-up.

It just goes to show what an uphill struggle it is for the ordinary member of the pubic to achieve even a crumb of justice in this country.

Jason left an annotation ()

M Boyce, yep, you've pretty much summed it up.

Jason left an annotation ()

Most (reasonable) lawyers believe there is no access to justice:

https://www.hja.net/press-releases/major...

M Boyce left an annotation ()

Austerity has been a godsend to the Conservative Government. It has enabled them to make sure that only the rich get justice. Legal aid has been all but abolished and the money for the justice system in general has been cut so much that the system simply cannot function properly anymore. Unless that is you can afford to pay for fancy lawyers and to take your case to court - like the PHSO, who of course make the very people who they are screwing over pay for it.

Jason left an annotation ()

M Boyce, yes, indeed.

Also, rich people will not be concerned with low value claims or complaints to the PHSO. In all likelihood, they won't bother. Conversely, the average person (the majority of the population who actually pay their taxes and don't look for sophisticated accounting tricks not to pay them) will be very affected by these matters, and is likely to get absolutely no justice.

Jason left an annotation ()

M Boyce, will you be in a position to appeal if things don't go your way at the FTT?

M Boyce left an annotation ()

I could appeal to the Upper Tribunal (UT), but an appellant has to show that the FTT made an error of law. In terms of section 42 of the FOIA , this would be very difficult. The public interest test of section 42 is a 'balancing act' in assessing factors which favour exemption and factors which favour disclosure. This balancing act is an act of discretion or subjective judgement - everyone would have a different judgement in terms of the balance. One tribunal might favour disclosure and another tribunal might favour exemption, and this is entirely subjective and would not constitute an error of law for appealing to the UT

M Boyce left an annotation ()

In my decision notice from the ICO it stated that the PHSO had only sent the Commissioner communications between PHSO internal lawyers and other PHSO staff. Last week I phoned the case officer that had dealt with my case and asked her to confirm that the PHSO had NOT sent her any external legal advice. She refused to confirm this. The Nicholas Wheatley FOIA request on quashing of reports shows that the PHSO did commission external legal advice on the legal status of its review process.

Section 77 of the FOIA makes it quite clear that it is an offence to CONCEAL information/legal advice from a complainant if that advice should be disclosed (section 42 means that it might be disclosed). If the Commissioner has not been sent the full legal advice then how can it make a proper judgement on section 42? If the FTT do not receive the full legal advice then how can they make a proper judgement on section 42?

I should have the response from the ICO about my appeal by this coming Friday . Let's see what it says.

Jason left an annotation ()

Yes, one has pretty much no chance of successfully challenging a Judge's or Tribunal's use of their discretion. I think one has to demonstrate the decision was perverse (that is no other Court or Tribunal could have come to that conclusion), and any higher Court or Tribunal are likely to just close their ears and eyes to your pleadings.

Regarding the concealing of the advise, that sounds very dubious indeed, though somewhat unsurprising.

Do let us know what happens on Friday!

A.E. left an annotation ()

@M Boyce you sound so clued up on all this. Almost as if you have legal experience. I know people are forced to become quasi-lawyers in the complaints process just to stand a chance of finding out their rights however!

M Boyce left an annotation ()

A.E., I'm not a professional lawyer, but I do have experience of dealing with other complex legal issues. It's simply a matter of putting in the hours and being tenacious. Dealing with the PHSO is like banging your head against a brick wall, but you soon realise it is much more productive to bang their heads against the brick wall instead.

A.E. left an annotation ()

And there was me thinking they were the brick wall!

M Boyce left an annotation ()

Yes the PHSO is a brick wall, which is aided and abetted by its friend the ICO, which appropriately is a stone wall.

When the ICO wrote to the PHSO about my case they asked for the following in exactly these terms:

'We need the following information from you to reach a decision:

A copy of the withheld information

Detailed explanation for the parts of the FOIA cited.'

You might think when the ICO asks for a 'copy of the withheld information', that means ALL of the withheld information.
Well, apparently not. I phoned the ICO helpline today to ask if an authority was under a duty, legal or otherwise, to provide ALL of the requested withheld information. The ICO said that if they were not asked explicitly to provide ALL the information, then they were free to supply whatever they wanted! I explained that it would be impossible to reach a fair analysis of the withheld information if some or most of that information had not been supplied. The ICO agreed, but then just said it was up to the ICO caseworker to decide, according to their discretion, whether to ask for ALL the withheld information or not.
That is why it is now necessary to bang the head of the brick wall into the head of the stonewall. Will the Tribunal ask for ALL of the withheld information, or will it decide to play the part of a steel wall? We'll find out.

Jason left an annotation ()

M Boyce, that is shocking stuff! So the ICO had no clue how much of the information was withheld, and how much of that could tip the balancing exercise? How can this be a matter of discretion when the ICO doesn't know what it doesn't know? What an absolute shambles!

Jason left an annotation ()

I would say the whole access to justice system in this country is the steel wall, together with the inherent bias towards the establishment.

A.E. left an annotation ()

Thought you guys might like this one...

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

A.E. left an annotation ()

Shocking indeed with ICO response. I thought they were totally impartial and complied with the law. But I found out the hard way they are exactly the same as the ombudsmen (plural). They all work to the same type of format. Giving lay case workers total discretion. I was once told by ICO when quoting a concise piece of law (with source) that proved the body had broken the law, that they didn't have to know the law! It's all a huge edifice of corruption, a sham, an exercise in futility dressed up as a democratic and just system. Everyone should just sue, don't use any of the ombudsmen or regulators, they are all the same.

M Boyce left an annotation ()

The ICO stated in my decision notice that the PHSO had only sent them INTERNAL legal advice (between PHSO lawyers and senior staff). Yet I had asked the ICO during its investigation to look at the response to the Nicholas Wheatley request about the quashing of reports (which was also embedded in my request), where they would see clear evidence that the PHSO had in fact also commissioned EXTERNAL legal advice from lawyers on this matter. The PHSO chose not to ask for this external legal advice, and chose not to ask any questions when it was not provided, which would be likely to prove crucial to any fair ICO investigation.
The ICO ask for a copy of the withheld information and then simply don't bother to look at what has been sent, or equally importantly, what has not been sent.

Jason left an annotation ()

And how is a reasonable person to conclude that was a fair and impartial assessment or investigation? You just can't.

Jason left an annotation ()

You can tell people really love the PHSO:

https://uk.trustpilot.com/review/www.omb...

A.E. left an annotation ()

Yes you should check out the Google reviews as well. PHSO cherry-pick their own feedback and base it on questions designed to elicit particular answers (that are nothing to do with investigation fairness or quality) to come up with fake satisfaction statistics. The Trust Pilot ones, there have been 5 more negative ones since the PACAC inquiry in January.

Jason left an annotation ()

A.E, yep, it all stinks to high heaven of a seriously sinister cover-up.

As for PACAC , I really am at a loss at to how they have hold the PHSO to account without even looking at typical service user experiences. It's a bit like the government looking at ways of tacking crime without even looking at any crime statistics. It is nothing short of a charade in my opinion.

Jason left an annotation ()

*have held

Jason left an annotation ()

Any further news, M Boyce? How do you rate your prospects of success at the FTT? I suppose it can be very difficult to say and depends on the type of trio you get.

M Boyce left an annotation ()

I should here back from the ICO/Tribunal tomorrow with the ICO's response to my grounds for appeal, or Monday 11th March at the latest.
The ICO and PHSO haven't got a legal leg to stand on, but as always its not what you know that counts but who you know and how much tax-payer's cash you've got to splash on big-shot lawyers who merely have to smile at a judge and the case is theirs.
Whatever happens with the Tribunal, it won't be the end of the matter -not by a long way. It is too important to let the establishment get away with covering-up this illegal behaviour.

Jason left an annotation ()

Yes, I would be very inclined to agree with you.

I take my hat off to you for really going at them. You're a really upstanding individual! I wish more people shared your determination. I think we would have more than a crumb of justice in this country if that was the case.

Keep us posted!

M Boyce left an annotation ()

So now the PHSO have refused my last FOI request as vexatious because they say that there is limited value in the public knowing that the Ombudsman is breaking the law with regard to its illegal review process.
Yeah right. We'll see.

M Boyce left an annotation ()

We know that the ICO is biased in favour of authorities. So is the ICO (the Commissioner) also biased towards itself? The ICO is a public authority and is itself subject the FOIA. If someone makes a complaint about the ICO, then the Commissioner investigates itself! If only we could all mark our own homework. Well that is obviously only going to have one outcome, and if you look through the many ICO decision notices on the ICO website it proves exactly what that outcome will be: a lovely win for the ICO and a miserable fail for the public.
The public really are being taken for fools by both the PHSO and their mates the ICO.

phsothefacts Pressure Group left an annotation ()

If you don't feel that ICO has carried out a proper job then you can always complain about them to PHSO. Anyone seen the backscratcher?

M Boyce left an annotation ()

Or if I wanted to do something more rewarding, I could just poke myself in the eye with a sharp stick.

Jason left an annotation ()

Vexatious? What planet are they on!?

Jason left an annotation ()

I once tried to go down the futile road of complaining to the PHSO about the ICO. The way they approached the matter was only to look (though I doubt they even did that with any fairness or vigour) to see if the ICO followed the correct complaints handling/review process/procedure.

The PHSO then essentially purported that anything else was nothing to do with them, and only a matter for the courts.

A.E. left an annotation ()

"PHSO have refused my last FOI request as vexatious because they say that there is limited value in the public knowing that the Ombudsman is breaking the law with regard to its illegal review process"

Just an idea, how about you raise a petition to show there is sufficient public interest?

M Boyce left an annotation ()

Yes A.E. that's not a bad idea.

At the moment it is just a case of taking each necessary step one at a time.

Anyone who has ever had any dealings with the PHSO knows that it is rotten to the core. It is rotten by design, rotten by its processes, and rotten by the people who run it. The Ombudsman has been invested with a legal latitude that enables it to do ALMOST whatever it wants. But it has grown fat and lazy with its self-declared 'risk appetite' to act outside its legislative capacity. They can do whatever they want, however unfair, if they act within the law, but their determination to act outside it will be their undoing.

We will see whether those in power really do respect the rule of law, or whether they are prepared to flout it with such evident contempt for the public and for civil society.

M Boyce left an annotation ()

The ICO lawyer has now sent me their response to my grounds for appeal. As expected, it is a joke. I will outline their response on here shortly.

I have asked the PHSO lawyer to please let me know whether the PHSO sent the ICO external legal advice they had commissioned from legal counsel. The ICO themselves have refused to answer this question. The PHSO have refused to answer this question.
The ICO lawyer supports the ICO's contention that legal professional privilege (LPP) has not been lost by virtue of previous disclosure of legal advice about PHSO reviews. The legal advice supplied in response to the Nicholas Wheatley FOIA request on 'quashing of reports' clearly demonstrates that LPP has been lost because of previous disclosure.
Let's see if the iCO lawyer replies and if he will answer this simple question.

Jason left an annotation ()

M Boyce, thanks for the update.

Surely you, and the general public, are entitled to get an answer to that pertinent question?

Do you think that, failing any reasonable response from the ICO's solicitor, you could get an Order from the FTT, as presumably the ICO and the PHSO are attempting to prejudice your position, along with the public interest?

M Boyce left an annotation ()

The ICO lawyer has replied and has stated that if he were to just simply say yes the PHSO has supplied the ICO with the external legal advice that they commissioned, or no the PHSO has not supplied the external legal advice that they commissioned, then that would be disclosing the CONTENTS of that advice! I have asked the solicitor to please explain how just saying YES or NO (and nothing else) to the question of whether this advice was supplied or not means that he is also then disclosing the CONTENTS of that advice. It is now for the Tribunal to decide whether the contents of that advice should be disclosed, but clearly if the ICO are either not asking for this external legal advice or are concealing its existence from me and its contents from the Tribunal then this is an attempt to pervert the course of justice.

The ICO in their response to my grounds for appeal just very briefly re-iterated what they had said in their DN. I will challenge it very vigorously in my further submission to the Tribunal.

Jason left an annotation ()

The ICO and the PHSO sound more dubious every day!

It seems to me that any truly impartial and reasonable FTT should find in your favour, as the ICO arguments seems fanciful to say the least. My fear is, though, that these weak arguments are exactly the kind a bias (be it conscious or subconscious) Tribunal would lap up.

M Boyce left an annotation ()

Very dubious indeed.
The ICO have now informed me that the PHSO have applied to the Tribunal to be joined as a party (not to the party!). This means that they will now make their own submission to the Tribunal (rather belatedly) and they may or may not now state whether they supplied the commissioned external legal advice to the ICO or not. I cannot publish their submission, but I will make brief comment on it.
Let's see what happens next in this farcical situation.

Jason left an annotation ()

Maybe you have made the PHSO a little nervous, and rightly so, hence the reason they want to join proceedings.

M Boyce left an annotation ()

Yes, and if they're not feeling nervous, then they really ought to be, as they have got far more to lose than me, as this case could well prove to be quite reputationally damaging for them if they are shown to have been not only acting outside the law, but also against the express advice of legal counsel on this matter.

The ICO should also be feeling somewhat nervous too, because failing to answer a simple yes or no question - where the answer may well prove to be crucial to the appeal - makes them look like they are hiding information or trying to deceive me and the Tribunal, or at the very least it makes them look highly incompetent with regards to their 'impartial' investigation.

phsothefacts Pressure Group left an annotation ()

I thought it was a requirement of data protection law to say whether or not the information was held. They then given dubious reasons not to release it but at least they say whether they have it. Why should this be different for ICO.? Keep up the good work.

M Boyce left an annotation ()

I'm not sure whether this issue falls within the remit of the Data Protection Act, but I'll certainly look into it.
It is simply not a sustainable argument to say that either confirming or denying whether information is held is tantamount to disclosing the contents of that information. Let's say the ICO said no we have not received any external legal advice from the PHSO, then how would this admission of not receiving any advice then be revealing the contents of the advice which they had not received??? That really would be a first class magic trick in mind games.
Like the PHSO, the ICO, clearly feels so confident that the Tribunal will find in their favour that they can quite happily make arguments that are as fundamentally outrageous as they are ridiculous.
Another interesting observation, and one which I will be mentioning to the Tribunal, is the 'cliff-edge' communication in the Nicholas Wheatley 'Quashing of reports' FOIA request. That request was made in February 2018 and the PHSO supplied internal legal advice up to the start of March 2017. Where is the rest of that advice? The last email in that communication chain by Amanda Campbell, chief Executive of the PHSO, was left unaddressed. Clearly this legal conversation regarding reviews, fresh investigations, and quashing of reports did not come to an abrupt end in March 2017. So what happened next? Has this and the subsequent advice been transmitted to the ICO and now the Tribunal, or has this, like the external legal advice, also disappeared over the cliff edge?

Jason left an annotation ()

Yes, I can't understand how their argument could succeed, though I am clearly not an expert. Perhaps they are somehow suggesting the "cherry-picking rule" (http://disputeresolutionblog.practicalla...) could become engaged, but that seems a serious stretch. It seems to me that their actions are nothing but a cynical attempt to keep you in as much of the dark as possible.

A.E. left an annotation ()

Quite ludicrous and if it really were the case, then every single FOIA here and elsewhere, that was not provided on the basis of an exemption or other, would not be the case. Because they say 'we do hold this information however we will not be providing it under exemption x, y, z' . They couldn't say that if stating it was held was disclosing it as they would be doing the very thing that they say they are exempting against! It's gone well into Kafkaesque territory now...

M Boyce left an annotation ()

Kafkaesque indeed. The PHSO told me that the ICO lawyers would decide whether to let me know whether the Ombudsman had sent their external legal advice to the ICO, and then in turn the ICO then stated that it was down to the PHSO to decide whether to let me know whether they had sent this advice or not! This he said she said is designed to diffuse responsibility. It will not work.

The ICO have also sent around 50 pages of correspondence from 'The legal no-man's land' to the Tribunal - correspondence up to and including September 2018. I will make sure the Tribunal are pointed in the direction of the rest of that correspondence - up to now. There is nothing in any of this correspondence that is not true and accurate and I'm more than happy for the Tribunal to see it all.

A.E. left an annotation ()

Pretty standard practice. Same thing as when various regulators, professional bodies and ombudsmen send the public round the merry-go-round constantly referring on to one another, with them all saying it's not them. All designed to wear people out, frustrate them and make them give up. Stick at it!

M Boyce left an annotation ()

As stated above the ICO have told me that they cannot tell me whether the PHSO have supplied them with external legal advice, because to do so would reveal the substance (content) of that advice. But then they tell me the PHSO might tell me later. But here's a further massive flaw in their argument. The iCO have confirmed that the PHSO have sent them internal legal advice. So by the 'logic' of the ICO's argument this means that the ICO have now disclosed the CONTENTS of this internal legal advice; and just as crucially, they will have lost legal professional privilege because of this partial disclosure which reveals the contents of the overall (both internal and external) advice!
And you thought you could trust the ICO?

Jason left an annotation ()

M Boyce, if true that is hysterical and speak volumes about the competency of that lot!

M Boyce left an annotation ()

Jason, I promise you it is 100% true. It is hard to believe that a lawyer (who is supposed to be an expert in public law) could or would say such a ridiculous and contentious thing, and I would never accuse someone of saying such a serious thing if it wasn't totally true. Both the PHSO and the ICO are monitoring this thread, so they know what is being said. Both the PHSO and the ICO have proven themselves to be so utterly unreasonable, unfair and untrustworthy in their behaviour that it would be very hard to see how any Tribunal would not take this very seriously indeed. For the PHSO and the ICO, public trust in them is everything. They could not do a better job of demolishing that fragile trust if they tried.

Jason left an annotation ()

Yes, I would be very inclined to agree with.

Personally, I lost any and all trust and confidence in the PHSO and the ICO a long time ago, so, sadly, this latest debacle comes as no surprise. It really is a sad state of affairs.

In relation to the FTT, if they don't find in your favour then I really do despair.

Jason left an annotation ()

Any further developments, M Boyce?

M Boyce left an annotation ()

Not yet.
I'm making a further submission to the Tribunal and the other two parties next week. This will focus on the fact that legal professional privilege has been lost by previous partial disclosures by the PHSO - in the FOIA request 'The quashing of reports'.
The PHSO then have until early May to respond. and then there can be more submissions up to early June..... and then the Tribunal will look at the case.

J Roberts left an annotation ()

Some further information on the UT decision I posted on 24 February. It concerns the ICO's reliance on F-t T decisions:

https://www.whatdotheyknow.com/request/5...

M Boyce left an annotation ()

Thanks J Roberts.
An interesting piece that raises as many questions as it does answers. The law is often more a subjective art than an objective science, and this applies even more with public law where issues of moral/value judgements inevitably come to the fore. Tribunal decisions are 'judgements' in every sense of the word - they are both legal judgements and judgements of opinion and subjective inclination, and they are inescapably personal judgements. Section 42 of the FOIA is inextricably bound up with personal judgements since it is a balancing exercise involving the analysis of what constitutes a public good. Every Tribunal would have a different opinion on a particular case.

Jason left an annotation ()

Yes, and that leaves the Tribunals with very wide discretion, which is subject to improper use (e.g. exercising bias), with the Tribunals being fully aware that challenging their use of discretion is likely to be a futile exercise. I think the same can be said for the likes of the PHSO etc.

M Boyce left an annotation ()

https://www.clarkewillmott.com/news/prot...

The above shows that legal professional privilege can be lost if an authority publicly discloses some legal advice. In particular, note how the article caveats the necessity of not disclosing legal advice in Board Minutes. This is not a warning that the PHSO have chosen to heed. They are relying on their friends at the ICO to see them right.

Jason left an annotation ()

Interesting. It looks like you may have got them scuppered. Let's see how they try and wiggle out of this one...

M Boyce left an annotation ()

Yes the PHSO and the ICO are bang to rights. But, as always in this corrupt country, it is not what you know but who you know. I don't trust the establishment one jot, and with very good reason, and anyone who is not part of the establishment who has ever had the misfortune of straying near it will feel the same way.

Jason left an annotation ()

Yep, I think you've summed things up perfectly. I think any right-thinking ordinary member of the public, who has had any experience of these matters, would also have no difficulty in agreeing with you.

Jason left an annotation ()

As before, I think you a really upstanding individual who is a real inspiration in terms of the way you've gone after this rotten bunch.

M Boyce left an annotation ()

Thanks for your kind remarks Jason.

It is a crying shame that organisations like the PHSO and the ICO cannot operate with decency and integrity. Why are those in positions of authority totally incapable of ever admitting that they sometimes get things wrong? Why don't they want to make things better for everyone? Instead they just deny, lie, and cover-up with every breath they take. It is like an illness that runs through the very veins of organisations like the PHSO and the ICO, and in all fairness most other establishment organisations as well - from the Government, to bankers, to lawyers, and so on.
In the final analysis, I don't think there would be a single right-minded person in the entire UK (not a single person) that would agree with the PHSO and the ICO that it is in the public interest (that person's own interest) that the legal advice surrounding the PHSO illegal review process should be kept secret from the public and therefore used against them to deny them and their children or family members or friends any right or chance of obtaining justice/redress/improvements in practices when wrongdoing and serious mistakes occur.
The PHSO and the ICO should hang their heads in shame.

M Boyce left an annotation ()

There is another small fly in the ointment. It now seems that the doctrine of partial disclosure of documents outside litigation (advice privilege) will NOT constitute waiver/loss of legal professional privilege.

However, and it is big however, this is still subject to the PIT balance test. In the below FTT decision (EA/2007/0092) it highlights in blue that an applicant must not have been misled over the substantive legal position. Clearly the PHSO are providing misleading information if they say in their board minutes that the review process is not legal, but then in response to FOI requests they say it is legal - they claim to have the legal power to conduct reviews.

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

M Boyce left an annotation ()

To clarify for the last post. The contradiction/misleading advice is as follows:

In the December 2017 Board Minutes it states:

'Karl Bannister explained that our legislation did NOT allow for reviews.'

In the Wheatley/PHSOthefacts FOI request 'Quashing of reports', it states:

'Ombudsman's powers

The Ombudsman has developed a PROCESS of internal review to identify any material errors..'

The Ombudsman is clearly saying in the FOI response that the review process is legally allowed because the Ombudsman has the power to do this.
This 'power' is presumably a legal power, or is it some kind of special power, like a Ninja warrior power, or the power to try and pull the wool over someone's eyes?
Just because the Ombudsman has designed/concocted a review process does not make it legal. I could design a process to rob a bank, but it would not make it legal, and I certainly wouldn't be able to hide behind legal professional privilege.

M Boyce left an annotation ()

And in paragraph 29 of the above:

What would undermine LPP?

'Where the authority is misrepresenting the facts.' Check.

'Where the authority is pursuing a policy which appears to be unlawful.' Check.

'Where there are clear indications that an authority has ignored unequivocal advice which it obtained.' Check.

And in paragraph 33:

'Misrepresentation of advice would justify disclosure in EVERY case.'

Every case.

Jason left an annotation ()

Yes, it is certainly is a crying shame organisations like the PHSO and the ICO cannot operate with decency and integrity. Based on my experience, which I suspect will be the same with you and many others, they really profoundly resent making concessions or admitting they may have got something wrong, even in circumstances where any alternative is simply unarguable or wholly irrational.

As the saying goes, with great power comes great responsibility, and this bunch strike me as being as irresponsible as one could fathom (just my opinion).

The fact that the ICO and the PHSO are fighting tooth and nail to hide the legal advice in question also rings alarms bells. Indeed, you have suggested that they are acting counter to their own rationale. This, of course, begs the question as to what are they trying so desperately to hide? Indeed, insofar as I understand, they can even waive the LPP own their own accord.

Yes, one the face of it, it looks like you have an argument that they have acted to mislead etc.

Yes, I think the PHSO likes to think it has powers to do whatever the hell it likes, particularly when it comes to protecting the integrity of its decisions or deliberately leading complainants down a futile path. Perhaps the fact that no ordinary member of the public have issued successful JR proceedings against the PHSO adds to its sense of limitless self-indulgence.

It strikes me that you have made some really compelling arguments. It will certainly be interesting to see how the FTT respond.

M Boyce left an annotation ()

Paragraph 30 of the above FTT decision sadly shows just how out of touch most judges are, as follows:

'Everybody is entitled to seek legal advice as to the merits of an issue involving a public authority. Those who advise such authorities are in no better position to give a correct opinion than those to whom the public can go. Disclosure of privileged opinions is not a substitute for legal aid.'

Everybody may be ENTITLED to seek legal advice, but most people are not ABLE to seek legal advice. I approached many lawyers to ask how much they would charge per hour for providing such advice, and the minimum was £400.00 per hour. An estimated bill from one lawyer for providing even very brief outline of advice was around £5000, and over £10,000 for a comprehensive opinion. I don't even earn £400.00 a week, let alone £400.00 an hour.

The Ombudsman can spend unlimited amounts of tax-payer money on obtaining legal advice. Justice is for the rich and not the poor.

As for legal aid, well that might have been available back in 2008, but not since austerity and the Grayling dismantling of the legal aid system back in 2014.

In the final analysis, the public have paid for the legal advice obtained by the Ombudsman. You have paid for it and I have paid for it. That legal advice is now being denied to the very people who paid for it and, even worse, that legal advice is being fully ignored by the Ombudsman in order for it to continue with its illegal practices. The Information Commissioner thinks this is in the public interest. Do you?

M Boyce left an annotation ()

There is another serious development.

Version 6.0 of the PHSO 'Service Model Policy Guidance: Review and Feedback Team Guidance' has now been replaced by version 7.0 (01.04.19).

Sadly I didn't print all of version 6.0, but there have been a number of important changes, one of which appears to be the introduction of a new 'peer review' stage into the complaints process.

In paragraph 3 it states:

'....Their manager will then decide what action needs to be taken on a case, including whether it can be resolved short of further consideration, whether a PEER REVIEW is needed or whether it should be passed to RaFT.'

I don't recall any mention of 'peer review' in version 6.0. This is highly significant because the Ombudsman is adding further non-statutory processes into its complaint procedure - processes, like the review, which are non-justiciable because they are not part of the Ombudsman's legislative scheme.

This needs urgent investigation.

Oh, and by the way, I have been informed that the long-standing manager (John Roper) of the CCT/RaFT has now left to 'do other things'.

Jason left an annotation ()

Yes, you are absolutely correct in relation to the problem with access to justice. The ordinary person just can't afford that.

Speaking from personal experience, I qualify for legal aid and have done so for many years. I contacted every public law solicitor in the UK in relation to requesting assistance with a potential Judicial Review. They all claimed they were busy and unable to assist. The same can be said for other areas of law which legal aid covers, as I have had similar problems. I have also been referred to ‘legal advisors’ and not registered solicitors, which I strongly expect is because they are much cheaper. The outcome, of course, is that the advice and service offering is substandard.

Also, assuming one actually finds a solicitor and can afford the legal fees, the serious problem still remains that the risks, more often than not, outweigh the reward, particularly in Judicial Review cases.

You will also note that, statistically speaking, it is highly improbable that the PHSO has not made more than one serious error, which is amenable to Judicial Review, in relation to all the complaints it has received. I believe even the PHSO has overly admitted it is most likely going to make mistakes. Indeed, no organisation is infallible. However, not one Judicial Review has been successfully brought against the PHSO by an ordinary member of the public. This in itself tells me there is an inherent and profoundly serious problem with access to justice in this country.

Yes, the decimation of legal aid no doubt sits very comfortably with the establishment.

You are also quite correct that justice is for the rich and not the poor, not only in terms of obtaining legal advice and representation, but in terms of influence at a Court of Tribunal. One would have to be very naïve to propose that no judge is influenced by wealth and power in terms of their decision-making, albeit at a subconscious level.

Yes, it is simply beyond deplorable that our taxes are essentially being used against our own interests.

Interesting that the PHSO is now further enhancing its own powers and processes in a very dubious and progressive manner. On certainly wonders what they will attempt next.

I’m pleased to learn that John Roper has now left. I wonder if he actually heeded my 6 or 7 suggestions (no exaggeration) that he do the honourable thing and resign.

Fran French left an annotation ()

"Sadly I didn't print all of version 6.0..."

It's available on google's cache for the time being (though not the convenient pdf format):

https://webcache.googleusercontent.com/s...

M Boyce left an annotation ()

Thanks for the link Fran French - this is very useful.

Jason, yes solicitors say they don't have the 'capacity' - this a euphemism for legal aid does not pay them enough.

I don't know the reason for Mr Roper's departure, but I found him to be singularly unhelpful.

A.E. left an annotation ()

Unless Jonathan Roper left today, he hasn't left.

Jason left an annotation ()

Yes, you're probably right, M Boyce.

How do you know that, A.E.?

M Boyce left an annotation ()

When I phoned the PHSO today to ask about the new Feedback Guidance I was informed by the person I was speaking to that they would have to chase up my query with the 'old RaFT manager' (their words, not mine). I asked was this 'old manager' Mr Roper? I was informed it was. Now, I took the phrase 'the old manager of the RaFT to mean old/past as opposed to new/present! So was the person I spoke to referring to Mr Roper as an old manager, or the old manager? They also said that Mr Roper had gone to 'do other things'. What things? Gone to recapture his youth perhaps? Quite an amusing conundrum, but I am stating what I was told.

M Boyce left an annotation ()

Confirmation this morning that Ms Kim Ellis is the new RaFT manager. Mr Roper has moved to another PHSO department, but is still receiving correspondence about RaFT, which he is forwarding to Ms Ellis.

Jason left an annotation ()

Interesting. I wonder if he has been promoted or demoted. They former would not surprise me at all, and is a rather sickening thought.

M Boyce left an annotation ()

Under the old guidance and processes if RaFT decided to uphold a review then this could result in a fresh investigation - but the review process is not legally allowed, by the PHSO's own admission. Now under the new guidance a manager can change a final decision! Bear in mind that the guidance still states that 'our decisions are final and can only be challenged by judicial review.'
What on Earth is going on here? More lies and contradictions by the bucket load.

Jason left an annotation ()

Yes, I think the long and short of it is the PHSO will do anything to cover its back, no matter how absurd. It will cherry-pick aspects of the guidance that favour it, depending on the circumstances, and no one else (just my opinion).

Indeed, the whole review sham is a cherry-picking exercise in that is limits the scope of complaints. Imagine if other organisations asserted that you can only complain about a very limited number of things and nothing else when you use our services? Would any right-minded individual use their services if they had a choice? I doubt it.

A.E. left an annotation ()

Yes, he is definitely still there. I am in current communication with him.

M Boyce left an annotation ()

A.E., This is all a bit weird... but by PHSO standards I suppose it is quite normal.
Do you know whether he is still the manager of the Review and Feedback Team or now a junior member? I was told quite explicitly that he had gone to another department, but then again people at the PHSO do tend to hide when the going gets tough. My caseworker used to make a loud groan, like a goat in pain, whenever I phoned up to speak to him!

M Boyce left an annotation ()

And for the record, I was always fastidiously polite and patient with my caseworkers (there were three). The last one was rarely there, and when he was he just behaved like he didn't want to be there. Shortly after he issued my decision notice he left the casework team and went to work on their 'insight' team - whatever that is.
And as for the casework managers, well they were even worse. The last one simply refused to communicate with me at all, and now the PHSO's new approach seems to be to make the casework managers and 'peer review managers' actually engage with the complainant. Hmm.... this is simply another ruse to further protract the complaints process to time-out those who wish to apply for judicial review.

Jason left an annotation ()

Yes, they do come across as a seriously unpleasant bunch. At least they didn't put the phone down in your ear, which is the kind treatment I received when I asked them a reasonable question they did not like.

M Boyce left an annotation ()

Yes it is shocking that they put the phone down on you. I can't recall that happening to me, but after a short while, Mr Roper simply refused to speak to me.
In my final summing-up submission to the Tribunal I am going to ask that if the Tribunal decide not to order disclosure of the full legal advice, then would they at least say whether the commissioned external legal advice showed whether the PHSO review process appeared to be legal or not. The Tribunal will have looked at this advice themselves, and in other Tribunal decisions they often say whether commissioned legal advice indicates wrong-doing or not. I will further suggest to the Tribunal that it can redact the name of legal firm that provided the advice, if it feels that disclosure of that advice would reputationally damage that firm - as both the PHSO and the ICO allege.

A.E. left an annotation ()

@M Boyce yes, he is still Head of the Review and Feedback Team.

M Boyce left an annotation ()

Thanks A.E. How do you know this?
That's me on the phone to the PHSO again tomorrow to find out exactly what is going on here.

Jason left an annotation ()

That's an excellent plan regarding the Tribunal, M Boyce.

M Boyce left an annotation ()

I phoned the PHSO again this morning to ask them to confirm who was the manager at the RaFT. It was confirmed again, by a different person this time, that Kim Eliis was now the sole manager of the RaFT. Mr Roper has definitely moved to another completely different department. There used to be two managers in the past (one of whom was Mr Roper); now there is just one - Kim Ellis.

A.E., you say that Mr Roper is still working for RaFT, but can you please tell me how you know this?

M Boyce left an annotation ()

The PHSO have refused to say whether they have sent the ICO their commissioned external legal advice on the legal status of reviews. The ICO claim they cannot tell me either, as this would reveal the contents of that advice. This of course is ridiculous. I have now sent the ICO an FOIA request on this subject via WDTK. Let's see if they still refuse to answer. Either external legal advice was sent or it wasn't. That is all I want to know from them and it is that simple. Has information been sent and the ICO are now hiding this information from me and the Tribunal? If information hasn't been sent, then how can revealing this reveal the contents of nothing?

A.E. left an annotation ()

@M Boyce: Because I am in communication with him right up to the present point and it's on the bottom of his communications.

M Boyce left an annotation ()

John Roper or Kim Ellis or Mickey Mouse? Who cares? They don't.

J Roberts left an annotation ()

This FTT appeal was dismissed. The Commissioner 'fervently denied any bias'. This is how the Tribunal characterized her view on LPP:

“5. ...She found that disclosure of this material would not add to the principle of accountability nor would it further public debate around the decision, and so the public interest lay in upholding the exemption.”

I think that disclosure in your case would add to the principle of accountability.

http://www.bailii.org/uk/cases/UKFTT/GRC...

M Boyce left an annotation ()

Thanks J Roberts.
I am familiar with this case. You draw attention to a very perceptive point in regard to both accountability (which must also include transparency) and the furthering of public debate.
With regard to the former, the Commissioner has made it abundantly clear in most of its decisions that it regards LPP as qualified exemption in theory, but an absolute exemption in practice. In her DN (FS50739138), dated 13 February 2019, she states:

'The principle of LPP cannot be overturned solely to allow transparency to the public.'

'CANNOT be overturned to allow transparency' - not even when there is clear and undeniable evidence of illegal behaviour and seriously misleading/contradictory information. This is not a public interest balancing act; it is the elevation of a qualified exemption into an absolute exemption.

And in paragraph 15 of my DN (FS50788785) it states the following:

'The Commissioner considers that the PHSO has underestimated the public interest in favour of disclosure in this case. In addition to the usual arguments that disclosure would aid transparency and accountability, the Commissioner considers the matter of making complaints to the PHSO and in particular the legal status of reviews affects a significant amount of people. Access to information which will enable members of the public to understand the process is of notable interest to many and WOULD AID PUBLIC DEBATE.'

And yet, the Commissioner then goes on to assert the unassailability of the principle of LPP - Parliament legislated for LPP to be a qualified exemption in the FOIA, but the Commissioner has made it an absolute exemption in an attempt to corrupt/degrade the legislation in order to deny the public access to information. The FOIA 2000 is about public access to information. The Commissioner works tirelessly to undermine this access. The evidence for this opinion is everywhere to be seen in ICO's decision notices.

M Boyce left an annotation ()

The public have long known that the ICO are biased in favour of the establishment. But knowing this and proving this are two different things. Well now the ICO have helpfully, but entirely inexplicably, done the latter for us. The ICO claim to treat each case it receives fairly and in accordance with the law. But the case above PROVES that the ICO are not behaving fairly or in accordance with the law. They have a duty to weigh factors that favour exemption and those that favour disclosure in the balance in section 42 of the FOIA. But if you say that legal professional privilege cannot be outweighed by a lack of transparency (illegal behaviour, misleading information, contradictory information, ignoring legal advice from external legal counsel) then the ICO are breaching FOIA legislation. The astonishing thing is why have they proven this themselves? Did they think that nobody would notice? Why do they show that their supposed balancing exercise is a mere sham- according to them LPP can never be outweighed by a lack of transparency? Maybe the ICO thinks it is above the law?

A.E. left an annotation ()

FWIW I have just been told that he *has* changed roles, even though his old job title and department are on communications. As clear as mud. Much like the PHSO as an organisation. Mickey Mouse outfit as you say.

Jason left an annotation ()

Yes, the ICO have a reputation of being completely toothless, though I would argue, in agreement with you, they are just plain bias.

Like the PHSO, they don't have many people singing their praises:

https://uk.trustpilot.com/review/ico.org...

My personal experience with them also reflects this. Indeed, they would not even follow their own internal guidance and failed to carry out an assessment on various aspects of my complaint when they were legally obliged to. So, yes, it certainly seems they think they are above the law.

J Roberts left an annotation ()

'Like the PHSO, they don't have many people singing their praises'

Quite an understatement!

On the question of bias, I came across this FTT decision recently. It concerns s21 FOIA (information reasonably accessible by other means). The appeal was dismissed, but it provides a good example of the Commissioner failing to ask a public authority the obvious questions:

http://www.bailii.org/uk/cases/UKFTT/GRC...

The public authority provided the requester with a series of weblinks where he was told the information he sought could be found. The requester could not find the required information and approached the Commissioner.

'14. ...The Commissioner did ask a series of questions about other information that might be held, but does not seem to have asked whether the weblinks would have actually have taken the Appellant to the information sought. '

The appeal was adjourned in order for some questions not asked by the Commissioner to be put to the public authority.

How did the Commissioner fail to ask the very questions required to deal with the application?

M Boyce left an annotation ()

The ICO either don't know what they are doing, don't care what they are doing, or know exactly what they are doing is wrong. I believe it is a combination of all three. The link you have provided amply demonstrates that.
In my case, is refusing to state whether they have received legal advice that they requested from the PHSO an illustration of don't know, don't care, or know that they are trying to deceive myself and the Tribunal? I suspect all three.

And again, it's never going to be fair if you mark your own homework, or get your friend to show you theirs if you show them yours! The latter is what the ICO does with the PHSO.

Jason left an annotation ()

Yes, I would be very inclined to agree with you.

This seems relevant:

"Solicitors who are complicit in their client misleading the court, or who do so themselves, risk serious consequences. The courts have made it very clear that they regard this as "one of the most serious offences that an advocate or litigator can commit"".

See:

https://www.legalfutures.co.uk/latest-ne...

http://www.sra.org.uk/risk/resources/bal...

http://www.sra.org.uk/documents/solicito...

Jason left an annotation ()

"Though the information in Mr Brett’s possession was privileged, there were a number of ways to remove the risk of misleading the court without breaking that privilege."

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

M Boyce left an annotation ()

Thanks for this Jason. Misleading a court or tribunal is indeed a serious offence. Let's hope the FTT also regard it so.

'When I use a word, ' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean - neither more nor less.'

'The question is' said Alice, 'whether you can make words mean so many different things.'

Lewis Carrol, 'Through the Looking Glass.'

The ICO solicitor equates simply saying yes or no with revealing the content of the withheld information.

The PHSO use the word 'final' in their final decisions to mean that a manager, or a peer review manager, or a caseworker in the RaFT can look again at the 'final' decision.

It is worth stating again what the Financial Ombudsman Service (FOS) say about final decisions. They say that a final decision is final because one Ombudsman cannot overturn the decision of another Ombudsman. But, like Humpty Dumpty and the PHSO, final only means what they want it to mean depending on their audience. In the Berkeley Burke judicial review case, the FOS stated that it was their duty to conduct fresh investigations where necessary.

'Curiouser and curiouser' said Alice.

M Boyce left an annotation ()

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

The above shows quite clearly that the ICO are wrong by refusing to let me know whether the PHSO sent them external legal advice regarding the PHSO review process.
And of course this is the ICO solicitor telling me this, and they should be an expert in public law!

J Roberts left an annotation ()

M Boyce,

Paragraph (part of) 15:

'Therefore, the fact that a meeting was held between a legal adviser and client will not be privileged information. However, information contained in the minutes of the meeting or a file note setting out the key points discussed at the meeting is likely to attract privilege.'

It seems that you've been hit with some sort of ICO super-injunction or D-notice!

Jason left an annotation ()

M Boyce, it looks like you've well and truly rumbled them. Quite astonishing really!

Their reasons for refusing you such basic information always seemed a bit fanciful and absurd.

And to think the ICO have been tasked with such a important role... Beggar belief.

A.E. left an annotation ()

Have you informed ICO of their mistake @M Boyce?

M Boyce left an annotation ()

Yes I have informed both the PHSO and the ICO that they are breaching the FOIA. Their response was the usual divide and rule: the PHSO told me to try and get the information from the ICO, and the ICO told me to try and get the information from the PHSO. It is a classic tactic, but in the final analysis it is ICO's decision notice that is under scrutiny with the First-tier Tribunal, and it is they that will have the most explaining to do.

M Boyce left an annotation ()

If you've ever fancied going on Countdown, try the following for a conundrum:

The PHSO only ever agree to conduct reviews of their 'final' decisions in the rarest (a tiny fraction of one percent) and most meritorious of cases. Not only did the PHSO agree to conduct a review of my case, but they did so in the middle of High Court judicial review proceedings against them. A little strange you might think, but then it gets even stranger when you consider that the PHSO told the Court that my case, and therefore including their review, should be summarily dismissed as TOTALLY WTHOUT MERIT (TWM)! The judge of course did what the PHSO told him to do. So the PHSO agreed to conduct a review on the clear and demonstrable merits of the case, but then backhandedly arranged for the case to be dismissed by the Court as TOTALLY and absolutely without any merit whatsoever. Of course the PHSO then continued with their review after the Courts TWM certification - which they are not legally allowed to do - and 'found'? Yes that's right, that the review was not upheld. Who'd have believed that they would have come to that conclusion?

Still not convinced that the PHSO are not to be trusted in regard to their sham review process? If not, keep watching this space, and you will be.

A.E. left an annotation ()

Nothing surprises me about PHSOs behaviour sadly. The only thing I would say, is that they use reviews to *appear* to be fair and just but it's another sham and therefore isn't only reserved for cases deemed to be meritorious. If it were, they would uphold most or all of them. It's simply another method of shutting people down. We await your further information with interest!

Jason left an annotation ()

M Boyce, that is absolutely outrageous and very devious and calculated on the part of the PHSO. It is even more outrageous that the judiciary allowed that to happen. Then again, we all know there is no access to justice for the ordinary person.

Were you hit with a costs order at the end of that charade?

Jason left an annotation ()

I think the whole review process is nothing but a cynical attempt for the PHSO to double-check it hasn't missed anything and to time out any JR challenge.

The most common JR challenge against the PHSO would be:

1. It hasn't had full and proper regard for all relevant factors or;
2. Its decision was wholly irrational.

Spot the similarity in the PHSO's sham review criteria.

Of course, the latter is almost certainly bound to fail as it is a very high hurdle to overcome, therefore the PHSO use the review process to give itself a belts and braces type approach (just my opinion).

M Boyce left an annotation ()

No Jason, luckily I avoided having to pay any costs. The PHSO failed to provide a schedule of costs (breakdown of costs) for their legal counsel's acknowledgement of service, which was just short of £2000. They also failed to do so for their own internal legal costs. The judge was therefore unable to impose an order of costs.

The increasing delaying tactics of the PHSO make the risk of JR much more risky, because if you apply late, which is completely inevitable, then a judge will almost certainly throw-out the application and impose a full costs order on you. That is the way the PHSO have designed it to be.

M Boyce left an annotation ()

One of the major problems with the review process is the time it takes to decide whether to conduct a review and if a review is granted then also the time to conduct the review. At the moment this can take well over a year. As stated many times before the application window for judicial review of a final decision is just three-months. But there is a way around this problem if the PHSO wanted to do so. The JR three month clock starts with the issuance of the 'final decision'. But what if the date of the final decision was actually the real final decision and not just the PHSO's definition of 'final decision'. Anyone wishing to apply for a judicial review of a final decision must first have exhausted all internal appeals processes - the review process - as JR is a remedy of last resort. Therefore logically the date of the 'final decision' should be the date of a refusal of a review request or the date of the outcome of a not-upheld review or an upheld review that did not lead to a fresh investigation. This proper final decision date would then allow a complainant to apply for JR within time, instead of being timed-out as they currently are.

So why does the PHSO insist that the date of the 'final decision' cannot be extended for fairness to that of the final review decision? This final decision would include the original final decision and the review decision combined, and would be dated as of the finality of the review process. The only logical answer is that they do not want the review process to be fair, and they do not want to allow fair and unfettered access to judicial review of their decisions.

M Boyce left an annotation ()

The review decision is in effect a continuum or re-iterative decision - it is just confirming the original final decision.
The only other logical reason for not allowing the final decision date to be the review decision date is that the review process is indeed not legal and is therefore not a valid ground for judicial review.
In the Ministry of Justice Judicial Review Guide 2018 at 5.4.1 it states:

'The general time limit for starting a claim for judicial review requires that the claim form be filed promptly and in any event not later than 3 months after the GROUNDS for making the claim first arose.'

Is/are the grounds coincident with the PHSO's final decision letter? Why can't the grounds be the review decision; it is after all just a recapitulation of the final decision? I believe that if the review process was lawful (allowed in statute) then the date of the grounds would of course be the date of the end of the review process and not the date of the final decision.
That is why the PHSO are so insistent that the three-month JR clock starts with their final decision and NOT with their review decision. The timing is dependent on the law, and the statutory law that the PHSO is supposed to follow simply does not allow for reviews.

Jason left an annotation ()

I see what you mean. Perhaps this is why the PHSO are so desperate to hide the respective legal advice, and why they have now joined in proceedings at the FTT, whilst trying every dirty trick in the book, along with the ICO.

The whole thing really stinks to high heaven.

Jason left an annotation ()

I think this also comes back to my point that the review process gives the PHSO a belt and braces type approach to it's "final decision". The only challenge one is left with is that that the review decision was unlawful etc., but the PHSO seem to have really covered their backs with that one for aforementioned reasons.

As I also mentioned previously, when I sent the PHSO a letter before claim for JR, their solicitor could not even be bothered to comply with the pre-action protocol. It's almost as if they are completely complacent and disdaining.

Jason left an annotation ()

M Boyce, are you positing that the review decision (after carrying out a review or refusing to) cannot be challenged at all, regardless of grounds, because the review process is not written into law? if so, is this based on your experience or have you cited case law in this regard?

M Boyce left an annotation ()

The review process is not a statutory process, and the PHSO explicitly acknowledge this. There also appears to be no case law to endorse its use, and in fact the Dyer decision made it quite clear that the PHSO could NOT re-open (review) its final decisions. The Berkeley Burke case concerning the Financial Ombudsman Service made it clear that an Ombudsman could commence a fresh (not a review) investigation if warranted and agreed to. The external legal advice commissioned by the PHSO and now being hidden by them may not offer absolute certainty on this issue, but its conclusions will be indicative. The statutory PHSO legislation was drafted with a distinct lack of clarity, and that is why everybody seems to be punching, if not in the dark, then at least in the gloom, on this issue - and that does include me!

Dale Tamount left an annotation ()

Annotation (15 January 2019)

"The FTT is unfortunately even more establishment than the ICO. Judges almost always seek to protect the establishment and cover-up their wrongdoing. They really are all in it together. "
I looks like the above is not just one person's view.

Application for Permission to Appeal and Notice of Appeal from an Information Rights decision of the First-tier Tribunal (General Regulatory Chamber)

Page 4D of the application:
http://s000.tinyupload.com/index.php?fil...

"It is maintained that the numerous references to the Appellant losing etc., along with the personal and slanderous nature of the decision generally were clear signs that the Tribunal lacked objectivity and that the Commissioner and Tribunal were on the same side."

M Boyce left an annotation ()

Thanks for this information Dale. It is interesting and disturbing.

As you rightly point out, I am fully aware that the First-tier Tribunal, and most judges in general, are establishment and as such they will nearly always find in favour of the establishment - the ICO, for example. There is no point pretending that this is not the case. But that won't prevent me taking my case to Tribunal. It is possible that the Tribunal I get will be fair and look at all the evidence fairly and come to fair decision, but in all honesty I am hopeful, but not optimistic. My scepticism at the fairness of judges is, sadly, based on experience, and not just opinion. In my judicial review case the judge did not allow the PHSO review to conclude before he came to his decision, which would have been the fair thing to do, and he did not give a separate statement of reasons for his TWM decision. This was procedurally unfair and meant that I could not appeal a decision that was procedurally unsound. This is a statement of undeniable fact, and not an opinion. The Tribunal have been sent the full evidence on this matter.

I also have several other personal experiences of judges repeatedly 'erring' in their judgement and decisions with very serious consequences. If a judge makes a serious mistake or error of judgement he or she is deemed merely to have 'erred' - a rather warm and cuddly legal euphemism for something that is anything but.

Yes I am cynical about judges - and with very good reason. I would ask that any FTT judge deny the veracity of what I have said, if they can show otherwise.

Our opinions are reflections of our experiences.

Jason left an annotation ()

M Boyce, regarding the PHSO review process, yes, I think, the long and short of it is the PHSO is cynically attempting to mark its own homework whilst doing whatever it can to protect itself from a JR challenge.

Regarding the judiciary, I have also had a myriad of profoundly negative experiences. They tend to bend over backwards for the establishment, or those with significant wealth and/or power. I have lost all faith and confidence in the legal system, particularly as it lends itself quite well to bullying tactics. As you have quite rightly asserted, if you are an ordinary person in this country you will be most fortunate to even get a crumb of justice.

M Boyce left an annotation ()

yes, your experience, like mine, is all too common.
in the final analysis, I don't think that any right-minded and fair-minded person could possibly agree that the PHSO should be allowed to continue to hide their legal advice on the legal status of their review process. Especially not if they've seen the full evidence of the PHSO's evasiveness, and contradiction and lack of clarity on this issue. It is simply too important an issue to sweep under the carpet like this.

M Boyce left an annotation ()

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

The above decision by the FTT is interesting, even though the Tribunal do not ultimately find in the appellant's favour.
The ICO state that section 42 of the FOIA - legal professional privilege - can only be overruled in 'very exceptional cases'. The Tribunal disagree, and state:
'We do not think this is the right test.'
The ICO have copied and pasted large chunks from the above decision notice into my decision notice - paragraph after paragraph is almost identical word for word, and they even call the PHSO the Department for Education for extra good measure! Both these DN's and be read and compared on the ICO website.
The above shows again that the ICO cannot be trusted to apply the FOIA fairly - 'we do not think this is the right test.' No, and neither does anybody else, but that does not the stop the ICO applying the wrong test over and over and over again in order to slant the 'evidence' in favour of an authority over the public.

M Boyce left an annotation ()

And within this FTT decision the ICO is quoted as saying:

'The Commissioner considers.... the clear and important need for ALL (not just the public sector) to have access to FREE, frank and candid legal advice.'

FREE legal advice for ALL.

Yes there is a clear and important need for FREE legal advice for all, and not just for the PHSO and the ICO. But of course the ICO's argument here is pure fantasy peddled in order to justify its own hypocrisy. There is no such thing as FREE legal advice - legal advice has to be paid for by someone. The tax-payer pays for the PHSO's and the ICO's legal advice which they keep to themselves. The general public usually cannot afford to pay again for this legal advice for themselves. If the ICO really believes what it preaches: that legal advice should be free for all, then why are they denying this very legal advice for all? They know that they can deny this legal advice for all under section 42 of the FOIA and they know that most people cannot afford to pay for legal advice themselves.

The ICO by preaching access to free legal advice for all, but then doing everything it can to actually deny access to free legal advice for all, demonstrates the most cynical hypocrisy imaginable.

Jason left an annotation ()

So it seems the ICO are, on the face of it, not only careless, bias and incompetent, but also slapdash. All this, of course, really gives one that warm and fuzzy feeling that one is in good hands.

Agreed, we are witnessing the most cynical hypocrisy imaginable.

Also, while us ordinary folk get our legal aid-funded 'legal advice' from poorly trained 'legal advisers' (assuming we even manage to get that, bearing in mind legal aid has been decimated over recent years), the likes of the PHSO and ICO will no doubt get theirs from QCs and experts in the field, all paid for by the taxpayer.

M Boyce left an annotation ()

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

And then we have the above. The magnitude of the above is hard to overstate:

'The ICO does not hold external legal advice PROVIDED [it has been provided to them] by the PHSO in relation to FS50788785' [The sham PHSO review process].

So what have the ICO done with this advice provided to them by the PHSO?

Why did the ICO initially claim it couldn't tell me whether it had received this advice or not?

Jason left an annotation ()

M Boyce, there is so much smoke and mirrors here it's hard to tell what is going on!

Did the ICO definitely receive the PHSO's external legal advice?

Yes, it is most alarming that they are now seemingly changing their tune.

M Boyce left an annotation ()

The ICO have now stated that they have NEVER held the external legal advice that the PHSO commissioned. This is made clear in the link above.
OK, now we are finally clear on that. But why couldn't they just say this in the first place, instead of first saying we can't tell you, then providing an ambiguous answer, and then finally giving an unambiguous answer after having a hissy fit? Why can't the ICO give a straight answer to a straight question, without having to be backed into a legal corner first? It does not inspire confidence in their ability or their fairness.

So, after many, many months the ICO have been forced to admit that the PHSO have not provided them with the external legal advice that the Ombudsman commissioned. The ICO know that the PHSO commissioned this external legal advice, and they know that it is essential for both them and the FTT to have all the evidence in front of them if they are to make a fair and balanced decision based on all (not just some)of the evidence. This also does not inspire confidence in the ICO's ability or fairness. It's like someone who is wrongly being accused of murder being told by the prosecution that the judge and jury will be denied seeing the evidence of their innocence. What the ICO have done and are doing is outrageous.
The PHSO have of course failed to supply the ICO with their external legal advice. This is a clear attempt to pervert the course of justice. How can any person possibly hope to obtain justice when the PHSO and the ICO seem hell-bent on denying a complainant a fair hearing by withholding crucial evidence from the First-tier Tribunal?

M Boyce left an annotation ()

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

And now we have the above concerning the sham review process.

Repeated failure to disclose held documents.

Repeated lack of recollection of 'lost' information.

Repeated failure to recognise that requests for explanation are not requests for opinions.

Jason left an annotation ()

Yes, I think they finally realised, as you say, that they were cornered. All this obviously does not inspire much trust and confidence (not that I had any to start with).

How did we end up with such rotten organisations like the PHSO and ICO? I suppose it has been a complete failure on the part of this government in regards to holding them to account, whist relentlessly stripping them of funds.

Jason left an annotation ()

Are you in a position to present this new-found information to the FTT?

It would be serious denial of justice should the PHSO and ICO get away with all this.

M Boyce left an annotation ()

Yes the FTT will be getting this information.

The PHSO have to give me and the Tribunal and the ICO their response to my submissions so far by early next week.

It will be interesting to learn why they have not supplied the ICO, and therefore the Tribunal, with their external legal advice on the sham review process. If they do now provide it to the Tribunal at this late stage I will want to know why now and not earlier, and what else they are concealing. The above ICO DN clearly shows that they have form when it comes to not providing important requested information

The PHSO and the ICO will swear blind that none of this is in the public interest. They are wrong.

M Boyce left an annotation ()

I have now received the response from the PHSO, as Second Respondent.
Although I cannot go into too much detail at the moment, I will mention one simply astonishing assertion by the PHSO. They claim that my asking if they had sent their external legal advice to the ICO, and then for the essential benefit of the Tribunal, is an attempt to undermine the Tribunal proceedings and to circumvent the FOIA! These are simply ludicrous, shocking and outrageous accusations. I only want to know if the Tribunal has been sent all the information in order for it to make a fair and balanced decision. The further astonishing thing is that the PHSO now know that the ICO have finally disclosed the fact (which they had previously been hiding) that the Ombudsman had NOT sent them their commissioned external legal advice. The PHSO sensationally claim that I should not be asking for the Tribunal to be sent all the necessary information and that this information should not be sent! How can the Tribunal come to a fair decision if it only has part of the information? It can't, and that is what the PHSO wants.

Whatever happens with the Tribunal, when they have come to their decision I will publish the information which proves the above and everything else that I have said so far.

I didn't think I could be any more shocked by the actions of the PHSO, but the above is a new and dangerous escalation, and the public have a right to know about this.

phsothefacts Pressure Group left an annotation ()

This all belies the PR spin about a new open and transparent ombudsman. I think things have become even murkier under Rob Behrens leadership.

Jason left an annotation ()

That's really shocking stuff! Seems like a really cynical ploy on the part of the PHSO to hide the advice from the FTT. It certainly seems they are really desperate, and will do anything possible to achieve their cynical objective.

How on earth could the ICO or the FTT make an informed decision without seeing the most important document?

J Roberts left an annotation ()

" I only want to know if the Tribunal has been sent all the information in order for it to make a fair and balanced decision."

It would appear that Information Commissioner decided in favour of this authority without having all the necessary evidence:

'15. It was anticipated that the Commissioner would prepare a “closed bundle” containing the information which had been withheld by the MHRA under section 44 of FOIA but on 3 July 2015 he informed the Tribunal that the MHRA had told him that despite extensive searches they had been unable to locate that information. It was said that the relevant person at the MHRA who had dealt with the requests had retired overseas and could not be contacted.'

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

A.E. left an annotation ()

PHSO thinks it's normal to expect a judicial process to not be availed of all the information because that's how PHSO themselves operate. They don't ask complainants for any information/evidence, so if complainants don't proactively provide it their whole investigation will be based only on the public body's information/claims.

They don't operate fairly or justly. It's also projection because of that!

Clearly they also operate under the premise that attack is the best form of defence. Attempting to undermine your credibility to try to portray you as unreasonable. I would take note of what they accuse you directly of because this probably means it's a foreshadowing of tactics they will try at the hearing.

M Boyce left an annotation ()

phsothefacts, things are indeed much murkier under Rob Behrens., and dangerously so.

Jason, the ICO don't want to make an informed decision, only a biased decision in favour of the PHSO, so they are more than happy to only receive partial information from the PHSO that helps them to do this.

J. Roberts, your link shows how authorities can 'misplace' crucial information. Even if the PHSO have 'misplaced' their legal advice from counsel, then the QC who produced this advice (almost certainly from Matrix Chambers) should still possess this information. It is a criminal offence under the FOIA to deliberately destroy documents in order to avoid disclosure.

A.E, you're quite right: the PHSO see attack as their best form of defence. But it is not me that is wanting to undermine the Tribunal process; it is the PHSO.

J Roberts left an annotation ()

Here is how the public authority I referred to above tried to stop the Tribunal sharing information with the Appellant :

'17. The Commissioner forwarded a copy of the MHRA email to the Tribunal along with the enclosures stating that the MHRA had made further investigations as to what information it held electronically and inviting the Tribunal to make an order under rule 14(6) that it should not be shared with Mr Levinson. Save for the name of the writer of the MHRA email and for the answer to question 2 the Tribunal was of the view that there was no good reason to withhold the email or the enclosures from Mr Levinson and they were duly disclosed.'

Look out for rule 14(6)!

M Boyce left an annotation ()

Thanks J Roberts.

The GRC Rule 14(6) states that:

'The Tribunal may give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose such documents or information to other persons, or specified persons.'

If the PHSO will not voluntarily disclose the external legal advice to the ICO and/or the Tribunal then the Tribunal can compel them to do so. All well and good.
Obviously the Tribunal will not disclose the advice to me. If the Tribunal allows my appeal then they should order the PHSO to disclose this legal advice to me.
I cannot imagine how the PHSO thinks it is to their advantage to simply refuse to state whether they currently hold this external legal advice, and why it is a good idea to try and withhold this advice from the Tribunal.
If something looks bad and smells bad - that's because it is bad.

A.E. left an annotation ()

I don't know if it applies in this case, but be aware of the PHSO's get out of jail free card about conducting their investigations in secrecy which they would if possible try to apply to this also to excuse their behaviour and not be compelled by the tribunal.

M Boyce left an annotation ()

In this case the PHSO are not the one doing the investigation. They are the one, alongside the ICO, that are being investigated - by the the First-tier Tribunal - and they don't like it one bit.
I will do everything I can to stop this being a secret/cover-up investigation, and to that end lies the great value of public services like Whatdotheyknow, where the public can share information obtained , or not obtained, by the FOIA and the DPA to help hold authorities to account. Liberal democracies only exist because of the countervailing power of journalism, access to information and free speech. The establishment always has an inbuilt tendency towards closing down free speech, denying access to information and then closing down democracy.

Jason left an annotation ()

"If something looks bad and smells bad - that's because it is bad."

Yes, and all this stinks to high heaven.

"The establishment always has an inbuilt tendency towards closing down free speech, denying access to information and then closing down democracy."

Whilst denying the ordinary person access to justice in the vast majority of cases.

J Roberts left an annotation ()

This FTT decision concerns S42(1):

http://www.bailii.org/uk/cases/UKFTT/GRC...

Be alive to the possibility of a ropey bundle of closed material being presented to the Tribunal:

'63. It has an Index, which is hardly worthy of the name as it simply describes the contents as “Withheld information –various dates”. Sadly, yet again, the Tribunal’s task has not been made any easier by the party producing this bundle.'

Look out for communications that are wrongly labelled as 'legal advice':

'77. Whilst these communications have been annotated “legal advice provided”, the Tribunal cannot see how they can be so characterised. They merely record an internal discussion within RMBC as to whether the best way forward may be a meeting with the Appellant. This was not legal advice, but rather practical advice'.

'84. This is in our view not Ian Thomas seeking any legal advice, it is provided merely for information'.

'86. A number of documents in the closed material are annotated “customer seeking legal advice”, but on analysis they are not.'

Not all communications involving a solicitor are covered by legal privilege:

'88. To that extent RMBC,and to some extent the ICO, have approached communications to and from her [solicitor with RMBC] as being legally privileged, almost by virtue of that very fact.'

'91. To a large extent therefore, most of the internal communications passing between her and other RMBC officers from late June to October 2016 do not in our view attract legal professional privilege at all.'

'99. The Tribunal accordingly allows the appeal, and substitutes for the decision notice issued by the ICO that set out above.'

Commissioner's decision notice FS50708047 dated 28 March 2018:

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

M Boyce left an annotation ()

Thanks for this interesting information and link J Roberts. It raises the very pertinent issue of what actually constitutes communications falling under the ambit of legal advice/litigation advice and then legal professional privilege. In the case of the PHSO there is a real complication in that the client and the lawyer, in terms of the internal legal advice, are often one and same entity - the Deputy Ombudsman is involved in both legal and governance/strategic/operational matters and decisions. How do you disentangle that?
Section 42 of the FOIA is demonstrably being used by both the PHSO and the ICO - who are acting in concert - to try and prevent the Tribunal receiving all the relevant information. The PHSO explicitly accuse me of trying to undermine the Tribunal process by trying to ensure that it has all the information it needs to make a fully informed decision. It is, however, not me that is trying to undermine the Tribunal process: it is the PHSO and the ICO that are doing this. In a court of law this would be seen as an attempt to pervert the course of justice.

A.E. left an annotation ()

@M Boyce Yes, but what I meant is, e.g. the Met stated they couldn't proceed with MIPO investigation against PHSO because PHSO investigations have to be conducted in secret which means that they could not make them hand over anything from their files. The tendrils of the secrecy clause in other words, don't stop at the PHSO's own investigations. Be on guard for them trying this!

M Boyce left an annotation ()

Yes I see what you're saying. I will receive the ICO's response to my second submission and the PHSO's first submission in about a weeks time. I expect to be hit square-on with the kitchen sink, as the ICO scrambles desperately to defend the PHSO by throwing at me everything and anything it can get its hand on.

M Boyce left an annotation ()

My grave concern about the Ombudsman, or more specifically their legal team, and the ICO working together to try and prevent the Tribunal getting to see the most crucial evidence it needs in order to make a fair decision is further illustrated by what was said in reply to Nicholas Wheatley's FOI request 'the quashing of reports'.

This in an email from Dame Julie Mellor (the then PHSO Ombudsman) to Amanda Campbell:

'I wanted to bring to your attention the need to keep the Ombudsman informed of legal developments [advice from external legal counsel about the review process]. I found out about the latest legal advice on 'functus officio' when querying legal advice on a case which, as Ombudsman, I was being asked to make a decision.'

So if the legal team at the PHSO were not informing the Ombudsman of their external legal advice, then it should come as no surprise that the legal team have also failed to inform the Tribunal of this legal advice. But of course, it actually goes much further than this, because now the legal team are telling the Tribunal that I should not be asking for the Tribunal to receive this information and that the Tribunal should not ask for it.
If this legal advice supported their current policy and practice, then why would they attempt to pervert the course of justice in order to hide it?

Jason left an annotation ()

"If this legal advice supported their current policy and practice, then why would they attempt to pervert the course of justice in order to hide it?"

Yes, indeed. It seems fairly obvious they are up to no good. It may be the case that the legal advice reveals something seriously ominous or they are petrified of the prospect that a unfavourable precedent may be set. Perhaps a combination of both is nearer the truth.

It seems you are well-prepared for the inevitable situation where the ICO and the PHSO throw everything at this, including every dirty trick in the book. If there is any justice here, you should succeed in my opinion.

Jason left an annotation ()

Out of interest, though slightly off-topic, have you had any experience with the Legal Ombudsman? I have had numerous profoundly negative experiences with them too, and it seems I am not alone:

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

In my view, they are on par with the PHSO. So, again, another case in point in regards to how these organisations who claim to be "independent' bend over backwards for the rich and powerful, and how the ordinary person is constantly denied access to justice.

M Boyce left an annotation ()

Thanks Jason. We will indeed see if there is any justice soon enough.

I've not had any experience of the Legal Ombudsman, but it seems that all UK Ombudsmen are cut from the same cloth, and that cloth has establishment cover-up written all over it. These Ombudsmen quangos are supposed to make wrongs right, and to improve the quality and functioning of public services. But public services are not improving and part of the reason is that organisations like the PHSO and the ICO do not hold public providers to account. Instead they just cover-up and stitch-up in equal measure, and we all become much the poorer for it. Only when people are accountable for their actions do they tend to do the right thing, and of course the PHSO are accountable to no-one and no body. They are supposed to be accountable to PACAC, but that Government body has long since looked away in complete indifference to ordinary people on the receiving end of poor public services. And of course the PHSO are supposed to be accountable to the First-tier Tribunal, and yet they and the ICO are dictating what information the Tribunal should get to see! So the PHSO are not accountable to PACAC and they are not accountable to the judiciary - either at a tribunal or in the High Court. I've already seen how the High Court works (it's entitled to come to whatever decision it sees fit, but it is not entitled to flout correct procedure); now it's time to see how the Tribunal works.

A.E. left an annotation ()

Yes I've had experience of the Legal Ombudsman and they are as corrupt as all the other ombudsmen (having had experience of PHSO and LGO I am confident in saying this, in conjunction with hearing and reading the experiences of others).

I guess you have both seen this https://images6.moneysavingexpert.com/im..., which has a table on P54 showing they are all very bad, just some are extra bad. PHSO is 2nd from bottom. Now there's a surprise...

But PACAC and ombudsmen pals just dismiss the consistently poor public feedback as "unrepresentative". It's all a massive con. The unfiltered feedback is far more honest than the stage-managed rubbish they put out on themselves.

M Boyce left an annotation ()

Thanks for this A.E. I've not read the report before. It makes interesting, but unsurprising reading.
It does not mention the education ombudsman, more properly tilted the Office of the Independent Adjudicator (OIA). I have had extensive dealings with them and they are every bit as bad as the PHSO, which should come as no surprise since they were headed by none other than Rob Behrens himself for nearly a decade. The apple never falls far from the tree, especially when it's rotten!
The report talks about those Ombudsmen backed by statute and those nominally not backed by statute. But this backing by statute is laughable when they don't adhere to that statute - the PHSO review process is not provided for in statute; but hey they are not going to let the law get in the way of their misconduct in public office.

Jason left an annotation ()

Yes, that report reflects my own personal experience very well. The Legal Ombudsman, as with the PHSO, is more than happy to shamelessly regurgitate all and any feeble arguments put forward by the organisation/firm complained about. The bias I witnessed in a recent decision letter was profound, and this hasn't been the first occasion.

I then sent the Legal Ombudsman a JR letter before claim only to witness more nonsense, fancifulness and deliberate obtuseness.

Yes, it really seems we have a serious problem in this country where these organisations are simply not been held to account. The whole system is in dire need of dramatic reform. Sadly, I don't see this happening any time soon.

A.E. left an annotation ()

The Office of the Independent Adjudicator, is only for FE and HE providers and complaints have to be from the student/ex student themselves.

"Is the provider a member of our Scheme?
Members of the Scheme include universities, Further Education (FE) and Sixth-Form colleges, alternative providers and providers of School-Centred Initial Teacher Training (SCITTs). These are all forms of higher education provider."

I always think (after experience) that where people have to belong to the scheme they end up protected by the scheme.

For schools, it's my understanding that the process is to complain to the school, if that is unsatisfactory you go to the governing body, if that brings no joy, then go to the LA's children's services and if that is still rubbish, you go to the LGO.

If it relates to SENs then there is SENDIST.

All of it is made to be as bureaucratic as possible, so that people are dissuaded and give up. If you are vulnerable or not good at researching and asserting your rights, you stand a high chance of being fobbed off and ridden roughshod over.

The whole system of all these things are corrupt and set up to protect wrongdoing. Just a few scapegoats cherry-picked for show, here and there.

M Boyce left an annotation ()

And from worse to much worse.

Today I received the ICO's response to my second response and to the PHSO's first response. The ICO now admit that the PHSO have not sent them and the Tribunal the external legal advice that they commissioned. But instead of telling the PHSO that they must send the Tribunal this advice, they 'invite' (their word) the PHSO to consider whether it would like to supply this crucial evidence or not. Well, I'm having none of it. I have already informed the Tribunal clerk that I consider that the ICO and the PHSO are working to undermine Tribunal proceedings in an attempt to pervert the course of justice. We will see if it falls on deaf ears.

Jason left an annotation ()

M Boyce, knowing this rotten bunch as we do, this news comes as no surprise.

I would do everything possible to make a big song and dance about the fact that they are perverting the course of justice. As the ICO may or may not be aware, conspiring with another to pervert the course of justice is also a criminal offence.

M Boyce left an annotation ()

I'm certainly going to kick-off in a big way about all this. The PHSO and the ICO are making no effort whatsoever to disguise the fact that they are actively trying to undermine the Tribunal process, as follows:

The PHSO fail to send the ICO their commissioned external legal advice;

the ICO know that the PHSO have not sent them the external legal advice, and they know that this external legal advice was commissioned because I provided them with the proof of this;

the ICO then said they could/would not tell me whether the PHSO had in fact sent them the external legal advice, but were later forced to admit, via the FOIA, that they had not done so;

the PHSO then tell the Tribunal that I am trying to undermine the Tribunal process by asking for the Tribunal to be sent this crucial external legal advice so it can make a fair decision based on all the evidence;

the ICO then invite the PHSO to consider whether it now fancies supplying the Tribunal with the external legal advice or not. The ICO then state that the PHSO should decide themselves whether it considers the evidence to be relevant or not, and therefore whether to send it or not, and therefore whether the Tribunal should see it or not!

The PHSO and the ICO would be guaranteed winners on the Great British Sewing Bee - for their unrivalled stitch-ups.

A.E. left an annotation ()

It's literally appalling. And considering I have a complaint to submit about ICO to PHSO, tells me all I need to know.

Jason left an annotation ()

M Boyce, that is very well summed-up and reflects a truly appalling state of affairs. The fact that these rotten organisations, ultimately funded by the like of us, have been tasked with providing such a crucial public service is enough to make my blood boil.

A.E., unless you are prepared to be treated with disdain and contempt, I would think twice about complaining to the PHSO about the ICO. This is something I have done in the past and the outcome was truly deplorable in my opinion, which should come as no surprise.

J Roberts left an annotation ()

Paragraphs 26 and 27 deal with procedural irregularity:

http://www.bailii.org/uk/cases/UKFTT/GRC...

If relevant material isn't included in the bundle the tribunal judge can direct that it be added:

"16. In his email of 12.10.19 the Appellant had asked that a copy of this information be placed in the bundle. In a CMD of 13.03.19 the Tribunal Judge directed that redacted and unredacted copies of the relevant entry be served, to be placed in the open and closed bundles respectively."

http://www.bailii.org/uk/cases/UKFTT/GRC...

M Boyce left an annotation ()

So let's see if the PHSO volunteer this crucial evidence to the Tribunal or whether the Tribunal has to demand it.

M Boyce left an annotation ()

In the ICO decision notice FS50748825 the commissioner states the following:

'There is a public interest in knowing whether or not legal advice has been followed.'

Yet the PHSO seem to deny this by stating in their submission to the Tribunal that:

'..there is no obligation on any client to accept or act on any legal advice provided..'

In the Quashing of reports FOIA response the PHSO state the following:

'To confirm, we discussed on the phone whether it was necessary to introduce a short-term urgent change in policy until we make a decision about the impact of the legal advice on policy.'

Why would the PHSO even consider a change in policy if the legal advice supported their current policy and practice?

You don't have to be a genius to read between the lines here. The PHSO commissioned legal advice about the legal status of the review process. That legal advice clearly indicated that the review process was not legally allowed. The PHSO then chose to ignore that advice, which they claim they are entitled to do. They then fail to provide that legal advice to the ICO and the Tribunal, and state that I am trying to undermine the Tribunal process by asking that the Tribunal receive all relevant information in order for it to make a fair decision. The ICO has also tried desperately to prevent this advice from reaching the Tribunal.

To quote again what the ICO have said:

'THERE IS A PUBLIC INTEREST IN KNOWING WHETHER OR NOT LEGAL ADVICE HAS BEEN FOLLOWED.'

Why does the ICO preach the right thing, but in practice always contrive to do the wrong thing?

A.E. left an annotation ()

"There is no obligation on any client to accept or act on any legal advice provided"

Well, considering legal advice is to let you know whether you are acting inside the law or not, to ignore it would be staggeringly dishonest and potentially lead to such breaches of law!

phsothefacts Pressure Group left an annotation ()

If PHSO breach the law who would investigate when the police have used their legal advice to inform us that evidence cannot be sought from PHSO?

M Boyce left an annotation ()

The problem is that most legal advice does not offer total certainty on a legal issue: there is often wriggle room for some equivocation. I suspect that the legal advice strongly indicates that the review process is not legally allowed and is therefore ultra vires; but the PHSO then decided that it was not definitive and therefore they decided to continue with their current policy of reviews - their stated 'risk appetite'. To abandon their review process would have been very problematic for them - better just to ignore the legal advice and carry on regardless. After all, who would risk challenging them on this issue? And if they were challenged in the courts, and then lost, it's not a criminal matter, so they don't really care. But now they are being challenged at the First-tier Tribunal.

Trying to undermine the Tribunal process is not a good idea; not good for the PHSO and even less good for the ICO.
The paramount issue here is not whether the legal advice indicates that the review process is legally allowed or not, but how the PHSO have chosen to act with regard to this advice. This is an issue of trust, integrity and transparency - if the legal advice indicates that the review process is not legally allowed then the public have a right to know about this. Not just for the sake of transparency, but because knowledge is power. The review process is deeply problematic, as I have discussed at great length in previous submissions on here, and if it is revealed that it is indeed not legally allowed then a complainant cannot be compelled to use it, instead of going directly for judicial review. Not that going for judicial review is a great idea either, but the review process is just a completely unnecessary and almost certainly non-legal distraction and waste of time and money.

When all said and done this is a really messy issue and it needs sorting out once and for all, and this lack of transparency around it needs sorting out once and for all.

If we cannot trust the PHSO in their processes, then quite simply we cannot trust them in their decisions.

M Boyce left an annotation ()

We trust that public bodies like the PHSO and the ICO will not act like complete hypocrites, but alas that trust is time and time and time again betrayed by them.
On the PHSO website they state the following under their 'Principles of Good Administration':

'...Public bodies must, of course, bear in mind the proper protection of public funds and ENSURE THEY DO NOT EXCEED THEIR LEGAL POWERS.'

How lovely. But, of course, the PHSO seem to have not realised, or they have completely forgotten, or they don't actually care, that they too are a public body. Why then does the PHSO not practice what it preaches?

The December 2017 Board Minutes again:

'Jon Shortridge asked about the legal status of CCT reviews, and what was the legal basis of a review if it did not constitute a new decision. Karl Banister explained that OUR LEGISLATION DID NOT ALLOW FOR REVIEWS.'

And the PHSO, aided and abetted by the ICO, are now trying to ensure that their commissioned legal advice never reaches the Tribunal. Surely this advice wouldn't show that they were again being hypocrites?

Well, there we have it. So much for ENSURING THAT THEY DO NOT EXCEED THEIR LEGAL POWERS. Not only does the PHSO exceed its legal powers, but it then has the brass neck to shout from the roof tops: do as we say, but not as we do. They regard themselves as untouchable and beyond the law.

This is how justice operates in this country.

A.E. left an annotation ()

Absolutely. Where does "wide discretion" stop and overstepping legal powers start. It has been deliberately left murky and intended to confuse the public and disallow justice. And without this information, people are dissuaded from JR because they have no way of knowing what the judge will say on it. You are right, there is no real justice. We are being well and truly shafted.

M Boyce left an annotation ()

Yes A.E. where does wide discretion stop and overstepping legal powers start?
With the issue of the legal status of reviews the distinction between the two has, however, been made fairly clear. The Dyer judicial review case made it quite clear that reviews are not legally allowed. The PHSO's chief legal eagle made it quite clear that reviews are not legally allowed. So does the withheld legal advice contradict both of the above? This is extremely unlikely, and for the simple reason that if it indicated that in fact the review process was legally allowed then why would the PHSO want to so deeply bury such beneficial advice, and bury it not only from the public, but also from the First-tier Tribunal?

Clearly the PHSO sees its overstepping of legal powers as its merely exercising its wide discretion. But does the withheld legal advice agree or disagree? The public deserve an answer, and they must receive an answer.

Jason left an annotation ()

M Boyce, yes, they are truly a shamelessly hypocritical bunch. They are also meant to set standards on good complaints handling, and we all know how well they handle complaints.

It seems to me that your inferences are correct (in my opinion), and I would be very surprised if you are wrong.

I think the protective mechanism that the review process affords the PHSO is just too good for them to resist. Indeed, the last thing it wants is to be held to account. It seems to me the PHSO is quite happy conducting itself akin to an impish teenager who's parents have gone away on holiday.

M Boyce left an annotation ()

Throughout both the PHSO's and the ICO's submissions to the Tribunal they repeatedly and forcefully state that I and others should go get their own legal advice on the issue of the legal status of reviews. But Houston, we have a problem, and a very big problem with their analyses. They both state that if their legal advice were made public then no lawyer would likely ever agree to provide honest legal advice to them again. Yes, they really do say that, time and time again. But where then does this leave me or any other member of the public who could actually afford to try and get their own legal advice on the legal status of reviews? By both the PHSO's and the ICO's perverse and ridiculous logic no lawyer would ever agree to provide me or any other member of the public with such legal advice, because obviously they would know that this advice would for certain be made public. There would be no point paying a fortune for legal advice on a very serious issue of significant public interest just to keep it secret, or to promise to keep it secret, and therefore be of neither use nor ornament. So why are the PHSO and the ICO telling me to go get my own legal advice when, according to them, they know that it would never be provided? Either way they are again not being fair and not being responsible. They are either not telling the truth about lawyers refusing to provide honest advice if they thought that this advice may be made public, or they are telling me to do something that they know would be a grotesque waste of time and money. I wonder which it is!

M Boyce left an annotation ()

The General Regulatory Chamber (GRC) of the First-tier Tribunal have today issued new directions in my case ordering the PHSO to either send the Tribunal the withheld external legal advice or explain why it cannot or will not do so by June 24 2019.

Jason left an annotation ()

Yes, and I suspect part of the reason you want to them to disclose the external legal advice is to ensure they are acting on their own legal advice, not the advice others may or may not have obtained.

Moreover, it is arguably unreasonable to expect the ordinary member of the public to fund the commissioning of further legal advice, at considerable cost, particularly as it is the taxpayer who has ultimately funded the PHSO's legal enquires.

I also don't buy the argument that the no solicitor will ever provide them with honest legal advice ever again following the disclosure. Indeed, any public authority could argue that in regards to public interest disclosures of this kind. What they are essentially arguing is the respective law is inherently disproportionate, which is not a matter for the Tribunal - that is a matter for lawmakers.

Well done for securing an order. I suspect the PHSO will still try and wiggle out of actually handing it over to the Tribunal. Things are certainly getting very interesting though. Keep us posted!

M Boyce left an annotation ()

Thanks Jason.

Yes, the PHSO will almost certainly try and wriggle out of providing this external legal advice to the Tribunal. But this may not be easy for them. They may claim that they have 'lost' this legal advice, but even if this had happened, then the lawyers from whom it was commissioned keep copies of documents for a minimum of 5 years. The legal advice was commissioned in late 2016.

And even if the First-tier Tribunal do find that the public interest balancing test does favour withholding the legal advice, then I do have another card up my sleeve. This card is the FTT decision of Kessler v ICO (EA/2007/0043). Although the Tribunal found on balance that exemption outweighed disclosure, they did, however propose a remedy in their conclusion remarks. This remedy was to ask the authority to release a summary of reasoning/explanation of the legal advice. That is, the requester and the public get to see a reasoned summary of the legal advice, without the risk that full disclosure of all the minutiae may compromise the authority and the provisioning lawyers. The PHSO have failed to provide any such reasoned summary to date, and given that the Deputy Chair of the FTT considers that this represents a fair remedy in the case she decided, then it might be difficult for the Ombudsman to oppose this remedy being applied to them.

I would much rather see the full legal advice, but a proper reasoned and HONEST summary might well be acceptable. But my bet is that the PHSO would refuse even this compromise remedy, and for the simple reason that the legal advice almost certainly shows that the review process is not legal. Either way, the PHSO will be backed into a corner with this.

J Roberts left an annotation ()

'This remedy was to ask the authority to release a summary of reasoning/explanation of the legal advice.'

A recent UT decision (Judge Jacobs) you might be interested in:

"16. I have been asked to say whether the ‘public authorities are necessarily required to make submissions that refer explicitly to the content of the withheld information.’ The underlining is in the original. I decline that invitation. First, because public authorities are not required to make any submissions; what they say is a matter for them."

('necessarily required' is the phrase underlined)

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

M Boyce left an annotation ()

Thanks for that J Roberts.

It's clear that the Tribunal cannot, outside of ordering disclosure of the withheld legal advice, MAKE an authority disclose a summary of the legal advice. But, they can clearly ASK for an authority to do this if this would provide an equitable compromise. If the authority were to refuse this request, then that in itself would raise the question of why would they refuse this. In the case of the PHSO, they claim that transparency in and around their processes is of paramount importance. If that were so, then why would they refuse to meet, at least half way, their supposed commitment to transparency?
Throughout the PHSO submission to the Tribunal they claim that if they revealed their legal advice on the legal status of reviews then that might prejudice them if anyone were then to take the issue for judicial review. But they also state that the issue of the legal status of reviews can only be decided by judicial review!
Why then do they fear so much that which they advocate?

M Boyce left an annotation ()

I've now decided that I am going to ask the PHSO in my third submission to the Tribunal if they would now consider providing a full summary of their advice with a clear conclusion of their commissioned external legal advice, bearing in mind the advice from the above Tribunal. If they agree, then the Tribunal can compare this summary with the withheld legal advice and then decide whether it is both accurate and whether it would suffice for the purpose of transparency and justice or whether the withheld advice should be disclosed.
Does anybody think this sounds fair?

Jason left an annotation ()

Certainly sounds fair and reasonable to me.

M Boyce left an annotation ()

Thanks Jason

I will stress to the Tribunal that I obviously would MUCH prefer disclosure of the entire legal advice, but that a full and clear reasoned summary with definitive conclusion PRIOR to the Tribunal decision should suffice if it is truthful.

J Roberts left an annotation ()

No harm in asking. The judge may think that an accurate summary or gist would contribute to transparency without undermining the client/lawyer relationship. Have you any idea when your appeal willl be heard - this year or next?

M Boyce left an annotation ()

Thanks J Roberts.

The date for final submissions of all parties is now 22 July 2019. Obviously no hearing date yet as the Tribunal may have to issue a third direction ordering the PHSO to submit the vital evidence and to stop them sending irrelevant/misleading evidence as a distraction tactic.

M Boyce left an annotation ()

In the PHSO's published guidance: 'Principles of good administration' they state:

'Public bodies MUST NOT exceed their legal powers.'

But then in their December 2017 Board Minutes they state:

'The review process is not legally allowed.'

But then they decide to continue to do that which, by their own admission, is not legally allowed.

How can we expect the PHSO to hold public bodies to account when it cannot even account for its own behaviour?

So much for trust and transparency.

The First-tier Tribunal now currently has three cases listed against the PHSO - all made within the last three months or so. All three concern the PHSO's acting beyond their legal powers - which they demand that other public bodies must not do!

Mmm.

Jason left an annotation ()

Yes, I think that 'Principles of good administration' document is not worth the paper it is written on.

As for the PHSO in general, it seems like the megalomaniac lunatics are now running the asylum (just my opinion).

Jason left an annotation ()

Any further news, M Boyce? Has it got to the point yet where the PHSO have submitted another feeble excuse for not handing over the advice and complying with the Tribunal order?

M Boyce left an annotation ()

No further news at the moment. The Tribunal have given the PHSO until 24 June 2019 to either supply them with the external legal advice and explain why they didn't supply it earlier, or explain why they cannot or will not supply this information.
I will ask the Tribunal to let me know what the PHSO have decided to do by that date. If the Tribunal process is to be fair then I have to know whether this information has or has not been supplied by that date and the full reasons surrounding this. I need to know what is going on here as I can make one further submission to the Tribunal before 22 July 2019, and obviously I would like to make comment on whether the external legal advice has or has not finally been sent and the reasoning supplied alongside this.

M Boyce left an annotation ()

Very few section 42 FOIA appeals ever succeed with the First-tier Tribunal. Why is this? One of the reasons is that the ICO does not ask an authority (e.g. the PHSO) to send it ALL of the withheld legal advice. They merely ask them to send 'the withheld legal advice' and ask the authority to decide for themselves what legal advice to send. This allows an authority to cherry-pick the information which supports its case and to hide that information which does not. Even when you explicitly inform the Information Commissioner's Office that an authority is cherry-picking the information, the ICO just ignore you. They only listen when you inform the Tribunal as to what is going on. How many of the hundreds of section 42 appeal cases would have succeeded if the authority had been made to supply the Tribunal with ALL the relevant information by the ICO? We will never no, but it is likely to be a significant number. After all, the Tribunal can only make decisions based on the information that the ICO puts before them.

Jason left an annotation ()

Yes, that does not surprise me at all, particularity as we are all acutely aware of the way these organisations operate.

Jason left an annotation ()

The ICO never ceases to amaze me. I recent reported a concern to them regarding my GP Practice and incomplete medical records. The advise they gave my GP Practice, which I have in writing from the Practice, is now completely the opposite approach they have taken in regards to dealing with my concern report.

I have now sent them a copy of that letter and asked them to explain themselves.

They really are a hopeless bunch...

M Boyce left an annotation ()

I think the ICO are much more than just hopeless - they are unashamedly biased in favour of authorities, and the thousands of published DN's clearly show this. They are also contemptuous of the Tribunal process. My experience, and the experiences of others too, shows that the Commissioner, at least sometimes, actively works to undermine the Tribunal process by trying to ensure that it never gets to see the crucial evidence, or alternatively they misrepresent the evidence. When this happens they are never held to account for this by the Tribunal - not even the slightest censure or rebuke.
When there is no accountability, there can be no justice or fairness.

Jason left an annotation ()

Yes, very succinctly and accurately put. I am in total agreement.

What a sad state of affairs we find ourselves in.

M Boyce left an annotation ()

Thanks Jason.

Tomorrow is D-Day. The Tribunal have given the PHSO until 24/06/19 to either send it the withheld external legal advice and explain why it did not do so earlier, or explain why it cannot or will not do so.
Obviously, if the PHSO do send the external legal advice then I won't get to see it at this stage, but I have asked the Tribunal, in the interests of justice, transparency and fairness, to let me know what reasons the PHSO has supplied regarding either late sending or no sending of this information.

Jason left an annotation ()

Things are certainly getting very interesting, M Boyce.

I suspect the PHSO will do anything and everything possible to keep hiding the advice, but may be forced to accept they are now scuppered. You certainly have them in a rather uncomfortable position though.

Keep us posted!

M Boyce left an annotation ()

OK, as fully expected the PHSO are continuing to play their dirty tricks.

They have now asked the Tribunal to keep me in the dark about whether or not they have now sent the Tribunal the withheld external legal advice.

The Tribunal are now deciding whether the PHSO's request should be granted or not.

Needless to say I will have zero confidence in the Tribunal process if the Tribunal does allow the PHSO to further undermine proceedings in this way.

I would hope to hear from the Tribunal's Registrar, who has delegated authority from a judge, by the end of this week.

Jason left an annotation ()

That sounds like pretty typical conduct from the PHSO and their ilk to me.

How on earth is that meant to be conducive to a fair and transparent process?

M Boyce left an annotation ()

It's not conducive to a fair and transparent process.

The very essence of the Freedom of Information Act is transparency in and access to information held by public authorities and which is in the public interest. The WDTK site is such a valuable resource because it powerfully promotes this transparency for the public good. And that is why I have chosen to document this ongoing FOIA request in such detail. The FOIA, WDTK, and the First-tier Tribunal are all built on the premise of openness and transparency. If the public cannot see justice being done, then how do we know justice is being done?

Ultimately the Tribunal will decide in this case whether it is in the public interest that transparency prevails or does not prevail.

J Roberts left an annotation ()

The PHSO does not seem wedded to the idea of transparacy. This recent Commissioner's Decision concerns Section 31(1) of theFOIA (the prevention or detection of crime). Read about 'malicious actors', 'cyber trolls' and 'spear phishing':

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

M Boyce left an annotation ()

I agree that the PHSO are certainly not wedded to the idea of transparency. In the case you have provided a link to, I do think, however, that withholding information about the PHSO's security guidance and security operating processes does not seem unreasonable. Although there is clear value in the public knowing how secure these systems may be, there is also a real risk that this information could be misused by those with malicious intent. The same or similar argument cannot be made with regard to the PHSO's review process. The lack of transparency here serves only the PHSO and no-one else.

Jason left an annotation ()

Any idea when the Tribunal may reach a decision on this recent issue, M Boyce?

I would have to agree that if the Tribunal accede to this very dubious request from the PHSO, I also have zero confidence in the Tribunal process. This said, based on my experience with Employment Tribunals, I know how they tend to bend over backwards for organisations. I have had many shocking experiences in that regard, which has certainly compounded and solidified the sense that there is very little or no justice for the ordinary person.

M Boyce left an annotation ()

I would expect it would be sometime this week, as time for final submissions is now short.

All any of us can do is hope that the Tribunal process will be fair for all parties. If I didn't believe that this was possible then I wouldn't put the case before them.

Jason left an annotation ()

Okay, let us know when you hear something further.

Yes, I share you hopes and am obviously am rooting for you, but I have a very dim view of the judiciary as you know.

As you have said before though, if we lose this battle, the war against this rotten bunch must certainly go on.

I have just heard more regarding my concern report to the ICO regarding my incomplete medical records. They are now disputing the advice given by their advice line to both the GP Practice and myself. So, they can't even agree with themselves.

To make matters worse, they now purport that Art. 16 GDPR requires the GP Practice to do the following in circumstances where information is missing from my medical records:

"It is our view that it is for you to provide the supplementary statement which would indicate that you disagree with information in your records and the reasons why." (sic)

So, essentially, they are purporting that I should ask for a note to be added to the medical record stating that I disagree with the information that is not in my medical records, without even knowing what that information is or should be. You would really think that common sense would tell them that in order to disagree or agree with something, you actually need to know the fact(s) or opinion(s) that you may or may not agree with.

I truly despair with this lot.

Jason left an annotation ()

I am assuming that no person can be that half-witted, so I am putting that down to yet another case of absolutely shameless bias.

M Boyce left an annotation ()

Yes I totally agree.

M Boyce left an annotation ()

And then we have this hypocritical nonsense from the PHSO:

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

The ICO says that openness and access to information is key to a healthy democracy, and yet they then act to promote secrecy and deny access to information.

There is more spin at the ICO than at a washing machine conference.

J Roberts left an annotation ()

Latest PHSO judical review (dismissed):

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

Jason left an annotation ()

M Boyce, yes, that is yet another classic. What a total charade...

J Roberts, not surprising to see yet another JR brought by an ordinary member of the public being dismissed.

J Roberts left an annotation ()

M Boyce,

From the report you cited:

'We will achieve our ambition by:

ensuring that access to information rights is upheld in a consistent and timely manner and operates effectively in a digital age;'.

Anyone with a little knowledge of the ICO in practice is likely to doubt that the 'ambition' will ever be realised.

M Boyce left an annotation ()

Thanks J Roberts.

My ambition is to win the jackpot on the Euro Millions lottery. An ambition that is much more realistic than the ICO's ambition.

In terms of the recent PHSO JR you have provided a link to above, in my case the important paragraph is 24:

'Section 3 (2) [of the Health Service Commissioner's Act 1993] provides that in 'determining whether to initiate, continue or discontinue an investigation under this Act, the Commissioner shall act in accordance with his own discretion'. I accept the Defendant's [PHSO] submission that this encompasses any decision about the scope of an investigation..'

It is not clear whether the appellant asked the PHSO for a review of their final decision (report).

The PHSO always maintain that a review is not an investigation. It remains completely unclear how you can review a decision without investigating it. Perhaps you could pull funny faces at it instead?

If common sense prevails and you accept that a review is a further investigation, and not just a face-pulling competition, then the judgement above makes it clear that that judge would regard a review as legally allowed for. This view accords with what the PHSO have stated in response to Nicholas Wheatley's (via phsothe facts) FOI request as referenced many times above. Both conflict with what the PHSO said in their December 2017 Minutes, the Dyer High Court judgement, and what is almost certainly said in the withheld external legal advice: the review process is not legally allowed for.

In almost every case that the First-tier Tribunal have ordered disclosure of the withheld legal advice the crucial reason was because of a lack of transparency in the authorities actions or advice. There could be no clearer lack of transparency than in the legality or otherwise of the PHSO review process.

Jason left an annotation ()

"My ambition is to win the jackpot on the Euro Millions lottery. An ambition that is much more realistic than the ICO's ambition."

That certainly made me chuckle. Yes, it doesn't take much to scratch a little beneath the surface to see the ICO for what it is, and it is certainly not a pleasant sight.

Regarding the other points, yes, I totally agree. When one also weighs in the fact that the PHSO is the only point of redress for most people, some very vulnerable, in regards to serious healthcare wrongdoings etc. then the issue of the legality of the review process becomes a profoundly serious issue. Indeed, if the current review process is unlawful, which of the face of it is, then this makes a complete mockery of the principles of natural justice the PHSO is meant to adhere to.

M Boyce left an annotation ()

Today the Tribunal have informed me that the PHSO has now FINALLY sent it the withheld external legal advice. The PHSO were kicking and screaming as it was prised out of their hands. Both the PHSO and the ICO now have until 22 July 2019 to explain to the Tribunal and to me why they thought it was such a clever idea to try and fool me and to try and undermine the Tribunal process in this way.
Is it any wonder that most appeals to the First-tier Tribunal do not succeed when the authority, aided and abetted by the ICO, do every thing they can to try and prevent the Tribunal from seeing crucial evidence it needs to see for it to make a fair and balanced decision?
Most complainants would assume that the PHSO would send the Tribunal all the relevant documents it requests and needs.
If we cannot trust the PHSO to be straight with the Tribunal then what chance is there of the PHSO ever being straight and honest with complainants?

Jason left an annotation ()

That sounds like a very positive step forward, M Boyce. It seems we may get at least a crumb of justice here.

Yes, the PHSO and the ICO are one seriously dubious bunch who will do anything and everything to avoid being held to account. Seems they couldn't lie straight in bed.

It would certainly be very interesting to get a sense of what they have been trying so desperately to hide.

Well done in all your efforts.

M Boyce left an annotation ()

Thanks Jason. Yes it is a very positive step forward.

Everybody knows that the PHSO and the ICO cannot be trusted and the ICO is hugely biased in favour of authorities. But, knowing this and proving this are two different things. Sometimes you do get proof, as in my case.
It is difficult to overestimate the importance of all this: both the PHSO and the ICO have tried desperately to undermine the Tribunal process. If this happened in a court of law (and remember Tribunals are also headed by judges) those responsible for attempting to pervert the course of justice could face a custodial sentence.
I was very lucky because I could show (thanks to the Nicholas Wheatley FOI request) that the PHSO had indeed commissioned external legal advice on the legal status of its review process and were trying to hide it (and aided by the ICO). What would have been the chance of the PHSO supplying the Tribunal with this advice on trust? The answer is zero. Remember too that the PHSO are fighting like rats in a sack to try and persuade the Tribunal that I am trying to undermine the Tribunal process for asking for the Tribunal to be provided with all the relevant information! This must also apply to other authorities - they will simply not send the Tribunal the crucial evidence, and the ICO not only does not ask them to do so, but then works to try and prevent crucial evidence reaching the Tribunal.

The whole system is thoroughly rotten.

M Boyce left an annotation ()

For any public authority to work fairly and effectively it needs to be subject to rigorous checks and balances. For the PHSO these checks and balances are basically PACAC and the ICO, and then ultimately the First-tier Tribunal. The PHSO time and time again uses its statutory 'wide discretion' to effectively do whatever it wants and with total impunity - including acting beyond its legal powers. But this 'wide discretion' does not and cannot ever allow them to act beyond their legal powers. Both PACAC and the ICO have allowed the PHSO to act beyond their legal powers and therefore these checks and balances have failed. Without rigorous checks and balances in a liberal democracy you have no liberal democracy - just a dictatorship masquerading as one.

phsothefacts Pressure Group left an annotation ()

Well said M Boyce.

Jason left an annotation ()

Totally agree, M Boyce.

I think the PHSO and ICO really underestimated your skill, tenacity and diligence (e.g. the Nicholas Wheatley FOI request) and have now been caught with their pants down.

It is also very rich that they accused you of trying to undermine the Tribunal process.

All this, of course, makes a complete mockery of the PHSO and ICO’s impartiality and sound judgement, which it purports to have, as you say.

I think, if successful in all this, you should go straight to the press, as this is certainly information that the taxpayer should see.

M Boyce left an annotation ()

All parties final submissions are due by 22 July 2019. I will then get to see what both the PHSO and the ICO have to say before the Tribunal then get to consider the case in the coming months.

Although all this stems from my own individual complaint, it has mushroomed far beyond that. It now goes to the very foundation of the PHSO as an organisation; and that foundation is trust. The more you dig down into this Ombudsman the more you discover the ugly truth that they can never be trusted. I am increasingly astonished at the lengths to which the PHSO will go to try and defeat entirely reasonable and legitimate concerns that the public bring to them. It is an organisation that has now become so ossified, so defensive, so invested In its own supposedly unlimited and uncircumscribed power that it has become completely blind to what is fundamentally right and what is fundamentally wrong. This organisation can never change because it simply cannot see right for wrong: every complainant is always wrong and they are always right. And that is not because they are always right, but because when an organisation can never be effectively challenged then it believes that it should never be effectively challenged. There is no meaningful dialogue here, no discussion about remit - only a concerted effort to shut-down dialogue and any legitimate challenge to their 'wide discretion'.
Any new Public Service Ombudsman may offer new hope, or it may not, but it is unlikely to be worse than what we have now. The public deserve an Ombudsman that is prepared to listen and change and not just ignore and entrench. And for that reason the PHSO must go.

A.E. left an annotation ()

On the basis of this, which is added to misconduct towards complainaints all over the place by PHSO, I would say this is grounds to challenge PHSOs wide discretion due to abuse of powers. There has to be a petition in this at the least.

M Boyce left an annotation ()

A.E., a petition sounds like a good idea, but I'm not sure whether it would work in practice. For any petition to have any leverage it needs to get a large number of people signing it. Most people don't know what the PHSO is up to and to be honest probably don't care unless it directly affects them. Things don't get changed in this country partly because people can't be bothered to change them.

You say that there is 'grounds to challenge PHSO's wide discretion due to abuse of powers.'

Yes, and that is what my case is aiming to do. The problem is the statutory legislation does confer on the PHSO wide discretionary powers. This wide discretionary power is not defined or explained and that is why the Ombudsman can conduct investigations ALMOST as it likes. The key word here is almost.

In the Dyer High Court judgement it stated the following:

'Section 5(5) , as already indicated, confers a wide discretion indeed; it does not, however, purport to empower the PCA to re-open an investigation once his report is submitted.'

The PHSO have been playing a game with semantics for many years, and that game is stating that a review is not a re-opening or an investigation. But what is a review if it is not a re-opening or an investigation? The PHSO claim it is merely a checking exercise to see if they did anything wrong. But by definition you cannot check whether anything was wrong with a final report unless you re-open a final report and then do an investigation. You simply have to investigate what went wrong. The PHSO is arguing, against Shakespeare's famous phrase, that a rose is not a rose if you call it something else. According to the PHSO a rose is not a rose if you call it a lemon, and a review is not a re-opening of an investigation if it is called a checking exercise.

The PHSO's wide discretion is not so wide that it allows them to act beyond their legal powers by playing silly-beggars with words. That would be like a defence lawyer claiming that their client could not be convicted of committing a murder that he had clearly committed because that client and lawyer had decided to call murder a lemon instead!

Jason left an annotation ()

Absolutely agree, M Boyce.

Yes, I think in order for any “review” to be fair and reasonable it needs to reconsider all the facts and matters relating to the original investigation. It simply can’t do that without conducting some kind of investigation or reinvestigation, albeit an ad-hoc one, no matter how the PHSO chooses to dress the review process up.

I remain firmly of the view that the review process is nothing but a cynical attempt to undermine any complainants ability to bring a Judicial Review challenge, which would also explain, albeit in part, why no ordinary member of the public has brought a successful challenge. The PHSO are also intimately aware that the judiciary will expect the complainant to exhaust all lines of complaint. I think what the PHSO is therefore doing is forcing complainants to show all their cards, so to speak, by way of the review request, so the complainant is left in the position where he/she can only challenge the rationale. Of course, challenges brought on the grounds of perversity/irrationality almost never succeed, particularly in circumstances where the judiciary is going have a strong deference to the PHSO, and no right-minded person would want to run the legal costs risk.

A.E. left an annotation ()

I'm very glad your case is aiming at that. It's worth remembering that in Miller v PHSO JR, the judge stated:

"The standard chosen by the ombudsman is beguilingly simple but incoherent. It cannot provide clarity or consistency of application to the facts of different cases. There is no yardstick of reasonable or responsible practice but rather a counsel of perfection that can be arbitrary. It runs the risk of being a lottery dependent on the professional opinion of the advisor that is chosen. It is unreasonable and irrational and accordingly, unlawful."

http://www.bailii.org/ew/cases/EWCA/Civ/...

Some interesting comments by the judge in that case where it basically says if PHSO use a different standard than what they have published, that "But then if the practice has been to publish the current policy, it would be incumbent upon him in dealing fairly to publish the new policy, unless again that would conflict with his duties." so they can't just arbitrarily decide off the top of their head each time which standard they will follow, without notice.

So wide discretion isn't a license to do as they see fit.

M Boyce left an annotation ()

I agree that wide discretion is not a license for the PHSO to do whatever they see fit. Unfortunately the PHSO do see it that way, and so to a large extent do the ICO and much of the judiciary.

A.E. left an annotation ()

Completely agree, but that is a legal judgment that's on the record and can be used. Clearly states abuse of wide discretion is unlawful.

M Boyce left an annotation ()

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

And today we have the above truly extraordinary decision published by the ICO. It is one of the few cases of section 42 - legal professional privilege - that has been upheld by the ICO. But what makes it so unusual is what it states in paragraph 34:

'The complainant did not offer any reasons why he considered it would be in the public interest to disclose the requested information.'

The burden of proof that disclosure is in the public interest lies with the complainant. Normally no matter how persuasively a complainant argues that disclosure should occur, it is not often that the ICO agrees. Here they have agreed with themselves on something that they would never ever normally do!
In the above DN it states:

'..the Commissioner does not consider that the public interest considerations need to be exceptional in order to overturn [override] the strong public interest in maintaining the exemption [legal professional privilege].'

Yet in my DN it stated:

'Only in very exceptional cases can this [legal professional privilege] be overridden when considering where the public interest lies.'

The senior case officer in my case states the above in all her section 42 decisions - without variation and without exception.

The ICO is an organisation that is so dysfunctional and schizophrenic that some days it is Arthur and other days it is Martha. There is no logic and no fairness to their cavalier and capricious decisions.
The ICO uphold about 1 in 70 of their section 42 decisions, and when appealed to the Tribunal this translates to about 1 in 15 upheld. Can this really be described as 'very exceptional'? 1 in a thousand or 1 in ten thousand might be very exceptional, but not 1 in 15.

A.E. left an annotation ()

Just goes to show that they act completely arbitrarily, same as PHSO and that it boils down to what they personally agree with exempting or otherwise, no matter what the actual law itself is or whether it is being misused!

J Roberts left an annotation ()

M Boyce,

"42. She considers that there is a strong public interest in understanding the advice which the CPS received in relation to compelling the Sovereign to appear as a witness in criminal proceedings which is still considered current. The Commissioner is not aware that the CPS has published a policy or any guidance on this issue."

The above paragraph caught my eye.

M Boyce left an annotation ()

Yes A.E. you have summed it up with the word arbitrary. We know that both the PHSO and the ICO are ideologically and, particularly at the top level, biased in favour of the establishment. But most of the decisions are taken by low level case-workers, and of course they are all individuals with their own views on matters. Some will be more understanding than others, some will be more intelligent than others, some will be more thorough than others, some will be more lazy than others, and so on. Each case-workers decision is then presented as the decision of the Ombudsman or the Commissioner respectively. But of course this a purely delegated and largely personal decision. Each case-worker clearly works according to their own personal 'script'. You can't see this with the PHSO because they don't publish their cases, but the ICO of course do publish their decision notices and the names of the case-worker. If you look at any particular case-workers decision notices you can clearly see their individual signature style or script and this illuminates their particular preferences and prejudices.
With regard to section 42 of the FOIA some case-workers think that legal professional privilege can only be overridden in very exceptional cases and other case-workers do not agree and instead they follow what the FOIA 2000 actually states and that is that disclosure should occur if the public interest in disclosure outweighs the public interest in exemption, and nothing else.

So we have institutional bias driven down the ranks by the top brass coupled with a wide arbitrariness in decision-making by the case-workers that combines to create a highly dysfunctional and unfair pairing of the PHSO-ICO collective.

Whether you receive a fair decision by the PHSO and/or the ICO is little more than a lottery: if you get lucky - very lucky - you may just get some justice. Surely we all deserve much better than this.

M Boyce left an annotation ()

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

Let's see if the ICO can be bothered to explain why some of their case-workers follow section 2 of the FOIA with regards to section 42, and why some case-workers unfairly import exceptionality into the FOIA where it not stated, not justified and not fair.

So we have the ICO deliberately misinterpreting the FOIA and we have them deliberately trying to undermine the Tribunal process by trying to make sure that the Tribunal is denied all relevant information.

Good old ICO: first they try to undermine the FOIA, and then they do the same with the Tribunal. Don't you just love em!

Jason left an annotation ()

Indeed, M Boyce.

As you know, it has also been my experience that the ICO can't even agree with themselves on the simplest of issues.

I am beginning to consider that organisations like the ICO and the PHSO are there to exercise bias in favour the government/establishment. They may not have been set up that way, but they have certainly turned into a monster. They may have a very few amount of employees (and I mean very few) who are willing to act in the best interests of the taxpayer, or at least look at things somewhat impartially, though it certainly strikes me that they have been mainly browbeaten and coerced their employees into exercising bias in favour of the government and government agencies.

One thing I have also learnt is that as soon as you expect the Ombudsmen or ICO etc. to think and exercise some nous and/or diligence, your complaint or concerns are doomed to fail. In other words, if there is wiggle room for bias, that is exactly what you will get in the vast majority of cases.

Jason left an annotation ()

Did you ever get an explanation as to why the ICO and/or PHSO tried to fool and deceive you and the Tribunal by deliberately withholding the respective legal advice, M Boyce?

M Boyce left an annotation ()

Jason, the Registrar at the Tribunal has told the PHSO and the ICO that they must make final submissions to the Tribunal by 22/07/19 explaining why they tried to prevent the Tribunal receiving the crucial withheld external legal advice. They have been told that these submissions should be open and not closed unless deemed necessary. That means that I should get to see their explanations if they deem it necessary. Obviously the PHSO and the ICO are going to state that it is not necessary that I know what is going on. I also won't know what is decided until it is too late, as my final submission to the Tribunal must also be made by 22/07/19. So the comedy double act that is PHICO will almost certainly concoct some cockamamie excuses why I should be kept in the dark about all this. It will be fascinating to find out what these are - if I'm allowed to know!

M Boyce left an annotation ()

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

I nearly choked on my Frosties when I read this. 'The CQC lacks openness [transparency] and accountability.'

Yes, Mr Behrens, and they are not the only one's, are they?

Jason left an annotation ()

Yes, the words 'pot', 'kettle' and 'black' come to mind.

M Boyce left an annotation ()

Today is the publication of the PHSO's 2018-19 Annual Report. In that report they repeatedly crow about their exemplary transparency. This is nothing more than a really bad joke.

Several weeks ago the Tribunal asked both the PHSO and the ICO to fully explain why they refused to supply it with the PHSO's commissioned external legal advice about its review process. That explanation was due today. In the interests of transparency I was supposed to have been informed of these explanations. This has not happened, so I am now going to contact the Tribunal again to try and find out what is going on.

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