Dear Parliamentary and Health Service Ombudsman,

The PHSO has been playing an extremely dangerous game with regard to access to judicial review for several years. The Customer Care Team (CCT) take around 3 months to decide whether to conduct a requested review of a Final Decision. The complainant has to decide whether to risk waiting for 3 months to see if the CCT will agree to offer a further review, or whether to risk applying for judicial review before the 3 month application window closes. Both options of the PHSO game of risk are deeply unpleasant: wait to have your appeal probably rejected, or apply for judicial review with the huge risks that this involves. The PHSO's behaviour is outrageously disgraceful. Thousands of people will have been forced to play this hideous game of risk. A large number of lives will have been ruined by this game of PHSO judicial risk. Why doesn't the CCT just let complainants know within say 6 weeks whether they will conduct a further review or not? That way there would still be enough time to apply for judicial review if a complainant wanted to. This 'timing out' of judicial review has been going on since 2015, and Mr Rob Behrens is fully aware of it. It undermines everything the PHSO purports to stand for.

In the 2016-17 Annual Report it states:

'Of the eight applications for judicial review in 2016-17, five claims were discontinued or refused permission to go forward to a full hearing.'

How many of those five were discontinued because the PHSO agreed to offer a fresh review?

Yours faithfully,

M Boyce

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


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M Boyce left an annotation ()

In the PHSO Annual Report of 2015-16, under the subheading Judicial review, it states the following:

'We receive letters about potential claims [letters before claim] for judicial review before they enter this COSTLY process. We offer a meeting to explain any legal points we plan to respond with, to try to resolve the issue.'

Splendid. So, does the PHSO Annual Report 2016-2017 also offer such reassuring advice. Err.... no! It doesn't contain it, and the PHSO no longer offer it. Not so splendid. The PHSO legal team actually refused to even look at the grounds for my application for judicial review in my letter before claim. I asked them at east six times by phone and email to please look at my grounds in my letter before claim. Each time they refused to do so. Don't you just love the fairness and transparency of the PHSO? Let's see if the judge in my JR application loves it.

InformationRights, Parliamentary and Health Service Ombudsman

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Dear M Boyce  

 

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InformationRights, Parliamentary and Health Service Ombudsman

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Dear M Boyce

 

RE: Your information request: FDN - 275016

 

I write in response to your email of 24^th January 2018 in regards to your
request for information held by the Parliamentary and Health Service
Ombudsman (PHSO). Your request has been handled under the Freedom of
Information Act 2000.

 

You have requested the following:

 

In the 2016-17 Annual Report it states:

 

'Of the eight applications for judicial review in 2016-17, five claims
were discontinued or refused permission to go forward to a full hearing.'

 

How many of those five were discontinued because the PHSO agreed to offer
a fresh review?

We can confirm that none of the five claims were discontinued because we
agreed to offer a fresh review. 

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to specify what the nature of the issue is and we can consider the matter
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Commissioner’s Office ([2]www.ico.org.uk).

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M Boyce left an annotation ()

So the PHSO are not agreeing to offer a fresh review to any complainant who challenges their Final Decision through application for judicial review. Judges are not allowing permission to proceed. The problem is that it is now clear that most, and probably all, of those people who apply for judicial review are doing so after not being treated fairly by the PHSO. This is not a matter of opinion, but a matter of unarguable fact. The Ministry of Justice Judicial Review Guide makes it very clear that anyone applying for judicial review should exhaust an organisations internal complaints process (in terms of the PHSO, a request for a CCT review) before they apply for judicial review. The PHSO takes more than 3 months to complete their internal complaints process, thereby timing complainants out of the judicial review window. People applying for judicial review are therefore having to apply before the internal complaints process is completed. A judge would then likely refuse permission for applications for judicial review to proceed because they failed to adhere to the Ministry of Justice Guide on exhausting the internal complaints process. This whole matter is getting more and more serious on a daily basis.

Calum Clark left an annotation ()

Whether this is correct is another matter, but in the below pre-action protocol for judicial review (letter before claim) it is stated by the complainant that the clock starts ticking in respect of the tree months time limit on the date of the Ombudsman’s (LGO) review letter.

https://www.scribd.com/document/35799198...

"I look forward to receiving a response in due course and, in any event, by no later than Monday, 18 September 2017. I take the date of decision being challenged to be 7 August 2017 (the Ombudsman’s review letter) and therefore consider that the statutory time limit within which I must bring a claim is no later than 7 November 2017"

M Boyce left an annotation ()

Thanks for this information Calum. It's good to get as much information on this matter as possible. There is no denying this is a complex and difficult issue.
In the Administrative Court Judicial Review Guide 2017 it states the following under Section 5.4.1:

'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.'

The grounds FIRST arise at the issuance of the PHSO Final Decision, and it seems with all Ombudsmen organisations. The PHSO Legal Team have confirmed this, as below:

'If you wish to appeal the Ombudsman's decision then you have 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.'

I am expecting a decision on my judicial review application imminently. I will let you know what happens and what the judge says in regard to this issue, as I have raised it at length with the Court.

Calum Clark left an annotation ()

Thanks M Boyce for that, I will be interested to know how things turn out. On a similar theme, it strikes me that all the tens of millions of pounds which is ploughed into the various statutory complaint bodies each year could be considered a fraudulent use of taxpayer funds. People are being suckered into believing that concerns will be fairly dealt with when in fact they are allowing the organisation to make the injustice they have already suffered at least ten times worse by a system which has been designed to fake accountability.

J Roberts left an annotation ()

Calum Clark,

I agree with you that a lot of public money is used in a way that doesn't benefit the public but gives theimpression that it does. The PHSO was once described to me as something like a 'virus vault' - better to have, say, a medical negligence case contained within the Ombudsman than pursued through the courts, where the cost to the public purse would be much higher. It also provides politicians with an easy means of passing the buck - 'the free and independent Ombudsman is on the case, goodbye'.

From what little I have read on how the medical profession defends cases of medical negligence, I do not see how the PHSO is properly resourced to compete with the expert legal teams they would frequently face if they were inclined to challenge the health authorities .

phsothefacts Pressure Group left an annotation ()

The Ombudsman is a national disgrace - or should be if the media allowed the public to see the truth. It is a silo for all the toxic waste produced by government. It protects the system and in return is protected by the system - politicians, courts, police and media. Tonight on Dispatches 8.00 Channel 4 there is an undercover investigation of the Financial Ombudsman. Watch and weep for they all work the same way.

J Roberts left an annotation ()

On the subject of the Financial Ombudsman, here is a recent First-tier Tribunal decision that demonstrates the impossibility aggrieved complainants have in using FOI legislation to obtain information on the performance of those who dealt with their complaints.

The appellant in this case asked:

“1) I would like to know over the last seven years how many subsidence cases [name redacted (‘X’)] has adjudicated over?
2) Out of these, I would like to know how many [X] found in favour of the business and how many [X] found in favour of the consumer?
3) Of the cases that [X] found in favour of the business, how many were escalated to be decided by an ombudsman?
4) Of the ones that went before an ombudsman how many were upheld and how many were overturned?”

The appeal was dismissed on personal data grounds:

'24. We accept that the Appellant has a legitimate private interest in the information. However, this is outweighed by X’s legitimate expectation of privacy such that disclosure to the world at large would be unwarranted.'

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

M Boyce left an annotation ()

The Dispatches programme tonight about the Financial Ombudsman was very much a case of: 'we told you so'. I agree it's certainly entirely typical of all Ombudsman organisations. The caseworkers who work for these QUANGOS are so poorly trained that they do not know what they are doing. More seriously still is the senior management who actively encourage poor training and push case loads to breaking point. Those in charge are guilty of the most serious misconduct in public office, but just sit there in their ivory towers laughing and sneering at those that will try to challenge them.

phsothefacts Pressure Group left an annotation ()

You are right about 'ivory towers' they think they are protected on all sides so act with impunity. In the latest PHSO service charter, they give themselves 100% for making impartial decisions. So why do 3,000+ people request a review every year? Deaf, dumb and blind.

https://www.ombudsman.org.uk/publication...

M Boyce left an annotation ()

The following is from the PHSO's review of my decision and my service complaint, 9 May 2018.

Judicial review action -

'We do not agree we forced you into taking premature judicial review action.
We accept that the courts' civil procedure rules say a judicial review claim form must be filed not later than three months after the ground to make the claim first arose [the PHSO Final Decision]. But we do not accept that in taking more than three months to complete a review, we forced you to file a claim so as to not be out-of-time to do so.
Due to where decision-making on judicial review lies, we are unable to provide certainty on what would happen. But we note the courts have discretion to accept an out-of-time application for judicial review. We understand that in practice the courts are generally unwilling to accept a judicial review claim before local resolution processes [review] are complete. It is also not our practice to argue that a judicial review application should be dismissed as out-of -time, if it is out of time solely because of the time we have taken to complete our review decision [such generosity of spirit!].
That said, we cannot make that decision or say an out-of-time application in the above circumstances will always be accepted [the PHSO solicitor told me explicitly that it will likely NOT be accepted]. That decision rests with the courts and it has the option of not accepting the claim.
So, we accept waiting for our review process to complete involves an element of RISK given the decision on a late application is the courts'. But we do not agree that means we have forced you into a premature judicial review application. You had a choice as to whether you wanted to wait for us to complete our review, and accept the RISK that the courts might not accept the application, or to apply in any case. You were at liberty to obtain your own [very expensive] legal advice on that point.'

The PHSO are right that I was not physically forced into making a premature application, but I had only three options: premature application, out of time application, or no application at all. The PHSO do not provide the fourth fair option: application within time. They offer no apology for the RISK this places on complainants. They claim to be fair, but this proves they are not. It undermines EVERY decision they have ever made or will ever make, because fair and unfettered access to judicial review is the only possible safeguard or means of holding the PHSO to account - even that has now been shown to be an utter sham because they are needlessly and unapologetically exposing complainants to unacceptable RISK (financial ruin, having the case refused as premature).

Ben left an annotation ()

"So, we accept waiting for our review process to complete involves an element of RISK given the decision on a late application is the courts'. But we do not agree that means we have forced you into a premature judicial review application."

I would go as far as saying that even making the initial complaint involves a significant element of risk, but that is not always apparent because after all you are lulled into a false sense of security by the fact that the organisation goes by the misleading name of "Ombudsman".

M Boyce left an annotation ()

Yes, but at least a complaint to the PHSO is free, unlike an application and full hearing for judicial review, which could easily cost you one hundred thousand pounds. That is why it is so important that the PHSO is not allowed to continually financially ruin complainants in the way it is doing. JR is the ONLY possible (but in practice almost impossible) way of holding the PHSO to account.
In the Memorandum to PACAC by PHSO, November 2017 it states the following:
21 'Complainants are of course able to seek a judicial review of our decisions if they think we have got it wrong. We accept that this is a high bar to cross...'
Yes, but what they don't accept is that they have made that bar much higher in recent years by timing-out complainants from the 3 month judicial review application window, or conversely forcing them into premature judicial review.
Many applications for judicial review are simply and summarily refused by a judge because they are made prematurely (before a review is complete) or late (because the PHSO take more than three months to complete a review).
Together the PHSO and the judiciary are holding the high jump bar one at either end and when the complainant tries to jump it they both raise the bar in unison to ensure that the complainant is never able to get over it. The establishment works hand in glove to always defeat those who may dare to challenge it.
It's also no coincidence that since the ConDem Government abolished legal aid for civil law most cases that poor people bring are as litigants in person. The PHSO use tax-payers money to buy very expensive lawyers at swanky law firms like Landmark Chambers.
The PHSO also state themselves that judges always pay deference to the PHSO's 'expertise', and they also always pay deference to the PHSO big wig lawyers who they meet in the pub before they decide a case. A poor litigant in person is largely despised by both the PHSO and the judiciary for having the temerity to challenge the Conservative (in every sense of the word) establishment. It's not what you know, it's who you know that counts.

J Roberts left an annotation ()

M Boyce,

You have elucidated what judicial review means in practice for complainants. No matter how strong a complainants case, the rules of the game almost certainly ensure that a complainants application for JR is refused.

The PHSO can reject complaints confident in the knowledge that no judge will ever quash their decisons or declare them unlawful.

M Boyce left an annotation ()

The whole corrupt system can be, and will be, fully exposed for what it is. Hopefully then the whole credibility of the PHSO will be so fundamentally undermined that it will cease to exist. This will save the tax-payer over thirty million pounds a year and will also save potential complainants a huge amount of time, stress and money.
If I was not already in the interminable PHSO complaint system I would urge others not bother unless they are up for a very lengthy and messy fight.
My review decision came back on 09 May 2018 and it basically said that the caseworker had failed to look at important evidence. The senior caseworker who then reviewed the decision said that this evidence should not have been looked at. So the caseworker was rebuked for 'unwittingly' not looking at all the evidence, but then the senior caseworker said the evidence should not have been looked at in the first place! They are both wrong - it should have been deliberately looked at because it was of central importance.
I am now in the process of preparing a second application for judicial review of this reviewed decision. The judge who refused my first application as totally without merit made no mention of any of this. The only thing he said was that just because I disagreed with the PHSO decision that didn't make it wrong. He didn't even look at the evidence I presented. I would have appealed the first JR decision, but the PHSO made that impossible by agreeing to review their decision while the High Court was deliberating on their decision. Effectively I had the rug pulled out from under me on that occasion. Let's see what happens this time. This time I have managed to find a solicitor who may take the case on as full legal aid. Sadly he is on holiday for the next two weeks. I will let you know whether they agree to take the case.

M Boyce left an annotation ()

Hi Richard. You ask me in your email how can I make the Ombudsman play fair in their review of your final decision?
Sadly, the short answer to that is that you can't, because they won't.
Forget any notion of fairness when it comes to the PHSO. They will fight tooth and claw to cover-up wrongdoing by the establishment. The simple reason for this is because they are the establishment - they are a quango set up by the establishment and are accountable only to the establishment: they are their masters servant. They exist merely to fool ordinary folks into believing we live in a true liberal democracy - the elites have always ruled the world and they always will.
Having said all that, now, like me, that you are already deeply involved with this pernicious organisation I would urge you to fight them as tenaciously and bloodily as they will fight you.
The review of your decision will be a stitch-up, you can bank on that. They will tell you that it will be conducted fairly and objectively - utter cobblers.
Have you considered judicial review? This is a very difficult challenge and only you know whether you can 'win', or perhaps more importantly whether you can afford to loose.
Think about asking your MP to ask for an inquiry. They will probably fight against you too, but give them something to do instead of lining their own pockets for once!

M Boyce left an annotation ()

It's also important to remember that when Parliament establishes Ombudsmen organisations it legislates to give them 'a very broad discretion' in their decision-making - establishment speak for you can and you should cover-up wrongdoing at all costs because such wrongdoing reflects badly on the Government and ministers.
The judiciary have also adopted this conservative approach by using case-law to entrench the position of always deferring to the Ombudsman's 'expert' judgement. My caseworker was barely literate and could not even tie his own shoe laces - and yet a judge will always defer to his 'expertise'. Anyone who has ever brought a complaint to the Ombudsman will know far more about their case than any Ombudsman 'expert' caseworker will ever know. You are only an 'expert' if you work for an Ombudsman. Isn't that right m' 'learned''lud?

M Boyce left an annotation ()

The judiciary and judges will always claim that they are not biased in their decision-making. In the case of the PHSO they are both de facto and de jure biased. If you start out with a predetermined decision then you are necessarily biased.
The judge in my judicial review stated the following:

'The Defendant [PHSO] has a wide discretion as to how it conducts an investigation. It follows that a claimant faces a high hurdle in seeking to persuade a court that the Defendant has acted unlawfully.'

The PHSO can conduct an investigation in any way it sees fit. It doesn't matter how bad that investigation is because judges are biased in favour of the Ombudsman. Judges begin any investigation into the Ombudsman with the predetermined and unshakeable belief that they are always right ( because they have a wide discretion to be right or wrong) and that complainants are always wrong.
Justice should always be about looking fairly and without bias at both sides of an argument.
If a person was charged with murder and chose to represent themselves in court (as many do in civil judicial review cases- because they have no choice) and the prosecution had their fancy big-wig lawyers, would justice be done if the judge told the jury that they should defer to the expertise and 'wide discretion' of the prosecution barristers and that the accused had a high bar to jump to make their case heard? That would be seen as a travesty of justice, so why is the present presumption in biased favour of the Ombudsman seen by judges as justice and therefore fair? In the final analysis a judge should to look at both sides of the argument fairly and equally, without making complainants take part in a ludicrous game of high jump and without giving the Ombudsman wide discretion to do whatever they want.

phsothefacts Pressure Group left an annotation ()

It is interesting to note that the Ombudsman has only lost two cases at judicial review in 50 years. The recent case Miller V The Parliamentary Commissioner was backed by funds from medical insurance. Essentially one part of the establishment fighting another part. The man in the street, funding his own case and with dubious legal advice doesn't stand a chance.

M Boyce left an annotation ()

Agreed PHSO, and I would urge anyone who does not have full legal aid to think very carefully before applying for JR because no matter how strong your case, if you can't afford to lose then don't do it.
My MP has just told me that the PHSO have told him that they are struggling to deal with reviews within the necessary 3 months because they have a backlog of cases. We all know that, and we all know that a backlog of cases has occurred because either the PHSO are under-resourced or are working very inefficiently/ineptly.
In the PACAC Annual Scrutiny Meeting 12 December 2017 the following;

24% cuts to the PHSO budget.

Q.17 Mr David Jones (PACAC):

'To be frank, do you need more funding?

A. Amanda Campbell (PHSO):

'We ARE resourced to look at cases that we have just concluded, to REVIEW those if we have made an error.'

Who then is PHSO misleading: PACAC or my MP and the general public?

The PHSO have clearly lied to PACAC and PACAC knows this. When I spoke to the clerk of PACAC on the phone to ask if they would investigate this issue he said - not a chance, and he was nasty with it too!
They will investigate it, eventually, no matter how long it takes, because I will make them do so and make them explain why they refused to investigate when I first asked them to. PACAC are funded by the tax-payer and they are ultimately accountable to them, and that includes Bernard himself.

M Boyce left an annotation ()

Anyone thinking of applying for a judicial review against a PHSO decision should consider the two 'm' tests for legal aid - means and merits - and you have to satisfy both to get full legal aid.
Have a look at 'The Civil Legal Aid (Merits Criteria)(Amendments) Regulations 2016.

J Roberts left an annotation ()

For anyone interested in what the court's role is in judicial review, here is Justice Warby's take on it:

'Where a court carries out judicial review, it is not determining the merits of the decision under challenge, or conducting an appeal. It does not reach a decision of its own on the issue that was before the decision-maker, and substitute that for the original decision. It only assesses whether the decision-maker has acted lawfully. If not, the remedies available include declaratory orders, orders quashing the decision, and orders requiring the person or body concerned to re-make the decision. '

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

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