Times the Ombudsman has been lied too

D Rapp made this Freedom of Information request to Parliamentary and Health Service Ombudsman

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was refused by Parliamentary and Health Service Ombudsman.

Dear Parliamentary and Health Service Ombudsman,

On how many occasions has the Ombudsman recorded that a government department or member of staff thereof has deliberately misled the Ombudsman?

On how many occasions has the Ombudsman recorded that an NHS body or member of staff thereof has deliberately misled the Ombudsman?

How many complaints does the Ombudsman record each year, from complainants that a government department or member of staff thereof has misled the Ombudsman?

How many complaints does the Ombudsman record each year, from complainants that an NHS body or member of staff thereof has misled the Ombudsman?

What policies and procedures govern the investigation and resolution of these complaints?

Yours faithfully,

D Rapp

foiofficer, Parliamentary and Health Service Ombudsman

Thank you for your e-mail to the Parliamentary and Health Service
Ombudsman. This return e-mail shows that we have received your
correspondence.

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D. Speers left an annotation ()

Wow!!! Thank you both!

This message has been hidden. This message has been hidden because it contained material which is entirely extraneous to the request and contains no discernible request for recorded information. Please contact us if you have any questions. If you are the requester, then you may sign in to view the message.

foiofficer, Parliamentary and Health Service Ombudsman

By email
Mr David Rapp

7 May 2014

Dear Mr Rapp

Your information request (FDN-188394)

Further to your email of 6 May 2014, I am writing in response to your information request.

In your email, you asked:

On how many occasions has the Ombudsman recorded that a government department or member of staff thereof has deliberately misled the Ombudsman?

On how many occasions has the Ombudsman recorded that an NHS body or member of staff thereof has deliberately misled the Ombudsman?

How many complaints does the Ombudsman record each year, from complainants that a government department or member of staff thereof has misled the Ombudsman?

How many complaints does the Ombudsman record each year, from complainants that an NHS body or member of staff thereof has misled the Ombudsman?

What policies and procedures govern the investigation and resolution of these complaints?

In order to respond to your first four questions, we would need to consider each individual file for every complaint brought to the Ombudsman. To do so would far exceed the appropriate limit at set out at section 12 of the Freedom of Information Act 2000 (FOIA). We are not therefore obliged to respond to these questions under FOIA.

In response to your final question, casework policy and guidance is an internal document used by caseworkers during their consideration and investigation of complaints. You have been provided with this information previously, for example, in response to this request: https://www.whatdotheyknow.com/request/c... As we have previously advised, caseworkers also take into account the Ombudsman’s Principles, which are available on our website at: http://www.ombudsman.org.uk/improving-pu...

Future requests that are repeated requests for the policies and procedures used by caseworkers may be refused under section 14(2) FOIA, which states that where a public authority has previously complied with a request for information by a person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed.

If you are unhappy with my handling of your information request, you can ask for a review by emailing: [email address]

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

Yours sincerely

Freedom of Information/Data Protection Team
Parliamentary and Health Service Ombudsman
W: www.ombudsman.org.uk

Please email the FOI/DP team at: [email address]

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Dear foiofficer,

I find it rather shocking that the Ombudsman does not record any data regarding whether it has or has not been lied to by a government department or an NHS body. I am also very concerned that you do not seem to recognise or investigate allegations made by complainants that a government department or NHS body has deliberately misled the Ombudsman during an investigation.

It beggars belief that when established, Parliament gave the Ombudsman a very real power to compel organisations to be truthful, by allowing the Ombudsman to put persons on oath, and yet the Ombudsman is unconcerned and uninterested in discovering whether or not she has or has not been lied to.

I do not feel that the information I have been provided with so far has provided me with an answer specific to what steps are taken or which policy is in place to ensure that allegations made by a complainant that a government body has intentionally misled the Ombudsman are properly looked into and appropriately scrutinised.

Having looked through all of the documents provided to me in the request mentioned, it confirms that a legal document exists outlining the Ombudsman's powers in this respect. But the documents I have been shown give no guidance or instruction as to their use or give any instruction to a caseworker on how to judge the veracity of a statement made.

I must therefore request a review of this complaint.

Yours sincerely,

D Rapp

foiofficer, Parliamentary and Health Service Ombudsman

Thank you for your e-mail to the Parliamentary and Health Service
Ombudsman. This return e-mail shows that we have received your
correspondence.

show quoted sections

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

[name removed] (Account suspended) left an annotation ()

You may be interested in the response I received to my FOI on the extent to which the Ombudsman uses her judicial powers to obtain information from organisations that are withholding it. It is FDN 183928. [Material removed which is in contravention of out annotations policy - https://www.whatdotheyknow.com/help/requ... - WhatDoTheyKnow Team]

Complaintsphso, Parliamentary and Health Service Ombudsman

RESTRICTED

Dear Mr Rapp

We are writing in response to your email of 7 May 2014. We are sorry that you are dissatisfied with our handling of your information request entitled ‘Times the Ombudsman has been lied too’.

Under our internal complaints procedure, your complaint has been passed to our Head of Risk, Assurance and Programme Management Office, Mr Steve Brown.

Mr Steve Brown will consider your concerns and will send you a full reply once his review is complete. This review of your complaint is the only review that we will undertake.

We aim to reply to such complaints within 40 working days.

Yours sincerely

Review Team
Parliamentary and Health Service Ombudsman

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Brown Steve, Parliamentary and Health Service Ombudsman

4 Attachments

 

 

Steve Brown

Head of Risk and Assurance

Parliamentary and Health Service Ombudsman

E: [email address]

W: [1]www.ombudsman.org.uk

 

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

References

Visible links
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http://www.ombudsman.org.uk/
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Brown Steve, Parliamentary and Health Service Ombudsman

4 Attachments

 

 

Steve Brown

Head of Risk and Assurance

Parliamentary and Health Service Ombudsman

E: [email address]

W: [1]www.ombudsman.org.uk

 

Follow us on

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show quoted sections

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

References

Visible links
1. http://www.ombudsman.org.uk/
http://www.ombudsman.org.uk/
2. http://www.facebook.com/phsombudsman
3. http://www.twitter.com/PHSOmbudsman
4. http://www.linkedin.com/company/parliame...

Brown Steve, Parliamentary and Health Service Ombudsman

4 Attachments

 

 

Steve Brown

Head of Risk and Assurance

Parliamentary and Health Service Ombudsman

E: [email address]

W: [1]www.ombudsman.org.uk

 

Follow us on

[2]fb  [3]twitter  [4]linkedin

 

show quoted sections

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

References

Visible links
1. http://www.ombudsman.org.uk/
http://www.ombudsman.org.uk/
2. http://www.facebook.com/phsombudsman
3. http://www.twitter.com/PHSOmbudsman
4. http://www.linkedin.com/company/parliame...

Dear Brown Steve,

What I was asking about in reference to the legal document, was that Parliament gave the Ombudsman the power to compel people to testify under oath. As far as I understand it this power was only given to the Ombudsman.

This does not seem to be a power that is delegated to the Ombudsman's caseworkers or even used by them. Equally caseworkers don't seem able to prefer one account over another when determining what the truth of a matter relating to a complaint is. Unless of course every interview is done under a caution.

When Parliament gave such a power, they must have considered that it was possible that a person might make a deliberately misleading statement to the Ombudsman and that the Ombudsman needed a very powerful tool to prevent this. However it seems that after having been given a very powerful bite, the Ombudsman has rushed to the muzzle.

Is this power ever used? Has it been used? Has it been enforced? Can any caseworker make use of it, or are they restricted in it's use?

Yours sincerely,

D Rapp

Brown Steve, Parliamentary and Health Service Ombudsman

Dear Mr Rapp,

Thankyou for your email I consider that this is a new information request on your part and I have therefore passed it to our Freedom of Information Team to address.

Steve Brown
Head of Risk, Assurance and Programme Management Office
Parliamentary and Health Service Ombudsman
E: [email address]
W: www.ombudsman.org.uk

Follow us on

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C Rock left an annotation ()

Mr Rapp,

If it is any consolation I concur with your views of 7th May etc. I also did not consider that the answer was adequate -somewhat deflected- and that there is a gap in common understanding of this problem.

Is 'professional' evidence taken at face value? To what extent is is tested or questioned? Are the caseworkers empowered sufficiently to research and identify false statements? Would the complainant be advised of such, and would it be recorded for statistical purposes?

It must be a common problem that a complainant disputes the official record and that might be a **key reason** that he or she has approached the Ombudsman.

I think more research is definitely required.

-

foiofficer, Parliamentary and Health Service Ombudsman

x>"5

foiofficer, Parliamentary and Health Service Ombudsman

Dear Mr Rapp

 

RE: Information request FDN-195856

 

Thank you for your email of 2 July 2014 in which you requested information
in the following terms:

 

What I was asking about in reference to the legal document, was that
Parliament gave the Ombudsman the power to compel people to testify under
oath. As far as I understand it this power was only given to the
Ombudsman. This does not seem to be a power that is delegated to the
Ombudsman's caseworkers or even used by them. Equally caseworkers don't
seem able to prefer one account over another when determining what the
truth of a matter relating to a complaint is. Unless of course every
interview is done under a caution. When Parliament gave such a power, they
must have considered that it was possible that a person might make a
deliberately misleading statement to the Ombudsman and that the Ombudsman
needed a very powerful tool to prevent this. However it seems that after
having been given a very powerful bite, the Ombudsman has rushed to the
muzzle. Is this power ever used? Has it been used? Has it been enforced?
Can any caseworker make use of it, or are they restricted in it's use?

 

First it might be helpful if I explain that caseworkers do not have the
delegated authority from the Ombudsman to invoke this power, though where
an instance where a public body resisted requests further action would be
co-ordinated by the Legal Team within the Parliamentary and Health Service
Ombudsman (PHSO).

 

I can also confirm that the powers identified in your email (section 8 (2)
of the Parliamentary Commissioner Act 1967 and section 12 (2) of the
Health Service Commissioners Act 1993) have never been used by the PHSO.
This means there has never been an instance where a public body has
resisted requests from the PHSO to provide information to the extent that
those powers have needed to be invoked. This is not to say that those
powers would never be used, simply that public bodies provide the evidence
we require before we have need to invoke them.

 

I hope that this information is helpful.  If you are unhappy with my
decision you can ask for a review by email to:
complaints[1][email address]

 

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

 

Yours sincerely

 

David Thomas

FOI/Data Protection Officer

Parliamentary and Health Service Ombudsman

E: [3][email address]

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

 

 

 

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[Name Removed] (Account suspended) left an annotation ()

These powers certainly should be used on recalcitrant health boards and trusts, who cliaimant that medical recirds have suddenly 'gone missing'. How are complainants supposed to bring case to the Ombudsman with half the information missing?

[name removed] (Account suspended) left an annotation ()

The reality is that the public organisations against which complaints are made do on many occasions lie, lose/ hide records, destroy evidence etc. These organisations are aware that they will 'get away' with these tactics as PHSO do not use these powers. Sadly for the complainant the complaint will then be closed or 'resolved' on the basis that there is no evidence to support their claim of maladministration. Under such circumstances a review will also be unsuccessful.
Real progress will only ever begin to be made when the PHSO starts to effectively challenge the discrepancies between what the member of the public and the organisation states. This however takes time and it is quicker, cheaper and easier for PHSO to not uphold the complaint

E. Colville left an annotation ()

In the Spring 2008 edition of the magazine Public Law, Ann Abraham, Ombudsman, presented a paper: "Paths to justice: a just alternative or just an alternative?". She said:

Quote:

"...the ombudsman shares an important judicial characteristic with the courts and tribunals. What distinguishes the ombudsman from the courts and tribunals is not, then, the lack of an adjudicatory function, but rather the ability to adjudicate in a different way......

Where the law, at least in this [court and tribunal] jurisdiction has traditionally been characterised by formality, the observance of rigourous rules of evidence, adversarial process and the binding authority of precedent, ombudsman practice by contrast has always prized its relative informality, its common-sense approach to evidence, its inquisitorial process and its capacity to do justice to the individual case, unfettered by the burden of binding precedent. As one commentator * put it, "If the law is cold and rigid in its adherence to universal principle, an ombudsman is warm and supple in his or her response to the particular".

It is of course precisely this sense of "otherness" that invests ombudsman schemes with their attraction for potential litigants. Like other alternatives to the courts and tribunals, whether mediation, conciliation or arbitration, ombudsmen rightly take pride in the relative speed, simplicity and low cost of the "individuated" and essentially inquisitorial form of justice that they administer. They have relative freedom in deciding for themselves the best way to get to the real heart of a particular dispute, picking out the key issues and if necessary redressing any imbalance of powers between the parties. For those for whom the law's cost, delay and inflexibility are active deterrents, the softer, gentler ombudsman way is naturally enticing. It is, perhaps, a bit like (but only a bit!) the difference between complementary and conventional medicine, between acupuncture and the surgical knife.

And there is a bonus too. In order to remedy any mischief that is revealed by the investigation, an Ombudsman will generally have at his disposal a range of devices that will not merely provide for justice between the individual parties to the dispute, but, crucially, that will also facilitate systemic change"

Unquote

* [Nick O'Brien, "Ombudsmen and the courts; time for dialogue", The Ombudsman, Dec, 2002 - further noting that N. O'Brien was appointed adviser to the PASC 2013/14 Inquiry: Complaints: do they make a difference ? and Parliament's Ombudsman Service"]

Mr. A.Tester left an annotation ()

The problem is that when my girlfriend provided proof that the PHSO had been lied to, the PHSO seemed more determined to cover up their failure to spot it.

Why are only a few politicians actively in touch with the PHSO-the facts pressure group ?

Dear foiofficer,

My understanding of the significance of placing a person under oath is that forswearing (or lying) would constitute the criminal offence of perjury. As such a person on oath is considered more likely to give an honest account rather than risk a criminal sanction.

Are you saying that the Ombudsman would only consider placing someone on oath if they did not give any answer, regardless of whether that answer was honest or not?

Does the Ombudsman actually prefer an organisation to feed it a quick lie over the Ombudsman pressing for a hard won truth?

Could you please confirm then that the only person with the ability to place a person on oath, takes no active role in any investigation and is completely unreachable by the public and refuses to respond to any correspondence addressed to her?

I also note that you seem to consider that if an organisation resisted requests for information this power would be used. However I do not believe the intent of Parliament when giving it was for it to be used in these circumstances. After all if a person complies with a request from the Ombudsman by telling a tall tale they have not resisted the request.

Yours sincerely,

D Rapp

foiofficer, Parliamentary and Health Service Ombudsman

Thank you for your e-mail to the Parliamentary and Health Service
Ombudsman. This return e-mail shows that we have received your
correspondence.

show quoted sections

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

[Name Removed] (Account suspended) left an annotation ()

Even when an organisation has clearly lied, the Ombudsman does not pursue it.

In my upheld case in Wales, the Ombudsman went so far as to describe the hospital board as 'evasive', ..(the civil service-speak equivalent of liars ) but did nothing.

So it seems that even if you catch the organisation out - and prove it lied, the Ombudsman does nothing but say 'Tut'.

And unless the complainant can provide 100 percent proof, it doesn't seem that the Ombudsman's service really intends to uphold any standards of truth and justice at all.

Because it does not apply the 'balance of probabilities' test to its cases..... Who is most likely to be telling the truth?

And is just intent on shooting cases through at the fastest rate possible to hit its desperate new three percent target...(when the normal 'upheld case' rate for other Ombudsmen is around 10percent, which would be about right unless you believe that the public is wrong 97percent of the time)

Nb: Internally, even the 'word ' of an PHSO employee is taken over that of a taped phone call. So don't bother taping phone calls to PHSO staff because they are apparently inadmissible as evidence to external investigators.

E. Colville left an annotation ()

This seems very timely:

http://data.parliament.uk/writtenevidenc...

Q6 Mr Bacon: Do you think there is a place for the criminal law here? For example, if you destroy data knowing that there is an investigation going on and that the data will be sought, the destruction of those data in those circumstances—when one is aware that they are or may be sought—is in certain circumstances a criminal offence. Do you think there is any role for the extension of the ambit of the criminal law in this area, so that the people who fail to protect whistleblowers, or fail to treat the information properly, or dilute it or suppress it, could be committing an offence?

Cathy James: I think it is very difficult, because there is already no accountability, and there is not a criminal offence. If you then turn it into the criminal law, I am not sure whether it might end up going underground even more, making it even scarier for people to speak up. We have had that around the duty of candour and whether there should be a criminal offence. The problem is that if it feels like people are going to go to prison for having treated a whistleblower badly, it will all get hidden even more than it is now, so I am not sure that that is the answer. There are lots of criminal laws, as you said. If somebody is found to be perverting the course of justice or getting rid of data unlawfully, they should be accountable for those actions, and there should be some accountability around the treatment of whistleblowers.

foiofficer, Parliamentary and Health Service Ombudsman

x>"s

foiofficer, Parliamentary and Health Service Ombudsman

Dear Mr Rapp

 

RE: Information request FDN-199848

 

I write in response to your email of 5 August 2014 in which you requested
information in the following terms:

 

“My understanding of the significance of placing a person under oath is
that forswearing (or lying) would constitute the criminal offence of
perjury. As such a person on oath is considered more likely to give an
honest account rather than risk a criminal sanction.

Are you saying that the Ombudsman would only consider placing someone on
oath if they did not give any answer, regardless of whether that answer
was honest or not?

Does the Ombudsman actually prefer an organisation to feed it a quick lie
over the Ombudsman pressing for a hard won truth?

Could you please confirm then that the only person with the ability to
place a person on oath, takes no active role in any investigation and is
completely unreachable by the public and refuses to respond to any
correspondence addressed to her?

I also note that you seem to consider that if an organisation resisted
requests for information this power would be used. However I do not
believe the intent of Parliament when giving it was for it to be used in
these circumstances. After all if a person complies with a request from
the Ombudsman by telling a tall tale they have not resisted the request.”

 

Thank you for your comments on the way this legislation should be applied.
While we have noted your concerns, we do not apply these powers in the
manner you suggest, nor have any intention to do so.  As such, we do not
hold any recorded information on the subject, and this is unlikely to
change in the future. 

 

We have previously provided you with explanations on our interpretation
and use of those powers to which you refer. We cannot comment on what
Parliament intended in drafting those powers. Though I understand your
concerns about this issue, there is nothing I can add to my earlier
response to you.

 

Yours sincerely

 

 

David Thomas

FOI/Data Protection Officer

Parliamentary and Health Service Ombudsman

E: [1][email address]

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

 

 

 

 

From: D Rapp [[3]mailto:[FOI #205984 email]]
Sent: 05 August 2014 03:08
To: foiofficer
Subject: Re: FW: Internal review of Freedom of Information request - Times
the Ombudsman has been lied too

 

Dear foiofficer,

My understanding of the significance of placing a person under oath is
that forswearing (or lying) would constitute the criminal offence of
perjury. As such a person on oath is considered more likely to give an
honest account rather than risk a criminal sanction.

Are you saying that the Ombudsman would only consider placing someone on
oath if they did not give any answer, regardless of whether that answer
was honest or not?

Does the Ombudsman actually prefer an organisation to feed it a quick lie
over the Ombudsman pressing for a hard won truth?

Could you please confirm then that the only person with the ability to
place a person on oath, takes no active role in any investigation and is
completely unreachable by the public and refuses to respond to any
correspondence addressed to her?

I also note that you seem to consider that if an organisation resisted
requests for information this power would be used. However I do not
believe the intent of Parliament when giving it was for it to be used in
these circumstances. After all if a person complies with a request from
the Ombudsman by telling a tall tale they have not resisted the request.

Yours sincerely,

D Rapp

show quoted sections

[Name Removed] (Account suspended) left an annotation ()

So......according the the PHSO's proud boast .....every single organisation has supplied every medical record or internal file necessary since 1967.

'I can also confirm that the powers identified in your email (section 8 (2)
of the Parliamentary Commissioner Act 1967 and section 12 (2) of the
Health Service Commissioners Act 1993) have never been used by the PHSO.
This means there has never been an instance where a public body has
resisted requests from the PHSO to provide information to the extent that
those powers have needed to be invoked. This is not to say that those
powers would never be used, simply that public bodies provide the evidence
we require before we have need to invoke them'.

Is that possible? With the number of cases the Ombudsman has investigated in over 40 years?

Because I do not know of anyone who has managed to get access to all the files they need to make their case, without chasing the organisation....sometimes for years.

And there are cases where the NHS has withheld clinical files, until lawyers have got involved.

How can the PHSO possibly overlook obviously missing medical files in an NHS case?

The PHSO has either been naive about this, or is not listening to what complainants are saying..... in deference to government organisations.

Mr. A.Tester left an annotation ()

Today is the Parliamentary Select Committee's review of The Parliamentary Health Ombudsman
http://www.parliament.uk/business/commit...

It is clear from the feedback here that The Parliamentary Health Service Ombudsman may not be fit for purpose under the remit it was given by parliament

One has to ask "What is the point of the PHSO?"

Anyone who reads these postings or is a victim of not having their NHS complaint upheld MUST check out this link;
http://phsothefacts.com/

A.E. left an annotation ()

D Rapp: even when the person from the body complained about has not been called to swear on oath, they have STILL nonetheless committed perjury by lying to the Ombudsman. It's called non-oath sworn perjury and carries a penalty of up to 2 years in jail!

The reason it is perjury is because lying in a document that forms part of a process that arises from an Act of Parliament, is non-oath sworn perjury.

http://www.legislation.gov.uk/ukpga/Geo5...

"5 False statutory declarations and other false statements without oath.

If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made—

(a)in a statutory declaration; or

(b)in an abstract, account, balance sheet, book, certificate, declaration, entry, estimate, inventory, notice, report, return, or other document which he is authorised or required to make, attest, or verify, by any public general Act of Parliament for the time being in force; or

(c)in any oral declaration or oral answer which he is required to make by, under, or in pursuance of any public general Act of Parliament for the time being in force,he shall be guilty of a misdemeanour and shall be liable on conviction thereof on indictment to imprisonment, . . . F1, for any term not exceeding two years, or to a fine or to both such imprisonment and fine."

Report it as a crime. If PHSO has covered-up non-oath sworn perjury they have also committed a crime.