Parliamentary and Health Service Ombudsman

Millbank Tower Grimsby

Millbank North East Lincolnshire
London DN32
SW1P 4QP

14 June 2019

Dear Ms Obi-Adewole,

In the matter of a proposed application for judicial review between The Queen (on the
application of ) and PARLIAMENTARY AND HEALTH SERVICE
OMBUDSMAN

Please find for your attention in the format recommended by the pre-action protocol for judicial
review, a letter before claim.

It is my preference that this matter be resolved without recourse to the courts if at all possible,
however, should it be necessary to issue proceedings, such proceedings will need to be dealt with
on an expedited basis given that a claim for judicial review must be filed promptly and in any
event not later than 3 months after the date of the decision being challenged.

I look forward to receiving a response in due course and, in any event, by no later than Friday, 28
June 2019. I take the date of decision being challenged to be 10 April 2019 (the Ombudsman’s
review letter) and therefore consider that the statutory time limit within which I must bring a
claim is no later than 10 July 2019.

Yours Sincerely

.
IN THE MATTER OF A PROPOSED APPLICATION FOR
JUDICIAL REVIEW IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT

BETWEEN:

THE QUEEN
(on the application of )
Proposed Claimant

-and-

PARLIAMENTARY AND HEALTH SERVICE OMBUDSMAN

Proposed Defendant

JUDICIAL REVIEW PRE-ACTION PROTOCOL

LETTER BEFORE CLAIM

Information required in a letter before claim

I. Proposed claim for judicial review

To
The Parliamentary and Health Service Ombudsman, Millbank Tower, Millbank, London, SW1P
4QP.

II. The Claimant

of , Grimsby, North East Lincolnshire, DN32 .

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III. Defendant’s reference details

C2034991 (Review: F0004454)

IV. Details of the legal advisers, if any, dealing with this claim

None.

V. Details of the matter being challenged

Parliamentary and Health service Ombudsman’s decision not to carry out an investigation into
the proposed claimant’s concerns on the grounds that he considered there to be no un-remedied
injustice.

VI. Details of any interested parties

None proposed. However, it is envisaged that a potentially significant number of people would
benefit from the issue being reviewed. Namely, those who would in similar circumstances to the
proposed claimant be affected by jurisdiction powers being exercised to their detriment.

VII. The issue

Background

1. Rossendales, a firm of bailiffs contracted to North East Lincolnshire Council (the ‘Council’)
fraudulently demanded an amount of money from the proposed claimant (‘PA’) in a notice
threatening removal. A total £294.50, with no breakdown of costs was hand written on the
notice which was left breaching the Data Protection Act 1998 (sensitive personal data). PA
found the threatening letter by chance wedged outside the entrance door to the apartment
block of his residence dated 03/09. The bailiff visited PA’s premises and allegedly created a
Notice of Seizure of Goods & Inventory advising him that he had levied against a vehicle
which was in the car park at the apartment complex. PA had no knowledge of a levied
vehicle or Notice of Seizure.

2. The issues arose subsequent to PA resigning from his job for health reasons. He intended
supporting himself financially until deciding on another direction. Living expenses, Council

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 tax, mortgage etc., [were] met from savings which enabled him to pursue skills, unhindered,
which were necessary to achieve his intended change in direction without the distractions
associated with being beholden to the state.

3. Minor cash flow issues arising from wages no longer being paid into PA’s bank resulted in
occasional payments failing to be made by the due date, so triggering the Council’s
automated Council Tax recovery process through the courts. Action was taken, not for non-
payment, but because the law provides for the instalment facility to be withdrawn after two
late payments (payment in full is demanded immediately). Failure thereafter to raise the
lump sum permits the Council to obtain a liability order through the court which in turn
gives it powers to instruct bailiffs. PA considered it an outrage to be threatened by the
Council whilst waiving his right to claim benefits, so continued paying the few remaining
instalments as normal. The Council then took dubiously lawful, but in any event,
unnecessary court action, adding costs and irresponsibly instructing its bailiff contractor,
Rossendales.

4. By the time bailiffs were instructed, the Council Tax was settled. However, hundreds of
pounds were added fraudulently by Rossendales which was reported to Humberside Police
(‘HP’). HP’s Economic Crime Section fobbed off the incident as a civil matter to be taken
up with the Council but said it would review the matter if the dispute revealed new evidence
of criminal activity. the Council’s formal complaint procedure uncovered fraud and other
illegality far exceeding what was first thought, however, the Council defended Rossendale’s
actions throughout the whole process. The Chief Executive failed to uphold the complaint
and was therefore complicit. On escalating the concerns, the Local Government Ombudsman
concluded that the matter was for the police to deal with.

5. Whilst engaged in the process PA discovered Rossendales were notorious for defrauding
householders pursued by Local Authorities. Each fresh piece of evidence was countered by
HP with a new excuse why they would not investigate. When escalated to the IPCC, the
Police watchdog could do nothing because the law prevented it as a consequence of HP
refusing to record or record wrongly complaints made about the matter.

6. Excuses were made for the Council and Rossendales by the organisation which oversees
complaints about breaches of confidentiality. The Information Commissioner found on the
balance of probabilities that a letter left by Rossendales threatening to remove goods WAS

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 NOT left in the place where PA found it and therefore did not consider the bailiff breached
the Data Protection Act. It was on PA’s return home he found the letter by chance wedged
outside the entrance to the apartment block of his residence in the slight gap between the
door and doorframe.

7. Ironically, it was the Council’s suggestion that two previous letters purportedly delivered in
person which PA had never seen (its defence against alleged phantom visits) that they would
have been left in the same way, though not so luckily discovered by PA before disappearing.
Yet more ironic was the Commissioner’s continued stance that the balance of probabilities
weighed in favour of no data breach occurring when Rossendale’s conflicting version of
what happened was that when the ‘bailiff received no reply to the ringing of the door bell he
left a note in an envelope addressed to you under the security door’. This was accepted by
the Council and subsequently the Commissioner who were satisfied that there was no reason
to investigate further even after it had been proven to be impossible to pass a letter under the
security door.

8. The Parliamentary and Health Service Ombudsman (the ‘Ombudsman’) to whom a

complaint was subsequently made about the Commissioner could not see that their decision
was flawed and refused to investigate. It viewed that the Commissioner’s decision not to
take any regulatory action was reasonable on the irrational basis that there was no conclusive
evidence to prove that the letters had not been handled properly, other than one party’s word
against the other.

9. A distinct pattern of cover-ups and corruption was evident. It was clear to PA that public
bodies were reluctant to uphold complaints about another. The state had no reservations in
screwing him which was why he decided to get from the system what he was entitled and
made a claim for Job Seekers Allowance. He wholeheartedly regretted that decision because
the damage as a consequence has added significantly to that caused by the Council. PA
applied for contributions based jobseekers which was accepted and allowed entitlement to
the basic amount (without means testing) for a maximum period of six months. After this
point, means testing is necessary if a claimant wants to receive anything other than National
Insurance (‘NI’) credits.

10. PA continued the claim beyond six months but only for NI credits, though the hardship he
was caused far exceeded any benefit he realised during the time he was registered as a NI

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 only claimant. For example, he was told to attend work programmes resulting in sanctions he
was unaware about for non attendance. It has since been discovered that work programmes
are not obligatory for NI only claimants and it is unlawful to impose sanctions for someone
whose claim is only for NI credits. It was the discovery that PA was several years short of
what he had expected his qualifying year’s state pension entitlement should have been that
has led to years of dispute trying to get it resolved. It was discovered that NI credits had not
been awarded over certain periods of the claim and learned that any number of credits less
than the full 52 in a relevant tax period excludes that year completely as qualifying for
pension entitlement.

Summary of 16 August 2014 complaint

11. A pension forecast obtained on or around 29 January 2013 highlighted a deficiency of NI

credits. The number of qualifying year’s state pension entitlement up to the tax year ending 5
April 2012 was 25 compared with 24 previously forecasted for the year ending 5 April 2008.
Only 1 year’s entitlement had accrued over 4 tax years. Up until 17 March 2009 when a
claim for NI credits only was made, PA was for a period neither employed nor registered
unemployed. The only year failing to qualify over the 4 years should therefore have been
that relating to the 2008/09 tax year. PA learned this around the same time he was told at a
jobcentre interview that the DWP had ended his NI credits only claim and needed to re-
apply for it to resume. The gross inconvenience resulting from maladministration has
occurred over such a protracted period of time that the numerous counts of negligence and
error brought to light are best detailed in a chronology of events.

12. On 12 February 2013 PA attended an interview at Jobcentre Plus (‘JCP’) to learn his claim
for NI credits had been terminated and was required to re-apply if wanting to resume the
claim (he had not ended the claim, JCP had). The same adviser brought up the matter of a
work programme placement with provider G4S which PA had not been attending (he had
made it clear several times to various advisors previously why not). He had also responded
to information requested in two letters dated the 4th and 7th of December 2012 regarding the
matter which were never responded to and therefore stated to the advisor that he was not
willing to discuss again why he had not attended the work programme.

13. On 26 February 2013, concerns were raised with an advisor regarding the deficient number
of year’s pension entitlement. The branch manager (Richard) stated there was no means of

5
 determining where the problem lie and provided a contact number for HMRC Newcastle.
HMRC revealed insufficient NI credits had been allocated to qualify for pension entitlement
in respect of 2008-09, 09-10 and 10-11 tax years. In March, HMRC sent details of the
amount PA needed to pay for each of the three years to count towards his basic State
Pension and the number of NI contributions that had been credited for each year. At the
attendance to sign on 12 March 2013, it came to light that PA was no longer registered
unemployed as he had not re-applied for Job Seekers Allowance (‘JSA’). He signed
regardless, to provide proof of his attendance throughout the time it would take to challenge
the legality of being forced off the unemployment register. The advisor agreed and produced
a declaration form which PA signed.

14. A JCP Personal Adviser explained to PA on 26 March (which would have been his next
signing day) why his JSA had been terminated; asserting that the law had been complied
with on being challenged that a decision taken to de-register as unemployed should be the
claimant’s not the jobcentre’s. He was assured the causes of the termination would be looked
into and an appointment arranged to see a manager. At the meeting of 9 April, departmental
targets and regional league tables were discussed and it suggested that these may have led to
the termination of the claim. Prevalent press coverage at the time criticising Jobcentres
encouraging staff, re sanction targets was discussed, but dismissed by JCP for having no
relevance. PA was required to submit a Subject Access Request (SAR) to authorise JCP to
access details of sanctions leading to the deficiency in NI credits because of Data Protection
restrictions. JCP discouraged PA exercising his appeal right but advised if he did so that he
submit appeal form (GL24) without delay and to state on it that the ‘grounds of appeal’
would follow once details of the SAR had been disclosed.

15. PA unwittingly became the Appellant in a Tribunal case against the DWP because Hull
Benefit Delivery Centre (‘BDC’) Appeals team evidently had not been sent the complete
GL24. It was later discovered that in all probability JCP sent Hull BDC a copy of the 2 page
appeal form, having duplicated the same page so Hull BDC were lacking half the
information. Form GL24 was signed and dated on 23 March with an explanation (below)
that no grounds of appeal could be provided because PA was awaiting the SAR to disclose
information which would hopefully provide answers for why the sanction decisions had been
made.

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 “I am appealing several decisions. I don't know the reasons for the decisions, hence the
delay. I need to obtain information which involves the Information Commissioner
which could take several weeks to obtain, if ever. The delay is due to not having been
informed of any reasons.”

16. A letter authorising JCP access to PA’s personal information under the Data Protection Act
1998 was sent on 2 May 2013. Hull BDC sent a letter on 7 May stating that: “the law says
we can only deal with an appeal when it has been made in the right way”. It requested the
following (in writing):

which decision you want to appeal against

the reason why you want to appeal against this decision, please give more details as
to why you think the decision is wrong

We need you to sign it yourself, or give proper authority for the person who signed
it to act for you as your representative.

17. A copy had not been retained by PA, so there was no record to confirm whether GL24 had
been signed, though he recalled putting on the form that information was required (to set out
appeal grounds) which may take several weeks to obtain. On 22 May PA contacted the
Personal Adviser at JCP to enquire when the SAR information was expected so he could
update Hull BDC. He kept Hull BDC informed in an email stating that he would write in
more detail, but attached the 2 May letter regarding the SAR to explain why he was unable
to provide further details in relation to his appeal.

18. Confirmation was received on 23 May from JCP that the SAR had been received on 2 May
2013 and immediately referred to its District Team and to expect the information to be
provided within 40 working days (The Information Commissioner specifies 40 calendar
days, not working days, as the statutory time limit for responding to a SAR). Also on 23
May, PA sent a letter to Hull BDC apologising for being unable to supply further details, but
referred to the explanation he had given on form GL24 (re, awaiting SAR) and that it could
take 40 working days. All correspondence regarding the matter was enclosed.

19. HM Courts and Tribunals Service (HMCTS) sent a letter dated 6 June 2013 regarding the
Social Entitlement Tribunal to which was stapled a Judge’s Directions Notice and referral
papers from Hull BDC to the Tribunal (including a copy of GL24) for a decision as to
whether the appeal was duly made. The Judge required that the Tribunal be sent further

7
 details of appeal grounds within 14 days because Hull BDC claimed that the Tribunal had no
jurisdiction over the appeal due to insufficient grounds. The document consisting of 5 pages
(original retained) can clearly be seen to be in tact, i.e., the staple holding it together has
never been removed. The page which included PA’s signature was missing (page two) but in
its place was a duplicate of the first page (arising presumably from a copying error) which
provides the solution for why both Hull BDC then the Tribunal questioned that the form was
not signed.

20. The missing page also contained the explanation about the appeal grounds, i.e., why they
could not be provided until the information had been obtained (re, awaiting SAR). The
Tribunal was sent (by return of post) a hand written note asking it to refer to all
correspondence PA had already sent, implying that the problem lie in a communication
breakdown between departments. Evidence suggests that had there been no clerical error (or
worse), the matter would have unlikely escalated to a Tribunal but remained with Hull BDC.
Why else, if Hull BDC had held both pages, would it have sent the 7 May letter asking for
the form to be signed and for information which had already been explained on GL24 could
not be provided until the SAR had been processed?

21. The deadline for complying with the SAR was 11 June 2013 but the requested information
relied upon for setting out the grounds of appeal had not been provided by that date. A letter
from HMCTS dated 19 June enclosed the Judge’s Decision Notice to strike out the appeal
and letter from the Clerk to the Tribunal. The Decision Notice stated that PA had been given
the opportunity to make representations about the appeal but his letter received 11 June
contained no useful information therefore the appeal had been struck out. The letter stated
that they can only deal with the appeal if the GL24 is signed and the decision being appealed
is identified with reasons given why.

22. PA emailed Hull BDC again on 27 June with letters reattached asking for the previous
correspondence to be acknowledged (22 May email and the 23 May letter). He expressed
that he believed his correspondence was being mishandled because of the letter from
HMCTS requesting further details and another striking out the appeal because the note PA
had sent contained no useful information. He asked Hull BDC to inform the Tribunal that he
was unable to provide further information until he received it in accordance with the SAR
which had not yet been complied with.

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23. PA informed Hull BDC that he had advised the Tribunal that his correspondence should be
referred to, it would then be apparent that the appeal grounds were being delayed due to the
SAR (the assumption being that the Tribunal had not done so because it subsequently stated
that there was no useful information). Hull BDC neither responded to emails (22 May & 27
June) nor letter sent 23 May. On 30 June 2013 PA emailed “DWP enquiries” to obtain
confirmation that both postal and email addresses were valid and that the person he had been
dealing with at Hull BDC was an employee of the DWP. In the absence of a response, he
attempted again to contact DWP enquiries on 1, 10 and 11 of July 2013. Neither Hull BDC
nor DWP enquiries have ever responded to any correspondence. Hull BDC was telephoned
around this time to raise concerns about the appeal. The person taking the call was unable to
identify the appeal (or the person dealing with it) from any of the references on the letter (7
May 13) so the attempt was abandoned. Social Security & Child Support Appeals (SSCSA)
was subsequently phoned which succeeded in obtaining the relevant email contact used for
serving appeal documents.

24. SSCSA was sent an email and attachments on 1 July 2013 to address the Clerk’s letter
outlining why the Tribunal could not deal with the appeal which led to the Judge striking it
out. Though a record of GL24 was not retained, PA received a copy from the Tribunal albeit
incomplete on 6 June 2013 (see above para 19). It was not apparent at the time that GL24
was incomplete and was assumed that two copies of the completed form had been
erroneously stapled together. The picture did not become clear that the 6 June 2013 copy
was incomplete until the complete GL24 had been provided on 28 March 2014 in response
to a second SAR submitted asking for all JSA records. The page which included PA’s
signature and his reasons why he could not provide the appeal grounds was missing (page
two) but in its place was a duplicate of the first page.

25. Because of the missing page, the only space visible for a signature was one to authorise a
person representing the applicant. This accounts for the assumption made by PA in his email
to SSCSA on 1 July, which was as follows:

“as far as I'm aware there’s no provision for the applicant to sign it; looking at a copy
I've been sent, the space for a signature is only for the applicant to sanction somebody
representing them.”

Had a copy been retained the doubt would not have arisen and it known for certain that the
form had in fact been signed. However, more crucially, had there been no official error and

9
 GL24 copied correctly the appeal would not have been queried, struck out or even escalated
to the Tribunal.

26. PA explained in his 1 July email to SSCSA that rather than being sent a letter about the
decision he was informed verbally whilst attending the jobcentre that his claim had been
disallowed. This was why he stated on the form that there was “NO LETTER” where it
asked for the date on the letter about the decision. Presumably the Tribunal could not
identify ‘the decision’ for that reason. It was also explained that PA had not been able to
comply by supplying the requested information, because he had not received the information
back to a SAR which had been reiterated in letters/emails to Hull BDC (specifying the
relevant addresses) who had not responded.

27. A judge’s Directions Notice was received by PA in correspondence dated 12 July 2013 from
HMCTS. The Tribunal Judge stated that:

The appeal was struck out on 17/06/13.

An email was received by the Tribunal clerk from the Appellant on 01/07/13.

The appeal is not reinstated.

If the Appellant wishes to make further application for reinstatement of his appeal,
he should note the time limits for an application to be made. Also it is relevant that
the Appellant has not even identified the decision(s) which he wished to appeal. He
has also not given the grounds of appeal.

28. On 5 August 2013, an email and attachments were sent by PA to the Personal Adviser at JCP
and SSCSA, alerting them to the breakdown of communication (Hull BDC / Tribunal) and
reiterated the ongoing difficulties explaining to Hull BDC and Tribunal, i.e., signature on
GL24, the appealed decision being identified and appeal grounds. He enquired about the
SAR and asked for the contact of the person who the SAR had been sent so he could make
his own enquiries. He also requested that a copy of the letter asked for by the Tribunal that
would identify the appealed decision be sent to him or a letter outlining the decision he was
attempting to appeal thus allowing him to supply the requested information to the Tribunal.

29. Upon the Tribunal striking out the appeal, an application to reinstate it was made by PA on
the basis that he had made further enquiries that would hopefully enable the information
requested by the Tribunal to be forwarded to it at some point. By law the SAR should have

10
 been responded to by 11 June 2013 and was therefore at this time around 2 months overdue.
An auto return message (outlook express read receipt) confirmed that the 5 August 2013
email which PA re-sent to the JCP Personal Adviser on 7 August had been opened. In the
absence of a response he sent the email a third time to the Personal Adviser (SSCSA copied
in) on 12 August, again receiving confirmation that it had been opened. He additionally
questioned whether the issues raised would be addressed and stressed that providing a
contact for the person dealing with the SAR, and a copy of the letter he wished to appeal
should not present any difficulty to be dealt with.

30. It was first assumed that the Information Commissioner was at fault for the delay regarding
the SAR, not the DWP. It was later apparent that responsibility was entirely with the DWP
to release information under the Data Protection Act. In the absence of a response the email
was sent a fourth time to the Personal Adviser (SSCSA copied in) on 13 August, again
receiving confirmation he had opened it. The fourth email regarding the same matter
prompted no response therefore an email was sent to whom PA was led to believe was the
JCP manager on 14 August expressing that he wished to make a formal complaint about the
staff member but in the meantime asked if she would address the 5 August 2013 email.

31. On 14 August the Performance Team Leader (JCP) replied regarding the SAR delay,
confirming that they were in receipt of the request dated 2 May 2013 and apologised for the
delay, though gave assurance that he was dealing with it and working urgently to resolve the
matter. A reply was sent on 15 August from whom it was believed was the JCP manager,
apologising for the level of service regarding the SAR and confirmed that the Personal
Adviser did refer on the original SAR and all subsequent correspondence to the relevant
persons without delay via their Customer Service Manager who would contact me later that
day with an update.

32. On 20 August the completed response from Hull Benefit Centre was sent which was overdue
by 70 days. It was revealed that over the period subject to the SAR, sanctions had been
imposed on PA six times. Consequently NI credits were missing that he had been unaware of
and accounted for the reduced number of years qualifying for state pension entitlement.
Details varied in completeness from having no supporting evidence to having full electronic
copies of referrals. Further information and assistance was offered should it be needed.

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33. Having still not received a response to the 5 August email, another was sent on 21 August
2013 to SSCSA to chase for a reply to the application for the Tribunal appeal to be reinstated
and seeking any action that the Tribunal would take. SSCSA was informed that the SAR had
been dealt with therefore information was available to set out the appeal grounds, though
there were some anomalies about the decisions (which were highlighted). In response to
their offer of assistance Hull Benefit Centre was replied to on 22 August to seek clarification
and further details which was never responded to.

34. A Directions Notice was received in correspondence also dated 22 August from HMCTS.
The Tribunal Judge informed, despite further information being provided on 21 August that:

The appeal was struck out on 17/06/13.

Following receipt of an email from the Appellant directions were made on 10/07/13
and the appeal was not reinstated.

A further email has been received from the Appellant. There is no further
information provided. The appeal remains struck out.

35. SSCSA was emailed on 23 August to query why another Direction Notice stated that the
appeal remained struck out (because no further information had been submitted) stressing
that further information had been provided on 2 August and that information had just been
received which would enable the appeal grounds to be submitted. PA submitted his appeal
grounds on 1 September in accordance with the relevant Rules to SSCSA. In correspondence
dated 1 October 2013 from HMCTS he received a Directions Notice. The Tribunal Judge
informed that:

The Appellant made an appeal 29/04/13 but the decision against which he was
appealing could not be identified.

Directions have been made by the Tribunal on a number of occasions from 05/06/13
to 13/08/13.

The present status of the appeal is that it is struck out. That status is not changed for
the moment.

The Appellant has now sent to the Tribunal a bundle of documents. The bundle
includes copies of two decisions dated 05/12/12 and 30/01/13 made on the basis that
he was not actively seeking employment for 21/11/12 to 04/12/12 and from
16/01/13 to 29/01/13.

The Appellant has previously stated that he had not received decision notices.

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Directions are now made for the Appellant to comply with. He is directed to comply
by writing to the Tribunal and his reply is to be received in 14 days after the issue of
these directions.

The Appellant must first confirm whether it is the two decisions dated 05/12/12 and
30/01/13 which he is appealing, and if not what is the date of the decision(s) which
he wishes to appeal.

Next, he must set out the grounds for his appeal(s).

Also he must state why his appeal was not made before 29/04/13.

The file is to be referred back to me when a reply is received from the Appellant.

36. The Directions Notice was responded to by PA on 5 October stating that the grounds of
appeal had already been submitted but confirmed the decisions which he wished to appeal
related to the periods below:

a) 7 July 2010 to 3 August 2010

b) 18 January 2012 to 31 January 2012

c) 28 March 2012 to 10 April 2012

d) claim ended 28 August 2012 with no confirmation when it resumed

e) 21 November 2012 to 4 December 2012

f) 16 January 2013 to 29 January 2013

37. To comply with other directions it was stated that the delay in appealing the decisions was
simply down to being in the dark until receiving information from the SAR and being
ignorant of the consequences of missing National Insurance credits up until receiving
confirmation from HMRC that there were gaps which would affect pension entitlement. In
regards item (f) there was a further delay in appealing due to the time taken with JCP
management exploring the possibilities of resolving the dispute which finally concluded
with the only option being to appeal.

38. In correspondence dated 23 October 2013 from HMCTS the Tribunal Judge informed in a
Directions Notice dated 15 October that:

On 29/04/13 the Appellant made an appeal against a decision made by the

Respondent.

13

The appeal was referred to the Tribunal on the basis that it did not contain sufficient
grounds.

On 17/06/13 the appeal was struck out. That is still the current position.

Since then the Appellant has contacted on a number of occasions and further
directions have been made.

The latest development has been that the Appellant sent to the Tribunal an email
dated 05/10/13.

The whole of the file is now to be copied and a copy sent to the Respondent.

The Respondent is directed to comment on the position and whether or not it is

considered whether a valid appeal has been made against any. The Respondent is
directed to reply to the Tribunal on this within 21 days after the issue of these
directions.

39. An appeal bundle was sent to PA in correspondence dated 18 November 2013 which
included Hull Benefit Centre Appeals Team’s response to Directions Notice of 15 October.
In summary, the Hull office identified there were six decisions, predominantly Labour
Market Decisions and issues affecting National Insurance Credits. It clarified that the appeal
was referred to HMCTS (Tribunal) as an invalid appeal because originally it was not known
what decisions where disputed. It stated further that its office did not deal with Labour
Market appeals and so was not in a position to comment on the Judge’s direction (it was the
responsibility of Newcastle Benefit Centre Appeals Team). It therefore submitted that the
Judge’s direction should be referred to Newcastle, recommending that they consider various
legislation and guidance with regards to time constraints relevant to the validity of the
appeal(s). This particularly concerned whether it would be reasonable to grant late
applications, where it was emphasised under guidance (DMG 6073) that their existed
“Special Circumstances” which were wholly exceptional relevant to the application.

40. Correspondence was sent by SSCSA dated 20 December 2013 notifying PA that the DWP
had revised their decisions in his favour with all sanctions/disallowances being lifted.

New issues arising after Tribunal decision

41. PA notified JCP on 6 January 2014 that all the decisions to sanction had been lifted and
requested a revised pension statement reflecting the number of qualifying years amended
with confirmation that all missing NI credits had been re-credited. The position was outlined
regarding additional missing NI credits as a consequence of elapsed time whilst contending

14
 decisions (potentially another appeal) and suggested it be remedied without further need to
involve another lengthy appeal. The matter was also raised as to when and how the claim
would resume. Lastly, the question of compensation was raised for the inordinate amount of
time committed to researching the appeal process, sourcing and preparing evidence to enable
producing the relevant papers for submission to the appeal.

42. A different manager who had taken the responsibility of dealing with matters responded on
10 January 2014 confirming that NI credits would be awarded for appropriate periods when
they (Benefit Centre) receive copies of the decisions from the Appeal Tribunal. With regards
resuming the claim etc., PA was informed that it was necessary to make a new claim and
could ask for it to be backdated. A link was provided to the relevant website to request a
further pension forecast once the credits were updated. With regards compensation it was
possible to receive “a special payment” under certain circumstances as a direct result of
maladministration for which evidence would need to be provided in support of the costs
incurred. A current statement could not be obtained from the website so the manager at JCP
was informed because a decision whether to make a new claim hinged on what the pension
forecast revealed.

43. Concerns were raised about the time that would be wasted providing evidence for a
consolatory payment if there was no prospect of receiving one. The manager was also asked
for detail about the kind of expenditure that would be taken into account when assessing the
loss due to the maladministration. It was expressed that the injustice comprised the time
taken in producing numerous items of correspondence, reclaiming JSA, researching
legislation for the appeal process, sourcing and preparing evidence etc., etc. An estimate
would entail assessing the time taken to produce all correspondence entered into and then
need compiling into a document along with commentary to justify those and any other costs
claimed. It was wildly underestimated to require several additional hours to produce and
wanted it clarifying if the DWP consider these allowable costs before spending further time
working on assessing them.

44. The “several hours” stated was a massive underestimate of the time that was required to
collate all the relevant paperwork and document all the hardship that the maladministration
had caused, plus the new disputes/appeal/complaint that would follow from having to
overcome obstacles arising after the Tribunal in order to achieve the best chance of having

15
 the appropriate number of NI contributions allocated. The task had in fact taken several
months rather than hours.

45. JCP responded on 14 January with an undertaking to suggest an alternative solution (when
one found) for obtaining a pension forecast. With regards to Special Payments, it was
implied that allowable costs would be limited to postal and telephony expenditure, with the
possibility of printing costs. The concerns were reiterated in response about the additional
time needed to compile evidence and asked for assurance before beginning work on
assessing time (including compiling evidence) that it would not be disallowed. It was also
stated that items suggested (postage, printer costs, paper etc.) would be insignificant
compared with the gross inconvenience which was the only costs intended to be claimed.
The JCP manager’s contact details were also requested.

46. JCP responded on 16 January, providing a telephone number for the State Pension Enquiry
line. It was reiterated regarding the claim for a Special Payment, that only costs such as
postal, telephony, paper etc., were allowable and stated that time spent was not considered to
be a cost for these purposes. The email address for the Manager of JCP was provided.
Responding to JCP that day by email PA asked from where the authority came that time
spent was not considered an allowable cost and what options were available to take further
action. According to guidance (financial redress for maladministration) it is the department’s
duty to consider whether a special payment would be appropriate, not for it to be necessary
for the aggrieved person to fight for it. Page 11 of the guidance states with relevance to this
below:

“It is not necessary for an individual to request consideration of a special payment. The
appropriateness of making a payment should be routinely considered in any attempt to
rectify departmental maladministration, which may have resulted in a customer (or a
third party) experiencing injustice and/or hardship.”

47. The document states with further relevance to the specific circumstances on page 12:

“Special payment decisions should have specific regard to:

 the length of time it has taken to resolve a complaint; and

 the time and trouble the individual had to go to, in order to obtain appropriate
redress.”

16
48. The correspondence later obtained (23 January) from Special Payment Unit also confirmed
that not only costs such as postal, telephony, paper etc., were considered, but also
consolatory payments for gross inconvenience resulting from maladministration if the errors
made were so severe or are over such a protracted period of time that it causes clear
difficulties in the pursuit of pursuing a justified complaint.

49. JCP responded on 20 January 2014 stating that the decision for Special Payments was based
on DWP National guidance and after discussing the circumstances of the application with
the DWP National Team for Special Payments, it has been forwarded to the National Special
Payment Team, based at Glasgow Northgate Benefit Centre. The JCP manager was informed
(20 January) that a complaint would be brought with the intention of raising concerns about
how matters are dealt with at JCP. The manager with whom PA was corresponding was also
contacted to ask whether it would be necessary to produce a document of all correspondence
as evidence of the time spent with matters. It was confirmed that the Special Payments Team
would make the decision on whether a payment would be made and would contact PA direct
if they required further evidence.

50. The JCP manager responded on 22 January regarding complaint options, stating it was
policy to always try and resolve matters in discussion. He suggested in the first instance for
the complaint to be discussed with the manager whom PA had been dealing with. Failing a
resolution through discussion there were four further stages to escalate an unsatisfactory
outcome. PA telephoned JCP on the morning of 23 January to discuss various issues
including allocation of NI Credits and bringing up to date records. It was agreed helpful for
the Special Payments Team for determining any or the level of consolatory payment if
documents already held by PA were submitted (Appeal Grounds and Tribunal decisions).

51. The two agreed documents were emailed by PA as attachments to JCP in the afternoon of
January the 23 (Social Entitlement Tribunal - Grounds of appeal.pdf and Social Entitlement
Tribunal - All Decisions.pdf). The possibility of scanning the appeal bundle consisting of
around 80 pages to further support the amount of time spent was also raised in the body of
the email to which the documents were attached. JCP confirmed later that day by email that
the documents had been forwarded to the Special Payments Team in Glasgow. It was also
confirmed that the relevant department had been contacted regarding NI credits and made an
undertaking to confirm records were updated the following week. With regards scanning

17
 documents to further support the claim, it was suggested unnecessary by JCP, unless the
Special Payments Team asked for them.

52. The Special Payments Unit (SPU) sent a letter dated 23 January with the outcome to the
request for a special payment. Its findings were that there was no evidence of
maladministration by the department with the reason supporting its decision based merely on
the fact that PA was able to put in an appeal against the sanctions and won the appeal. The
letter stated that:

‘Consolatory payments are made in very exceptional circumstances where an official

error has had a direct adverse effect on the life of the customer and/or on the life of
another person. We cannot make a payment if we have not done anything wrong or
where an error has had minimal impact on the customer. A consolatory payment for
gross inconvenience resulting from official error will only be made if the errors made
are so severe or are over such a protracted period of time that it causes the customer
clear difficulties in the pursuit of benefits or pursuing a justified complaint.

After considering the circumstances of your request I have decided a special payment is
not appropriate.’

53. The option was given (if not satisfied with the special payment decision) to write to the SPU
Glasgow, providing reasons why it was felt that the decision was incorrect etc. However, it
did emphasise that the Department's Special Payment Scheme was discretionary and there
was no process of appeal against the amount of a special payment. Notwithstanding the
apparently justified practice of indiscriminately sanctioning, the matters had largely been
down to maladministration in the appeal process, i.e., losing half of the appeal form and not
addressing it despite countless letters highlighting the anomaly.

54. PA contacted the SPU on 29 January 2014 to enquire about what information had been
submitted by JCP in relation to the Special Payment request. He suspected that the grounds
of appeal had not been submitted by JCP as claimed, otherwise the SPU would have been
aware of the gross inconvenience caused and the length of time the dispute had gone on and
still ongoing (not apparent from its letter). This was subsequently re-sent adding a request to
acknowledge correspondence and to forward contact details of the person with overall
responsibility for the SPU.

55. An update was sent by JCP on 31 January confirming that Hull BDC had received details of
the Appeal and that NI records had been adjusted accordingly. The adjustment meant that for

18
 2010/11 and 2011/12 Tax Years, 52 credits were awarded for each year and for 2012/13
there were 39 credits awarded. It was questioned if the 39 credits awarded for 2012/13 was
correct, with the doubt arising because of a claim that was back-dated to 29 August 2012
may not have been accounted for.

56. HMRC sent a letter to PA dated 3 February 2014 stating there was no longer a shortfall of
NI credits for 2010/11 but no reference to 2011/12, despite adjusted records supposedly
accounting for Tribunal decisions for both 2010/11 and 2011/12 tax years, having 52 credits
awarded. This raised a doubt as to whether the 2011/12 tax year’s credits had been allocated.
The SPU advised PA in an email of 4 February to contact JCP about queries he had made
regarding information submitted by JCP (to the SPU) in relation to the Special Payment
request. Evidently there were procedural constraints preventing the SPU being permitted to
deal with PA directly (providing the requested information). The request had to be handled
by the sending office (JCP) and his email (PA’s) could only be acknowledged by the SPU in
very general terms.

57. It was in the interest of JCP to prevent the SPU from obtaining information in support of the
gross inconvenience caused and the length of the dispute. The Grounds of appeal, to a
degree, would have provided evidence of this, and was why PA was asking the SPU rather
than JCP. A decision to award a consolatory payment would impact negatively on one or a
number of departments’ performance figures by virtue of the fact that there is an admission
of wrongdoing. It is self evident that such pressures would encourage employees to
determine that a request does not deserve a consolatory payment (when in fact it does)
whose performance record might otherwise be detrimentally affected. In an email of 4
February it was expressed to the SPU that it was the appropriate department to make
enquiries with because the issues related to the SPU. Contact details of the person with
overall responsibility for the SPU were asked for again.

58. The SPU sent a letter to PA dated 6 February largely comprising a chronology of events.
The caseworker identified who the head of the SPU was. The information used by the
caseworker to make her decision was itemised, on the suggestion of the head of the SPU. It
is evident from the letter that JCP had intentionally misled the SPU as to the true extent of
the inconvenience caused by the maladministration because the letter included the account of
what JCP had provided the CPU. Clearly JCP had stated that the decision to turn down NI

19
 credits which were subsequently appealed against, related to only one period (7 July 2010 to
13 August 2010) when in fact there were six decisions.

59. Under heading, “What the known effects of the error are”, it states: ‘Originally, the
claimant had not been awarded National Insurance credits for the period 07/07/2010 to
13/08/2010. These have been subsequently awarded’. Under another heading, “What has
been done to put the matter right and to ensure that the error is not repeated”, JCP
implies that the Tribunal was wrong as the manager expressed that he did ‘not feel that an
error as such has taken place by the Department, rather a decision at the Appeal Tribunal
was found in favour of the claimant and when he has received this decision he has asked for
compensation.’

60. The CPU said that when it asked for additional information, it received the appeal court
decisions of 12 December 2013 (to over turn the sanctions), the letter of 2 May 2013 asking
for a SAR and a letter explaining the reasons for the missing credits. The Grounds of Appeal
which JCP had claimed to have forwarded to the CPU (along with the Tribunal decisions)
was clearly not among the information used by the caseworker to make her decision.

61. What the letter is evidence of is that JCP wanted to conceal the amount of hardship caused,
firstly because its summary of what happened nowhere near reflected the true amount of
injustice experienced and secondly the grounds of appeal (Tribunal) was not listed in the
itemised documents that JCP had sent to the CPU. Add the fact that JCP wanted the CPU to
believe that it was not responsible (on account of the appeal outcome), this all points to JCP
significantly downplaying the injustice to achieve the best chance of persuading the CPU
that a special payment was not appropriate. The following summary is evidence that JCP
wished to conceal the amount of injustice caused:

 Only one of the six decisions has been singled out (relating to the period 7 July 2010
to 13 August 2010) when in fact there were six decisions

 Implying that any error has been inconsequential because the sanctioned NI credits
relating to the period 7 July 2010 to 13 August 2010 have been subsequently awarded

 JCP implies that by determining the sanctions unlawful, the Tribunal came to the
wrong decision, though the Secretary of State for Work and Pensions has not appealed
the decision

20
  The grounds of appeal had not been considered by the caseworker to make her
decision. This document had been agreed to be sent and at that stage provided the best
evidence of the gross inconvenience caused and the length of time the dispute had
gone on

62. The SPU reiterated in its 6 February letter that if PA was not satisfied with the decision he
should write to the SPU, providing reasons as to why it was felt that the decision was
incorrect etc. The decision had been made by PA to submit a complaint about JCP because
issues concerning the allocation of credits affecting the number of qualifying year’s pension
entitlement (after Tribunal decisions) were ceaseless, with constant obstruction put in the
way by JCP. Therefore, there was little point providing reasons why it was felt that the
SPU’s decision was incorrect, or supplying additional information regarding relevant facts
until the issues arising subsequent to the Tribunal decision had been resolved.

63. The JCP manager was contacted by email on 14 February to inform him that it was likely
that the issues would be escalated ultimately to the Ombudsman so there would then be an
avenue to have the issues judicially reviewed. The potential areas for complaint were
outlined and a request made for all records in relation to which staff, and at what stage they
were aware about the failures that have led to issues continuing unresolved for so long. It
was queried if release of any of the details would require another SAR submitting. In the
absence of a response from the JCP manager a printed copy of the email was delivered to the
reception of JCP on 20 February and a receipt obtained stating particulars and that the copy
would be handed to the manager. The manager responded on 21 February (the complaint had
not been satisfactorily resolved). He communicated that there were two options to escalate
the complaint, either by contacting the PA’s MP or the DWP Director General for
Operations. The 14 February email had been treated as a SAR and would be dealt with by
the DWP Data Manager who would provide the requested information in line with statutory
timescales. The DWP gave an undertaking to issue the information (All Jobseekers
Allowance records) as soon as possible, and within 40 days from 19 February which was
when the SAR had been received.

64. A letter was sent under cover of email to JCP on 16 March 2014, outlining a number of
queries in connection with NI credits, SAR, Tribunal and the SPU. The SPU and various
other recipients deemed relevant were copied in. The correspondence extends to some detail
and therefore will not be reproduced here. A request was made on 21 March to confirm
whether the concerns raised would be looked into and for an explanation why there had been

21
 no acknowledgement to previous requests for confirmation. JCP was contacted on 24 March
to establish why it was proving almost impossible to get answers or even acknowledgement.

65. In the absence of a response a hard copy was handed (25 March) to an advisor at JCP of the
letter sent 16 March and accompanying email. A receipt was obtained again stating
particulars and for whom it was the attention of. JCP responded on 25 March addressing
some of the issues raised in correspondence of 16 March. Despite the doubt raised by
HMRC, it was confirmed that 52 weeks NI credits for 2011/12 had been awarded as well as
for the 2010/11 Tax Year. It was confirmed that the claim had been backdated to the 29
August 2012, and as a consequence awarded NI credits for the period 29 August 2012 to 16
September 2012 with a total 49 credits awarded for the 2012/13 tax year. It was unclear
where the discrepancy (10 weeks credits) had arisen because of the incomplete information
in the SAR. It was suspected that a typing error (or similar) was responsible where it stated
previously that there were 39 credits allocated for 2012/13.

66. The anomaly of the 3 missing credits for the 2012/13 tax year were raised with JCP on 26
March. It was suggested that a typing error by the Tribunal may have been responsible as
two of the decisions related to sanctions both covering the same period (28 March 2012 to
10 April 2012). The assumption being that because of this, a decision had not been
accounted for by Hull BDC and consequently credits not reinstated (presumably the 3
missing credits). It was expressed that because of the assumed typing error it was unsure as
to the period the sanction covered in relation to the Tribunal Decision dated 11 September
2012.

67. Because of the incomplete information in the SAR it was not possible for PA to confirm the
decision(s) he wished to appeal relating to a grey area for a period that a claim ended on 28
August 2012 with no confirmation when it resumed. The assumption was that the 3 missing
credits may have been accounted for around this time. JCP replied on 27 March stating that
the Tribunal had not made a mistake and the assumed typing error was down to being
sanctioned for the same period twice for two separate reasons. He also discovered from
discussions with Hull BDC about which weeks were missing that a credit had not been
awarded for the week 8-14 April 2012. With the error rectified, records showed 50 credits
for the 2012/13 tax year. It was confirmed that the most recent JSA claim, in February 2014,
was backdated to 29 January 2013 as requested and so NI Credits had been awarded from 29
January 2013.

22
68. The disputed 2 credits lacking for the 2012/13 tax year were apparently not related to
sanctions, rather the periods in question did not qualify for NI Credits because the claim had
not run uninterrupted from a Sunday to a Saturday (the criteria entitling one to a full week).
It was stated that the two weeks missing were 26 August 2012 to 1 September 2012 and 27
January 2013 to 2 February 2013. It appeared that the two weeks missing coincided with
claims which had been back-dated meaning that although the claim covered each
consecutive day of the periods in question, it did not run continuously. The claim had been
interrupted as a result of having to be back-dated after being wrongly terminated, thus
creating a gap.

69. It was expressed in communication with JCP on 27 March (re qualifying week) that a glitch
in the computer system would be the likely cause of disentitlement of NI credits in back-
dated claims. It was asked for the record to be manually adjusted so there were 52 weeks
awarded for 2012/13, in light of the claim (in both cases) ending and having to be backdated
in circumstances out of PA’s control. JCP responded on 28 March explaining that there was
no entitlement to NI Credits for the two weeks in question because the Social Security
(Credits Only) Regulations of 1975 were not satisfied, rather than any flaw in the computer
system. It was also explained that that those were the Regulations that stated the
circumstances in which credits are awarded and define a contribution week, so there was no
discretion that could be used. The Social Security (Credits) Regulations 1975 appeared not,
as was stated, to define a contribution week. This was one of the four issues raised in the
email of 31 March referred to below. The information requested (SAR) “All Jobseekers
Allowance records” was sent to PA on 28 March 2014.

70. JCP was emailed on 31 March with a number of queries for which no definitive answer had
been forthcoming which were (i) The Social Security (Credits) Regulations 1975, (ii) Appeal
(23 April 2013), (iii) Disentitled credits for 2012/13 tax year, (iv) Sanctioned twice for same
period (28 March to 10 April 2012). In the case of the second item, however, this related to
the maladministration mentioned already (the incomplete GL24) but new information had
been obtained from the SAR dated 28 March 2014 and so will be reproduced here.

Appeal (23 April 2013)

71. This element of the correspondence (along with delay in responding to SAR) helps
distinguish the complaint as one of maladministration rather than merely about unlawfully

23
 sanctioning (the latter being apparently accepted owing to there being an appeal process).
Information received from the SAR dated 28 March 2014 (second SAR) in respect of “All
Jobseekers Allowance records” revealed the complete details of GL24. None of the
information was missing, i.e., it included information that the Hull BDC Appeals team and
Tribunal subsequently asked for. From this it seems JCP had not transferred the complete
form to Hull BDC Appeals team, rather only one of the two pages.

72. This seems to be the only explanation for Hull requesting in the 7 May 2013 letter that
information be provided in writing which had already been submitted. The same letter asked
for specific information that was, at the time, not held; the reasons for which had already
been stated on GL24 when originally submitted. The Hull team asked to provide a signature.
The second SAR confirms that GL24 was signed (unknown earlier as no copy retained). PA
was therefore previously unable to confirm that the form had in fact been signed, and could
only from memory describe the reasons he had given for why the grounds of appeal would
be delayed (another of the requests from Hull). The third request from Hull was that the
decision he wished to appeal be identified. The reason for not being able to disclose this had
already been stated on GL24 and since receiving the second SAR could be confirmed.

73. On the balance of probabilities, the complete form would not have been sent to Hull BDC
Appeals team with the likely error being that the same page would have been duplicated
when copied by one department and subsequently forwarded to another. This is corroborated
with a Directions Notice from the Tribunal asking for similar information as Hull had asked
for. The Directions Notice was accompanied with 2 copies of the same page (half of form
GL24 duplicated) i.e., there was no copy of the page that included PA’s signature and the
other information requested by the Tribunal/ Hull BDC, despite that information having
been originally submitted.

74. This suggests the appeal escalated to Tribunal merely on account of the Hull team not being
provided all the details. However, what makes the error more serious is if, as it is likely, one
page had been duplicated, how it had not been identified and traced to where the error had
occurred. If Hull BDC had the complete form why would it have subsequently asked in its
letter of 7 May 2013 for it to be signed and for information to be sent which had already
been explained on GL24 could not be provided until the SAR had been processed? The form
(GL24) WAS SIGNED, it was stated that there was “NO LETTER” where it asked for the

24
 date on the letter about the decision, and where it asked to be provided reasons why PA
disagreed with the decision the following was stated:

“I am appealing several decisions. I don’t know the reasons for the decisions, hence the
delay. I need to obtain information which involves the Information Commissioner
which could take several weeks to obtain, if ever. The delay is due to not having been
informed of any reasons.”

75. To reiterate what was in the letter of 7 May 2013 from Hull BDC, it said that the law says
we can only deal with an appeal when it has been made in the right way. We need more
information. Please tell us in writing:

which decision you want to appeal against

the reason why you want to appeal against this decision, please give more details as
to why you think the decision is wrong

We need you to sign it yourself, or give proper authority for the person who signed
it to act for you as your representative.

76. JCP wrote on 4 April to say that the four points which were raised (31 March) were being
looked into. JCP was chased for an up-date on 16 April with emphasis on item 3 (Disentitled
credits for 2012/13 tax year). It was expressed that unless the decision relating to disentitled
credits for the two weeks in 2012/13 was lifted, an appeal would be submitted on the
grounds that disentitlement (the cause of which were backdated claims) was as a
consequence of the DWP’s maladministration. It was determined in the Tribunal Appeal that
in cases where a claimant is registered for credits only, a sanction or disallowance cannot be
applied. This was not acknowledged so an appeal was submitted on 18 April (Form GL24)
under cover of email to JCP appealing the decision (28 March) of the refusal to allocate the
two missing NI credits relating to the 2012/13 tax year. It was asked to confirm receipt of the
correspondence and for assurance that the matter would be proceeded with in a timely
manner. Confirmation was received on 23 April that GL24 had been passed onto their
Benefit Centre who would be in touch.

77. JCP was contacted on 27 April to query the number of qualifying year’s state pension that
showed from a pension forecast obtained that day (27 qualifying years up to the tax year
ending 5 April 2014). The issues in dispute (tax year 2012/13) had apparently not been
resolved and therefore not included, it appeared that the 2013/14 tax year (for which 52

25
 weeks should have been credited) had not qualified. The qualifying number of years should
have been 28, not 27 and was asked for this matter to be looked into as well as the issues
raised in correspondence of 31 March. JCP replied on 28 April with an undertaking to seek
clarification over the exact number of qualifying years, and confirm once it was known.
However, the undertaking was never acted on and there was no contact since. Hull Benefit
Centre sent correspondence dated 9 May 2014 with notification that they could credit NI
contributions for the period from 27 January 2013 to 5 April 2014. There was no reference
on the letter so not known whether it was a decision to the appeal sent 18 April or a standard
notification.

78. The letter explained that they would explain more about the decision if it was requested
within 1 month of the date of the letter. Hull Benefit Centre was written to on 3 June asking
for an explanation, a written statement of reasons for the decision and (if the decision was in
relation to the appeal sent 18 April) to look again at the decision to see if it could be
changed. The reasons why a review was required were based on the assumption that the
decision was in relation to the appeal. The NI contributions credited for the period 27
January 2013 to 5 April 2014 addressed only one of the two missing weeks appealed (27
January 2013 to 2 February 2013). The second missing week appealed (26 August 2012 to 1
September 2012) had not been addressed. Assuming it was the appeal decision, it was not
confirmed whether it had been successful nor was there any evidence it had been considered.
The letter was never responded to.

79. Another issue had arisen from a letter sent by Hull Benefit Centre dated 7 July 2014. It said
that following a recent change, an allowance (assumed NI credits) cannot be paid from 30
January 2013 because the law says so. No reason was given and the letter did not state the
duration for which an allowance could not be paid. The letter said either to write or
telephone if wanting to know the reasons for there being a change. It had already been
confirmed that the most recent claim in February 2014 was backdated to 29 January 2013
and so NI Credits awarded from that date. Hull Benefit Centre had also stated it could credit
NI contributions for the period from 27 January 2013 to 5 April 2014. Hull Benefit Centre
was written to on 14 July to ask for an explanation, a written statement of reasons for the
decision and to look again at the decision to see if it could be changed. A copy of the letter
sent 3 June regarding previous decision was enclosed to remind Hull Benefit Centre that a
resolution for that matter was still awaiting a reply. That letter was also never responded to.

26
 JCP’s response to Complaint

80. The Complaints Resolution Manager responded to the complaint in a letter dated 16 October
2014 in which an apology was given and responsibility taken for most of the failings. For
example, it was admitted that ‘if the correct action had been taken at the time with regard to
the sanction decisions, many of the ensuing problems could have been avoided. You would
not have had the need to write to us and would not have been inconvenienced to the level
you have’. Nevertheless, the response failed to resolve all the issues, however, the
consolatory payment refusal was addressed as follows:

“Your case was previously referred for a Special Payment and was refused. I am going
to re-refer for consideration of a Special Payment in light of your complaint. We can
award up to a hundred pounds locally, but due to the complexity of the case, I am
asking the Special Payment Unit to look at the decision again. This may take a few
weeks, before a decision is reached.”

81. In summary, the outcome failed to address the injustice that was attributable to the malicious
actions of JCP for; i) obfuscating the appeal process, ii) giving wrong advice about a
person’s time taken in pursuit of the complaint in respect of a financial remedy, iii)
sabotaging the application for a consolatory payment and iv) deliberately causing continued
hardship by challenging the appeal findings to prolong remedying the injustice. JCP
exploited the passing of time, to avoid addressing those aspects of the complaint, as follows:

‘You mention in your letter problems you had with regard to the appeals you made, in
particular that you were waiting for a reply to your SAR request. You also mention a
“breakdown in communications” between the Department and The Tribunal Service and
our failure to provide all the relevant information to the Tribunal Service. I am sure you
will appreciate that due to the passing of time, it can be difficult to establish exactly
what happened. I do not doubt what you say, as I have no evidence to confirm or deny
what actually happened. I can however apologise for the inconvenience and distress you
have been caused.’

Complaint escalated to the Director General for Operations

82. The complaint was escalated on 10 April 2015 on the basis that the issues had not been
resolved, particularly in respect of the failings which contributed most significantly to the
injustice which were dismissed with the justification for doing so being the ‘passing of time’
and having ‘no evidence to confirm or deny what actually happened’. Specific references to
the 26 August 2014 complaint were given to identify evidence relating to the significant

27
 contributing factor for the matter unnecessarily proceeding to the Tribunal (the incomplete
GL24 appeal form). Other references to the 26 August complaint were given relating to the
unaddressed queries regarding disentitled credits which had despite the upheld JCP decision
still not been responded to.

83. It was expressed that the whole complaint should be investigated by the department as there
had been no resolve of any of the issues raised and as there had been no further contact
regarding any of them there was no change to what was originally stated as the desired
outcome.

Director General’s outcome

84. The Director General responded to the complaint in a letter dated 26 June 2015 in which
clarification was given as to the situation regarding NI records. It was confirmed that 52
credits were awarded for the 2010-11 tax year, 52 credits for 2011-12, 50 for 2012-13 and 52
for 2013-14. In respect of the appeal that queried two missing credits in the 2012-13 tax year
which had never been responded to nor addressed in the complaint response by the JCP
Complaints Resolution Manager, the following was stated:

“I understand that you also submitted an appeal on 18 April 2014 regarding the two
missing credits in the 2012-2013 tax year. Regrettably, it appears that the appropriate
action was not taken upon receipt of your appeal and I apologise for this. I am however,
pleased to confirm that the two missing credits for the 2012-2013 tax year will be
awarded and your NI record adjusted accordingly. Due to the additional delay in
providing you with a suitable response to your appeal and request for clarification
regarding this issue, I have referred your case for a further Special Payment decision
which you should hear about within 28 days.”

85. The following explanation was given regarding the appeal form anomaly which missed the
point about the judge’s Direction Notice of 6 June 2013 (for a decision as to whether the
appeal was duly made) having stapled to it referral papers from Hull Benefit Centre to the
Tribunal which included an incomplete copy (one page) of the two page appeal form GL24.
It was also relevant that none of the correspondence PA had sent to Hull BDC regarding the
SAR had been included, nor mentioned.

“I understand you believe that Hull Benefit Centre issued only part of the GL24 appeal
form dated 23 April 2013 to Her Majesty's Courts and Tribunal Service (HMCTS)

28
 because the letter you received from Hull Benefit Centre dated 7 May 2013, requested
more information about your appeal also asked you to provide a signed copy of the
appeal. I can confirm that we did hold a signed copy of your appeal which was passed
to HMCTS.”

86. The point was also missed about why – regardless of whether the complaint form had been
passed on (at some stage) – Hull Benefit Centre requested more information from PA about
his appeal and then after that a deluge of direction notices were sent from HMCTS asking
for the same information Hull had asked for, if they both had the complete form which
answered their questions.

Complaint escalated to the Independent Case Examiner (ICE)

87. The complaint was escalated on 22 December 2015 on the basis that the complaint had been
unsatisfactorily dealt with (the vast majority of the issues remained unresolved). In
summary, the explanation given about the appeal form was questioned and dissatisfaction
expressed about the failure to address the actions which were based on improper motives
(those set out in para 81 above). The following representations were introduced in respect of
a financial remedy being appropriate for compensating gross inconvenience:

“I have also discovered, despite being told that the a Special Payment (consolatory) can
only be made as an acknowledgement of the maladministration, i.e., not in a sum which
compensates for the gross inconvenience, that there is an avenue to pay more than what
was paid which was implied to be the maximum possible. Despite the sum paid being
only £350 it is suggested that the Special Payment unit could have paid up to £500
without referral to the Complaints, Redress and Stewardship Team (CReST).
Considering that a conservative sum of compensation would be in the thousands of
pounds rather than hundreds, it would seem that if the Special Payment Unit were
actually genuine about acknowledging the gross inconvenience caused there would be
no hesitation in referring the case to CReST.”

ICE pre-investigation correspondence

88. The ICE wrote regarding the complaint on 14 January 2016 to seek confirmation from PA
that the following accurately defined the complaint (or if further clarification was required):

A. From 2011 onwards, Jobcentre Plus (JCP) failed to notify you of sanctions it had
made on your Jobseekers Allowance (NI credits only) claim.

B. In 2012, JCP incorrectly terminated your NI credits for the years 2008 to 2011.

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 C. JCP failed to provide the entire completed appeal form to HM Courts and Tribunal
Service in respect of an appeal you had made in April 2013.

D. JCP failed to deal with your Subject Access Request made in 2014 in a timely and
appropriate manner.

Additionally the ICE asked PA to describe the full consequences of the maladministration
and provide full details of what he would like to happen in order to put matters right and
hopefully resolve his complaints.

89. PA replied on 23 January 2016 and confirmed that the elements of the complaint defined by
the ICE were broadly the issues of concern. However, he emphasised that a significant
amount of the trouble he was put to (additional work of around 6 months) was as a
consequence of having to collate information outlining the reasons why he disagreed with
the decision of the Special Payments Unit (SPU). He expressed that he made it clear before
carrying out the work which the SPU required he undertake for it to review its decision, that
the process itself would add significantly to the gross inconvenience he had already been
caused. He reminded the ICE of the DWP guidance stating that ‘it is not necessary for an
individual to request consideration of a special payment’ and that ‘payment should be
routinely considered’ (the failure to follow this had compounded the work which PA was
required to carry out to address the maladministration).

90. In answer to the questions regarding the consequences of the alleged maladministration and
what PA would like to happen to have matters put right etc., he wrote the following:

Consequences of the alleged maladministration

I consider the complaint dated 26 August 2014 supports the allegation that a year and a
half engaged in these matters constitutes gross inconvenience resulting from official
error. There is little I can add to what has already been documented in that complaint
and consider that it fully highlights the effects of the maladministration.

What I would like to happen to put matters right

I would like to think that the amount of work that it has taken dealing with and
documenting the issues has not totally been wasted and the material can be used in some
way to help government departments develop new policies that will improve the way
members of the public are dealt with when disputes arise. I will not go further into detail

30
 here as I have set this out in my 26 August 2014 complaint from paragraph 142
onwards.

Other than that, and recognising that it is unlikely the full extent of the work attributed
to the dispute could be fully compensated for, I think it reasonable that a more serious
consideration of the amount of inconvenience I have suffered is evaluated. Therefore, as
mentioned in my 22 December 2015 letter it may be that a referral to the Complaints,
Redress and Stewardship Team (CReST) is made to see if a sum more accurately
reflecting the work caused can be arrived at.

91. The ICE provided an update on 26 January 2016 confirming that the complaints had been
defined as per the original (see para 88 above). The further evidence PA provided was
acknowledged (it would be taken into account as part of the investigation). The case papers
had been requested from JCP and the case file passed for allocation to an Investigation Case
Manager as soon as one was available. The next update was from the Case Manager on 16
December 2016 who stated she had been allocated the complaint and currently in the process
of examining the case papers provided by the DWP and gave an undertaking to contact PA
with an update in eight weeks.

ICE’s outcome

92. After completing its investigation the ICE team sent an outcome letter and accompanying
report on 9 March 2017. No recommendations were made though it found three parts of the
complaint to be justified (elements A, B and D but not element C). Though the complaint
was largely found to be justified there was no specific consideration given to the criminal
aspect (improper motives) nor was it considered appropriate to have referred the matter to
CReST concerning the financial remedy. Despite acknowledging JCP’s considerable service
failures in how they dealt with the NI credits only claim and in providing the information
required in relation to the SAR, the ICE found that their apologies in response to these errors
coupled with the aggregate £400 consolatory payments was appropriate redress given the
circumstances of the case.

93. The ICE justified the decision not to uphold element C of the complaint (mishandling the
appeal form) in paragraphs 120 and 121 of the report as follows:

120. It was only following your receipt of a State Pension forecast in January 2013
that you became aware there were deficiencies in your National Insurance account due
to the actions of JCP. You disputed the record held with JCP and on 23 April 2013 they

31
 received a two page appeal form GL24 - the first page contained your identity details
and on the second page you did not provide any dates for the decisions you were
contesting because you said you were awaiting further ‘information’ and there could be
a delay in obtaining that information. Having received that GL24 JCP needed to process
your appeal application and at that stage a JCP Decision Maker, or their Appeal Team,
could have revised the (incorrect) decisions reached on your claims; thereby resolving
the matter without recourse to HMCTS. However, JCP did not do so and although it is
not recorded when your appeal was referred by JCP you were asked by HMCTS on 11
June 2013 for further details to support your appeal – the subsequent actions of JCP
(referred to earlier) meant there was no requirement for an appeal hearing to be
arranged.

121. You have expressed your belief that only the first page of your appeal was
forwarded to JCP’s Appeal Team because had the second page been included you
consider JCP would have overturned their previous decisions and there would have
been no requirement to refer your case to HMCTS - had JCP’s Appeal Team, or
HMCTS, received a clearly incomplete GL24 appeal form then any appeal action would
not have been able to progress - however, this was not the case. Other than your belief
there is no evidence to support your suggestion that only one page of your appeal form
was forwarded to JCP’s Appeal Team; nor is there any evidence that the entire GL24
form was not subsequently referred to HMCTS. I do not uphold element C of your
complaint.

94. Notably the ICE’s report was littered with comments to the effect that the events detailed in
PA’s complaint could not be confirmed because JCP held no records. The following
examples give a flavour (emphasis added):

14. Your claim was closed from 30 January 2013 (JCP have been unable to confirm
why).

17. You have said (in your letter to my office dated 22 December 2015) that you
attended a meeting with a member of staff at your local JCP on 9 April 2013 where the
sanctions and disallowances on your NIC claim were discussed (although you were told
that specific details of those decisions could not be obtained). You were advised that if
you wanted to appeal you should do so without delay and state that the grounds of
appeal would follow once you had been provided with details of the decisions (JCP
have no record of this meeting so are unable to advise my office why this information
regarding the specific details of the decisions could not be obtained).

74. You reiterated your complaint that the information sent to the Special Payments
Team was insufficient and they had played down the gross inconvenience resulting
from the errors and negligence which had now stretched to around a year and a half. No
mention had been made that it had taken 111 days to respond to your SAR instead of the

32
 40 days required in law. You had told Officer A that you had an additional 80 pages of
evidence that could be supplied to support the Special Payment request but that had not
been deemed necessary. You said that it had been agreed during a telephone call on 23
January 2014 that your grounds of appeal would be forwarded to the Special Payments
Team but that had not happened - there is no record of a telephone call that day.

95. As a result of the ICE’s investigation (not previously identified) it was discovered that PA
was not obliged, as a NI Credits only claimant, to engage or participate with the Work
Programme and therefore should not have been referred to a Decision Maker for
consideration of a sanction decision. However, according to JCP records his claim had been
incorrectly closed on two occasions for failing to attend Work Programme appointments.
The report also revealed that PA’s claim was closed from 5 May 2015 though he had not
ended it himself and did not receive a letter informing him of why it had been closed (JCP
said that he last signed on 9 September 2014).

96. PA was given the opportunity to write to the ICE, to identify any factual error (not a
difference of opinion) in the report or submit any new evidence which would materially
affect the decision (for a review). He enquired in emails (11 and 13 March 2017) into
whether asking for a review would, based around some provisional observations, likely
achieve anything (so as not to waste anymore time unnecessarily if it was unlikely). He had
made his intention clear that he would be forwarding the matter to his MP for referral to the
Ombudsman if a more appropriate solution could not be found by the ICE.

97. To put the enquiry into perspective, PA explained he had no new evidence (assuming all
papers were considered) and the points he wished to contest would probably be considered a
difference of opinion though expressed he did not agree with the part of the complaint which
was not upheld (the mishandling of the appeal form GL24). He questioned how the ICE
viewed that there was no evidence, only his belief, when first Hull BDC on 7 May 2013 then
the Tribunal on 19 June sent letters saying that they could not deal with the appeal unless the
form was signed (the form had been signed). He referred to the letter (see para 85 above)
which he was able to exhibit (original) that HMCTS had sent him dated 6 June 2013 to
reinforce his assertion that the appeal form had been mishandled. He reiterated that a copy of
the appeal form was enclosed but the page which included his signature was missing (page
two) and a duplicate of the first page in its place (a compelling reason why Hull BDC then
the Tribunal insisted that the appeal was not duly made). He explained that this was

33
 therefore not just his belief but evidence to support that the entire GL24 form was not
forwarded to Hull BDC and in turn why the entire form was not referred to HMCTS.

98. His dissatisfaction was also expressed about how the ICE apparently had no appreciation as
to the extent of the injustice he had been caused:

“Another point which was hardly addressed surrounded the consolatory payment. I have
acknowledged that any consolatory payment which might be deemed appropriate,
would unlikely go a fraction of the way to compensate the hundreds of hours spent
engaged in the dispute. However, I would have expected that the representations I
submitted in the 26 August 2014 complaint and subsequently in my letter of 22
December 2015 complaint (Complaints, Redress and Stewardship Team) would have
been more closely considered. I question how the opinion has been arrived at that the
consolatory payment awarded amounting to £400 to be appropriate redress given the
circumstances of my case, taking into account that a significant amount of time was
expended dealing with appealing the original decision to refuse a payment.”

99. He explained that the report needed to be looked over again in case there were other aspects
of the complaint that needed to be raised, but wanted feedback about what prospects there
were of achieving anything by asking the ICE to review her decision based on what had
provisionally been set out (if not, time and effort would be saved if he went straight to his
MP). He clarified in his follow-up email that he was not saying that Hull BDC and HMCTS
never held the complete appeal form; rather his dispute was that it was unlikely to have been
until after 1 July 2013, some months after it had been submitted on 23 April 2013. He also
alerted the ICE to the records he had found of emails/ meetings which JCP had claimed to
have held no records of (meeting of 9 April 2013 for example) and expressed that he needed
to check the remainder of the complaint’s findings for other similar claims.

100. The ICE replied in a letter dated 30 March 2017 to PA’s 11 and 13 March emails. The ICE
considered his comments and observations to be a formal response to the report. However,
he had not got that far; they were preliminary queries to sound-out the likelihood of
achieving anything by asking for the decision to be reviewed, though he did not pursue the
ICE further and decided upon escalating the matter to the Ombudsman. The letter addressed
the preliminary queries beginning with the ICE’s decision not to uphold element C of the
complaint (mishandling the appeal form).

“I have reviewed the documents dated 7 May 2013 from Hull Benefit Delivery Centre
(BDC), and 19 June 2013 from HM Courts and Tribunals Service (HMCTS) you refer

34
 to in your emails. I have also reviewed the details of the referral to HMCTS from the
BDC and HMCTS letters to you on 6 and 19 June 2013.

The letter from Hull BDC stipulated in bold that they required information relating to
which decision you wanted to appeal against and the reason why you wanted to appeal
(i.e. why you thought the decision was wrong). I acknowledge that the next sentence in
the letter of 7 May 2013 could be read as implying that the form had not been signed,
however that is not our reading of that letter.

You did not reply to that letter and when the BDC sent the papers to HMCTS asking
whether the appeal could be accepted, the BDC stated that the reason for the referral
was “the decision under appeal cannot be identified”, and although you had been asked
for sufficient grounds for the appeal and details of the decision under appeal, you had
not responded to the BDC’s letter, dated 7 May 2013.

Although it is not within the ICE remit to comment on action taken by HMCTS,
because of the specific complaint you have made and the evidence you say supports
your complaint, I will provide an explanation. Subsequent to the referral, on 6 June
2013 a Tribunal Judge directed you to send to the Tribunal further details of your
grounds for appealing and any comments that you wish the Tribunal to take into
account. You sent an undated reply which HMCTS received on 11 June 2013, and the
appeal was struck out on 17 June 2013 because the letter you sent “contained no useful
information”.

The Tribunal Judge’s decision was sent to you with a covering letter on 19 June 2013,
in which was listed all the reasons why an appeal could not be considered. An appeal
can be rejected if only one of those listed reasons wasn’t present in the appeal form – in
your case, you had not provided the dates of the decisions you were appealing against
and why you thought those decisions were wrong. The letter did not say that the appeal
had been struck out because you did not sign your appeal – it stated you had not
supplied all of the information listed above [that would allow the Judge] to take your
appeal further.

In our view, the documentation makes clear that the referral by the BDC was made, not
because you had not signed the appeal form, but because you had not responded to a
request for additional information to that already sent, and is the reason the Tribunal
Judge wrote to you for that additional information. Whilst it may be that HMCTS sent
you two copies of the front page of the appeal form, that does not mean that the full
appeal form was not sent to HMCTS by the BDC.”

101. This is so obviously a one sided account of the events, contrived purposely to excuse Hull
BDC and HMCTS’ maladministration. The ICE is obliged to make her decision on the

35
balance of probabilities so the elements that she would logically be required to weigh up
would be as follows:

a) Why Hull BDC sent a letter on 7 May 2013 asking to be provided in writing (within
14 days); which decision PA wanted to appeal against, the reason why he wanted to
appeal against it and for his signature. PA explained on the 23 April 2013 appeal
form that he was awaiting information (expected to be several weeks) that would
enable him to submit the required information asked for by Hull BDC.

b) PA had responded by email on 22 May to Hull BDC’s 7 May letter explaining that
he was awaiting information he’d asked for in a SAR and had attached the 2 May
letter authorising its release. It was categorically clear from the SAR letter that
before PA could progress the appeal he first needed the information requested (the
law allows 40 days for this). Hull BDC therefore knew the score before referring the
appeal to decide if it could go ahead (HMCTS did not receive the letter until 29
May). The 22 May email to Hull BDC in any event stated ‘I will write in more
detail, but for now please find attached the letter I'm waiting on in relation to my
appeal’. He wrote on 23 May apologising for being unable to supply further details,
but referred to what he had explained on form GL24 re, awaiting SAR and 40
working days (so it is possible Hull BDC also received this before sending the
appeal to HMCTS).

c) Why papers referred by Hull Benefit Centre to HMCTS enclosed in the Direction
Notice of 6 June 2013 included an incomplete copy of the appeal form and the
omitted page coincidentally contained the information Hull BDC asked for to be
provided in writing in its 7 May 2013 letter.

d) Why, when it is likely Hull Benefit Centre had received the reply to its 7 May 2013
letter (before it referred the appeal to HMCTS) was the date coincidentally missing
on the copy of the notice i) enclosed in the Direction Notice of 6 June 2013, ii) in
the bundle of documents dated 18 November 2013 (originating from the DWP) and
iii) in the SAR paperwork received by PA on 28 March 2014?

e) Why it states on the undated notice (referring the appeal to HMCTS) that PA
submitted the appeal on 29 April 2013 when the date was in fact 23 April.

f) PA’s 22 May email response and attached 2 May SAR letter were not included in
the referral papers enclosed in the Direction Notice of 6 June 2013. Neither was it
suggested from the tribunal judge’s directions that he had any idea that the SAR
information first needed to be obtained before PA could detail his grounds of
appeal. This is consistent with the corresponding paperwork in the bundle of
documents originating from the DWP. However, the 2 May and 23 May letters do
appear on the record in that bundle but not until they were sent as attachments on 1

36
 July 2013 to HMCTS at which point it is clear they had been forwarded to the Clerk
to the Tribunal, flagged as of high importance.

g) Why Hull BDC never replied to PA’s 27 June 2013 email. He asked for that
correspondence and his previous ones to be acknowledged, recounting the irrational
actions of HMCTS in relation to the appeal. PA had made every effort to explain he
could not provide the appeal grounds until he had obtained the SAR information, yet
the judge directed them to be provided and subsequently stuck out the appeal (19
June directions) because the letter PA sent in response contained ‘no useful
information’. His response advised HMCTS to refer to all his correspondence in
relation to the matter, which had included up until that point, the 23 April 2013
appeal form, email of 22 May 2013, SAR letter dated 2 May 2013 and 23 May
letter. It would have been apparent from any of these that the appeal grounds were
being delayed due to the SAR. Hull BDC was also informed in the 27 June email
that the information requested in the SAR had still not arrived and asked for
HMCTS to be informed that he had no way of providing further information until
that had happened.

h) Why, when PA telephoned Hull BDC to raise concerns about the appeal was the
person taking the call unable to identify the appeal (or the person dealing with it)
from any of the references on the 7 May 2013 letter.

i) Why were none of the emails PA sent to DWP enquiries between June 30 and 11
July 2013 responded to? He had attempted to confirm that the email address given
him was valid for Hull BDC appeals team and the person from whom the 7 May
2013 letter was purportedly sent was actually an appeals team employee.

j) The Direction Notice of 12 July 2013 stated that PA’s email of 1 July 2013 was
received by the Tribunal clerk. It was the first time HMCTS was contacted directly
(PA had not until then known the email address). The email was in response to the
19 June directions striking out the appeal. It explained that PA had been unable to
comply with the directions because he had not received the SAR information and
this had been reiterated in letters/emails to Hull BDC who had not replied (these
were attached). The anomaly was raised about the appeal form (apparently
unsigned) and an explanation given as to why PA wrote ‘NO LETTER’ in the space
on the form where it asked for the date of the letter about the decision he wanted to
appeal (there was ‘no letter’, he was told in person). He asked if it was possible for
HMCTS to obtain the information it wanted directly from Hull BC because he had
little faith in them ever replying to him.

j) Why, if the judge had considered PA’s 1 July 2013 email as implied in his 12 July
directions would he have made the following comments in those directions:

37
 ‘Also it is relevant that the Appellant has not even identified the decision(s)
which he wished to appeal. He has also not given the grounds of appeal’.

It was perverse to have made the above comments having received a comprehensive
explanation for why the decision(s) could not be identified and the grounds of
appeal not given. Nothing else was relevant – any rational directions would have
been to put on hold proceedings with it explained why. However, Hull BDC then
HMCTS turned a blind eye to being repeatedly informed and ploughed on
regardless, so there is every reason to believe that they were complicit in
deliberately causing annoyance and gross injustice (their actions a malicious misuse
of position).

Complaint to the Ombudsman

102. The issues were to a great extent set out as they are in the above paragraphs 1-79. The
prescribed form asked additionally for details of any issues that had not been addressed. PA
briefly described his dissatisfaction that no recommendations had been made that might
otherwise have resulted in lessening the ordeal of future victims of the system. Also that he
was unhappy about the outcome failing to consider the grudge element of the complaint –
the likely cause of the malicious actions of JCP (summarised above para 81).

103. A new issue was raised as a result of the ICE identifying that PA’s claim was closed from 5
May 2015. Paragraph 103 of the ICE’s report said that according to JCP he last signed on 9
September 2014 (he had been signing as a NI Credit only claimant by post at the time). He
had not ended the claim (this was new information) neither had he received any notification
from JCP and assumed he no longer received declaration forms because he had the full 30
qualifying years State Pension entitlement. Consequently it was of no real concern to him,
however, that changed on being made aware (para 15, ICE’s report) that to qualify for full
New State Pension he would need 35 qualifying years. This meant presumably he was back
to square 1 as he appeared to be in the same position he was several years ago with a
number of qualifying years short.

104. He resumed identifying the anomalies he had intended to raise with the ICE regarding the
records he had found of emails/ meetings which JCP had claimed to have held no records of
that were noted in the report (see above para 99). Those that where set out in the complaint
are summarised in paras 105 -112 below.

JCP unable to confirm why claim was closed from 30 January 2013

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105. Paragraph 14 of the ICE’s report says in relation to PA’s claim being closed from 30
January 2013 that ‘JCP have been unable to confirm why’. Despite this, an account
explaining why the claim had been closed was contained in the information PA received
dated 20 August 2013 in response to the SAR. He also included it in a document supporting
his 26 August 2014 complaint (see Gy Jobcentre 16 March 2014, ANNEX B).

Contacting the Information commissioner (misunderstanding)

106. The ICE stressed in her report at paragraph 18 that it was unclear whether PA had contacted
the Information Commissioner at any time (in respect of the SAR). It was clarified in the
complaint to the Ombudsman that PA had initially wrongly assumed that the Information
Commissioner was at fault for the delay regarding the SAR, not the DWP (he believed the
authorisation of the Commissioner was needed permitting the DWP access to his personal
data). He therefore did not contact the Information Commissioner as it was later apparent
that responsibility was entirely with the DWP to release information under the Data
Protection Act. But the salient point was that PA could not have been criticised for the
delay through a lack of his own effort attempting to contact JCP. He had chased up the SAR
with JCP as recorded first on 22 May 2013 (Hull BDC kept informed) and again on 5
August 2013 when he asked for the contact of the person who the SAR had been sent so he
could make his own enquiries. In the absence of a reply he re-sent the query on 7, 12 and 13
of August 2013 (HMCTS was copied in on 13 August). His query was only responded to
after he expressed in another email on 14 August that I wished to make a formal complaint
about the staff member.

No record of meeting 9 April 2013

107. Paragraph 17 of the ICE’s report says in relation to the 9 April 2013 meeting that ‘JCP have
no record of this meeting so are unable to advise my office why this information regarding
the specific details of the decisions could not be obtained’. Here is another anomaly because
PA still held as evidence the email he was sent by JCP on 27 March 2013 to arrange a
meeting on the 9 April 2013 which he responded to on 28 March agreeing that he would
attend (he had appended both emails to his complaint to the Ombudsman). He had also
found in the information he received dated 28 March 2014 (the second SAR) a chronology
of events in which the following is logged for 9 April 2013 (which he also appended):

39
 “ADV - cust attended to discuss ASE and Credits awards. Seen by Maggie McGeever.
Cust issued with SAR details. Offered GL24 but cust stated already has some copies.
Advised again that he needs to submit claim to JSA if he wishes to continue with JSA
claim following ASE disallowance. JSA conditionality reiterated.”

108. He included paragraph 12 of his 26 August 2014 submission in his complaint to the
Ombudsman for a fuller description of what was discussed at the meeting, as follows:

“Appointment arranged (27.3.13) for meeting on 9.4.13 with Mrs McGeever at which
departmental targets and regional league tables discussed (see Grounds of Appeal pages
7–8 & Annex C) and suggested may have prompted sanctions/disallowance leading to
termination of claim. Discussed prevalent press coverage at the time criticising
Jobcentres encouraging staff, re sanction targets, (see Grounds of Appeal pages 7–8 &
Annex D) but dismissed by [JCP] for having no relevance to dispute.

Unable to obtain particulars of sanctions leading to deficiency in NI credits because of

alleged Data Protection restrictions. I was therefore required to submit a Subject Access
Request (SAR) to authorise [JCP] to access my personal information. [JCP] discouraged
exercising appeal right but advised if doing so to submit appeal form (GL24) without
delay and to state that the ‘grounds of appeal’ would follow once details of the SAR had
been disclosed.

Note: I inadvertently became the Appellant in a Tribunal case against the Secretary of
State for Work and Pensions because Hull Benefit Delivery Centre (BDC) Appeals
team evidently had not been sent the complete GL24. It has now been discovered that in
all probability [JCP] sent Hull a copy of GL24, having duplicated the same page so Hull
BDC were lacking half the information.”

Appeal referred to HMCTS on an unknown date

109. Paragraph 28 of the ICE’s report comments that the date on which the appeal was referred
by Hull BDC to HMCTS is unknown. However, an indication when it was referred is given
in two letters from the Tribunal Clerk (to Hull BDC and PA) dated 19 June 2013. In both
letters the Clerk refers to the date being 29 May 2013 (the letters were appended to the
complaint to the Ombudsman).

Unclear what correspondence you meant

110. Paragraph 28 of the ICE’s report refers to the letter PA sent to HMCTS on 11 June 2013
saying; ‘please refer to all my correspondence in relation to this matter’, in response to the

40
 5 June directions asking him to send further details of his grounds for appealing within 14
days. The correspondence PA referred to was, (i) a letter he emailed to Hull BDC on 22
May 2013 regarding the SAR (2 May 2013) which supported why he was unable to provide
further details in relation to his appeal, (ii) letter he sent to Hull BDC on 23 May 2013
apologising for being unable to supply further details, but referred to the explanation given
on form GL24 (re, awaiting SAR) and that it could take 40 working days, and (iii) appeal
form GL24. He understood that all this information should have been forwarded by Hull
BDC to HMCTS for the Tribunal’s consideration. It could be deduced from records that the
Tribunal had been referred the complaint on or shortly before 29 May 2013, therefore on
the balance of probabilities Hull BDC was in receipt of all the above documents before
referring the appeal. On that basis, the judge’s directions of 6 June 2013 and subsequent
directions asking to be sent further details was irrational knowing that they could not be
sent until the SAR had been complied with.

No record of emails or telephone call

111. Paragraph 31 of the ICE’s report states that JCP has no record of PA’s email enquiries of 1,
10 and 11 July 2013 or the telephone call around the same time to raise concerns about the
appeal. These emails were sent to DWP enquiries on those dates and previously on 30 June
because Hull BDC neither responded to emails (22 May & 27 June 2013) nor letter sent 23
May (copies of the emails were appended to his complaint to the Ombudsman). Though PA
had not recorded his telephone call to Hull BDC, the number he used was the one provided
on Hull Appeals team 7 May 2013 letter. The call taker was unable to identify the appeal
(or the person dealing with it) from any of the references on the letter, though it would have
been from that call that he obtained the telephone number through which he contacted the
Social Security & Child Support Appeals (SSCSA).

Unknown documents sent to officer ‘A’ on 23 January 2014

112. Paragraph 60 of the ICE’s report refers to documents PA sent to officer A on 23 January
2014 in support of his request for a Special Payment, however, the ICE says that she does
not know what the documents were. They were as described (Appeal Grounds and Tribunal
decisions) and were provided in support of the 24 August 2014 complaint). The email sent
by PA on 23 January 2014 to JCP (which was replied to, acknowledging receipt) confirms
that there were two pdf documents attached (he had appended both emails to his complaint

41
 to the Ombudsman). One was his Appeal Grounds dated 1 September 2013 for the Tribunal
and the other a letter of 20 December 2013 from HMCTS providing details of the 6
sanctions/disallowances which the DWP had revised in his favour.

113. The Ombudsman required PA to say how he had been affected by what had happened. He
stressed that it was a chance discovery, from a pension forecast, that he had a deficiency in
NI contributions which led to him finding out that he had been sanctioned and could
therefore appeal. He may therefore have never known about the numerous missing credits
until it was too late (JCP has been unable to provide evidence that he had been notified for
many of the sanctions). Had he not found out and pursued the matter, a situation could have
arisen where on approaching retirement there would be insufficient time remaining to make
up the shortfall and by that time the option to make up missing contributions by payment
would be lost resulting in reduced pension income.

114. He referred to the complaint and the case history to recount the extent to which he had been
affected by the maladministration – predominantly the amount of time he had needed to
dedicate to dealing with matters to ensure that the errors were corrected (it had taken 4
years from the appeal to arriving at Ombudsman stage). He noted that if he had given in the
full extent of the maladministration would not have been known as each subsequent stage
has uncovered official errors additional to previous stages. He gave the example of the
ICE’s investigation discovering to his detriment another instance of his claim being closed
in May 2015 without being notified (he no longer has the full qualifying years Pension
contributions because 35 qualifying years are now required). Another was that he was not
obliged, as a NI Credits only claimant, to engage or participate in the Work Programme and
therefore should not have been referred to a Decision Maker for consideration of a sanction
decision (his claim had been incorrectly closed for this on two occasions). He noted that the
time he was unnecessarily made to jump through hoops prior to discovering he had missing
NI credits due to his claim being incorrectly closed could be added to the injustice (this
caused endless amount of his time being wasted). He referred to his 26 August 2014
complaint (paras 92 to 141) – a previous account of how he had been affected by what had
happened.

115. The complaint form required PA to say what he wanted the Ombudsman to achieve for him.
He expressed that it would be satisfying, in light of the inordinate amount of time he had
spent, if lessons learned from the complaint were also learned by all JCP branches and other

42
 government departments which similarly cause hardship for members of the public (it
would be unlikely the failings were unique to his complaint). He referred to the destructive
effect such failings have on people’s lives to justify debating in parliament the difficulties
members of the public face dealing with public bodies.

116. He said he was not solely seeking to resolve the outstanding issues, he also thought an offer
of compensation was warranted in recognition of the fact that the described ‘considerable
service failures’ had been far more serious and which more reflected what had
incontrovertibly been the gross injustice suffered as opposed the extremely downplayed
‘confusion’ and inconvenience caused over a protracted period of time. He stressed,
however, that he was realistic in his expectations that any consolatory payment which might
be deemed appropriate would not go a fraction of the way to compensate for the amount of
time and effort that he had needed to dedicate to the matter. He noted that the inordinate
amount of time he had spent extended beyond that attributable to the difficulties with JCP
but that it was clearly necessary to escalate the complaint through all the stages to find out
the extent of official error which had so far been uncovered.

117. He referred to the injustice in terms of a financial loss (if it could be quantified that way)
including potential earnings and considered it to have amounted to thousands of pounds
over the years for having to deal with the maladministration. Though he notes that for
someone with no income the consolatory payment of £350 was not insignificant, it only
represented around 1 per cent of an amount that would realistically compensate for the
overall injustice. On account of the lengths he had to go to address the concerns, he asked to
be updated with details of any improvements or new policies put into place as a
consequence of highlighting the negligence and error. He suggested a role be created for an
accountable person in each branch of JCP whose responsibility would be to ensure such
matters were never allowed to remain unresolved indefinitely and added if such a role did
exist then that person in respect of the Grimsby branch of JCP should be held accountable
and appropriate action taken against them.

118. He went so far as to say that it would be appropriate for parliament to consider enacting
new or amending existing legislation so that matters so serious were punishable by fine or
custodial sentence. He considered that where someone faced the prospects of being given a
criminal record and consequently having it go against them when seeking other
employment, the introduction of such a remedy would likely be an effective deterrent

43
 against improper conduct. He noted that the threat of a criminal record could make a would-
be offender think twice about using their public office for an improper purpose for example
to cover up mismanagement to avoid admitting fault that might adversely affect
performance targets etc.

Ombudsman’s pre-investigation correspondence

119. The Ombudsman wrote regarding the complaint on 9 February 2018 to seek confirmation
from PA that the following accurately defined the complaint (or if further clarification was
required):

“You state that Jobcentre Plus (JCP) failed to notify you of sanctions it made to your
Jobseeker's Allowance (National Insurance Credits only) claim.

You state that JCP failed to make an appropriate compensatory payment for its service
failures.

You state that the ICE report does not address the issue of the failure to provide the
complete appeal bundle from HMCTS, in respect of an appeal you made in 2013.

You state that the final response expressed no records of events and the ICE report fails
to explain why.

You state that as a result of this you have been left distressed and the process has taken
a considerable amount of your time up. You would like a compensatory payment for
potential loss of earnings.

We recognise that you have asked for changes to be made in the legislation and for
criminal sanctions to be placed upon JCP employees, however this is not an outcome we
can achieve, as it is not within our powers to change legislation or to become involved
in the day to day running of JCP.”

120. PA made the following representations on 20 February 2018 (his reply to the Ombudsman’s
letter of 9 February 2018):

Thank you for you letter dated 9 February 2018 in which you summarise the issues of
my complaint. I would just like to clarify one or two points in case there is any
misunderstanding.

POINT 1

Firstly with regard to the following:

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 “You state that JCP failed to make an appropriate compensatory payment for its
service failures.”

Yes, but I would like to emphasise the amount of time and work it took initially to
convince the department that the gross injustice warranted a compensatory payment.
Once a decision was made there was then a failure to consider the amount in line with
its own guidelines. The injustice warranted a referral to the Complaints, Redress and
Stewardship Team (CReST) to better reflect the amount of injustice. However, the
payment was not even the maximum that could have been awarded without referral to
CReST even though the maximum represented only a fraction of an amount that would
realistically compensate for the overall injustice.

It should not have been necessary for me to request compensation, let alone spending so
many hours justifying why it was warranted and researching their policies. The
guidance I referred to “Financial Redress for Maladministration” states that ‘the
appropriateness of making a payment should be routinely considered in any attempt to
rectify departmental maladministration, which may have resulted in a customer (or a
third party) experiencing injustice and/or hardship’.

POINT 2

Regarding the following:

“You state that the final response expressed no records of events and the ICE
report fails to explain why.”

The heading to which this part of my complaint relates may be misleading and so I wish
to clarify as follows:

The sub-headings (in brackets) under the main heading “NO RECORD OF EVENTS
EXPRESSED IN ICE’s REPORT” predominantly relate to the ICE’s final response
where it has been stated that the Grimsby Jobcentre Plus had found no record (emails,
letters, interviews etc). However, I have been able to confirm all of the events because
of records I hold.

POINT 3

Regarding the following:

“You state that as a result of this you have been left distressed and the process has
taken a considerable amount of your time up. You would like a compensatory
payment for potential loss of earnings.”

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That is an interpretation, but I expressed that it would be reasonable that an offer is
made for compensation in recognition of the fact that the ‘considerable service failures’
were much more serious than what the ICE report appeared to consider them.

Regarding ‘compensatory payment for potential loss of earnings’, I expressed in my

complaint that ‘if it could be quantified in monetary terms, the cost (including potential
loss of earnings) if aggregated over the years for the gross inconvenience of having to
deal with the maladministration would amount to thousands of pounds’. However, I was
realistic and acknowledged that I would not expect an amount to fully compensate for
the overall injustice. That would be ideal though if it is achievable.

POINT 4

Regarding the following:

“We recognise that you have asked for changes to be made in the legislation and
for criminal sanctions to be placed upon JCP employees, however, this is not an
outcome we can achieve, as it is not within our powers to change legislation or
become involved in the day to day running of JCP.”

You may appreciate that it is difficult for me to accept that no lessons will be learned
from the injustice I have experienced and the time and effort I have put into raising
these matters will not in any way benefit future victims who will have their lives ruined
in the same way.

I appreciate the Ombudsman will not have the power to change legislation or become
involved in the day to day running of JCP but my expectations were for the matters
raised in my complaint to be brought to the attention of the government and relevant
public bodies and recommendations made.

POINT 5

Please also see additional issues quoted from my complaint that I would like to
highlight:

“..the ICE’s investigation has discovered to my detriment another instance of my claim

being closed in May 2015 without being notified. The implications of this are that I no
longer have the full qualifying years Pension contributions because for full New State
Pension I would need 35 qualifying years rather than 30.

“I was not obliged, as a NI Credits only claimant, to engage or participate with the
Work Programme and therefore should not have been referred to a Decision Maker for
consideration of a sanction decision. However, according to the ICE’s investigation, my

46
 claim had been incorrectly closed on two occasions for failing to attend Work
Programme appointments.”

The Ombudsman’s outcome

121. The Ombudsman’s outcome letter was sent on 26 February 2018 informing PA that having
reviewed the information provided by him and JCP it had decided not to consider the
complaint further. It was apparent that the PA’s representations were either dismissed,
ignored or misrepresented with greater consideration given to JCP to mitigate their fault
with a view to justify dismissing the complaint for investigation.

Review request of the Ombudsman’s decision

122. PA submitted a letter of complaint on 27 March 2018 which predominantly complained of

the Ombudsman’s bias toward JCP (relying solely on the ICE’s findings), ignoring relevant
factors and taking into account factors that were irrelevant. The Ombudsman replied on 3
May stating that PA needed to ask for a review by way of submitting a prescribed review
form which he did on 11 May (essentially a re-submission of his 27 March 2018
complaint). The Ombudsman’s review letter was sent to PA on 10 April 2019 which was a
decision not to review the decision made on 26 February 2018. The review letter was
consistent with the Ombudsman’s earlier decision in that it was manifestly biased toward
JCP, relying solely on the ICE’s findings.

Legal Framework

Parliamentary Commissioner Act 1967

123. The Ombudsman’s powers to investigate a complaint are provided in section 5 of the
Parliamentary Commissioner Act 1967 (the ‘Act’). The decision of 10 April 2019, not to
review a decision made on 26 February 2018, is what this action proposes to challenge. The
decision in 2018 amounted to a statement of the Ombudsman’s reasons for not conducting
an investigation made under section 10(1) of the Act. Under section 5(5) of the Act the
Ombudsman has a general discretion whether to investigate a complaint or not.

124. None of the statutory bars which would render the complaint ineligible for investigation
were cited in the decision, nor were any of the specified discretionary provisions referred to

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 under section 5(2) (a) and (b) or section 6 (a) and (b) of the Act. Therefore the question to
be asked in this challenge is whether the Ombudsman exercising his general discretion
under section 5(5) of the Act either took into account material that should not have been
taken into account or failed to take into account material that should have been taken into
account so as to render unlawful the discretionary decision for not conducting an
investigation. On identifying that the Ombudsman had unlawfully exercised discretion the
next question to be asked would be whether the decision (or any part of it) was so
unreasonable that no reasonable authority would ever consider imposing it.

The decision / review notices

125. The Ombudsman’s decision to exercise his discretion not to investigate the complaint was
arrived at as a result of failing to take into account factors that were relevant and taking into
account factors that were irrelevant. Though there were aspects of the decisions which
raised a real question of bias and/or irrationality.

Claim closed in May 2015 – (Irrelevant factors accounted for - Relevant factors not)

126. The Ombudsman did not consider PA’s complaint about his NI Credit only claim being
closed in May 2015, again without him knowing or subsequently being notified (see above
para 103). This was a repeat of the maladministration for which he had eventually received
an apology from the Complaints Resolution Manager (letter dated 16 October 2014). The
fact that it happened again and was not even worth considering by the Ombudsman
effectively negates the apology.

127. The consequences are that he no longer has full qualifying years Pension contributions
because 35 qualifying years are now required. The Ombudsman’s final notice reiterated
information from the Director General’s response letter dated 26 June 2015 (see above para
84) relating to decisions pre-dating the questioned closure of the claim in May 2015 and
therefore irrelevant. Additionally, the Ombudsman explained how it was possible to add
‘more qualifying years to your National Insurance record’ but that did not address the
ICE’s investigation discovering to his detriment another instance of PA’s claim being
closed.

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128. PA raised his concerns about the Ombudsman’s failure to consider this element in his 27
March 2018 review request. The Ombudsman acknowledged this in the review decision as
follows:

“The report records the discovery of another instance of your claim being closed in May
2015 without being notified. You say this is inexcusable considering it is a repetition of
the fault that started this complaint which has taken so many years to resolve.”

Despite this and stating that the focus of the review would be on the issues that PA said had
not been covered it was not considered.

Work Programme participation – (Relevant factor not taken into account)

129. The Ombudsman did not consider PA’s complaint about his claim being incorrectly closed
on two occasions for failing to attend Work Programme appointments. The ICE’s report
identified that a NI Credits only claimant is not obliged to engage or participate with the
provider and failure to attend Work Programme appointments by a NI Credits only claimant
should not be referred to a Decision Maker for consideration of a sanction decision.

130. PA raised his concerns about the Ombudsman’s failure to consider this element in his 27
March 2018 review request. The Ombudsman acknowledged this in the review decision as
follows:

“Also, you say you were not obliged, as a National Insurance Credits only claimant, to
participate in the Work Programme and therefore should not have been referred to a
Decision Maker for consideration of a sanction decision. However, the ICE found that
your claim had been incorrectly closed on two occasions for failing to attend Work
Programme appointments. You say none of this has been taken into account in respect
of quantifying the amount of injustice or addressing it.”

Despite this and stating that the focus of the review would be on the issues that PA said had
not been covered it was not considered.

Explanation of JCP’s data retention policy – (irrelevant)

131. The Ombudsman considered that the ICE’s report provided a clear and transparent account
of JCP’s data retention policy. The ICE report stated the following in paragraph 8:

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 “JCP have limited documentary evidence available for events from 2009 to August
2013 due to their data retention policy 2 ”

The footnote referenced the report’s annex where JCP’s data retention policy was explained
(2 see annex for explanation of data retention policy).

132. If PA had complained about a ‘failure to explain why there was a lack of records’ then it
would have been a relevant factor to have been considered by the Ombudsman. However,
there were no concerns raised about a failure to explain why there were no records. The
complaint specifically related to the sanctions, emails, phone calls, interviews and letters
that JCP had found no record of, but which PA was able to account for from records he held
and verified by providing them to the Ombudsman. It would therefore have defied logic if
PA had questioned why records had been deleted or destroyed or asked for an explanation
of JCP’s data retention policy. He was under no obligation to delete or destroy the records
he held and he had not done so therefore it was immaterial to him what JCP had done with
theirs.

133. Patently this element of the complaint was to question why the ICE deemed so many lines
of enquiry were inconclusive simply because JCP claimed to have no records. The ICE
made no attempt to fill in the blanks before completing the investigation which could have
easily been achieved by pursuing PA for records (additional to those he had already
submitted as supporting evidence). In any event, a letter in which the Ombudsman
summarised the issues as a check list prior to investigating the complaint, indicated that this
element was misunderstood to be about the ICE report failing to explain why JCP had no
records of events (see para 119 above). It was clarified that the complaint was in fact about
the irrelevance of JCP having found no records of the events because they could be
confirmed by PA as he held records of all of them (see para 120 above).

Consolatory payment (Irrelevant factors accounted for - Relevant factors not)

134. The Ombudsman considered the consolatory payment to be appropriate redress in line with
the Financial Redress for Maladministration Guidelines - Special Payments Scheme: Policy
and Guiding Principles (April 2012). The Ombudsman went on to explain that these
Guiding Principles set ‘out that the financial redress payment range varies from £25 to
£500’ and referenced a footnote to the internet page from where the document could be

50
 downloaded. The Ombudsman’s explanation did not reflect the true picture because what is
in fact stated in respect of the financial redress payment range is as follows:

5.13 Consolatory payments usually range between £25 and £500, although lower or
higher payments may be appropriate having considered the individual circumstances of
a case, in the context of the guiding principles.

5.14 More detailed guidance for staff with responsibility for considering special
payments can be found in “Financial Redress for Injustice Resulting from
Maladministration: A guide for special payment officers”.

135. The Ombudsman had not taken into account (therefore concealed) what was consistently
raised by PA about the ‘Guide for Special Payment Officers’ being the most relevant
document to consider in respect of obtaining the appropriate level of payment that would
more closely reflect the true amount of injustice and hardship caused. In that guidance it
explained that the £500 upper figure quoted by the Ombudsman was the delegated limit for
a consolatory payment and may be paid without referral to the DWP Complaints, Redress
and Stewardship Team (CReST) but in circumstances where bigger payments are
appropriate those cases should be referred to CReST to authorise. For example, the
following was stated in a letter sent by PA dated 23 January 2016 to the ICE:

“Other than that, and recognising that it is unlikely the full extent of the work attributed
to the dispute could be fully compensated for, I think it reasonable that a more serious
consideration of the amount of inconvenience I have suffered is evaluated. Therefore, as
mentioned in my 22 December 2015 letter it may be that a referral to the Complaints,
Redress and Stewardship Team (CReST) is made to see if a sum more accurately
reflecting the work caused can be arrived at.”

136. The Ombudsman’s misinterpretation of the Guiding Principles (April 2012) was
highlighted in PA’s 27 March 2018 review request (Annex, para 20). This was reflected in
the review decision, i.e., the fact that the ‘consolatory payments usually range between £25
and £500’ (rather than the two sums being set limits) and ‘that higher payments may also
be awarded’. However, the Ombudsman still went on to consider irrelevant factors and
failed to account for what should have been considered in determining that the consolatory
payment was reasonable. PA’s own personal view of what he considered would have
compensated for the injustice had been taken into account by the Ombudsman who had
interpreted this to be £40,000. PA had not expected this level of consolatory payment nor

51
 had he complained about it not being awarded (he had not specified a figure). Evidently the
Ombudsman had formed this view from representations submitted in the complaint of 13
May 2017 (under subheading “Consolatory payment”).

137. PA had estimated that the £500 maximum that could be sanctioned without referral to
CReST only represented around 1 per cent of an amount that would realistically
compensate for the inordinate number of hours that was needed to be spent engaged in the
dispute (which only he could vouch for). The comparison was made essentially to highlight
the insult to have been awarded a figure far less than the maximum it could have paid
without applying to CReST when the maximum in any event would have been wholly
insufficient. It was therefore extraneous to the complaint that the Ombudsman would not
recommend a figure of £40,000 for the injustice experienced. He could have not been
clearer that he was not expecting a fraction of what would cover his estimate of the overall
injustice (see the aforementioned reference to the Ombudsman complaint below):

(Consolatory payment)

The extent of injustice I have been caused has nowhere near been appreciated. The
process from when my appeal was submitted to receiving my final letter from the ICE
has taken 4 years. Admittedly around 1 year of that I was able to forget about the issues
whilst awaiting the outcome of the ICE’s investigation and other shorter periods in-
between the various stages. However, for much of the rest of the period it required
wholly unacceptable amounts of my time dedicated to trying to resolve issues that were
the fault of Jobcentre Plus whose staff I engaged with seemed to put as many obstacles
in the way as humanly possible. On the other hand, the 4 years doesn’t include the time
I was unnecessarily made to jump through hoops prior to discovering I had missing NI
credits due to my claim being incorrectly closed a number of times.

The Work Programme, which a NI credit only claimant is not obliged to attend, caused
endless amount of my time being wasted and apparently led to two of the incorrectly
closed claims because of a failure to attend appointments.

The guidance re “Financial Redress for Maladministration” was referred to in my 26

August 2013 complaint (paragraph 52) and submitted along with other supporting
papers to highlight the further injustice caused by [JCP] not following the guidance. It
should not have been necessary for me to request compensation, as page 11 of the
document states ‘the appropriateness of making a payment should be routinely
considered in any attempt to rectify departmental maladministration, which may have
resulted in a customer (or a third party) experiencing injustice and/or hardship’.

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 The document states with further relevance to my specific circumstances that ‘special
payment decisions should have specific regard to the length of time it has taken to
resolve a complaint; and the time and trouble the individual had to go to, in order to
obtain appropriate redress.’

After I had enquired about options to claim compensation, I was still met with
obstruction even continuing with the Special Payment Unit. The most appropriate action
both in terms of limiting my wasted time and the department’s resources would have
been to recognise the obvious injustice and dealt with it in accordance with the
guidance.

I have acknowledged that any consolatory payment which might be deemed

appropriate, would unlikely go a fraction of the way to compensate the hundreds of
hours spent engaged in the dispute, however, it is beyond me how a conscious decision
was made to consider an appropriate sum would amount to anything less than the
maximum that could have been awarded without referral to the Complaints, Redress and
Stewardship Team (CReST). This maximum, according to the Guide for Special
Payment Officers is £500 which would in any event only represent around 1 per cent of
an amount that would realistically compensate for the overall injustice. Why then was it
considered appropriate to pay £150 less than that sum?

Evidence suggests that these guidelines are ignored and in practice staff are required to
routinely oppose awarding compensation. Considering the impact these matters have
had on my life over the protracted period of time, and that a conservative sum of
compensation would be in the thousands of pounds rather than hundreds, if the DWP
were genuine about acknowledging the gross inconvenience caused there would have
been no hesitation in referring the case to CReST.

A significant amount of time was expended dealing with appealing the original decision
to refuse a payment. Clearly the failure to follow guidance, and the initiation of
unwarranted disputes after it was realised that the law had been incorrectly applied,
prolonged the matter a further 40 months beyond the 8 months it could have been
concluded by.

Though it has been explained that consolatory payments are discretionary there comes
with that discretion a responsibility to make the decision deemed most appropriate in
the circumstances and therefore, should not be determined arbitrarily.

138. It was also extraneous to the complaint that the Ombudsman considered the apology given
by JCP for the unnecessarily inconvenience caused as a result of their actions and for the
length of time it had taken them to acknowledge their errors. PA had not complained about
a lack of apology, in fact he had expressed in his letter to the Director General for

53
 Operations that JCP had more than satisfactorily apologised for its failings (the complaint
was escalated because JCP failed to resolve the issues). Though the eventual admission of
fault was welcomed, the apology was particularly irrelevant to a complaint about a
consolatory payment, which is by definition a financial remedy (for the length of time taken
to resolve a complaint and the time and trouble the individual had to go to, in order to
obtain appropriate redress). An apology therefore can not conceivably substitute any part of
an award for a consolatory payment.

139. The Ombudsman justified his decision on a further irrelevant factor for why he considered
the aggregate consolatory payments amounting to £400 was a reasonable figure and would
not recommend 100 times the amount awarded (PA never specified or expected £40,000).
Here it was the misconceived idea that because the main issue of complaint was deemed
fully resolved (presumed to be missing NI Credits), other elements, such as JCP prolonging
the injustice and hardship could be overlooked in respect of evaluating an appropriate level
of consolatory payment. There was no rationale explaining why the injustice and hardship
overall would not be evaluated, perhaps because the Ombudsman’s guidance, ‘Principles
for Remedy’ categorically advises the opposite. Under the guidance ‘Putting things right’,
specifically regarding factors to be considered when deciding the level of financial
compensation, it states that ‘remedies may need to take account of injustice or hardship that
results from pursuing the complaint as well the original dispute’. The relevant content of
the guidance is as follows:

Factors to consider when deciding the level of financial compensation for

inconvenience or distress should include:

• the impact on the individual – for example whether the events contributed to ill
health, or led to prolonged or aggravated injustice or hardship

• the length of time taken to resolve a dispute or complaint

• the trouble the individual was put to in pursuing the dispute or complaint.

Remedies may need to take account of injustice or hardship that results from pursuing
the complaint as well the original dispute. Financial compensation may be appropriate
for:

• costs that the complainant incurred in pursuing the complaint

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 • any inconvenience, distress or both that resulted from poor complaint handling
by the public body.

Remedial action may include improvements to the public body’s complaints policy or
procedures.

Complexity of case (Irrelevant factors accounted for - Relevant factors not)

140. Another factor that was not relevant but considered by the Ombudsman was that he did ‘not
make recommendations for the length of time that it has taken to pursue the complaint when
the delay is due to the complexity of the case’. It is unclear whether he was referring to
NOT recommending a consolatory payment in the described circumstances or he would
NOT recommend ways JCP could make improvements, though given the context it would
likely refer to both; however, this is an academic point because the complaint issues were
not, in themselves, complex. The Ombudsman’s reference to ‘the complexity of the case’
stems from the letters of 17 September, 7 October and 16 October 2014 in which JCP
apologised for the delay in responding to the 26 August 2014 complaint. The Complaints
Resolution Manager attributed this to the complexity of the complaint and because a
number of different issues had to be investigated. It was disingenuous of the Ombudsman to
have justified a decision to make no recommendations on this basis because the delay
element attributable to the complexity was so insignificant it could be ignored completely.

141. JCP has a policy to clear complaints within fifteen working days whenever possible, which
would have been by 25 September 2014 as the confirmation received by PA about the time
scale was on 4 September. The outcome was dated 16 October therefore the additional time
attributable to the complexity of the complaint only amounted to 15 working days. We are
now nearly nine years on from when the service failure leading to injustice first occurred
and there is still no end in sight to discovering why PA has been caused the level of
injustice which is attributable, not to any complex issues of the administrative process, but
to JCP’s ill-intentioned actions.

142. The ICE, in any event, commented in her report (paragraph 117) that she considered the
maladministration a relatively straightforward issue of JCP failing on a number of
occasions to recognise PA was a NI Credits only case and incorrectly applying a decision
making process that did not correspond to his particular circumstances. But that takes no
account of the injustice that was multiplied due to the malicious actions of JCP for;

55
 i) attempting to cover up maladministration by obfuscating the appeal process,

ii) giving wrong advice that no consolatory payment was due in respect of the [affected]
person’s time taken in pursuit of the complaint,

iii) sabotaging the application for a consolatory payment and

iv) deliberately causing continued hardship by challenging the appeal findings to

prolong remedying the injustice (presumably a grudge was held).

The focus clearly needs to be on all the factors which have contributed to the negligence
that has caused PA to be engaged in pursuing the complaint over such a protracted period
and has affected him for approaching 9 years.

143. Contrary to the conclusions, the ICE report had not appropriately acknowledged the failures
and responded to the issues in hand and therefore the Ombudsman’s view that he
considered there to be no un-remedied injustice had not taken into account JCP’s ill-
intentioned actions. The failings in the time it took for the case to be concluded (there is
still no conclusion) were those mentioned in the paragraph above, therefore it is irrational
that the Ombudsman should state that, ‘as this case spanned over years, there is no specific
failing in the time it took for the case to be concluded’. The Ombudsman implies that this
was why no issues could be identified which would have had a wider impact on claimants,
and therefore would not recommend any systemic changes to Agency procedures (the
claimed policy of the ICE). It is not unlikely that the lack of supervision of employees who
are determined to oppose finding a resolution (or who hold a grudge), account for
unnecessary injustice impacting across a large number of cases. By the same token, it
would be no revelation to discover it customary for employees, wishing to scupper
someone’s chances of obtaining a financial remedy, to overlook their obligation to consider
as a matter of course the appropriateness of a referral or give wrong advice about
consolatory payments and/or to mislead the SPU by downplaying the injustice.

144. The Ombudsman can in any event ‘ask an organisation to improve its services to avoid the
same things happening again’, notwithstanding the claimed restriction by the ICE to only
‘make recommendations for systemic changes to Agency procedures should she identify an
issue which impacts across a large number of cases’. This is set out on the Ombudsman’s
website (what we can and can’t help with) and offers as examples that the Ombudsman can

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 ask ‘an organisation to review its policies or procedures, guidance or standards’ (to avoid
the same things happening again). Forgoing the opportunity to use lessons learned from this
complaint must mean that the Ombudsman has no genuine desire to ensure that system
improvements are made, and so perversely the same mistakes are repeated. This calls into
question the justification for the existence of the Ombudsman and whether the funding of
the service amounts to a misuse of public money.

Unable to consider evidence – (Bias - Irrational)

145. The Ombudsman did not address the issue raised in PA’s 27 March 2018 review request
(letter) in respect of why a complaint he categorically did not make about a failure to
explain JCP’s data retention policy was invented and therefore inappropriately considered.
The review outcome just reiterated that ‘the ICE report explains that JCP have limited
documentary evidence due to their data retention policy under the DPA 1998 and provided
an explanation of this policy’. However, the Ombudsman went on to justify quite
irrationally why the evidence, which PA was able to account for from records he held and
verified by providing them to the Ombudsman, could not be considered in an investigation,
because JCP simply claimed that it did not hold the relevant information. More perverse
was the Ombudsman being aware that the period between which JCP had stated it had
limited documentary evidence available was from 2009 to August 2013 when the majority
of the relevant evidence related to documents etc. beyond August 2013. The review
outcome of 10 April 2019 states as follows:

“They would not reasonably be expected to carry out any findings when the JCP had
limited documentary evidence available for events from 2009 to August 2013 due to
their data retention policy.”

146. The court case which set out the standard of unreasonableness of public body decisions that
would make them liable to be quashed by way of judicial review is Associated Provincial
Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223. This was later articulated
in Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 by Lord
Diplock as a decision: ‘So outrageous in its defiance of logic or accepted moral standards
that no sensible person who had applied his mind to the question to be decided could have
arrived at it’. The Ombudsman’s exercise of discretion in the present matter most definitely
resulted from a decision of the above description. What was relevant to the Ombudsman’s
investigation was the evidence it was provided, not what JCP was willing to admit. If any

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 question arose as to the authenticity of someone’s evidence then the minimum he would
expect to be given would be the opportunity to adduce original documents. It would (for
example) be so absurd that no sensible person could ever dream that it lay within the
powers of the Ombudsman if he were to dismiss, as material evidence, a letter retained and
relied on by the recipient merely because the sender claimed it no longer had a record of it.
By the same token it would be so unreasonable as to be perverse if a decision were made by
the Ombudsman to dismiss, as material evidence, correspondence obtained by party A from
party B via a Subject Access Request (SAR) because party B subsequently claimed it had
no record of it.

147. The Ombudsman also asserts that ‘you say you have evidence, but we would not be able to
complete an investigation with evidence from only your perspective’. It is not just that there
is apparently no sense to this claim, there is also no attempt to provide any rational
justification for why it was made. It is illogical to say that it would be unfair to consider
communications between both parties on the basis that it represented evidence from only
one party’s perspective. The fact that such an unreasonable concept has been considered
must raise a question of bias or discrimination, even more so if despite this the Ombudsman
goes on to take into account only JCP’s representations to the detriment of PA when there
were representations made by both parties. The Ombudsman in his review letter of 10 April
2019 states as below, which is an almost word-for-word reiteration of what was in the 26
February 2018 outcome (emphasis added):

“The ICE report explained that there is ‘no evidence suggesting that only 1 page of the
appeal form and that there is no evidence that the GL24 form was not subsequently
referred to HMCTS’. You opposed the decision, to not uphold this part of your
complaint on the basis of insufficient evidence. On 30 March 2017, ICE responded to
an email from you and considered your claim and stated that although it is not within
their remit to comment on HMCTS decisions, they will still provide an explanation. It
was explained to you that the appeal had been struck out due to the fact that you did not
supply all of the information that would be required for HMCTS to take the appeal
further and not because you did not sign the appeal form.”

148. Before proceeding to consider the obvious lack of objectivity it is relevant to point out that
the ICE report did not include what the Ombudsman quoted from it in the outcome and
review letter (see emphasis above). The ICE report explained as quoted below:

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 “There is no evidence to support your suggestion that only one page of your appeal
form was forwarded to JCP’s Appeal Team; nor is there any evidence that the entire
GL24 form was not subsequently referred to HMCTS.”

The fact that the content has been incorrectly quoted initially and again almost a year later,
coupled with it not actually making sense points also to a lack of attention to detail, so the
Ombudsman has not, as he claimed, carefully considered whether the right decision was
reached in his assessment of the complaint.

149. The key test to be applied in cases involving bias was laid down by the decision in Porter v
Magill [2002] 2 Ac 357 in the House of Lords. It came down to a question of ‘whether the
fair-minded and informed observer, having considered the facts, would conclude that there
was a real possibility that the tribunal was biased’. The Ombudsman’s obligation to
consider the complaint objectively evidently had not been fulfilled. PA’s detailed
representations concerning the appeal form GL24 anomalies included in his 13 May 2017
complaint to the Ombudsman (see above paras 15 to 40) had not been considered, rather it
was the ICE’s largely irrelevant response (preceding those representations) that was
favoured for consideration. The Ombudsman could already have been said to have satisfied
the bias test but decided to make it watertight by reiterating exactly the same inappropriate
response even after PA submitted further detailed representations in his 27 March 2018
review request (Annex, paras 36-46) see below:

36. The Ombudsman decision regarding the mishandling of the appeal form is
consistent with all the other decisions in the outcome letter. The ICE’s explanations
have been solely relied on by the Ombudsman to be satisfied that the referral of an
incomplete appeal form played no part in the maladministration. Additionally,
despite the Ombudsman inferring that my complaint was about the ICE failing to
address the issues, I had not questioned the report in respect of failing to give an
explanation. I had in fact included the explanation in my complaint to the
Ombudsman in order to contest the ICE’s findings that there was no evidence that
the appeal form was mishandled.

37. My representations in this matter were evidently not considered by the Ombudsman
because I highlighted that the ICE had not taken into account all of the relevant
factors, i.e., it did not only hinge on whether or not the appeal form was signed. The
ICE’s 30 March 2017 letter 6 explained that the appeal had been struck-out due to
the fact that I did not supply all of the information and not because I did not sign the
appeal form. This was considered in my complaint and will therefore not be
repeated here, except to say that it was academic whether the Tribunal closed my
appeal because of the signature or that I had not provided my reasons for appealing,

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 because the page in question contained both my signature and explanation that I was
awaiting further information and there would be a delay in obtaining it.

38. The ICE expanded on its explanation in defence of the alleged maladministration,
still in the context of a signed appeal form, but relying on an incorrect claim that I
had not responded to Hull BDC’s letter of 7 May to be the reason why it referred the
appeal to the Tribunal, as follows:

“In our view, the documentation makes clear that the referral by the BDC was
made, not because you had not signed the appeal form, but because you had not
responded to a request for additional information to that already sent, and is the
reason the Tribunal Judge wrote to you for that additional information. Whilst it
may be that HMCTS sent you two copies of the front page of the appeal form,
that does not mean that the full appeal form was not sent to HMCTS by the
BDC.”

39. To reiterate what I stated in my complaint to the Ombudsman I did respond to it by

sending a holding email on 22 May 2013 (see below) undertaking to provide more
detail when I was further informed. Attached was the letter of 2 May 2013 (see
appended to Ombudsman complaint) authorising the [JCP] access to my personal
information under the Data Protection Act 1998 which supported why I was unable
to provide further details in relation to my appeal.

From: “ ”< . @btopenworld.com>

To: <hullbdc.appealsteam@dwp.gsi.gov.uk>
Sent: 22 May 2013 14:09
Attach: Appeal decision 2 May 2013.pdf
Subject: NE 25D / 312050

Dear Ms Metcalf

I will write in more detail, but for now please find attached the letter I'm waiting
on in relation to my appeal.

40. A letter was also sent in the post on 23 May 2013 to Hull BDC (see appended to
Ombudsman complaint) apologising for being unable to supply further details, but
referred to the explanation I had given on appeal form (re, awaiting SAR) and that it
could be several weeks coming. There was never a response to the email or letter but
I did receive copies of the email attachment and posted letter in a bundle of
documents dated 18 November 2013 which HMCTS had received from the DWP.
The Clerk to the Tribunal stated as follows in the cover letter (emphasis added):

“The Judge has asked me to send you a copy of some further information we
have received from the DWP. The Judge has asked me to send the whole file to
the DWP and ask them to send us a response within 28 days.”

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41. It is debatable how much of the bundle’s content was actually ‘further information’,
i.e., papers which had only been seen by the Tribunal for the first time. However, it
is noted that there are 4 copies each of the attached letter of 2 May 2013 and the
letter posted on 23 May 2013. Also noted is the first time copies of the letters appear
in the bundle, which is ordered chronologically, is 1 July 2013, which is 3 weeks
after the Tribunal received my letter of 11 June asking it to refer to all my
correspondence in relation to the matter.

42. The Tribunal striking out the appeal on 19 June 2013, because my letter contained
no useful information, is consistent with HMCTS having been denied the letters
which would have explained what was being asked for could not be provided until
the DWP had supplied it pursuant to the Data Protection Act 1998. Up until the 1
July 2013 I had limited my attempts to communicate, albeit unsuccessfully, with
Hull BDC and DWP enquiries. I had been advised to contact the Social Security &
Child Support Appeals (SSCSA) which I did on or shortly before the 1 July 2013
and obtained the email address for serving appeal documents which was when I first
contacted SSCSA. I attached copies of the 2 May 2013 Subject Access Request and
23 May 2013 letter to Hull BDC to my 1 July 2013 email and explained the reason
for the delay, and that I had never received a response or acknowledgement from
Hull BDC.

43. Returning to the contents of the ‘further information’ sent by the Clerk to the
Tribunal, it is noted that the documents which correspond to the Directions Notice
of 6 June 2013 that were sent to me through the post and which had attached the
front page of the appeal form duplicated was complete in the bundle. The other page
worth mentioning is the referral from Hull BDC notifying HMCTS that it had issued
a letter of 7 May 2013 asking me to provide sufficient grounds for the appeal etc.,
and it had not received a reply within the 14 day time limit. What is dubious is the
notice having no date to identify when Hull BDC sent it to HMCTS hence the ICE
commenting in paragraph 28 of her report; re, ‘your appeal was referred to HMCTS
(on an unknown date)’.

44. An explanation for why it is undated would be because it is likely to have been
referred after Hull BDC had received my 22 May 2013 email informing it that my
appeal grounds etc., were dependant on receiving information back from the DWP
which had been asked for via a Subject Access Request. In any event, if the
complete form had been sent by the Jobcentre to Hull BDC it would have had no
logical reason to ask for the information in its 7 May 2013 letter because its
questions were answered on the appeal form of 24 April 2013. Further more, there
was an interval of only 10 working days between when the appeal form was
submitted until Hull BDC sent its 7 May 2013 letter, and it must have been aware
that the law allowed the DWP 40 days to comply with the Subject Access Request.
It should be reiterated that there was in fact a 111 day wait for the DWP to deal with

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 the Subject Access Request and it is a reasonable assumption that it would have
been ignored completely if I had not chased the Jobcentre.

45. Referring still to the bundle sent by the Clerk to the Tribunal, it is noted that the
HMCTS correspondence of 19 June 2013 includes only 1 page (Directions Notice)
whereas the corresponding papers sent to me through the post also includes a cover
letter from the Tribunal Clerk. The same Directions Notice is also contained in
information provided by the DWP but with a different cover letter accompanying it
sent to Hull BDC. In both cover letters the Clerk refers to receiving the appeal on 29
May 2013. For example the Clerk’s letter sent to Hull BDC states as follows:

“I received an appeal on 29/05/2013 which you submitted because it was not

duly made.”

46. Though the ICE emphasises in her report that the date when Hull BDC referred the
appeal was unknown it can be near enough pinpointed to have been on or shortly
before 29 May 2013, therefore Hull BDC would have received the email and
attachment sent 22 May 2013 explaining that I was awaiting information from the
DWP.

150. If any more evidence was necessary for the bias test to be satisfied the Ombudsman most
definitely provided it by not taking into consideration any of the above representations. The
way the complaint was dealt with was so manifestly biased that no fair-minded and
informed observer, having considered the facts, could possibly have justified reaching any
other conclusion in this case. The factors most significantly contributing to the hardship
caused in this matter have been the malicious actions of those who have in various ways
sought to prolong remedying the injustice, then the denial of this by those who have
subsequently handled the concerns about it.

Grounds of Challenge

151. Taking into account the legal context of the Ombudsman’s jurisdiction powers under the
Parliamentary Commissioner Act 1967, the Ombudsman’s decision is unlawful on the
following grounds:

(i) the procedure followed was unfair, biased and irrational.

(ii) it has failed to consider relevant factors but taken into account factors that are
irrelevant.

(iii) it has failed to provide any rational justification for its decision.

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 The Ombudsman’s decision is patently flawed and based upon wholly inadequate reasoning
and made lacking an appropriate degree of care and scrutiny and so unreasonable that he
should consider there to be no un-remedied injustice that it would have had to be made in
bad faith.

Conclusion

152. A serious attempt was expected by PA to be made to establish whether the gross
inconvenience he had been caused was done with deliberate intent and if so by whom,
however, the Complaints Resolution Manager exploited ‘the passing of time’ to deny him
finding this out. The circumstances overwhelmingly pointed to the actions being based on
improper motives as would amount to a betrayal of public trust in those responsible
(without reasonable excuse or justification) and it was inexcusable that JCP dismissed the
idea of alerting the police to consider the prospects of a criminal prosecution merely on
account of the ‘difficulty to establish exactly what happened’.

153. It was also inexcusable that the Ombudsman neglected to question whether the
maladministration may have constituted criminal misconduct. He will probably have in
defence of this a stock answer along the lines of, any criminal matters are for the police to
deal with (not the Ombudsman). Anticipating the Ombudsman would respond this way he
should be reminded that the matter complained of, even if potentially criminal, will also be
maladministration and the duty still on him to investigate. There may be grounds to suspend
consideration of the complaint to allow a police investigation (for example) but that does
not mean that a complaint can be rejected for that reason, it just confirms all the more that a
complaint that potentially raises a question of crime is within the Ombudsman’s
Jurisdiction. The course of the Ombudsman’s investigation will inevitably alter but in what
way would be dependent on the findings of the criminal investigation.

154. In respect of the court’s jurisdiction to review the exercise of the Ombudsman’s
discretionary powers it is acknowledged that it is only in the clearest of cases that the
intervention will be proper (R v Parliamentary Commissioner for Administration, ex parte
Dyer [1994] 1 WLR 621). However, as it has been clearly demonstrated, the exercise of the
discretion was so irrational and in bad faith as to justify the court exercising its supervisory
jurisdiction over the Ombudsman.

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VIII. Details of the action that the defendant is expected to take

The Claimant invites the Ombudsman to:

(a) withdraw its decisions of 26 February 2018 and 10 April 2019, and

(b) consider all relevant evidence and investigate the complaint

IX. Alternative Dispute Resolution (ADR) proposals

PA has considered the suggested options in the pre-action protocol for judicial review for
resolving disputes without litigation which may be appropriate. The only suggestion which would
potentially be appropriate is the option for ‘Discussion and negotiation’ (which is proposed).
However, there is no realistic expectation that the proposed defendant will consider this for ADR
because the review decision letter of 10 April 2019 concludes with: ‘I should also explain that a
consideration of a review request marks the end of our complaints process. So, whilst I will be
happy to answer any questions about how we reached a decision not to complete a review, we do
not intend to revisit our decision itself again.’

X. Details of any information sought

None.

XI. Details of any documents that are considered relevant and necessary

None.

XII. Address for reply and service of court documents

As on this letter head.

XIII. Proposed reply date

The proposed claimant asks that you provide a substantive reply to this letter within the standard
14 day protocol period, that is by Friday 28 June 2019.

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