Welcome to the “Weekly Constitutional”, a regular sequence of blogposts where legal or other formal documents are used as the basis for an exploration of law and policy. This week’s document is the “letter before claim” published by the Waspi campaign, challenging this refusal by the government to pay compensation recommended by this ombudsman report.
Many think that policy and law form a neat binary. On one side there is public administration, and this is done by ministers and officials. And on the other side there is what is called “public law”, where the courts will only intervene in public administration when ministers and officials act outside their legal powers.
But there is a messy grey area, where ministers and officials administer public policy so badly that it becomes maladministration rather than administration. Public administration mistakes are made which are bad, but not so extreme so as to render them unlawful. This is the realm of the ombudsman.
The ombudsman schemes were introduced in the late 1960s when legal remedies for public law were less advanced and readily available than they are now. The idea is that an aggrieved citizen, usually through a member of parliament, can have their complaint against the state properly investigated by an independent body. The various ombudsman schemes were to provide a means by which a citizen could get practical redress in the face of state failure.
But the concept of maladministration, and the position of the ombudsman, sits uncomfortably within the general system of government of the United Kingdom. The various ombudsman schemes allow for investigations, but then only for recommendations.
If the Parliamentary and Health Service Ombudsman (PHSO), which is the main ombudsman scheme, concludes there has been maladministration which has caused injustice it can recommend that those affected should get compensation. But the government can then simply refuse. All the PHSO can do as a last resort is put a critical report before parliament.
There may soon, however, be a case which will make it more difficult for the government to refuse compensation recommended by the PHSO. The Waspi campaign has sent a fascinating “letter before claim” to the Department for Work and Pensions (DWP). If the claim is heard and determined by the High Court then it may limit what ministers and officials can do when faced with an adverse finding by an ombudsman.
The background facts of the Waspi campaign are well known. For this case, however, the significant thing is how the DWP sought to justify its refusal to pay the compensation recommended by the PHSO.
The PHSO had recommended that the women adversely affected by the DWP’s admitted failures to properly inform them of impending changes to the state pension age should be at level four of its severity of injustice scale: “A case at level four will involve the person affected experiencing a significant and/or lasting impact, so much so that to some extent it has affected their ability to live a relatively normal life.”
This recommendation was based on the PHSO not only finding there had been maladministration (which the DWP accepted and indeed has since apologised for) but that the maladministration had caused injustice in the test cases it reviewed. And from a finding of injustice flows a remedy, which for compensation is set by the scale.
Usually the state pays the compensation recommended by the PHSO. But the stark problem for the DWP is that such a recommendation when multiplied by the women potentially affected is expensive.
As the DWP set out as “context” in its refusal to pay the recommended amounts, “compensating all 1950s-born women at the level 4 range would cost between around £3.5 billion and £10.5 billion of public funds, excluding the costs of staff and IT to administer this, which would add further cost in the region of £0.5 billion”. The DWP added that the “compensatory payments alone would likely exceed the annual cost of running DWP, which for Financial Year 2024-25 is £9.7 billion”.
And as the Work and Pensions Secretary Liz Kendall observed in her statement to parliament last December, “It has taken the Ombudsman nearly 6 years to investigate the circumstances of 6 sample complaints.” She added that for “the DWP to set up a scheme and invite 3.5 million women to set out their detailed personal circumstances would take thousands of staff years to process”.
In essence, the real reason for the government’s refusal to pay the recommended amounts is that it would be too expensive and too much bother.
But, and this is crucial, those were not the actual reasons put forward by the government for the refusal.
The DWP’s stated technical reasons for refusing the compensation are instead that the PHSO report showed no evidence of injustice and no evidence that informing the relevant women at the relevant time would have made any difference. This is notwithstanding the PHSO report containing long sections that seem to detail such evidence.
These supposed reasons give the impression of officials instructing government lawyers to come up with reasons—any reasons—to dispute the finding of injustice and the recommended amounts. And the reason why they had to find technical grounds to dispute the recommendation is that the government no doubt does not want to openly and baldly admit that paying the recommended compensation is too expensive and too much bother. And the High Court may well defer to the executive on this.
But if the Waspi claim is successful before the High Court then the decision based on these technical arguments will be quashed. This would mean that the DWP has to decide again how to respond to the PHSO finding of injustice and recommendation of compensation. It will then either have to work out a way of meeting the recommendation or come up with stronger, court-proof reasons for its refusal.
If the DWP then said it is refusing to pay the compensation because it is too expensive and too much bother, instead of legalistic arguments, that would have the twin merits of being undoubtedly true and court-proof. But the government does not want to admit this. The DWP does not want to accept that any injustices were caused and that anyone was caused inconvenience by its admitted maladministration.
Stepping back, the government needs to decide whether the ombudsman system should be taken seriously or not. A specialist and independent public body has investigated a problem and found in a long, detailed report there was maladministration, which is then admitted. That same statutory body determines that there was injustice and so there should be compensation. At this point ministers say no.
If ministers and officials do not want to take the ombudsman scheme seriously, they should candidly say so. In the meantime, we have a statutory scheme for the investigation and redress of grievances against maladministration. And, if successful, the Waspi claim may show how empty that scheme actually is.
For the government’s refusal to comply with what the PHSO has recommended in the face of admitted maladministration is itself, in its own way, a form of maladministration. And it is one for which there seems no easy political or legal remedy.
The author is a former central government lawyer at HM Treasury.
