Examination of Witness (Questions 1-19)
MS ANN
ABRAHAM
2 MAY 2006
Q1 Chairman: Good afternoon, everyone
and a particular welcome to Ann Abraham, our Parliamentary Ombudsman.
It is very nice to see you. This is not one of your arrivals when
you come after your annual report and we generally ask you annual
report questions; this is prompted, in particular, by a recent
special report that you have done on occupational pensions, although
we shall of course ask you other things too, as we always do.
You have given us a memorandum. Would you like to kick off by
saying a few things?
Ms Abraham: In relation to the
memorandum?
Q2 Chairman: You may tell us whatever
is on your mind, really.
Ms Abraham: There are lots of
things on my mind! I do not have any prepared opening remarks,
particularly. I have given you the memorandum, I have covered
the areas that I thought the Committee would be interested in
and I am happy to respond to any questions and provide any further
information that the Committee needs.
Q3 Chairman: Can I ask you something
else, completely different, to start with? I have been struck
in the last fe'w days, listening to all this stuff about the Home
Office, that here is an example of massive maladministration,
on any test, leading to injustice. It would have been the most
obvious thing in the world, it seems to me, to try to find out
what really went on by having someone like you, whose trade it
is to investigate maladministration leading to injustice, to get
in there, see all the papers and tell us exactly what happened.
An Ombudsman in some countries would do that. Is it not a great
disability that you cannot?
Ms Abraham: I am not sure I would
agree that I cannot. It is interesting that you mention the Home
Office and IND. If you look at (in fact, you cannot look at it
because I have not published it yet) the annual report statistics
for the year just closed, IND is one of the major customers of
the Office; it is not up there with DWP and the Revenue but it
is a regular major customer, and in fact we have been considering
whether we ought to perhaps be more themed in our IND investigations
in recent months. So, I suppose, in the same way as tax credits
got to the top of the agenda for us a year or so ago, it would
not have surprised me if IND cases had got to the top of the agenda
a little further on. So I do not think it is the case that I cannot,
but what we are talking about, of course, is the own initiative
investigation where, in effect, I am proactive in that before
anybody brings a complaint to me. What I am saying is there are
actual complaints in the Office and it is something that I suppose
we could choose to consider a special report on.
Q4 Chairman: Are there complaints
in the Office that bear directly on the current issue?
Ms Abraham: Not that I am aware
of, no.
Q5 Chairman: Does it seem to you
bizarre, though, that we can have inquiries into all kinds of
things, some relatively minor (although no doubt important to
the people concerned), we can have demands for Ministerial Code
investigations if there are extremely minor accusations that you
can append to a Cabinet Minister, but when we have a case of monumental
maladministration we have not got a mechanism to get in there
and inform Parliament and the public about what happened? You
are the only mechanism that Parliament has available to it. What
I think I am saying to you is: could you not find a way to get
in there? If someone came to you who said: "I have been affected
by what has happened. For example, I have been involved as a victim
of crime, or my family has been involved as a victim of crime,
consequent upon the release into the community of somebody who
should have been deported, because of the maladministration",
could you look at such a case?
Ms Abraham: Yes, I think I could.
If somebody went to a Member of Parliament and the Member of Parliament
decided to refer that case to me, then I could look at it.
Q6 Chairman: You would be very willing
to do so
Ms Abraham: Every case I look
at I would look at its merits; I would look to see whether there
was prima facie evidence of maladministration, I would
look to see what the injustice was and I would look to see whether
there was a worthwhile outcome, but in principle there is no reason
why I could not look at it.
Q7 Chairman: This Committee has urged
you and your predecessors over the years, and we probably should
repeat saying this, that we have some kind of mechanism so that
when there is demonstrable maladministration going on leading
to injustice, this instrument that Parliament has invented, the
Ombudsman, has to be able to get in there somewhere, and Ombudsmen,
over the years, have been rather hesitant to do this. When we
have a case of this kind, do you not just itch to do what Parliament
wants you to do, which is to go and find out what is happening?
Ms Abraham: I always itch to do
what Parliament wants me to do. However, I work with the legislation
as it stands. If I think back to 18 months ago, when this Committee
was, I think, pressing me very hard to do a themed investigation
into tax credits, I did not do that exclusively because the Committee
pressed me to do so but it was very clear to me, from the number
of complaints that were coming to us and from the concerns that
were being expressed by Members and by this Committee, that it
was something on which we should do more than a case-by-case investigation.
So I suppose we are reactive; we are driven by the cases that
come to us directly as Health Ombudsman or through Members in
relation to Parliamentary work. You and I have talked before,
and I think I have spoken to the Committee, about whether the
time might have come for a review of the legislation, which is
coming up to 40 years old. What is a fit-for-purpose Ombudsman
in the 21st Century, 40 years since the 1967 Act? I think the
time for that debate is appropriate and maybe that is one of the
things that we should look at there.
Q8 Chairman: Thank you for that.
You have said that you will respond positively if a Member of
Parliament brings a case to you, and I think that is a challenge
to us to enable you to get in there and do the kind of work that
needs to be done. On the whole, you do get in there—you
do find ways of getting in there. I want to turn now to the special
report that you produced recently and to ask you this: I wonder
if you are pushing the Ombudsman envelope out a bit because you
have just produced this report, which is under Section 10(3) of
your founding statute, and you produce these reports when you
have recommended something that the Government has not agreed
to. Now, in the whole history of the Ombudsman's Office, over
the last 40 years, there have only been four such reports and
two of them have been in the last two years. Does this tell us
that you are going into territory that other Ombudsmen have not
been into? Does it tell us that governments are less receptive
to your recommendations and, therefore, there is some looming
difficulty here, or is it just one of those things?
Ms Abraham: I do not know the
answer to that and I suspect that it is a mixture of things. I
do not see that I am going into territory that other Ombudsmen
have not been into. I do not see that Government is particularly
resisting my findings and recommendations. I think this report
has to be seen in context and in the context of all the other
work that the Office does. So, in the course of last year, we
did 3,600 investigations and we upheld complaints in around two-thirds
of those. In relation to the DWP, the department in question here,
we did 600 or more investigations and they only rejected our findings
and recommendations in one of them. So if you look at the degree
of non-compliance, I think in the course of last year we had one
GP who refused to apologise for striking somebody off their list;
we had the Ministry of Defence, who are, perhaps, now coming round
to our way of thinking, and we had the DWP. Obviously, it is a
big case and it is an important case, but I think it has to be
seen in the context of all the other work that the Office does
and all the other cases where our findings and our recommendations
are not resisted.
Chairman: As you say, in the Ministry
of Defence case you have been entirely vindicated, and we may
ask you later on how you think that is going in terms of what
the Government is now saying. However, of course, the big one—the
really big one—is the occupational pensions one. I am going
to ask colleagues if they want to explore that with you for a
while.
Q9 Jenny Willott: You suggested in
your memorandum that it might be okay for the Department of Work
and Pensions to accept that they committed maladministration but
not accept the recommendations. Do you think that that would have
been an acceptable response from the Department?
Ms Abraham: I think it would have
been a more acceptable response. I think there is a proper distinction
to be drawn between acceptance of the Ombudsman's findings of
maladministration and whether that maladministration has led to
injustice. I think that is absolutely the Ombudsman's territory
and the Ombudsman's right. Obviously, this Committee will, no
doubt, tell me if it thinks I have lost my reason and have reached
findings that no reasonable Ombudsman could ever find. I hope
we never get there. But I think that is not the Government, and
I think the exchanges in Parliament have made it perfectly clear
that Members fully understand that it is not for one of the parties,
in effect, to a dispute to actually seek to overturn the judgment
of the judge in the case or, as somebody said to me, it is like
being pulled up for a foul and seeking to send the referee off
the pitch. That is not the way the system works. So I think that
is serious, and I have been concerned about the fact of the Government's
rejection of the findings but, also, the manner of it. I think
if it were regularly the case that government departments and
agencies in the NHS refused to accept my recommendations, I would
be concerned, but, as I have said, in 99.9% of cases they do accept
them. So I think the system has been designed where I find that
there is unremedied injustice as a result of maladministration
but I bring that to Parliament. That is what I did in the MoD
case and although I am disappointed that I had to do that I think
that is the system and I think it has worked well. In relation
to the report on occupational pensions, I did try to say in the
report that there were big issues here which it seemed to me needed
to be thought about and reflected on, and my recommendations were
that the Government consider its response, and they took some
time to do so. I think what concerns me is that they said: "We
don't want any more, thank you very much. It would only raise
expectations and we are not even going to consider what you say."
So I think there are serious concerns and I would hope that the
Committee would be equally concerned about the manner of the Government's
response. However, I do think, if we are talking about issues
of the scale that I saw in the pensions report, that there are
real issues about how to put together a solution to the problems
that these people have faced, and the extent to which the taxpayer
should contribute to that and what the right solution should be.
Those are quite properly matters for government and for Parliament
and I see no reason at all why those matters should not go forward
for debate in the proper place. That is why I draw the distinction.
Q10 Jenny Willott: Do you think that
the argument is getting stronger for the Ombudsman to have the
power to make the final recommendations?
Ms Abraham: I think if this happened
regularly then the argument would get stronger. I think it would
completely change the nature of my work, the nature of the relationship
with government, the nature of the relationship with Parliament,
and I think it would be unfortunate if a system that has worked
pretty well, really, for 40 years had to be completely overhauled
on the basis of one report and one government response to it.
Q11 Jenny Willott: Can I ask you
more about the specifics of the report itself? I have to declare
a constituency interest, along with a couple of my colleagues:
I have a lot of people in my constituency who are former employees
of Allied Steel and Wire, as I represent Cardiff, and one of the
things that a lot of them are very angry about is the Financial
Assistance Scheme and the fact that, I think, 15 people in Wales
have received compensation so far, and the largest amount was
about £600-odd. If the Financial Assistance Scheme had been
more generous and covered more people, would your recommendations
have been any different?
Ms Abraham: I suppose the simple
answer to that is yes, and then a caveat that it depends. I think
what the report does seek to do is to actually describe the injustice,
and under the section which asks whether that injustice has been
remedied, one of the possible remedies is the Financial Assistance
Scheme, and the report explains why it does not cover all of the
people and all of the injustice that has been identified here.
Q12 Jenny Willott: Or most of them,
I would say. Do you think that the Pension Protection Fund which
has now been introduced will mean that there are not future problems
in a similar vein, and are you satisfied that does actually cover
the future?
Ms Abraham: I cannot say that
I have taken a particular view on that and my report does not
attempt to speculate about the future. Obviously, there is a scheme
going forward but that is about the future and this is about events
in the past.
Q13 Jenny Willott: There are a number
of issues raised about the difference between policy decisions
made by the Government and administration by the Government as
to what is your remit and what is not. It could be looked at that
the Financial Assistance Scheme was a policy decision by the Government
that showed the extent to which they were prepared to compensate
people for the losses and, therefore, by your recommendations
you are effectively trying to overturn a government policy decision.
How would you defend yourself against that charge?
Ms Abraham: I certainly do not
see it that way. I have been very concerned, and it is one of
the points, really, about the manner of the Government's response,
about the way in which the Government's response has asserted
that the report said things and then challenged them when the
report never said those things. If you go back to the judge and
jury metaphor, it is almost as if not content with wanting to
be judge and jury in its own case it also wants to rewrite the
judgment and criticise it on the basis of the rewritten version.
If you go to the heart of this report, which is all about the
official information that was published and the statements that
were made, the findings there, I have been told, were unsustainable.
Well, I have looked very carefully at the Department's own standards
for official information, in terms of accuracy and completeness,
clarity and consistency, and I have looked at the official information
against those standards. It fails. There is nothing clever or
complicated about that, there is nothing technical or actuarial
about that; it fails simple tests that the Department set itself.
I think, therefore, to come back to your question, the suggestion
somehow that I have made assertions, I have entered into territory
which is not mine, I simply do not see. On the question of the
injustice, the report draws a very clear distinction between the
injustice relating to lost opportunities to make informed choices,
which I lay very clearly at the door of the maladministration
identified in the report. In relation to the financial losses,
I say that the maladministration was a significant contributory
factor, although other factors were found. I keep coming back
to what does the report actually say, not what the Government
response is saying that it said.
Q14 Jenny Willott: One of the main
issues of dispute with the Government is the fact that the Government
says it is going to cost £15 billion to do what you are asking
them to do, and that is clearly being disputed by a lot of people.
Have you done any estimates about what you think the potential
costs of your recommendations are?
Ms Abraham: No, because I do not
make recommendations that had any sort of cost to them. Again,
if you look at the assertions, the assertions that have been made
talk about the causal connection between the leaflets and people's
decisions, and then this is Lord Hunt in the Lords: "The
Ombudsman's recommendation is that the Government should pay £15
billion over 60 years". I never said that. The report does
not say that. The recommendations do not make recommendations
of any figures, and I have not done the estimates.
Q15 Jenny Willott: But they do have
a price tag attached, even if it does not say what it is. I was
just wondering if you have done any work around how much.
Ms Abraham: No, I have not done
any work and I am not entirely sure I would say that they do have
a price tag because, actually, what the report says is that in
terms of the recommendations and in relation to the fact that
maladministration was a significant factor amongst the causes
of the financial losses, the Government should consider whether
it should make arrangements for the restoration of the full pension
and non-core benefits promised to all those whom I have identified
as fully covered by my recommendations, by whichever means are
appropriate, including if necessary by payment from public funds,
but there are other funds around. These schemes have funds in
them. This report does not say, as has been asserted in, I think,
the DWP news release on the day: "For the report to assert
that the taxpayer should make good all such losses however they
arose is a huge and unsustainable leap of logic". Well, it
might have been if I had made it, but actually the only unsustainable
leap of logic that I have seen is that it cannot be maladministration
if it comes with a high price tag.
Q16 Jenny Willott: Going on from
that point, is there a point where the cost of your recommendations
are so high that they do, effectively, become a policy announcement?
Ms Abraham: That is an interesting
question. I would hope not, but whether it is a policy question
or whether it is a question which is properly debated, discussed
and decided upon by Government and Parliament—I think that
is what I am trying to say here—that, actually, I think
the report identifies. I tried very hard to write what I thought
was a measured and thoughtful and considered report, and to deliver
that in a way which would enable the Government and Parliament
to consider the best way forward. So the fact that it has been,
I would say, attacked in the way it has and that my findings have
been attacked, I think is unfortunate.
Q17 Jenny Willott: Can I ask one
final point, which is that one of the issues that could be raised
about this is that not everybody—because it is a systemic
approach and you were looking at whether in general there was
a problem with the system—who has been affected by the loss
of their pension has actually been affected by the maladministration
and there is not necessarily a link to say that one hundred percent
of people who have lost their pensions has actually been as a
result of maladministration—and you also make the point
in the report. Do you think that that starts then moving across
from issues of maladministration into policy and do you think
it starts questioning whether or not it is actually in your remit?
Ms Abraham: No, I do not think
that, and in all the work that I do I think I try very hard to
ensure that I am not crossing boundaries which it would be inappropriate
for me to cross. I think, from time to time, I see things where
the administrative consequences of a policy are matters that are
causing hardship and injustice, or contributing to it, but it
is not for me to take a view. I would bring those matters to the
attention of Parliament. I think the tax credits report actually
did separate quite clearly the issues that I thought were matters
of maladministration and issues which had come to my attention
which were not for me to take a view on but I thought were properly
considered in another place. So I do not think I have strayed
into that territory, and I have to say one of the points in this
investigation where my own sense of outrage actually was heightened
was when I was being told in the Department's response—and
as has been said subsequently—that my report failed to demonstrate
that the people who had complained to me had actually read or
been influenced by the official information that Government had
provided. I think, again, it was said in the Lords that there
could be no causal connection. I did cover this in the report
but maybe I can quote from the report to you today. I said then
that the Government had said in its response—this was before
the report was published—that the report fails to demonstrate
that decisions taken by individual scheme members were directly
influenced by government information. What I said in response
to that was that chapter two of my report shows that complainants
told me that this was the case and many of them provided examples
of the leaflets on which they relied. I found no reason to doubt
what those people told me and in making this response the Government
appears to question both the credibility of the people who have
complained to me and my judgment in assessing their credibility.
That was at a point where I really did feel that this was not
just an attack on my judgment; it was an attack on the honesty
and credibility of the people who had complained to me. It did
seem to me frankly that those people had gone through enough in
losing their pensions without having their integrity attacked
by government officials and ministers.
Q18 Jenny Willott: Are you hopeful,
from past experience, that the Government may act in time?
Ms Abraham: I do not know. I have
been confused as to exactly when we were going to see the final
response. Having read back through the statements that have been
made, from how I read this we have had the final response; we
have just not had the full response. That is what is promised
so I will wait to see that with interest. There are issues here
in relation to the investigation itself and there are issues of
principle in relation to the constitutional position of the Ombudsman.
Obviously, I would be grateful for the Committee's consideration
of those strands.
Q19 Julie Morgan: Do you feel your
relationship with the Government is an easier one than people
previously had in your position?
Ms Abraham: I have absolutely
no way of knowing the answer to that. I do not have an uneasy
relationship with the Government. I go back to the whole body
of work that my office does and the whole body of relationships
that we have. We are working in a range of ways in addition to
the cases that we investigate to seek to make the positive contribution
to improving public administration and public services that Government
says it wants my office to make. We are working with the Cabinet
Office and DWP on developing principles of good administration,
as I think the Committee knows. I had a very useful, productive
and proactive dialogue with the Home Office around the introduction
of the Victims' Code, planning for that and thinking about how
a joined up approach to complaint handling amongst the criminal
justice agencies could most effectively work. I have been talking
to the National School of Government about contributing to the
top management programme so there is a range of ways in which
we have a relationship with government which is positive and is
not remotely uneasy.
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