Examination of Witnesses (Questions 1-80)
MS ANN
ABRAHAM AND
MS GWEN
HARRISON
28 JANUARY 2010
Q1 Chairman: Can I extend a warm welcome
to Ann Abraham, Parliamentary and Health Service Ombudsman, and
Gwen Harrison, Director of Investigations at the Ombudsman's office.
I said last time you came here that that would probably be the
last time we would see you.
Ms Abraham: You did.
Q2 Chairman: This is almost certainly
the last time we shall see you and it gives me another opportunity
to say how much we have enjoyed our association with you over
the years and value the work you have done. You have given us
another special report of unremedied injustice. I am now losing
track of them. I believe this is the sixth one in the history
of the office and the fourth on your watch.
Ms Abraham: That is right.
Q3 Chairman: We shall talk to the
department in question, Defra, because the report is on the payment
to farmers under the Single Payment Scheme administered by the
Rural Payments Agency. We wanted to have a word with you before
seeing the department. We have read your report assiduously and
know it inside out and we understand the broad issues involved.
Do you want to remind us why you felt the need to bring this to
Parliament's attention?
Ms Abraham: I suppose the textbook
answer is that I found injustice that was not going to be remedied.
It has taken us a very long time to complete this investigation.
I had hoped we would not get here, but in the summer of last year
we reached the point where it appeared inevitable because we simply
could not reach any meeting of minds on the subject-matter. Therefore,
our findings of maladministration are challenged, not in their
entirety but substantively, in Defra's response. That has implications
for their view of injustice. Certainly, it also has implications
for remedy. In addition to the unremedied injustice it seemed
to me there were some fundamental principles about how questions
of maladministration, injustice and remedy should be approached
and I would very much welcome the Committee's and Parliament's
view on that. Alongside publication of the report it has become
clearer to me from other investigations currently under way about
complaints related to RPA that there are systemic issues underlying
the difficulties faced by complainants. I hope we may have an
opportunity to talk about that this morning.
Q4 Chairman: One question relates
to the number of people involved. You have taken two cases and
dealt with them in detail. I believe there are 22 others of a
similar kind on the stocks, as it were. We always have the "floodgates"
issue with these sorts of things. What I am not clear about is
whether that is the totality of cases that could ever be covered
by your complaint mechanism because of the time-barring provisions,
or would Defra be entitled to believe that if we went down this
route there would be vast numbers of others that would pile in
and say they were in the same position?
Ms Abraham: That is an important
point and I would like to deal with it. In relation to the complaints
covered by this report we received 24 and looked at them in a
way that enabled us to take a view about which of them we should
identify as lead complaints to ensure every one of the issues
in all cases were covered. We took the two complaints from Mr
W and Mr Y, as they are identified in the report, as covering
issues around mapping, entitlement and payment for the 2005 scheme.
As to how self-contained this is, there were 24 complaints, two
lead cases, one investigation and 20 MPs from all parties making
referrals. Therefore, we have here cross-party referrals. In relation
to this report and these issues at this time as I say in the foreword
I think it unlikely that providing a fair remedy to the 24 individuals
referred to in my report will result in a flood of complaints
from others that will require a similar remedy. The way I see
it is that if farmers did not contact their MPs in 2006 setting
out what had happened to them and how dreadful it had been but
came forward now and contacted their MPs they would be out of
time in terms of referral of the complaint to my office. I would
then have to think: what are the special circumstances that led
to these people not telling their MPs what a dreadful time they
had in 2006? It seems to me there is a proportionality issue in
terms of resolving these complaints and this report. We are talking
of a scheme worth £1.6 billion covering over 100,000 customers
and recommendations for modest compensation to 23 people since
one has since died.
Q5 Chairman: Are you saying you would
not consider any further complaints if people came to you after
this?
Ms Abraham: I am saying that by
law I am obliged to consider them but they would be out of time
and therefore to investigate them I would have to be satisfied
there were special circumstances. I struggle to see what those
special circumstances would be. If she were here my legal adviser
would tell me I have to look at every case on its merits and I
do so, but I struggle to see how somebody could persuade me to
look into a complaint that he did not say a word about it in 2006
and did not communicate to his local MP.
Q6 Chairman: But not everybody contacts
his MP; indeed, one complaint you make all the time is that the
MP filter acts as a discouragement. It could be that people contacted
Defra's Rural Payments Agency directly to complain about all this.
Once farmers see that some will get several thousand pounds in
compensation when they have suffered in exactly the same way of
course they will pile in and say they want the same thing and
they would be justified in doing so.
Ms Abraham: I have given a strong
message in the report that I believe the matters I am talking
about are remedies for the 24 complainants who went to their MPs
and made known their concerns and those MPs were sufficiently
concerned to refer those complaints to me. The law is quite tight
here. I am not giving an absolute guarantee that I would never
take on another case about the 2005 scheme, but I struggle to
see the circumstances in which I would do so. I think there is
something quite self-contained about these 24 cases.
Q7 Chairman: But if a farmer in a
similar position to Mr W or Mr Y went to Defra and said he had
read the Ombudsman's report and realised he was in just the same
position as those individuals to whom recompense had been provided
clearly by extension he should have it too. How on earth could
they gainsay a claim like that?
Ms Abraham: What they and I could
say is: what is the evidence that they were so seized of these
events at the time that they made a complaint to the department
and raised it with their MPs and the Ombudsman?
Q8 Chairman: They are probably too
busy farming.
Ms Abraham: I am afraid the response
to that is if they were not so seized about it such as to pursue
those complaints through the system with the Ombudsman, as indeed
the farmers in these cases did, I would find it very hard to see
why I should consider their cases after all this time.
Q9 Chairman: I am asking why somebody
coming to the department could not say that.
Ms Abraham: I think the department
could say the same thing and I would not react to that by saying
that would be unreasonable.
Q10 Julie Morgan: To me it seems
illogical to say that this would involve only a limited number
of people and the floodgates would not be opened, and that is
not the key argument to make. It appears to be a weak one for
the reasons the Chairman has given.
Ms Abraham: My genuine view is
that the proof of the argument would arise only if it played itself
out. I do not say there will never be any other complaints about
the Rural Payments Agency; indeed, there are. I believe there
are some systemic issues about the way the agency conducts its
business, in particular the way it handles complaints, which will
continue to generate complaints unless there is a shift in the
way it approaches its business and deals with complaints. There
is more to come on all of that. In relation to the 2005 scheme
and these events and public pronouncements these are the cases
in which people have had the tenacity to go through the system,
bring the complaints to Defra and come to us. If people were not
so seized about this in 2006 such as to bring it to the attention
of Defra or their Members of Parliament it is not unreasonable
to say they cannot pile in now. Each of these cases is an individual
story; it is not about something that happened to everybody. Although
Defra's response suggests we are taking an approach which implies
that everybody was entitled to rely on public statements we have
never said that. We are saying there were general findings of
maladministration and some very specific findings in relation
to these people. Therefore, I do not see this as the floodgates
suddenly being opened. I have said that to Defra right the way
through. I remember back in March 2008 talk about thousands of
cases. I do not see it that way.
Q11 Mr Prentice: It is not all time-barred
anyway so this is just academic?
Ms Abraham: It is time-barred
but it is not an absolute bar. The 12 months runs in terms of
bringing the concerns to the MP, but I have to exercise my discretion
reasonably. I have been trying to give signals about the sort
of approach and thinking I would apply, but again my legal adviser
would tell me never to say never.
Q12 Kelvin Hopkins: Is it not important
to distinguish your very precise role to address examples of maladministration
and to set on one side those cases that should be compensated,
which is one argument? The generality of the problem that underlies
all that should in a sense be a chapter two, and it is wise not
to get them mixed up.
Ms Abraham: That is absolutely
right. There are two considerations running here. In a way it
comes down to the changing nature of Defra's responses to us over
the months. Let me try to separate out issues about whether or
not the floodgates will be opened by this from perhaps the more
fundamental points that I hope would be in the Committee's mind.
To summarise Defra's position as we understand what it has said
to us in its letters and meetings with us and what it now says,
the department has its own view of what constitutes maladministration.
One thing it says is that unless it is unlawful it cannot be maladministration.
That is not the Ombudsman's view of maladministration, nor do
I believe it is the Committee's. Defra has its own view of injustice
based on its view of maladministration. As to remedy it says it
does not believe in providing compensation for financial loss
in these cases because it might encourage others similarly affected
to make claims. Is that an argument we buy? Defra does not believe
in providing compensation for what it calls financial disappointment
which I call loss of opportunity. Then it says it cannot devote
resources to putting right past mistakes because it is too busy
concentrating on the future. I do not buy any of those arguments.
Whether or not the floodgates would be opened, is it legitimate
to say one will constrain one's definition of maladministration
and injustice because it might otherwise open the floodgates?
Q13 Chairman: Let us leave the floodgates
to one side. You have taken us to the substantive issue. The Defra
response in which you have engaged is to acknowledge that huge
things went wrong in the administration of the scheme but the
department did not break the law. It did things within the prescribed
legal time limits. It failed to meet its targets for the delivery
of the scheme, but its underlying point is that if it starts to
move to a position where there is a claim for compensation and
redress every time a target is missed that cannot be a direction
in which it goes because targets serve many purposes and they
are not guarantees to consumers or citizens that something will
happen. Is it not confusing one kind of universe with another?
Ms Abraham: It would be if that
was what I said, but I did not say there was maladministration
in missing those targets. How many times have I sat before this
Committee and said this is the classic lawyer's device of asserting
that your opponent has said something he has not said and knocking
it down on that basis? Here we are again. There are general findings
of maladministration across the piece. RPA did not meet the legal
obligation to determine entitlements. Nobody is arguing that.
Defra and RPA failed to heed the warning information from their
own systems and the Office of Government Commerce about the payment
timetable and failed to alert farmers. Defra and RPA's public
statements in early 2006 failed to recognise the internal concerns
they had. In January they considered the position and knew the
best case scenario was 70% of payments by the end of March but
decided to tell Parliament that they would make the bulk of payments
by the end of March. We are not saying that they did not meet
their targets and therefore it is maladministration. As to how
this played out specifically in relation to Mr W and Mr Y, there
is a specific finding of maladministration that RPA misdirected
Mr W about the likely timing of his payment, not in terms of general
announcements but in conversation with him. The suggestion that
somehow I find that failure to meet a published target equals
maladministration is not what the report says.
Q14 Kelvin Hopkins: There is a great
mass of things the Government does which are not legal requirements.
If the Government fell back on the argument that it was not legally
obliged to do certain things and it did only what it was legally
required to do almost nothing would happen. Therefore, it is a
weak argument as far as government is concerned. I believe your
office was set up to deal with areas where the Government had
an obligation but not a legal requirement. If something is not
administered properly and people suffer as a result you take their
case forward?
Ms Abraham: Precisely.
Kelvin Hopkins: I think we ought to make
that point very strongly. If the Government did only what it was
legally required to do it would not do very much.
Q15 Chairman: Defra has said it is
happy to give a consolatory payment of £500. As I understand
it, the farmers are dissatisfied because they wanted many tens
of thousands of pounds for the problems they say this caused them.
You have said that they might have only £2,000 or £3,000.
How did you work that out? We may be dealing with big issues here
but we are not concerned with huge sums; we are talking of £500
and £2,500. Perhaps it is for Defra to say why we get into
a bit of state over this, but why were your recommendations so
modest?
Ms Abraham: Defra's response as
I understand it is that there is only one type of compensation
it is prepared to consider which is what it calls a consolatory
payment for inconvenience and distress; that is, the botheration
payments that we all recognised. The Committee is aware of the
Ombudsman's Principles for Remedy. The Treasury has endorsed them;
they have appeared in Managing Public Money and the Government
understands and supports them. Those principles talk about different
components of compensation: inconvenience and distress certainly,
loss of opportunity and financial loss. As I understand it, Defra
turned its back on anything other than the first component. The
way we arrived at the figure we did was not a precise science;
it was built up and then produced a figure in the round.
Ms Harrison: We started from the
Ombudsman's principles for remedy, thinking particularly about
the importance of providing a fair, reasonable and proportionate
remedy for the circumstances of the individual. We looked very
closely at the evidence with which the farmers provided us with
three things in mind. We were looking for a connection between
what we had identified as going wrong and the injustices they
claimed, so we needed to satisfy ourselves that there was some
linkage between those things and it was not purely coincidental.
We thought about what other factors beyond the agency's maladministration
might have played into the injustices that had taken place, because
many of these decisions were quite complicated particularly around
the loss of opportunity. We also thought very carefully about
how the inability of farmers to get good and accurate information
about what they might expect might have coloured decisions which
with hindsight or in normal circumstances might be very straightforward.
That led us to a sense of what we could reasonably link to the
maladministration. We could not be precise so arguably it could
have been a little more or less, but we arrived at what we thought
were reasonable figures which took into account distress, botheration
and the inconvenience that farmers had suffered, loss of opportunity
to make proper plans—the foregoing of opportunities to do
specific things they could point to that they might have done—and
also the cost they incurred in terms of contact, photocopying
and that sort of thing. We brought those together and made an
assessment for each of them. For the record, we recommended for
Mr Y £3,500 and for Mr W £5,500, significantly short
of what they asked for.
Q16 Chairman: But they identify considerable
losses caused by the failure to access certain schemes that would
have got them a lot more money, failure to do deals with suppliers
and so on. That takes them into sums far beyond those you have
said. Either you accept what they say, in which case presumably
you accept the financial implications of it, or you do not. If
you do not accept what they say you cannot really pray them in
aid in making your general case, can you?
Ms Abraham: I am not so sure about
that. My colleague started with the link between maladministration
and injustice and being able to be satisfied that decisions which
were taken to do something or not do something flowed from the
maladministration as we saw it. There may have been a whole raft
of events in the course of that timescale but we pressed the farmers
very hard to explain why it was this flowed from the maladministration
we found. Making these kinds of judgments is not new to us. We
did come down to what are described in the report as modest remedies.
Again, it is a question for Defra. I do not believe it was the
amounts about which they were so seized; it was the sort of compensation.
They were saying there was only one kind of financial compensation
they were prepared to countenance and they ruled out the other
components. I am saying the Ombudsman's Principles for Remedy
show that you need to look beyond that.
Q17 David Heyes: I wonder what all
this means for the Ombudsman. You are a creature of Parliament;
you hold your office by virtue of that. What damage does this
do to your office? What damage does it do to Parliament, particularly
in those cases where I often recommend people should take their
complaints to the Ombudsman?
Ms Abraham: I come back to six
cases in 40 and more years and only four in my seven and a bit
years where we have this sort of conversation.
Q18 David Heyes: The frequency seems
to be increasing.
Ms Abraham: Possibly; I do not
know. If we do see each other again I will start to worry. There
are no more such reports in the immediate pipeline of which I
am aware. You will have seen the joint report with the Local Government
Ombudsman laid before Parliament last week where we got a very
good result: £95,000 was paid in compensation to a family
that had been having a terrible time in the north west of England
because of the behaviour of a neighbour from hell. We are getting
good results all the time and I hope you are aware of that. I
believe there is something here about Defra and RPA whether or
not we manage to persuade them that these 24 complaints should
be looked at in what we consider to be the proper way. Even if
we had not been doing this now I might have laid a report before
Parliament about Defra and RPA because I believe there are some
systemic issues here and if they are not tackled we shall be back
here again. There is something about RPA's service design that
seems to get in the way of good service delivery; there is certainly
something about its complaints system and address mechanisms that
do not deliver good decisions, outcomes and proper redress. There
is also something about the defensive, legalistic responses we
have had. We are raising questions about customer focus, good
administration and good decision-making and they are raising points
of law and issues of legal principle. There is a sense that unless
RPA and Defra get their heads round what good complaints handling
is about and how it can improve service going forward we shall
be here again.
Q19 David Heyes: Your feeling about
the department is quite alarming. Are you tackling that? Do you
have plans to deal with it and confront it or is it just something
you are thinking about?
Ms Abraham: We have a number of
investigations under way at the moment which are not about the
2005 scheme or the specific issues around the information put
into the public domain at that time; they are issues around entitlements,
payments and decision-making and about complaint handling. I think
the investigations under way are now in double figures. We are
in the middle of those investigations but are coming up against
the same sort of legalistic responses that suggest to me this
is not a one-off. Until RPA and Defra can somehow shift their
focus in relation to complaint handling we will see more and more
of these cases.
Q20 Chairman: Essentially, what you
have said to us is that you do not think Defra gets it in terms
of what your job is?
Ms Abraham: Defra does not get
it in terms of what customer service and complaint handling are
about. You may think it is a cheap shot, but when the chief executive
of the agency writes a letter of apology to one of these complainants
he does not think it important to sign it himself.
Chairman: That is all very helpful and
we shall now turn our attention to Defra. Although we tend to
see you on occasions such as these when complaints are unremedied
it is worth saying over and over again that day in day out you
produce results that are not contested and are accepted. We should
acknowledge that that is the mainstay of your work for which we
are very grateful.
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