Our role
7. We are an independent complaint handling service for complaints that have not been resolved by UK government departments or the NHS in England. We combine the two statutory roles of Parliamentary Commissioner for Administration (the Parliamentary Ombudsman) and Health Service Commissioner for England (the Health Service Ombudsman). In this case we are acting in our capacity as Parliamentary Ombudsman.
8. The powers of the Parliamentary Ombudsman are set out in the Parliamentary Commissioner Act 1967 (the Act). The Act (s.5(1)) says we may investigate when someone believes they have suffered ‘injustice’ as a result of ‘maladministration’.
9. Maladministration is not defined in the Act, but has been considered by the courts. A 2015 High Court judgment includes that maladministration is a different concept from unlawfulness and will cover ‘bias, neglect, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on’1. The judgment underlines that there may be maladministration without unlawfulness, and vice versa.
10. We have discretion to decide how to investigate complaints and to decide what test to apply when making decisions about maladministration. The 2015 judgment says:
‘It is for the Ombudsman to decide and explain what standard he or she is going to apply in determining whether there was maladministration, whether there was a failure to adhere to that standard, and what the consequences are; that standard will not be interfered with by a court unless it reflects an unreasonable approach. However, the court will interfere if the Ombudsman fails to apply the standard that they say they are applying.’
When we cannot investigate
11. The Act (s5.(2)(b)) says we cannot investigate a complaint when a remedy is, or was, available through legal action in the courts or through an appeal to a tribunal - unless it is not reasonable to expect a complainant to resort, or to have resorted, to it.
12. The Court of Appeal has considered what this means with reference to similar provisions applying to the Health Service Ombudsman under s.4(1) of the Health Service Commissioners Act 19932. The Court said that the presence of an alternative legal remedy does not preclude the Ombudsman from investigating, and that the question of reasonableness is one for the Ombudsman.
13. In this case we have carefully considered whether a remedy could be available through legal action. This included pausing our considerations of these complaints while judicial review proceedings into related issues were ongoing3.
14. Our view is that a successful legal challenge could in principle provide a remedy for unlawful communication of changes to State Pension age. But we are not considering, nor can we make any decisions about, whether communication of State Pension age changes was unlawful. We are looking at complaints that injustice was suffered as a result of maladministration. In addition, our complainants seek compensation for the health, emotional and domestic consequences of any failure in communication. They also seek acknowledgments of failures, apologies and assurance that action has been taken to ensure failures are not repeated. These are not issues the courts can consider or provide a remedy for.
15. The Act (s.6(3)) says that we shall not investigate a complaint made later than twelve months from the day on which the person first had notice of the matters alleged, unless we consider that there are special circumstances which make it proper to do so.
16. In this case we consider the number of people affected, the fact that many complainants suggest that their lack of awareness of the changes is a key issue, and the scale and significance of the matters complained about, mean there are special circumstances that make it proper to investigate.
How we make decisions
17. When making decisions we comply with the legal framework set out above.
18. To help public bodies to understand how we will approach complaints, and complainants to understand how we will consider their cases, we publish our Principles. The Principles comprise our Principles of Good Administration, Principles of Good Complaint Handling and Principles for Remedy. They underpin our assessment of performance, our views on good complaint handling and our approach to putting things right.
19. While we codified and published the Principles in 2007, relevant principles of good administration had long existed. The Principles were based on our (at that time) 40 years’ experience of considering those principles in relation to complaints investigated by successive Ombudsmen and reflect that accumulated body of understanding. When they were published, they were not intended to introduce any new concepts, but to help public bodies understand what might be expected and to follow good administrative practices. They do not replace public bodies’ own guidance. Examples of agency-specific guidance pre-dating the codification of the Principles include the Benefits Agency Customer Charters of 1993 and 2000.
20. When making decisions about maladministration, we compare what happened with what should have happened. We take account of what information the organisation had available to it at the time. We also take account of relevant law and applicable policy and guidance in place at the time of events complained about. The 2015 High Court judgment (Rapp) says:
‘Even if, with the benefit of hindsight, it may seem obvious that the public body got something wrong, the Ombudsman must look at the question of maladministration on the basis of the information that the public body had at the relevant time, and not with the benefit of hindsight.’
21. In this case, we have considered what policy and guidance applied between 1995 and 2011. We set out the applicable standards we have considered below.
22. If we uphold a complaint, it means we have found maladministration and it led to injustice. We can recommend action the organisation should take to put things right. A finding of maladministration will not automatically result in a finding of injustice or a recommendation for remedy. When making decisions on remedy, we follow our Principles for Remedy.
1 R (Rapp) v The Parliamentary and Health Service Ombudsman [2015] EWHC 1344 (Admin).
2 Miller & Another v The Health Service Commissioner for England [2018] EWCA Civ 144.
3 R (Delve) v Secretary of State for Work and Pensions [2019] EWHC 2552 (Admin) and [2020] EWCA Civ 1199.