The Northern Ireland Public Services Ombudsman’s Own-Initiative Investigation into Personal Independence Payments

The Northern Ireland Public Services Ombudsman’s Own-Initiative Investigation into Personal Independence Payments

By Robert Thomas (University of Manchester)

The publication of the own-initiative investigation by the Northern Ireland Public Services Ombudsman (NIPSO) into Personal Independence Payments (PIP) is the first such investigation anywhere in the UK. It is a matter of considerable importance. At present, only the NIPSO and the Public Service Ombudsman for Wales (PSOW) have the power to undertake investigations into systemic maladministration on their own initiative. This blog comments on this report and on own-initiative investigations more widely.

The NIPSO’s own-initiative investigation concerned PIP, a disability benefit available for people with a long term physical or mental health condition or disability. In Northern Ireland, PIP is administered by the Department for Communities and Capita, a private contractor. The Department administers and awards claims for PIP; Capita undertakes the medical assessments to assess the impact of a claimant’s disability or health condition upon their life.

The NIPSO commenced its investigation in 2019. The NIPSO’s investigating team undertook extensive work to produce the report. They received 100 PIP case files, telephone records. They made extensive inquiries with the Department and Capita and engaged with external stakeholders. The result is a very detailed and long report of well over 300 pages.

It is impossible here to reflect the full deep and detail of the investigation within the limits of a blog post, but the NIPSO’s main findings can be highlighted. The overall finding was one of systemic maladministration. There were repeated failures in the administration of PIP, in particular concerning the collection of further evidence from claimants. The NIPSO concluded that there was work to be done to improve the PIP application and assessment experience for claimants and also the quality of the outcomes. This was needed to ensure robust decision-making and improve public confidence in the system.

More specifically, the report found as follows.

• At the Initial Review stage, further evidence was requested by Capita Disability Assessors in only 35 of the 100 claims that examined. Given the importance of further evidence to the PIP process it is lower than would be expected.
• Despite Disability Assessors having the ability to request further evidence at all stages of the PIP process, further evidence was only requested in one case at the Assessment stage.
• Further evidence was often not requested because it was unlikely evidence would be obtained within the timescale required.
• Capita’s own written process deterred Disability Assessors from requesting further medical evidence from claimants even though claimants had the impression that further medical evidence would be an important part of the decision making in their claim.
• When evidence was requested from Health Professionals named by the claimant, the request letters sent by Capita were often poorly completed and did not specify what information was sought.
• In the face to face assessments, the evidence from the consultations was often the primary and in some cases the only source of evidence relied upon by the Disability Assessors when providing their advice to the Department.
• Disability Assessors did not explain or record why more reliance was placed on their observations at a face to face consultation than other available evidence from claimants, carers or professionals.
• In addition to passing quality audits, Capita used information about the number of assessment reports completed and submission times to decide bonuses for Disability Assessors. Time pressures and incentives have the potential to inhibit the appropriate use of further evidence to improve the quality of assessment advice.

What then is to be made of the report and the idea of own-initiative investigations in general? The following points are made here, although all of these and other issues could and should be discussed and debated at more length.

First, it is absolutely clear that the NIPSO has produced a very detailed and evidence-based investigation. The report is very thorough. It sets a very high standard for own-initiative investigations. The report makes detailed findings and recommendations based upon extensive information about how the PIP assessment process works in practice. The report contains numerous case-studies from real cases. The findings made apply the principles of good administration developed by the Parliamentary and Health Service Ombudsman.

Personal Independence Payments was a very appropriate topic for the NIPSO’s first own-initiative investigation. There have been difficulties with administering PIP in the rest of the UK. The affected population are largely vulnerable people. Social security tribunals have allowed a high proportion of appeals. Stakeholders have long raised concerns about the process. There is evidence that people distrust the assessment process.

This then is a very detailed and high-quality report. It contains an important body of information and knowledge about how to and how not to administer disability benefits. The report is also crucially important in that it is an independent and evidence-based analysis and provides detailed recommendations.

Another point to highlight is that while the report is very detailed, the NIPSO and other ombuds can speak to the media about their work. Indeed, this is a key difference between ombuds and other administrative justice bodies such as tribunals. As judicial bodies, tribunals cannot give media interviews. The report has received media coverage to which the NIPSO has contributed. This type of media engagement clearly has an important role in making a very detailed report easily available to a much wider audience.

Second, the NIPSO had both access to the work of the Department for Communities and received cooperation from the Department. The NIPSO has powers to request information and documents relevant to an investigation. The Ombudsman also has the same powers as the High Court in respect of the attendance and examination of witnesses and the production of documents. These powers are clearly very important. The terms of reference for the investigation were agreed with the Department.

Third, what has been the reaction to the report from the Northern Ireland Executive and stakeholders? In response to the report, the relevant Minister, Deirdre Hargey, recognised the need for further changes to the delivery of Personal Independence Payment. The Minister noted: “… we will carefully consider all the recommendations of the NIPSO report and continue discussions with stakeholders on how they may be taken forward.” The Department for Communities was clearly receptive to the investigation being undertaken. In her response, the Minister noted that she was “dedicated to a rights-based approach to social security delivery which in the case of PIP means ensuring that the quality of health assessments continues to improve. My Department will continue to focus on expanding the in-housing of PIP assessments.” The report has also been welcomed by key stakeholders, such as Advice NI.

The real issues, going forward, will be what detailed changes the Department makes to the PIP process in response to the NIPSO’s report. The NIPSO has stated in her report: “I have made 33 recommendations which I have asked the Department to implement. I expect the Department to provide me with an action plan within six months and I intend to publically report on the progress.” This is clearly a strong form of follow-up to ensure the report results in real improvement to the quality of the PIP assessment process. The real benefits of the report may not then be known for some time, although the report really does put down a clear marker in terms of articulating standards of good administration. It will remain a valuable report for many years to come.

Fourth, this has not been the only investigation into PIP in Northern Ireland. The management and delivery of the PIP contract in Northern Ireland has been subject to complementary scrutiny by the NI Audit Office. There was clearly close coordination between the NIPSO and the NI Audit Office. The latter specifically did not examine in detail the processes for gathering and applying further evidence in PIP benefit decision-making because this area was being investigated by the NISPO.

Fifth, what will be the importance of the report beyond Northern Ireland? Benefits in Northern Ireland are administered separately from those in Britain. PIP is in the process of being transferred to Scotland. Officials in Social Security Scotland will have closely followed and perhaps liaised with the NIPSO’s investigation given the transfer of PIP to Scotland. One might also assume that officials in the Department for Work and Pensions have closely followed the investigation, although it would be interesting to know whether or not this has actually been the case.

Sixth, what does the report tell us more widely about own-initiative investigations? This is a big question and can be approached from a number of angles. Looking forward, it will be interesting to see what future own-initiative investigations are undertaken by ombudsmen and also which investigations are not undertaken. The real test of own-initiative powers will come when a public body or government department does not want such an investigation to take place. What would then happen to the reputation and standing of an ombudsman? Alternatively, a government department may, reluctantly accept an own-initiative investigation, but things change in the meantime – perhaps there is a change of government – and the department comes to adopt a defensive approach. What then happens? There are myriad ways in which officials can obstruct, undermine, weaken, delay, and frustrate such inquiries. As with much administrative justice in general, much depends upon the governing attitudes and behaviours within government and the views of Ministers. Ombudsmen must pursue the public interest in correcting maladministration and promoting good administration. Inevitably, political considerations cannot be altogether ignored either. The line between policy and administration can be very blurred.

Another angle concerns the relationships between ombudsmen and the respective governmental systems in which they operate. Writing from an English perspective, it seems as though the devolved nations (putting Scotland momentarily to one side) have a distinctive advantage in respect of own-initiative investigations. The devolved governments in Northern Ireland and Wales are, compared with Whitehall, relatively new institutions. Both have their own unique political context, but they have been able to do things differently. To some extent, they have developed in response to established Whitehall traditions of governance. Ombudsmen in the three smaller nations have been created by their legislatures as their own ombudsmen.

What then of the UK government and whether the Parliamentary and Health Service Ombudsmen (PHSO) should and will have own-initiative powers? Many of the features of maladministration uncovered by the NIPSO with regard to PIP will also feature in the administration of the same benefit by the Department for Work and Pensions. PIP has also been subject to scrutiny by the House of Commons Work and Pensions Committee and the National Audit Office, but it is clear that the type of investigation undertaken by the NIPSO considerably adds to these established forms of accountability. The NIPSO’s report has a clear administrative justice focus in terms of ensuring correct decisions first time round and in fulfilling and implementing the principles of good administration in practice. There are very strong grounds of principle why the PHSO should also have similar powers to undertake own-initiative investigations.

Nonetheless, the whole matter is not just one considering the principled arguments for and against; it is also a political issue. At present, it is difficult to be optimistic as to whether the PHSO will actually get own-initiative powers. It is certainly possible that this might happen; there is an important debate to be had about the issue, but the outlook is negative. The relationship between the PHSO and the UK government in Whitehall is quite different from the relationships between the devolved governments and their ombudsmen. As noted above, those devolved systems of government are new and have been able to do things differently. Whitehall is very much not a new governmental institution. It is a very long established one, with its own distinctive and deeply-embedded cultures and attitudes within its senior governing circles.

The prevailing Whitehall attitude is often that the concept of ministerial responsibility means that Ministers, as advised by their senior officials, are responsible for policy and administration rather than being responsible to external accountability bodies. One can only speculate how Ministers and Permanent Secretaries in UK government departments, such as the Home Office and the Department for Work and Pensions, would react to the prospect of a similar own-initiative investigation by the PHSO into, for instance, immigration or welfare benefits. The official approach has typically been that the government department must retain control and try to manage media and political scrutiny. This approach seems to be at odds with the willingness required by government to be subject to the type of detailed scrutiny that own-initiative investigations involve.

It is, though, important not to be defeatist. There are very strong arguments for giving the PHSO own-initiative powers. Moreover, there have been many instances of systemic unfairness and maladministration by UK government departments. Ideally, own-initiative investigations would become just as important and as embedded within scrutiny and accountability processes overseeing government as National Audit Office investigations and reports. Whereas NAO reports are followed-up by the Public Accounts Committee, own-initiative investigations would be followed up by the Public Administration and Constitutional Affairs Committee or some such similar arrangement.

If UK Ministers and senior officials do oppose own-initiative investigations simply because they would likely prove difficult and embarrassing for Ministers and their departments, then that reflects upon them quite unfavourably. It is the case that Whitehall does set up ad hoc reviews and inquiries following various failures, although very often such matters themselves become politicised or subject to judicial review litigation. For instance, following Windrush the Home Office commissioned an independent review. However, a critical issue in such instances concerns the amount of control and influence the department retains over such reviews and inquiries.

Overall, the NIPSO has produced an excellent and thorough report. It remains to be seen what happens with its recommendations. It also remains to be seen what happens with own-initiative powers more broadly. But, if we want to improve the quality of administrative justice – and, let’s face it, it does need to be improved – then, as the NIPSO report demonstrates, own-initiative investigations are a major way of achieving this.