The own-initiative follow-up report by the Northern Ireland Public Services Ombudsman into Personal Independence Payments

Robert Thomas (Professor, University of Manchester)

In 2021, the Northern Ireland Public Services Ombudsman published the report of its own-initiative investigation into Personal Independence Payments (PIP). It is a huge juggernaut of a report full of meticulously detailed case-studies, findings and recommendations about the administration of PIP in Northern Ireland (NI). The Ombudsman made an overall finding of systemic maladministration.

The Ombudsman found that the core problem within the PIP decision process was that the NI Department for Communities and Capita, the outsourced provider of the assessments, had systemically failed to collect and use further evidence from claimants’ health professionals. This in turn undermined the principle of “getting it right” that is, making good quality and robust decisions on people’s entitlements to PIP. This core finding permeated the entire decision process and its culture. It also manifested itself in multiple different ways. The Ombudsman found that a significant driver why Capita Assessors and the Department’s decision-makers did not request further evidence was because they thought that such evidence would not be provided within the timescales involved. The wider background here is that there are significant concerns about the quality of assessments and the use of contractors compared with further evidence collected from claimants’ own health professionals.

The Ombudsman found that the system by default relied upon claimants challenging decisions throughout the successive stages of the decision process: mandatory reconsideration; the additional ‘lapsed appeal’ review stage; and then tribunal appeals. However, because claimants are often vulnerable people with acute health conditions, many do not challenge decisions thereby resulting in significant disadvantage to them. To put this situation right and to improve the administration of PIP, the Ombudsman made 33 recommendations many of which have multiple parts. In total, the Ombudsman’s recommendations have some 111 discrete elements.

Since 2021, the Ombudsman has engaged with the Department on implementing these recommendations. The Ombudsman recently published its 73 page follow up report. This provides a detailed assessment of the Department’s progress in acting on the recommendations.

Both the initial report and the follow up report are lengthy and detailed documents. The purpose of this blog is to highlight some key points about the follow-up report and to offer some critical discussion about some of the Department’s responses.

The key headline is that the Department had accepted and met ten of the 33 recommendations (30%). It had introduced and updated policies on referring further evidence for advice and handling further evidence at assessments, improved various processes (e.g. for investigating complaints), enhanced its auditing and training for staff amongst other things. Some 18 recommendations (55%) had been partly met, that is, they had been accepted but not fully implemented yet. Some five recommendations (15%) had not been met, that is, not accepted.

Overall, the Ombudsman welcomed the fact that the Department had acted upon many of its recommendations. However, the Ombudsman was concerned that a number of recommendations had not been taken up. Further work was required by the Department to deliver the improvements needed. To some extent, these challenges were inherent within the task of correcting systemic maladministration and improving a large decision process.

There were legitimate factors why the Department could not action some of the recommendations. These included budgetary pressures and uncertainty and the need for changes to the PIP IT system to be agreed and actioned by the Department for Work and Pensions (DWP). Some recommendations that required changes within the remit of the outsourced provider, Capita, resulted in additional costs to the Department. There were also the projected repeat costs in light of the renewal of the assessment contract and the introduction of the DWP’s new health assessment services.

Nonetheless, the Ombudsman expressed concern that the Department needed to do more to improve the PIP system and to address the systemic failings identified. For instance, the Ombudsman was unhappy that the Department refused to inform claimants when their health professionals had been contacted to provide further evidence or record the details of such professionals. Nor would the Department require Capita Assessors or its own decision-makers record or check the reasons for not requesting further evidence from claimants’ health professionals.

Consider also the most important stage of the process at which Assessors decide whether or not to request further evidence from claimants’ health professionals. This is the initial review stage, which is also the most time-pressured. These initial reviews are undertaken by Capita Assessors within an average handling time of nine minutes. The Ombudsman had found that the limited time adversely affected the quality of the recording of the reviews. It almost certainly also affected the quality of such reviews themselves with Assessors simply processing them quickly to get through the caseload.

In response to the Ombudsman’s concerns, the Department reviewed the average handling time and was satisfied that it was sufficient. That seems unlikely to address the core issue of Assessors having insufficient time to make and record good quality decisions about whether to request further evidence about claimants’ health conditions and circumstances. Indeed, the whole of decision system is informed by a mentality of processing claims, making decisions on the basis of whatever evidence is available irrespective of its quality and then moving onto the next case.

Many of the recommendations were not accepted because of the costs involved. These included the giving of reasons for not requesting further evidence and providing tailored advice to claimants through the mandatory reconsideration process as to what further evidence they should provide.

Some recommendations involved the Department making requests to the DWP to amend its IT system; PIP in Northern Ireland uses the same IT system as that of the DWP. These recommendations included matters such as improved communications with claimants, improved telephony scripts, inserting further information about mandatory reconsideration into decision letters sent to claimants, additional communication letters to claimants and an electronic alert when an advice report is delayed.

Interestingly, these changes will take effect not just in NI, but throughout the rest of the UK. This is an instance of the Northern Ireland Ombudsman exerting impact beyond Northern Ireland to the benefits system across the whole of the UK. Although it would never admit it, the DWP’s acceptance of these recommendations and associated changes is an implicit recognition that there is systemic maladministration in its delivery of PIP in the rest of the UK.

However, the DWP rejected the Department’s other requests which followed on from the Ombudsman’s recommendations. For instance, the Ombudsman had recommended that assessment reports be automatically released to claimants along with the decision on their PIP claim, but the DWP refused to change its system. Instead, decision letters would include information on how claimants could request their assessment. The need for the Department to fall into line with the DWP had also meant that an earlier intention on the behalf of Capita to inform claimants as to whether their health professionals had been contacted by Assessors to provide further evidence did not go ahead. The wider point here is that benefits in NI is heavily determined and influenced by the DWP.

Another interesting part of the report concerns improving the delivery of services by outsourced providers. Many of the recommendations were not actioned by the Department because they affected Capita’s current contract and the costs would fall on the Department not Capita. The Department therefore decided not to implement the recommendations during the current contract period, but it intends to review and implement six months after the introduction of the DWP’s new Functional Assessment Service (FAS) in March 2024.

The Ombudsman’s follow up report also raises some quite concerning aspects of the Department’s relationship with Capita. For instance, Capita had operated a bonus scheme for Assessors undertaking initial reviews to incentivise them to get through as many claims and reviews as possible through the use of a bonus scheme. Capita had used information about the number of assessment reports completed by Assessors and the submission times to award bonuses. There is an obvious risk here in terms of prioritising quantity over quality. The Ombudsman had recommended that the Department review and restructure the bonus scheme. What this review uncovered was that there had in fact been no audit of the quality of initial reviews undertaken by Capita Assessors, as the Department itself had been led to believe. As the Ombudsman explained:

“The Department identified that although the bonus scheme was reported to have both a quantity and quality metric, as there had previously been no Initial Review audit, quality had not been included in the calculation for bonuses for Disability Assessors completing Initial Reviews. This presents useful wider learning for the Department on the need to effectively scrutinise outsourced provision.”

That raises some wider questions about the realities of outsourced services and the degree to which government bodies effectively monitor or even understand or know what their contractors are really doing and not just what they say they are doing.

The Department accepted some recommendations, committed to implementing others and provided valid reasons for not accepting other recommendations. However, in other respects, there is reason to query the Department’s intentions and the explanations it provided to the Ombudsman for not accepting some recommendations. Indeed, in some respects, the Department’s responses to the Ombudsman appear to be contradictory, complacent, probably self-serving and/or unlikely to be effectual.

Consider the following. The Department refused to commit to giving reasons for Assessors and decision-makers not requesting further evidence at the initial stages because of the costs involved and also because it was unnecessary. Yet, the Department itself had, in its response to the Ombudsman, explicitly recognised the importance of reason-giving in terms of enabling decisions to be audited. The Department had stated that if an Assessor had not decided not to collect further evidence but not given any reason for this, then those auditing such decisions would not necessarily be able to understand the basis of which they had been taken. In other words, reason-giving is necessary to audit decisions properly, for instance, to ensure that such decisions are robust and that the further evidence guidance had been properly. In short, the Department’s position is contradictory.

The Ombudsman had also recommended that assessment reports be automatically disclosed to claimants alongside the initial decision, a position adopted by the Commons Work and Pensions Committee. The Department had rejected this partly on the ground that assessments were only one item of evidence and that other evidence was used to make PIP decisions. But this contradicts the Ombudsman’s key finding (which the Department had accepted), Namely, the major problem with the whole of the PIP decision process is that further evidence is not really obtained or taken into account. Further evidence from claimants’ health professionals only comes to light, if at all, at the later stages of the process (i.e. at the lapsed appeal revision stage or before tribunals). The Ombudsman had found that decision-makers in the Department unduly deferred to Capita Assessors and their assessments. It is therefore somewhat contradictory for the Department not to automatically send these assessments to claimants when they play such a decisive role. It also fails to fulfil the principles of good administration under which public bodies should be open and transparent and be customer focused.

There are other signs of complacency from the Department. For instance, the Ombudsman found the quality of reasons in decision letters to be largely incomprehensible owing to automated nature of the Department’s Decision Maker’s Reasoning (DMR) template tool and the limited number of characters available in the free-text boxes. The Ombudsman had therefore recommended that the Department adopt a new electronic evaluation template. This would provide a structured way of enabling decision-makers to weigh up the evidence and give better, more comprehensible reasons. The Department rejected this, but increased the character limit length of the decision-making tool.

That very much seems like an inadequate response. Merely increasing the character limit of the free-text boxes but keeping the DMR decision tool that has been found to produce incomprehensible reasons for decisions is unlikely by itself to improve the quality of the reasons given. The automated nature of the DMR tool remains unaffected.

The Department refused to adopt the proposed electronic evaluation template because of the costs and also because it would duplicate existing records. By contrast, the Ombudsman considered that the evaluation template would be a useful investment to improve decisions and to get them right earlier, but the Department thought it would be too costly.

This illustrates a wider problem of the myopic way that government often views administrative justice. Government typically adopts a narrow and fragmented approach to issues of resources and efficiency which then misses the bigger picture. It focuses on the additional costs of improving one part of the wider process, but then overlooks the wider benefits and savings that would arise. Investing in better quality early decision-making will increase immediate costs, but it will also result in downstream savings through reduced use of internal reviews and tribunals. It would also result in a better overall quality of service for claimants and the public.

In other respects, the Department’s responses seem to reflect a distinct reluctance to be more open and transparent. For instance, the Ombudsman had recommended that when claimants apply, they should be given an indication of the overall percentage of claims in which the Department and Capita request further evidence. This would enable claimants to know where they stood. Without such an indicator claimants might assume that the Department collects further evidence more frequently than it actually does.

However, the Department rejected this recommendation on the ground that providing the recommended percentage figure to claimants had no ‘added value’. Of course, this is just the Department’s own opinion which fails to take into account the perspective of claimants. By contrast, the Ombudsman had been very aware throughout of the importance of understanding the position of vulnerable claimants and their needs.

The real reason for why the Department refused to inform claimants of the percentage figure is doubtless because it rarely requests further evidence and the figure would provide a further ground for criticism of the Department. For their part, claimants are advised by the Department not to gather further evidence, but only to provide what they already have.

A related point concerns the statistics on further evidence. The Ombudsman had significant concerns about incorrect information being collected by Capita and then being released into the public domain. This information had over-inflated the number of times that further evidence is collected. The Department improved its governance of such statistics. Capita collected data on how many times the Department’s decision-makers made requests to Capita to collect further evidence. However, the Department itself refused to collect its own data because it would be of “no practical use”. That suggests complacency and a lack of interest in the matter by the Department. As the Ombudsman noted:

“Given my recommendations on renewing focus on evidence at the decision-making stages (including empowering Case Managers on their ability to direct requests) I highlighted to the Department my view that monitoring this information from an operational perspective would be helpful to identifying trends. … The importance of gathering good quality data cannot be underestimated for measuring performance but also to support systems change.”

The lack of openness and transparency by the Department is also reflected in its refusal to give reasons for not requesting further evidence, its refusal to inform claimants when a ‘re-work’ has been directed (i.e. when inadequate assessments are returned by the Department to Capita) and its refusal to publish its own internal analysis as to why PIP decisions are overturned.

The Department’s reasons for rejecting these recommendations seem weak. For instance, it refused to publish its internal analysis why PIP decisions are overturned because it “would not meet the standards required for public reporting” and because, having consulted stakeholders, there was no demand for such information – however, the Department did not provide any details of this consultation.

The overall impression is that the Department does not want to release more information which will likely reveal more shortcomings with its operations and delivery of PIP. The high rate of allowed appeals is regularly referenced in discussions about the quality of initial decisions. No doubt the Department would not at all relish similar information being released such as the percentage of times in which further evidence is requested (almost certainly very low), the internal analysis of why PIP decisions are overturned and informing claimants about a faulty assessment needing to be re-worked. Publishing such information would only further highlight significant weaknesses in the PIP process. The overall perception is that the Department is prioritising its reputation fulfilling the need to be open and transparent.

Nonetheless, overall, the Ombudsman concluded that the Department had sought to learn from the findings of the investigation and to make improvements. Much more could be said about the detail of the recommendations, but it is appropriate to make some general wider points.

A major strength of the Ombudsman’s initial report and its follow-up report is the degree of detailed scrutiny, investigation and openness of processes that have always previously been hidden away from public scrutiny. The Ombudsman has thrown new light into the dark corners of both government and its contractor. It has also undertaken a thorough follow-up report on which recommendations the Department has and has not actioned. The Ombudsman has also scrutinised the cogency of the Department’s responses. In response, the Department has engaged positively with the Ombudsman and much good work has been done, but much more needs to be done. As the Ombudsman explained:

“systemic improvement in public administration is an ongoing process and requires continued focus. My follow up is part of that process and my reporting is useful not only for the Department, but also for claimants and others who seek to understand or improve the system.”

Having engaged with the Department, the Ombudsman was able to provide feedback to the Department, but also to challenge it when its actions were insufficient or slow. This is an especially important aspect of the own-initiative process. When recommendations by ombuds on personal remedies have previously been rejected by government, this has sometimes led to litigation brought by complaints. But in the context of own-initiative investigations, the position is different because there is no complainant. The Ombudsman’s role is one of proactively diagnosing systemic failings and seek to improve administration. It is important for the Ombudsman to scrutinise closely the responses of the government body because it is the Ombudsman that possesses the body of knowledge about how the system works in practice.

The PIP reports certainly illustrate the difficulties and challenges involved in addressing systemic maladministration and in improving an entire administrative system. As the Ombudsman also noted, “it will take additional time, following implementation, for the recommendations to have effect. As such, it is my intention to continue to engage with the Department and stakeholders over the longer term to monitor impact”.

Own-initiative therefore emerges as a process, not an event. The problems, difficulties and challenges involved in improving administration do not weaken or undermine the need for own-initiative investigations. On the contrary, they reinforce it. After all, the whole purpose of own-initiative powers is to enable ombuds to tackle those problematic areas of government where there is systemic maladministration. By their nature, such systemic and structural failings will inevitably raise problematic, complex and difficult challenges. This provides all the more reason for ombuds having own-initiative powers. The Ombudsman has also recently published another own-initiative report on how the health service in Northern Ireland communicates with patients on waiting lists. Put together, this amounts to a major and welcome innovation to improve administrative justice.

The Ombudsman’s findings on PIP can be directly read across to the DWP’s administration of PIP in England and Wales. Yet, the Parliamentary and Health Service Ombudsman does not have own-initiative powers. The PIP report will have been closely followed by Social Security Scotland which has been introducing the new Adult Disability Payment and there have been reports that its roll-out has seen significant delays. The Public Services Ombudsman for Wales has own-initiative powers and in 2021 produced an important report on homelessness. There is a compelling case for all ombuds to have own-initiative powers.