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03 April 2023

Parliamentary Ombudsman concedes investigation is ‘legally flawed’ following WASPI judicial review claim

5 mins

The Parliamentary and Health Service Ombudsman has conceded a judicial review of decision-making potentially affecting 3.6 million 1950s-born women.

The settlement will mean reconsideration of key findings in the Ombudsman’s investigation into the injustice suffered by women affected by the lack of notice of changes to their State Pensions age. Women Against State Pension Inequality (WASPI), the campaign group that brought the claim, heralded the outcome as ‘a complete vindication’ of its concerns.

The judicial review claim is the latest development in more than a decade of battles by WASPI to expose the Department for Work and Pensions (DWP) maladministration in failing to provide accurate, adequate and timely information about changes to State Pension age for women. On 19 July 2021, the Ombudsman published the first of three reports into a sample set of complaints selected from the thousands made using guidance prepared by WASPI and Bindmans LLP. Critically, he found that, had the DWP made a reasonable decision in August 2005 to write to affected women about the effects of statutory changes to State Pension age, letters would have started to be sent no later than December 2006. Had that happened, thousands of women would have had significantly more notice of the changes than they actually did as the DWP only began sending letters 28 months later. The Ombudsman then began stage two of his investigation which focussed on the injustices resulting from the maladministrative delay. On 8 December 2022, the sample complainants were sent an unpublished stage two report that concluded that none of them had suffered injustice in the forms of direct financial loss or lost opportunities. The Ombudsman’s approach was to ‘count back’ 28 months from when women actually received notice of the changes, or should have in the case of women who never had a letter, and ask whether they would have avoided the injustices they suffered had their letters been sent at least 28 months earlier.

WASPI instructed Bindmans LLP and Counsel Tom Hickman KC and Tom Leary to proceed with a judicial review claim arguing the Ombudsman’s approach irrationally ignored three ‘pauses’ in the DWP’s letter-writing campaign. To correctly calculate when women should have received their letters, the Ombudsman ought to have ‘counted forward’ from December 2006 (at the very latest), which meant women should have had notice far earlier than the Ombudsman had assumed and so could have made different decisions to avoid some of the financial impact on them. They also argued no proper consideration was given to the Ombudsman’s own guidance on compensation for lost opportunities with financially detrimental consequences.

In settlement papers submitted today to the High Court for approval, the Ombudsman has accepted the force of these arguments and that his approach meant his stage two report was ‘legally flawed’, and so had to be quashed by the Court and reconsidered. He has also accepted that his confidential draft stage three report on remedies, including possible compensation, needed to be reconsidered as it is based on the flawed stage two report. 

WASPI’s Chair, Angela Madden, said:

This is complete vindication of our concerns that the Ombudsman’s investigation had been derailed at stage two, reaching conclusions were clearly irrational, and had to be challenged if there was to be any hope of a just remedy for maladministration based on a proper appreciate of the injustices WASPI women have experienced. We are delighted that he has conceded on all the material points in our legal argument and will now reconsider his findings. Such a big victory would not have been possible without the support of thousands of ordinary women who dug deep to fund our case. The PHSO could see that we would not just accept flawed conclusions and quietly go away.

We trust that the Ombudsman will press ahead with his reconsideration as quickly as possible and, in the meantime, that all political parties will commit to fast, fair compensation for WASPI women in their manifestos at the next election. With one of our number dying every 13 minutes, there’s not a second to waste in recognising the financial loss, hardship and trauma DWP’s incompetence has caused.

Caroline Robinson, solicitor at Bindmans LLP representing WASPI, commented:

A huge group of women who had been let down badly by the DWP placed their trust in the Ombudsman to get to the bottom of why that happened, why it was unjust, and to recommend a fair remedy. Regrettably, the Ombudsman also let them down with his deeply flawed stage two report. But our clients are pleased that the Ombudsman had the humility to recognise his errors when challenged and agreed to withdraw the report and reconsider his approach. Our clients are hopeful that this will lead to a fairer outcome for those affected by the DWP’s maladministration.

WASPI is represented by John Halford and Caroline Robinson of Bindmans LLP, along with Counsel Tom Hickman KC and Tom Leary.

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