Our judicial review case against the Ombudsman in an nutshell – and what it means for WASPI women.
As promised, we are now in a position to share our legal arguments about where the Ombudsman has gone wrong in deciding whether WASPI women have suffered injustice. They are set out in full in the Bindmans solicitors’ letter which can be read on the link below. Note, some parts have had to be redacted (blanked out) because they refer to information about the Ombudsman’s draft Stage 3 report which is confidential at this time.
The key points in the letter are:
- In his Stage 1 report, the Ombudsman found the DWP had, since 1995, failed to provide timely information about changes to the State Pension age for affected WASPI women. The DWP ultimately started its direct mailing campaign to inform them in April 2009, but should have started much sooner. The Ombudsman concluded at §171-172 of his report that,“[i]f the maladministration had not happened, DWP would have begun writing to affected women by December 2006 at the latest, 28 months earlier than it did”.
- In the currently unpublished Stage 2 Report, the Ombudsman examines whether this maladministration led to injustice and, if it did, what that injustice was.
- He focuses on six sample complainants (the people discussed in the Stage 1 report). All of them told the Ombudsman that they made key decisions in their lives that would have been different had they known their state retirement ages had been changed. All said they had suffered financial losses because of this as well as loss of the opportunity to make different choices, stress, anguish and upset.
- The Ombudsman’s view is that none of the sample complainants suffered direct financial loss as a result of the DWP maladministration. He says this because, on his calculations, all made their key decisions before the date they would have received their letters from the DWP had those letters been sent out when they should have been. In other words, if there had been no DWP maladministration, it would have made no difference to their decisions.
- To reach this remarkable conclusion and work out when they should have received their letters, the Ombudsman counted 28 months backwards from the date the women in fact received their letters (or should have, in the case those who never received a letter). For example, he considered the case of one sample complainant who was sent a DWP letter in October 2013 which was amongst one of the last batches of letters sent. He then counted backwards from October 2013, concluding that without the DWP’s maladministration she would have received a letter 28 months earlier, so in June 2011. By then, she had already decided to give up a job believing her state pension date was unchanged.
- But this approach makes no sense. Legally, it is irrational. That is because Ombudsman’s Stage 1 report conclusion was that letters should have started being sent out from December 2006 at the latest (and he also said all would have been sent out in 31 months). So the logical way to calculate when women would have received their DWP letters had there been no maladministration is to count forward from December 2006 (at the latest). All women would have received their letters by July 2009. A woman who was contemplating giving up her job in 2010, for example, would know by then that her state retirement age had been changed.
- Why does this matter? In short, it makes a massive difference to the injustice that the maladministration caused. If someone gave up a job because they did not know their state retirement age had been put back, their direct financial losses could be considerable. Any woman who made significant choices like this between 2006 and July 2009 could potentially have suffered direct financial loss as a result of maladministration which is very unlikely to be compensated for on the Ombudsman’s ‘counting backwards 28 months’ approach.
- The next problem is that there will be some cases where women cannot show direct financial loss as a result of receiving their letters when they did, but they can show they lost an opportunity to make different choices. When those sort of choices are significant, the Ombudsman often recommends a higher level of compensation given the injustice. But the Stage 2 report appears to conclude this is inappropriate in the cases of WASPI women because there is too much uncertainty about what would have happened had there been no maladministration. This conclusion cannot be reconciled with the Ombudsman’s Stage 1 report either, nor with his past practice.
- This error also matters. If WASPI women cannot establish either direct financial loss or loss of opportunities that amounted to injustice, then their remedies for the maladministration the Ombudsman has identified, including compensation, could be very limited indeed.
- Whilst the focus of the Stage 2 report is the six test case complainants, the Ombudsman’s findings effectively apply to everyone whose circumstances are similar. The Ombudsman himself says it is possible that some women among the millions affected by the 1995 Pensions Act may be able to demonstrate they suffered financial loss. That suggests that if his approach to injustice is right, most will not.
To read the Judicial review pre-action letter click on the link 2023.02.08-Pre-action-letter-to-PHSO-REDACTED-v.2
What now?
The Ombudsman will not budge. We urgently need the resources to follow through on our threat of judicial review and challenge the Ombudsman’s Stage 2 decisions. We need your support. Please consider donating through our CrowdJustice page:
https://www.crowdjustice.com/case/fair-compensation-for-waspi-women/
