The Court has made the Order WASPI sought, quashing the Ombudsman’s Stage 2 report because of the legal errors we identified – errors which the Ombudsman accepts he made. You can read the full Order here.
The Ombudsman’s reconsideration process will now proceed. But WASPI will not be passively waiting for its outcome. At each stage we will be pressing the Ombudsman not only to complete his investigation in a way that is as rapid as possible but also thorough and fair. We will also be raising concerns about this with MPs, particularly those who sit on the Public Administration and Constitutional Affairs Committee (PACAC) which oversees the Ombudsman’s work. And we will turn to our lawyers for their expert input when responding to the Ombudsman’s draft reports and if we have concerns his investigation may be derailed again.
In particular, we believe there are ten key steps that the Ombudsman musttake now to produce a report that will not only be lawful, but helpful to Parliament in prompting rapid, straightforward and meaningful action to address the injustice 1950-swomen have experienced on a massive scale.
Those ten steps are:
· First, complete the investigation with sense of urgency.
1950s-born women were obliged to exhaust the DWP and ICE complaint procedures before approaching the Ombudsman. His investigation has already been very drawn out. Once the settlement is approved by the Court, the investigation must move forward not just fairly but rapidly. Preparation for that can begin now. Justice delayed remains justice denied.
· Secondly, clearly and correctly identify when maladministration causing injustice began.
Besides being legally flawed, the Stage 2 report was ambiguous on a critical point: the date when the first set of State Pensions Act notification letters should have been sent out to 1950s-born women. If the DWP acting reasonably and without maladministration ought to have decided to send those letters out in August 2005 (as the Stage 1 report categorically found) why would it have taken 14 more months for the letter writing to begin? Paragraph 5 of the Stage 2 report indicated that women ought to have been notified “by December 2006” (in other words, a 14-month letter-writing campaign ought to have been completed by then). Elsewhere in the same report, the Ombudsman found that letter writing ought to have started by December 2006. This is inadequate. The Ombudsman must reach a clear, rational conclusion based on his own Stage 1 finding that maladministration began with the DWPs failure to act decisively in August 2005.
· Thirdly, clearly and correctly identify when maladministration ended.
The Ombudsman must not repeat his legally flawed finding that maladministration ended 28 months before women received notification letters (or should have received them when others in similar circumstances did). Working out when women ought to have received their letters should be straightforward. The Ombudsman simply needs to decide when letters would have started to be sent out, how long a letter-writing campaign would have lasted, of it had been actioned with a sense of urgency, and which groups would have been written to in what order.
· Fourthly, reach a sound, principled conclusion on what would have happened had there been good administration, rather than maladministration, in the way 1950s-born women were notified of their State Pension Age.
The Stage 2 report is riddled with uncertainty, with the Ombudsman commenting, e.g. “[t]here is too much we cannot now know about what would have happened if DWP had written to women about the 1995 Pensions Act sooner.” This is, frankly, not good enough. It is the Ombudsman’s statutory role to adjudicate on what would have happened had there been no maladministration. He cannot abdicate it. As explained above, working out what would have happened had there been good administration, rather than maladministration, should not be difficult. The Ombudsman has been doing just that for 56 years.
· Fifthly, make findings on direct financial losses that do not require women to prove a negative, or provide evidence that no-one realistically will have.
Having found when women would have received a notification letter, the Ombudsman then needs to ask them ‘what would you have done differently, had you received a letter then and how would that choice have affected your finances?’ If the answer to that simple question is that different choices would have been made and women’s financial circumstances would have been better, they must be compensated for their direct financial losses in line with the Ombudsman’s own published policies. Women should be taken at their word not asked to prove counter-factuals to a standard that is impossible for anyone to satisfy.
· Sixthly, take proper account of lost opportunities to make different financial decisions.
As well as direct financial losses, 1950s-born women have experienced losses of opportunities to make different choices. This is a free-standing form of injustice recognised in another of the Ombudsman’s policies (see page 12: “Loss of significant financial opportunities or life chances… where we cannot say on balance that these opportunities would have been taken up”). It was not taken into account in the legally flawed Stage 2 report and must be grappled with in the next iteration.
· Seventhly, properly calibrate distress, anger and hurt.
The Ombudsman must not underplay the impact of the DWP’s maladministration on 1950s women or use their anger and distress at the changes as a reason not to recommend just compensation for the way in which the changes were communicated.
· Eighthly, calibrate injustices depending on their impact on women whose circumstances are different
Not every 1950s-born woman received, or should have received, the same amount of notice of their State Pension Age changes relative to their anticipated retirement age. So, the impact of maladministration will be different depending on women’s circumstances. This must be taken into account, so compensation is fair to all, rather than arbitrary.
· Ninthly, reach conclusions in a fair manner, taking account of what 1950s-born women say.
WASPI and all those with outstanding complaints must be properly consulted on the Ombudsman’s provisional conclusions.
· Tenthly, make recommendations for compensation for 1950s-born women generally that are fair, can be put into place rapidly and are straightforward for everyone.
A just remedy cannot be one that takes years to administer, requires 1950s-born women to meet sophisticated tests to establish eligibility, requires them to prove negatives or counter-factual or treats them disrespectfully and suspiciously.
We will do everything we can to ensure these steps are taken.
