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August 2016 – Redress – Part Two

Earlier this month I posted the first of a two-part blog on redress – an issue that is of particular concern to individuals who contact my office. While the first part looked at the broad issue of redress – what it is and the different types of redress – the second part looks at the factors I consider when deciding what form of redress to recommend.

“Why didn’t the Ombudsman give me the redress I asked for?” This is a question commonly asked of my team.  Individuals who ask me to use my powers of investigation have often been through a lengthy internal Service complaints process, and sometimes an additional complaints process before that.  This means that in many cases coming to my office it is their last resort.  If their complaint is upheld, even partially, but I do not recommend the redress they have specifically asked for, they can feel disappointed, or even that they have been wronged yet again.

My role as the Ombudsman for the Armed Forces is not to give a complainant everything they ask for simply because they have asked for it. It is to provide independent and impartial oversight of the process.  It is to investigate where appropriate and make findings that are binding and recommendations to put things right.

What I recommend may not be what the complainant has asked for. This is because there are a number of factors I take into consideration when deciding what redress to recommend and what an individual has asked for is only one of those factors. Ultimately the purpose of redress, as discussed in part one of my blog, is to put the individual back in the position they would have been had the wrong not occurred, as far as it is possible to do so. When determining the best form of redress to achieve this, there are a number key factors that are considered by my office.  As complaints can be complex, this is best illustrated by way of an example[1]

Mr Bloggs was discharged from the Service and following legal advice that the discharge was improper he makes a Service complaint.  The complaint is accepted for investigation but after 1.5yrs is ultimately not upheld. The length of time taken to resolve the complaint has caused Mr Bloggs considerable distress and he is now seeking treatment for a mental health disorder.  Mr Bloggs asks me to investigate the substance of his complaint in addition to alleged maladministration in the handling of it given the length of time it took to resolve.  MR Bloggs ask for the following redress if I uphold his complaint:

Disciplinary action to be taken against those involved in his discharge

  • Reinstatement of compensation of £250,000 for lost earnings and the pension he would have accrued had he not been improperly discharged
  • £10,000 compensation for distress and hurt feelings

 

The complaint is accepted for investigation by my office. Following investigation I find that:

  • There were significant delays in resolving the original complaint, but this was because Mr Bloggs had become so unwell that he was unable to deal with the complaint.
  • The discharge was improper

In deciding what redress to recommend for Mr Bloggs I consider:

A. What he has asked for. I can’t recommend all of the redress that Mr Bloggs has asked for because a lot of it is outside of my powers.  For example I cannot recommend disciplinary action to be taken against those involved in his discharge or an amount of money to be paid for lost earnings or distress as this would be for the Service to determine.  However I can recommend asking the Services to consider his reinstatement or financial compensation if that meets the rest of the criteria.

B. What redress would be fair. Redress shouldn’t reward Mr Bloggs or punish those involved. This is one of the reasons that I cannot recommend disciplinary action as outlined above.  I also can’t reward Mr Bloggs by recommending he is reinstated AND paid compensation for lost earnings as this would be taking two bites of the cherry and would put him in a better position than he would have been before the wrong occurred.  However it would be fair to recommend that the Services consider his reinstatement or financial compensation in lieu of it.

C. What redress is achievable. Mr Bloggs wants to be reinstated, however I can’t determine if that is achievable. What if he was offered reinstatement but his current mental health disorder prohibits him from being reinstated?  It is important not to make a recommendation that would cause Mr Bloggs any further distress. It wouldn’t be appropriate for me to recommend his reinstatement, but I could recommend that it be considered. Likewise I cannot recommend an amount of compensation to be paid for lost earnings as I cannot make the calculations required, but I could recommend that it be considered and the factors that the Services may want to take into account when calculating the amount of compensation.

D. What redress would put things right. It is impossible to turn back the clock and undo everything that has happened to Mr Bloggs. This is a complicated situation and it may not be possible to put Mr Bloggs back in the position he would have been before his improper discharge, but I have to consider what forms of redress would go the furthest to achieving this.

E. Wider systemic issues. Are there any wider lessons to be learned from this situation that could prevent something like this happening again to someone else?

After considering these factors I recommend:

  1.  An apology for the delay in resolving the original complaint and for his improper discharge. This may not put Mr Bloggs back in the position he was in prior to the improper discharge but it is important to acknowledge and apologise for the wrong and delays in handling the complaint.
  2. That the Service gives consideration to Mr Bloggs’ request for reinstatement or financial compensation in lieu of this. I cannot order Mr Bloggs be reinstated and there may be barriers to doing this, but I can recommend that the Service looks at what could be done to either reinstatement or compensate Mr Bloggs for his improper discharge.

I also make a wider learning point that where a complaint is put on hold for medical or other reasons that this is clearly explained to the complainant and the situation is regularly reviewed. Although I did not find maladministration, it is best practice and it is important to ensure that this doesn’t happen to another complainant in the future.

What does all of this mean? Quite simply it means that if I uphold a complaint following an investigation, what I recommend will depend on the individual case.  There is no tick box used in my office that x type of complaint will get y type of redress; that if the complainant asks for a specific redress and I find in their favour that I also recommend the redress they want. For redress to be fair and just it needs to be awarded on the merits of the individual case and go some way to correcting the wrong or injustice suffered by the complainant.

The last question that people often ask is why do I only make recommendations and not grant the redress myself? As outlined in the first part of my blog it is best practice in complaint handling for the organisation that made the mistake to make it right. This means that even where I have investigated it is ultimately for the Service concerned to grant the redress.  It is their responsibility to put things right and they cannot simply ignore the recommendations I have made.

[1] The circumstances outlined in this example are fictitious.  Any similarity to any complaint, whether ongoing or closed, is merely coincidental.