Ombudsman Services Part 4: The Full English Cover-Up. (Attempt 37)
37) Proving Unlawful Conduct On The Part Of The Ombudsman Is Very Difficult.
Dear Reader,
We believe that the ruling in Miller & Another V Health Service Commissioner For England (2018) EWCA Civ 144 decision has enormous significance when set alongside those of the Ombudsman Services:Property Ombudsman's - an Ombudsman whose decisions were, "arrived at in an illogical manner." (DJS Research Customer Satisfaction Reports 2008-2011)
The following has been taken from:
Home Insights Blogs - Regulatory Blog - "Ordinarily hard to challenge ombudsman's decision-making marred by illegality, irrationality, procedural unfairness and pre-determination,"
Here we're told that:
"In this case the Court of Appeal quashed both the ombudsman's
decision to investigate and the conclusions of that investigation. The
court found that multiple forms of unlawfulness were compounded by
variety of poor adjudicative practices"
Q. Is this not what DJS Research's Customer Satisfactions reports uncovered: the misrepresentation of complainants' evidence, the failure to mediate or negotiate, the inability to cope with complex property disputes, the arriving at pre-determined decisions in an illogical manner and the desperate attempt by complainants to submit further evidence and/or attempt to question the reasoning behind those illogical decisions. Desperate attempts that were doomed to failure.
Q. Isn't there a perfectly sensible explanation for such illogical reasoning on the part of the Property Ombudsman - their decisions are indeed, "pre-determined" - otherwise wouldn't they be different?
But they aren't.
The Blog continues;
"The Health Service Commissioner for England (the 'ombudsman') is a
statutory public authority. It is empowered to investigate under the Health
Service Commissioners Act 1993 (the 1993 Act) .... In the Miller case
the ombudsman upheld a complaint about the medical treatment
provided by GPs to a patient, Mr Pollard, and found that, with appropriate
care, his subsequent death would have been avoided. The GPs who had
treated Mr Pollard brought a judicial review challenge. After losing in the
High Court they were triumphant on appeal."
In a previous Attempt we have shown how prohibitively expensive judicial reviews are- especially should that review fail and those bringing it are handed the over side's costs to pay. Property complainants are simply not in a position to fund such a review.
Ombudsmen must be fully aware of this fact and operate accordingly.
Crucially, the Blog emphasises:
"The value in this judgement lies both in the Court of Appeal's firm
reiteration that proving unlawful conduct on the part of the ombudsman
is very difficult and its equally uncompromising identification of a spectrum
of unlawful conduct on the facts before it. Serious failures were identified
were identified in relation to four areas:
1. the application of the test for commencing an investigation.
2. the way the investigation was conducted.
3. the standard of the review; and
4. the way conclusions were reached.
Over the years the Ombudsmans61percent Campaign concentrated on; 2,3 and 4.
Regarding 2: Investigation Process: Section 11 (1A)
"Such statutory requirements are complimented by the context
dependent requirements of common law, procedural fairness and
the obligation to act rationally."
Q. When an ombudsman arrives at decisions in an illogical manner time after time after time, how does this satisfy the 1993 Act's requirements for procedural fairness and the ombudsman's obligation to act rationally?
In arriving at decisions in an illogical manner the OS:Property Property Ombudsman was clearly not acting rationally.
Furthermore;
"Administrative and adjudicative decision making bodies should not
consider relevant material (supportive or adverse to their case) with
-out giving the affected person the right to comment upon it. This is
not a procedural requirement to disclose the entirety of the evidence
the ombudsman obtains but material that is relied upon most be
disclosed, as must material contrary to the ombudsman's provisional
or final conclusions."
We only discovered that our surveyor had been coaching the Ombudsman and leading her step by step to her final decision when we obtained that information via a Data Protection Act request.
In 3: Standard of review. Iain Miller explains;
"The court determined that two questions must be answered in relation
to the standard of review: (1) does the ombudsman have to adopt a
particular standard; and (2) by what standard did the ombudsman measure
the GP's actions in this case? Reviewing earlier authority, the court
confirmed that the ombudsman has a broad discretion to: 'decide and
explain what standard he or she is to apply...that standard will not ne
interfered with by the court unless it reflects an unreasonable approach."
In other words, the court will only intervene in extreme situations. For
example it may do so if the standard adopted is, 'incapable of being
readily discerned or tends to produce inconsistent decisions."
In the case of the Ombudsman Services:Property Property Ombudsman matters are reversed and for GPs read RICS surveyors. Here the Ombudsman was not seeking to find her fee-paying members guilty but to exonerate them and this she did time after time after time.
Fast forward to the present Ombudsman and nearly 90% of property claimants believe his decisions to be, "unfair." (MoneySavingExperts: Sharper Teeth: The Consumer Need For Ombudsman Reform)
At this particular den of ombudsmanry it appears that the standard applied produced remarkably consistent decisions - decisions were not only arrived at in an illogical manner but a majority of the culprits were either totally exonerated or asked to pay a miniscule financial award.
There is of course a very business-like logic behind all of this bearing a close resemblance to a mafia run protection racket.
Iain Miller continues;
"The court's reluctance to interfere did not, however, prevent it from doing
so in this case. It identified that on this occasion the ombudsman had
decided to choose a statement of good practice and measure the doctors
against it. This standard was incoherent, with, 'no yardstick of reasonable
or responsible practice and the, 'risk of being a lottery dependent on the
professional opinion of the adviser that is chosen.' It met the high legal
threshold of being, 'unreasonable' or 'irrational' and was therefore unlawful."
Again, if we reverse the intent of the Property Ombudsman and substitute RICS surveyors for doctors any reasonable individual could only arrive at the logical decision that this Ombudsman's decisions were also, "unlawful."
The OS:Property Property Ombudsman said it was not her job to report recalcitrant RICS surveyors to RICS. This would appear to have contradicted what was said in her company's Terms of Reference ie it was the ombudsman's duty to do so.
Q. Is this not unlawful activity (or lack of it) on the part of the Ombudsman Services:Property Ombudsman?
Q. Where was the yardstick or reasonable or responsible practice?
Part 4 explains: Pre-determined conclusions.
"The final main area for criticism was the adversarial attitude of the
ombudsman to the investigation process. The test the court applied
was whether a fair minded and informed observer, having considered
the facts, would conclude that there was a real possibility that the
investigation was biased by pre-determination."
Q. Our case - 510458 - had FAST TRACK stamped on the front page - isn't this about as pre-determined as it can possibly get?
"It considered that the ombudsman's officer's had used, 'firm concluded
and adverse' language which gave no hint of doubt that the GPS were
culpable."
Q. When the Chair of Ombudsman Services, Lord Tim Clement Jones, states:
"For some consumers our best efforts will never be enough - their expectations of our service and the powers that we have to resolve an issue are too great. It is not our role to punish companies" what could possibly be more adverse and is nearly 90% of property consumers - "some?"
This is not the language of an organisation that is going to forensically examine a consumers' complaint, leave no stone unturned and go that extra mile in the pursuit of fairness and justice. It is the language of those sitting in the pockets of their member companies bent on ensuring that their members know they - the hired hands - "are spending their money wisely" and "adding real value to their business practice." (Company Minutes: Ombudsman Services)
"The court found that, overall, the investigation file gave, 'every appearance
of pre-determination and almost none of a fair handed approach."
The Ombudsmans61percent Campaign believes that if the hundreds - if not thousands - of property complainants who found the Chair of Ombudsman Services best efforts simply not good enough were to have their cases similarly reviewed by fair minded and informed observers, they too , like those GPs would eventually find justice.
This isn't so much a Lewis Shand Smith, "broken solution" but more a totally rigged solution.
Yours sincerely,
Steve Gilbert - Workstock Number - 510458.
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