The basis for determination of the complaint
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In simple terms, when determining complaints that injustice has been sustained as a result of maladministration, I begin by comparing what actually happened with what should have happened.
So, in addition to establishing the facts that are relevant to the complaint, I also need to establish a clear understanding of the standards, both of general application and which are specific to circumstances of the case, which applied at the time the events complained about occurred, and which governed the exercise of the administrative functions of those bodies whose actions are the subject of the complaint. I call this establishing the overall standard.
The overall standard has two components: the general standard, which is derived from general principles of good administration and, where applicable of public law; and the specific standards, which are derived from the legal, policy and administrative framework relevant to the events in question.
Having established the overall standard, I then assess the facts of the case in accordance with the standard. Specifically, I assess whether or not an act or omission on the part of the body complained about constitutes a departure from the applicable standard. If so, I then assess whether, in all the circumstances, that act or omission falls so far short of the applicable standard as to constitute maladministration.
The general standard – the Ombudsman’s Principles
Since this Office was established, we have developed and applied certain general principles of good administration in determining complaints. In February 2009 I republished my Principles of Good Administration, Principles of Good Complaint Handling and Principles for Remedy.2 These are broad statements of what I consider public bodies should do to deliver good administration and customer service, and how to respond when things go wrong. The same six key Principles apply to each of the three documents. These six Principles are:
- Getting it right
- Being customer focused
- Being open and accountable
- Acting fairly and proportionately
- Putting things right, and
- Seeking continuous improvement.
The Principles of Good Administration most relevant to this case are:
- ‘Getting it right’ – public bodies must comply with the law and have regard to the rights of those concerned; and their decision making should have regard for the relevant legislation and take account of all relevant considerations.
- ‘Being customer focused’ – public bodies should treat people with sensitivity, bearing in mind their individual needs, and respond flexibly to the circumstances of the case. Where appropriate they should deal with customers in a co-ordinated way with other providers to ensure their needs are met.
- ‘Being open and accountable’ – public bodies should handle and process information properly and appropriately in line with the law; respect the privacy of personal information; and take responsibility for the actions of their staff.
- ‘Putting things right’ – public bodies should acknowledge their mistakes, explain what went wrong and put things right quickly and effectively.
I also take account of the Principles for Remedy when I consider the remedies already provided by public bodies, and in coming to a view of what an appropriate remedy should be in each case. My Principles for Remedy explain that, where maladministration has led to an injustice, public bodies should try to offer a remedy that returns the complainant to the position they would have been in if the maladministration had not occurred. Where that is not possible, the remedy should compensate the complainant appropriately. The Principles for Remedy relevant in this case are:
- ‘Acting fairly and proportionately’ – public bodies should take account of the individual circumstances of a case and provide an appropriate remedy for the injustice or hardship sustained.
- ‘Putting things right’ – public bodies should consider fully and seriously all forms of remedy such as an apology; remedial action, which may include revising procedures to prevent the same thing happening again; training; financial compensation; or a combination of these.
I have taken the Principles for Remedy into account in my consideration of Ms M’s complaint.
The specific standard – legal, policy and administrative background
Bodies across the public sector collect, use and store a wide range of personal information, such as income, date of birth and health records. Legislation allows HM Revenue & Customs (which includes Customer Operations, the Tax Credit Office and the National Insurance Contributions Office), the Child Support Agency and the Department for Work and Pensions (which includes Jobcentre Plus), to transfer data between them. (Annex A lists the relevant legislation in Ms M’s case.) While each of these agencies is authorised to share data, they must also comply with the provisions of the Data Protection Act 1998 and the Human Rights Act 1998. These two Acts set out the legal basis for the handling of personal information and the right to individual privacy, respectively.
Data protection principles
The Data Protection Act 1998 regulates how personal information relating to individuals should be processed, including how data is obtained, held, used and disclosed. It requires data controllers (such as the agencies which Ms M has complained about) to process personal information in accordance with eight data protection principles. The data protection principles most relevant to the circumstances of Ms M’s case say that data controllers should:
- process an individual’s data fairly and lawfully;
- obtain data only for a specific and lawful purpose and only process (that is, disclose) it further in a way that is compatible with that purpose;8
- ensure that the data processed is accurate, and where necessary, kept up to date; and
- ensure that the information is protected by appropriate security measures to prevent it being accidentally or deliberately compromised.
Government policy and the use of information
While the Data Protection Act 1998 and the Human Rights Act 1998 provide the legal framework to assure citizens that their information will be protected and used only for legitimate purposes, individual public bodies are responsible for managing the security of the information it holds. Government departments and their agencies exercise that responsibility within several frameworks: the law, as detailed above (paragraphs 14 and 15); corporate governance and accountability requirements set down by HM Treasury; the Civil Service Management Code; and the National Information Assurance Strategy framework developed by the Cabinet Office. I have set out more detail about the National Information Assurance Strategy in Annex B of this report.
Computer systems and data sharing between government departments
There are a number of government departments and agencies which have databases and bespoke computer systems designed to support their business needs. Some of these computer systems have databases in common and some have internal and external links between them. These links exist to enable data relevant to all linked-in bodies to be kept up to date when an individual’s personal details are changed on any one system. The computer systems relevant to Ms M’s complaint are HM Revenue & Customs’ Citizens Identity Database, the National Insurance Recording System and the National Tax Credit System; and the Department for Work and Pensions’ Customer Information System and Departmental Central Index. I have described those systems in a little more detail at Annex C and I have set out a diagram illustrating the links between them at Annex D.
Tax credits
Tax credits are payments from the Government for individuals who work and are on a low or moderate income, to improve their standard of living. Tax credits are administered by HM Revenue & Customs’ Tax Credit Office. Where an applicant is part of a couple, the couple must make a joint claim. Where an applicant ceases to be part of a couple, as in Ms M’s case, they must tell the Tax Credit Office about their change of circumstances. The entitlement to tax credits arising from their joint claim then ends and if either of the ex-partners wishes to continue to receive tax credits, they must make a fresh claim as a single person.
Entitlement to tax credits is assessed and awarded at the start of each tax year9 based on the amount of household income an applicant expects to receive. The tax credits award is finalised at the end of the tax year, once details of the applicant’s actual household income for the year are known. The Tax Credit Office establishes this by sending every applicant an annual declaration and renewal pack after the tax year has ended. This pack contains details of, among other things, the applicant’s National Insurance number; date of birth; employment status; the amount of tax credits paid to them during the previous tax year; and income details for the previous tax year (as initially provided by the applicant).
The Tax Credit Office has a two-stage process for considering complaints. The first step is to contact the Tax Credits complaints manager by calling the Tax Credits helpline; by writing in; or by visiting any HM Revenue & Customs’ Enquiry Centre. On receipt of a complaint, the Tax Credit Office will tell the complainant the name of the person who will be dealing with their complaint, try to resolve it, and give a response as quickly as possible. Where a complainant remains unhappy, they can ask the Tax Credit Office to look at the complaint again. A senior officer will then consider the complaint afresh and give a final decision. The Tax Credit Office aims to reply to correspondence, including complaints, within 15 days. Should a complainant be unhappy with the Tax Credit Office’s final response, they can, if they wish, ask the Adjudicator to look into their complaint.
The Information Commissioner’s Office
The Information Commissioner’s role is to promote public access to official information and protect personal information. The Information Commissioner promotes good practice and provides information and advice to organisations, including government departments; resolves complaints from individuals; and enforces the law against those who ignore or refuse to accept their obligations. The Information Commissioner has a duty12 to assess compliance with the Data Protection Act 1998 at the request of someone directly affected by the processing of information held about them. However, where the Information Commissioner receives such a request and the organisation has already acted to correct the matter complained about, as in Ms M’s case, the Information Commissioner will generally decline to take any further action.
