My findings of maladministration and injustice

Having set out my principal findings of fact, I now turn to consider whether maladministration occurred.

Maladministration

In the light of the evidence I have reviewed and my findings of fact, I consider that there are six areas in which the actions of the MoD and the Agency substantially departed from my Principles of Good Administration:

1. the basis of the injury to feelings scheme;
2. the fairness and consistency of the injury to feelings scheme;
3. the announcement of the injury to feelings scheme;
4. the invitation to apply for claims under the injury to feelings scheme;
5. the retraction of the earlier apology to Mr A and poor correspondence; and
6. the failure to deal with Mr A sensitively, bearing in mind his circumstances and the intentions of the original scheme.

The basis of the injury to feelings scheme

The MoD devised the injury to feelings scheme on a basis that was not consistent with the Elias judgment or the Parliamentary answer given in January 2007 (paragraph 87). The judgments were based on the assumption that Mrs Elias would not have received a payment under the original scheme, even absent unlawful discrimination. By intending to limit eligibility under the injury to feelings scheme to those who would have received a payment under the original scheme, but for the indirect discrimination embodied in the application of the ‘bloodlink’ criterion, the MoD failed to ‘get it right’. It misunderstood the court judgments and did not do what its Minister had directed.

I have been unable to establish why the MoD chose to depart from the position the Minister had agreed but I can only assume that officials were unduly influenced by the legal advice that they had obtained before making their recommendation, despite the Minister subsequently deciding that he did not accept that recommendation.

Mr A’s claim to the original scheme (and that of his siblings) was rejected purely on the ground that he (and they) did not satisfy the ‘bloodlink’ criterion. It follows that, like Mrs Elias’, Mr A’s feelings were injured because of the rejection on that ground, and he suffered a detriment by not receiving compensation under the original scheme. Mr A had non-UK national origins. This should have brought him properly within the scope of the injury to feelings scheme.

The fact that Mr A would not have received a payment under the original scheme absent the ‘bloodlink’ criterion is not relevant to the question as to whether, in line with the Elias judgment, he was entitled to receive compensation for injury to feelings. Given all that I have said above, I can see no basis on which Mr A and his siblings were not entitled to the injury to feelings payment and I find that the MoD once again failed to ‘get it right’.

The fairness and consistency arising from the design of the injury to feelings scheme

I consider that the way in which the injury to feelings scheme was devised failed to treat individuals in similar circumstances consistently or fairly.

I accept that when devising any scheme there will be some individuals who unfortunately fall just outside the agreed parameters and this may engender calls of unfairness or bias.

A line does have to be drawn. However, this should not lead to an absurd outcome. It is readily apparent that there was inconsistent treatment meted out to the members of Mr A’s family when they applied for the injury to feelings payment. Mr A’s siblings who were born in Singapore received the payment, yet those born in Malaya, including Mr A, did not. By any standards, this is an absurd outcome when they were all interned and were all unlawfully indirectly discriminated against. The feelings of the siblings born in Malaya were no less hurt by their rejection under the unlawful ‘bloodlink’ criterion than those born in Singapore.

Any difference in treatment needs to be justified by the objective features or the individual circumstances of the case. The family experienced the same treatment at the hands of their Japanese captors, and they experienced the same unfairness when they were refused payment under the original scheme. Compensating only half of the family for the distress that they all suffered is absurd and patently was not ‘acting fairly’.

The announcement of the injury to feelings scheme

The Minister announced the injury to feelings scheme as being ‘on the same basis’ as Mrs Elias had been awarded compensation by the courts. The Minister said that the injury to feelings scheme was based on the individual having had a claim to the original scheme rejected due to the ‘bloodlink’ criterion, and the individual being of non-UK national origins. The template letters approved for issue to potential applicants about the scheme were also clear on this point.

However, the internal minutes I have seen clearly set out the MoD’s decision to exclude from the scope of the injury to feelings scheme those claimants who could not satisfy all of the original scheme’s eligibility criteria – in contrast to the Minister’s statement and the template letters. I have been unable to establish why this happened, and can only suggest that the planning of the injury to feelings scheme was simply muddled.

However it arose, the public announcement of the scheme and the means through which the Agency solicited applications from potential claimants – including Mr A and his siblings – failed to explain that the MoD had decided to make payments under the injury to feelings scheme only to those who, but for indirect discrimination, would have received a payment under the original scheme. This constitutes a failure to be ‘customer focused’ and a failure to be ‘open and accountable’.

The invitation to apply for claims under the injury to feelings scheme

The way in which Mr A and his siblings were invited to make a claim under the injury to feelings scheme reinforced these serious departures from my Principles of Good Administration. They made their claims without knowledge of the eligibility criteria which would be applied to their claims. Mr A and his siblings applied in response to a letter which led them to believe that, as people who had been discriminated against and who possessed non-UK national origins, they would be eligible for a payment.

Mr A and his siblings were invited to apply to the revised scheme more than seven months after the Agency had decided internally that they no longer met the MoD’s definition of ‘British at the time of internment’. All this added to the earlier failures to ‘get it right’ and to be ‘customer focused’.

The retraction of the earlier apology to Mr A

The retraction of an earlier apology is, in my experience, an unusual step for a government department or agency to take. The Agency’s comment to Mr A and his siblings that they had been paid the £500 apology payment in error was incompatible with the true basis of those payments. It was also hugely insensitive and entirely unnecessary. Furthermore, at no point have the MoD or the Agency recognised or apologised for making such an insensitive remark.

I do not share the apparent view of the MoD that such payments – which were a response to a recommendation in my July 2005 report – were only to be made to those within the scope of the original scheme. Indeed, the apology which I recommended might be made in tangible form was intended to reflect the distress caused to people who had been misled by maladministration to believe that they would be eligible when they were not eligible. (My emphasis)

But even if that were not the case, I can see no useful purpose in communicating this view. The MoD and the Agency should have known this insensitive comment was highly likely to further distress people already greatly incensed by the way in which their claims to both schemes had been handled. In the letters Mr A wrote to the Agency and the MoD, he was very clear that their handling of events had made him relive a past that he would have preferred to keep buried. In the last years of his life Mr A expected, and deserved, far better treatment at the hands of the British Government than he received.

The failure to deal with Mr A sensitively, bearing in mind his circumstances and the intentions of the original ex gratia scheme

Finally, it is my view, based on all that I have seen, that at no time since the original scheme was announced in November 2001 and in the subsequent schemes, have the MoD or the Agency considered the effect their actions will have, or have had, on the people they were meant to be compensating; they lost sight of the original honourable intentions of the scheme and became caught up in an ever increasing administrative muddle.

The recipients of this poor decision making and insensitive correspondence were people who had already suffered unimaginable hardship. I would have expected the MoD to have been alive to that context when establishing schemes, setting the tone and message for any announcement, and devising correspondence to be sent to applicants.

I do not doubt that the MoD and the Agency felt they were acting proportionately and efficiently. But they nonetheless lost sight of the person on the receiving end of their actions. By failing to take into account their ‘customers’ and the very special circumstances surrounding the schemes, the MoD and the Agency were not ‘Being customer focused’. The result of which were schemes which caused considerable upset and distress to individuals, who in the later years of their lives deserved far better.

Findings: maladministration

In determining whether these six departures from my Principles of Good Administration fall so far short of the applicable standard as to constitute maladministration, I have considered the context in which the actions of the MoD and the Agency took place.

These administrative errors were not isolated cases of departures from good administration. Lessons should have been learnt, but clearly were not, from the previous experience of the administration of the original scheme.

As I have explained, the revised scheme was developed after my report, A Debt of Honour, was published and the MoD began an internal review once they had identified inconsistencies in their own approach. Concurrently, the courts found that the ‘bloodlink’ criterion was unlawful.

Given the seriousness of a finding of unlawful indirect race discrimination on the part of a public body, the MoD needed to exercise extreme care to ensure that its response to the findings of the courts was coherent, robust and fair. All the more so given the sensitivity of the matters with which it was dealing, and the MoD’s knowledge that the people affected by its decisions were vulnerable and already distressed. This was further underlined by the fact that the origin of the matters in hand was an already gruesome experience that those people endured.

I am highly critical, therefore, of the failures I have identified in this report. I consider them to be significant departures from my Principles of Good Administration. I therefore make six findings of maladministration:

• first, that the basis on which the MoD devised the injury to feelings scheme constitutes maladministration, being inconsistent with the basis of the Elias judgments, and the Minister’s statement and imposing a restriction on eligibility based on irrelevant considerations;
• secondly, that the design of the injury to feelings scheme constitutes maladministration as it produced such unfair, inconsistent and even absurd outcomes with the entirely foreseeable circumstances of only some family members being compensated for the discrimination that they all suffered;
• thirdly, that the actions of, and the literature distributed by, the MoD following the Minister’s announcement of the injury to feelings scheme constitutes maladministration; being unclear and unfair, and failing to inform potential applicants of the full eligibility criteria which the MoD operated;
• fourthly, that the invitation by the Agency to Mr A and his siblings to claim under the injury to feelings scheme constitutes maladministration, in that their expectations were raised on the basis of an incomplete statement of the scheme rules made many months after the Agency had already decided that Mr A and his siblings were not eligible on its view of the scheme rules;
• fifthly, that the communication by the Agency to Mr A and his siblings of its belief that the earlier apology payments had been made in error constitutes maladministration, being incompatible with the true basis of those payments and constituting unnecessary action which could only reasonably have further, in Mr A’s own words, ‘added insult to injury’. And further, at no point have the Agency apologised to Mr A for the insensitive remarks made in its correspondence with him in its letter in August 2008 when it said that he was paid the £500 in error; and
• finally, that the MoD and the Agency have consistently failed to ‘be customer focused’ in their decision making, announcements and correspondence. Not only did they lose sight of the original intention of the scheme, they lost sight of the people it was intended to compensate. They failed to deal with Mr A and his siblings sensitively, bearing in mind their individual circumstances, causing prolonged and unnecessary distress and upset in the later years of these individuals’ lives.

I have made no detailed finding as to whether the way in which the MoD approached the question of British protected person status in relation to the definition of ‘British at the time of internment’ constituted a departure from my Principles of Good Administration. Such a finding would only have been relevant to my determination of the complaints made by Mr A if I had found that the other aspects of the MoD’s actions had been reasonable in the circumstances. Given what I have found above, it is not necessary to further consider this question.

I now turn to set out what injustice, if any, I consider resulted from this maladministration.

Injustice

I do not think that it can be doubted that Mr A and his siblings were caused extreme outrage and distress by the way in which the MoD and the Agency handled their cases. This much is evident from the terms of their correspondence with both bodies, which are set out in detail at Annex D.

Nor is it in doubt that Mr A and his siblings were correctly refused the original ex gratia payment and the revised payment. But they were then incorrectly refused a payment under the injury to feelings scheme which was to recognise the injury to feelings caused by the rejection of compensation claims on the basis of the unlawful ‘bloodlink’ criterion to which all of them were subject.

Do these consequences flow from the maladministration I have identified in this report? My answer to that question is an unequivocal ‘yes’.

Failing to devise the revised scheme on a basis that would deliver the remedy for the discrimination identified in the Elias judgment to which Mr A and his siblings were entitled led to their claims being denied when, consistent with that judgment, they should not have been denied. Not only did they not get what they were entitled to, but the manner in which they were denied it also caused them outrage and distress.

Inviting Mr A and his siblings to apply for the injury to feelings scheme when the Agency were aware they were not eligible, and then failing to properly inform them of the full basis on which the MoD intended to operate the new scheme led to them having to undergo further mental anguish and suffering when making their claim. The callous way the Agency rejected these claims exacerbated this anguish and suffering.

Failing to consider the potential impact on someone who is told, unnecessarily, that the apology (made in tangible form) which he had been given was not in fact due, was unfeeling and unthinking, and led to Mr A being treated in a way he found to be yet more insulting.

Failing to consider the implications of their decision making, announcements and correspondence, on a group of individuals who had suffered more than enough already caused unnecessary hurt, frustration and distress.

Mr A was subject to prolonged and aggravated distress in the last years of his life. He was repeatedly forced to relive the horrific events of 1945. This compounded all that had gone before.

Findings: injustice

I have found it impossible to conclude that these consequences do not constitute injustice or that they do not directly flow from the maladministration I have identified above. In those circumstances, I find that Mr A and his siblings suffered injustice resulting from maladministration in two forms:

• first, by not receiving compensation for injury to feelings which they should have received; and
• secondly, by being caused extreme outrage and distress by the way in which their claims were handled.

Having found injustice resulting from maladministration, I uphold Mr A’s complaints in full. I now turn to make recommendations to ‘put right’ the injustice which I have found resulted from maladministration on the part of the MoD and the Agency.