Summary of findings
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137. I have made three findings of maladministration. These are:
(i) that the scheme was devised and launched before it was appropriate to do so, with the effect that several critical factors were not considered and addressed by those responsible for devising the scheme rules before its launch;
(ii) that there was a mismatch between what the scheme was intended to deliver and what it was capable of delivering through the scheme rules. The rules lacked clear definitions; inconsistent interpretations were possible in respect of several key factors; those operating the scheme were unable to verify the entitlement of some applicants; there was no flexibility within the eligibility criteria; and administrative simplicity superseded alignment with delivering the policy intention; and
(iii) that the problems identified during the operation of the scheme which were added to incrementally should have led to a comprehensive review of the scheme with the aim of realigning the detailed scheme eligibility rules with the policy intention behind the scheme. This did not happen.
138. I now turn to determine what the consequences of this maladministration were for Mrs A and whether she has sustained an unremedied injustice as a result.
What were the consequences for Mrs A?
139. In her complaint to me Mrs A claimed to have sustained injustice in the form of insufficient compensation under the scheme. That is, that the sum awarded to her – following her application to the compensation scheme on behalf of her late husband – reflected payment for only seven years’ service. This had occurred because she had been unable to establish the continuity of his twenty years’ service under the scheme’s eligibility criteria, as the requirements of the ‘pool system’ had left him with no alternative but to take work which was classified as not being valid for the definition of the continuous period of work under the scheme rules.
140. The maladministration that Mrs A alleged had led to her suffering this injustice was the failure on the part of DTI to make provision for the effects of the ‘pool system’ when designing the eligibility criteria for the scheme. She also complained that, given that the scheme would have to deal with claims going back forty years, there had been a failure to make provision within the scheme to consider cases where there were deserving or unanticipated circumstances relevant to an individual applicant.
141. As a result, the remedy she seeks is compensation that fully reflects her late husband’s service of more than twenty years on Icelandic water vessels.
142. I have found that the scheme was launched before proper consideration had been given to the complex context that the scheme was intended to reflect and to the widely varying individual circumstances of those whose loss of potential earnings the scheme was meant to compensate.
143. I have also found that the eligibility criteria for the scheme were unclear, capable of differing interpretations, and inflexible. That compounded the lack of full and developed understanding of the relevant issues that underpinned the way in which the scheme had been developed.
144. The scheme was, therefore, ineffective in that it failed to deliver compensation to all those whom it was intended to compensate.
145. Mr A had had a career of over twenty years as a deep-sea fisherman and appeared to be exactly the type of trawlerman at whom the compensation scheme had been aimed.
146. Mr A had been required to work for a short period of time on a non qualifying vessel or otherwise lose his social security benefits. The way in which the scheme rules failed to recognise the full effects of the ‘pool system’ meant that Mrs A received significantly reduced compensation because of this technicality – one that would have been identified by anyone with a developed understanding of the ‘pool system’, the potentially unfair effects of which should have been considered as part of devising the scheme rules.
147. I consider that Mrs A could have reasonably expected to receive compensation for her husband’s 20 years’ service rather than the compensation award for seven years that she did receive. But was the failure to deliver this reasonable expectation a consequence of the maladministration I have identified in this report?
An unremedied injustice?
148. I consider that it was and I therefore uphold Mrs A’s complaint that she has suffered an unremedied injustice in consequence of maladministration.
149. Mrs A’s application was considered within a scheme whose eligibility rules were inconsistent with the policy objective that they were intended to deliver. Those rules had been devised in the absence of a fully developed understanding of the industry in which those who were eligible to claim compensation had worked.
150. Had the scheme been devised and introduced without the maladministration I have identified in this report, it would have been capable of recognising the effects of the ‘pool system’ on qualifying periods of employment – such as requirements made, as was made in Mr A’s case, that an individual must take on a specific job or lose social security benefits – and it would have been capable of dealing with exceptional or unanticipated circumstances.
151. That it was not capable of either of these things led directly to an injustice to Mrs A.
152. Had the problems identified by DTI during its operation led to a review of the scheme, with a view to remedying the design deficiencies in the eligibility criteria and to the introduction of an element of flexibility or discretion into the scheme rules, Mrs A’s case may have met more favourable consideration by those dealing with her application.
153. That this did not happen led directly to further inconvenience and distress to her.
