Guide to Financial Redress for Maladministration
Introduction
About this guide
1 The guide sets out the approach to be taken when considering remedies for justified complaints. It describes the special payments scheme operated by the Department for Work and Pensions (DWP) and provides advice on the consideration of financial redress in respect of maladministration. The guide provides
- examples of what constitutes maladministration and sets a context in which to consider official error
- the circumstances when financial redress should be considered and
- the redress that will be appropriate for each type of case.
Examples of maladministration are shown at paragraphs 11-12 of this guide.
Defective legislation - extra-statutory payments not covered by this special payments scheme
2 The guide does not cover the extra-statutory payments made where, for example because of official oversight, current legislation does not provide for payment as intended by Ministers. It is for the relevant policy and operational teams to determine whether extra-statutory payments should be made pending legislative change and to obtain the necessary authority from HM Treasury to make such payments (see Annex A).
For whom this guide is intended
3 The guide is intended for staff within the Department's agencies and business areas who are responsible for considering and making special payments and for other staff dealing with customer complaints.
How to use this guide
4 The guide contains a description of the circumstances under which special payments can be made and provides advice on the considerative process, including methods of calculating payments. The guide should not be read as a rigid set of rules. Whilst it indicates the key principles, it cannot and does not seek to provide a blueprint for every situation. Each case must be considered on its own merits, in the light of the particular circumstances of the case. However, as the Department aims to provide similar remedies for similar injustices, the principles must be applied to every case.
Public access to this guide
5 The guide is available in every DWP office for the general public to read upon request.
The guide is also available at main libraries and as a priced document from Corporate Document Services, Publications Orderline, 7 Eastgate, Leeds, LS2 7LY. Tel: 0113 399 4040 Fax: 0113 399 4205 and E-mail: orderline@cds.co.uk.
The related internal Financial Redress Administration Guide
6 There is a separate “Financial Redress Administration Guide ” (FRAG) that contains the internal administrative procedures for processing special payments (for example, authorising payment and completing financial returns). The FRAG is held only by those branches responsible for completing the special payment monthly statistics for the Department's agencies and business areas. Whilst it is not envisaged that the administrative procedures contained in that guide will be of interest to members of the public (and it is not commercially available), it can be made available to anyone asking to see it in a DWP office.
Delegated authority from HM Treasury
7 HM Treasury has, with some exceptions, delegated responsibility for the special payments scheme to the Department. The provisions of the guide to Financial Redress for Maladministration come within the scope of losses and special payments described in chapter 18 of “Government Accounting.”
Discretionary nature of the special payments scheme
8 Ex gratia special payments are described in “Government Accounting” as `payments which go beyond administrative rules or for which there is no statutory cover or legal liability'. As Parliament does not include provision for special payments when voting money or passing specific legislation, there is no legal liability to make such payments. Due to their exceptional nature, the payments are made on a discretionary extra-statutory or ex gratia basis.
Taking complaints further
9 As special payments are not covered by statute, the customer has no right of appeal against a refusal to make such a payment. Customers may, however, ask the Department to look again at a rejected request, for example, in the light of new evidence or may make a complaint about the level of an award of compensation.
The Parliamentary Commissioner for Administration (the Parliamentary Ombudsman) and the Independent Case Examiner for the Child Support Agency
10 A customer who is dissatisfied with the handling of his or her complaint or with any redress given may make a complaint to the Parliamentary Commissioner for Administration or the Independent Case Examiner where the complaint is against the Child Support Agency. Details about this and contact details are contained in Annex B.
What is Maladministration?
11 `Maladministration' is the term used to describe the action or inaction that leads to a failure in the processes of government. The term is not defined within the Parliamentary Commissioner Act 1967 but the following examples were quoted by Richard Crossman, Leader of the House of Commons, when the Parliamentary Commissioner Bill was taken through Parliament in 1966:
`bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness'.
12 A fuller interpretation of maladministration was given in the Parliamentary Ombudsman's Annual Report 1993. Treasury Ministers endorsed the interpretation in November 1994, in evidence to the then Select Committee on the Parliamentary Commissioner for Administration. Further information can be found in Annex A of the Cabinet Office publication “The Ombudsman in Your Files”. The Ombudsman's examples of maladministration are repeated here for ease of reference:
- rudeness (though that is a matter of degree)
- unwillingness to treat the complainant as a person with rights
- refusal to answer reasonable questions
- neglecting to inform a complainant on request of his or her rights or entitlements
- knowingly giving advice which is misleading or inadequate
- ignoring valid advice or overruling considerations which would produce an uncomfortable result for the overruler
- offering no redress or manifestly disproportionate redress
- showing bias, whether because of colour, sex, or any other grounds
- omission to notify those who thereby lose a right of appeal
- refusal to inform adequately of the right of appeal
- faulty procedures
- failure by management to monitor compliance with adequate procedures
- cavalier disregard of guidance which is intended to be followed in the interest of equitable treatment of those who use a service
- partiality, and
- failure to mitigate the effects of rigid adherence to the letter of the law where that produces manifestly inequitable treatment.
13 Neither of the lists at paragraphs 11 and 12 are intended to provide a comprehensive definition of maladministration.