Guide to Financial Redress for Maladministration
Ex gratia - Consolatory payments
Overview
123 A consolatory special payment may be considered in very exceptional circumstances, where maladministration has had a direct adverse effect on the life of the customer or, much more exceptionally, on the life of another person, for example the customer's spouse or another family member. For example, where official error has resulted in
- gross inconvenience resulting from persistent error (see paragraphs 129-139)
- gross embarrassment, humiliation or unnecessary personal intrusion (see paragraphs 140-148)
- severe distress which has significantly impacted on a customer's physical or mental health (see paragraphs 149-160).
124 The customer does not have to demonstrate that he or she suffered any financial loss and the special payment should be considered regardless of whether or not any other form of redress payment has been made.
125 It should be remembered that all dealings with the Department, regardless of whether or not errors occur, do take time. Complying with the law can be frustrating or inconvenient and sometimes stressful. It is also natural for customers to feel annoyed, angry or upset at any mistake, even a relatively trivial mistake. But, regrettably, mistakes do happen.
126 This background inconvenience and frustration is not the context in which the Department would normally consider a consolatory payment. Nevertheless, in very exceptional circumstances a consolatory payment may be appropriate.
127 A consolatory payment will not be appropriate if the actions of the Department were reasonable and therefore do not constitute maladministration, given
- the circumstances of the case and
- the processes officials must necessarily undertake to establish or verify, benefit entitlement or child support maintenance liability.
128 Any consolatory special payment is to acknowledge and apologise for the way that we have treated the person. These payments, which are not intended to put a value on the distress suffered, will usually range from £25 to £500 but bigger payments may be made in appropriate circumstances. In extreme cases a much higher payment may be considered but is unlikely to exceed £2,000. Where the agency or business area considers consolatory payments that would in total exceed £2,000 are justified they should refer the case to DWP Viewpoint for agreement.
Guide to Financial Redress for MaladministrationGross inconvenience resulting from persistent error
Overview
129 A consolatory payment under this category is intended to cover situations where the errors made were so persistent and over such a protracted period of time as to cause the customer gross inconvenience in the pursuit of benefits, child support maintenance or pursuing a justified complaint about DWP matters. It is not intended that a payment should be made for general inconvenience arising from normal dealings with the Department, even when errors occur. These payments are exceptional and are intended to cover the more serious cases.
What is gross inconvenience?
130 It is difficult to give examples of specific situations that would give rise to payment under this category. Each case should be considered on its own merits. However, as a guide, it would be expected that the customer would have experienced a combination of some of the following:
- very frequent and unnecessary disruptions to payments
- unwarranted repetitive requests for the same information by the same agency
- repetitive loss of information by the same agency
- excessive use of customer's time (where there is no actual financial loss - as this comes within its own separate category)
- gross mishandling of complaints (sometimes referred to as `botheration').
This list is not exhaustive but the examples above are the most significant.
Gross inconvenience - factors to be taken into account.
Has there been persistent error? If so, how serious were the errors?
131 Whether errors can be regarded as persistent as in paragraph 129, depends upon the regularity of the errors and the individual circumstances of the case.
How long have the errors persisted?
132 Whether the circumstances constitute persistent error may depend on the severity of the impact of the errors. Therefore there is a need to look at the overall circumstances of the case before deciding whether the errors have persisted for a sufficiently long period to warrant consideration of a consolatory payment.
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Individual errors in 1996/1999/2002 might be regarded as regular but not persistent. In benefit cases, repeated delays in the receipt of the payment due to error over a period of two/three months might be regarded as persistent. Repeated failure to deal with correspondence fully. Cases may combine more than one issue such as benefit being frequently paid late and the complaint may not have been handled properly. |
In cases of delay, has there been contact from the customer?
133 If a customer regularly contacts the Department to progress an issue and the Department fails to act upon that contact to progress the matter, the resulting delay may be considered as persistent error.
Full regard should be given to the individual circumstances of each case when deciding if there has been persistent error.
What is the impact of the error?
134 The impact of errors can differ in its severity. For example, failure to reply fully to a query may not have as severe an impact as the failure to make payment of income support timeously.
Taking into account the severity of impact when deciding on how much to award
135 The severity of the impact should also be taken into account when deciding upon the scale of the award.
Relationship of severity of impact of the errors to level of their persistency
136 The greater the severity of the impact of error on a customer's life, the less persistent the error needs to have been and/or the shorter a period over which error occurred is required before a consolatory payment would be considered.
Has the customer contributed to the situation?
137 There may be situations where the customer has contributed to the problems on a case by a lack of co-operation. Take this into account when assessing the size of the award.
How much should be paid?
138 If the circumstances of an individual case indicate that there has been persistent error it will be necessary to decide on the scale of the award. The factors to be considered are:
- the size of awards in similar cases (to ensure, as far as possible, equity of treatment)
- the persistence and longevity of errors (to recognise the effects on the particular case)
- the seriousness of the impact of the errors (to judge the case on its individual merits).
Gross inconvenience - delegated limit
139 A consolatory payment for gross inconvenience will normally be in the range of £25 to £250 and can be made by a DWP agency or business area without referral to DWP Viewpoint. The vast majority of payments would be expected to be within this range. However, each case should be decided on its own merits. In very exceptional cases a higher award of up to £500 may be appropriate. Any proposal to exceed the delegated limit of £500 must be referred to DWP Viewpoint for consideration.
Gross embarrassment, humiliation or unnecessary personal intrusion
Overview
140 This category of consolatory payment covers the situations where, through the action (or inaction) of the Department, a customer is unnecessarily placed in a position likely to cause gross personal embarrassment. This may have been caused either by error or failure on the part of the Department or may have arisen through an unnecessary personal intrusion.
What constitutes gross embarrassment?
141 Gross embarrassment, humiliation or unnecessary personal intrusion is best illustrated through some examples:
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The above list is not exhaustive. Each claim made under this category will be considered on its own merits, taking into account the full circumstances and facts of the case.
Gross embarrassment, humiliation or unnecessary personal intrusion - factors in considering payment
Has there been error?
142 As with any other category, before a special payment is appropriate, the Department must have made an error.
Has embarrassment been caused by error?
143 It is necessary to look at the circumstances of the case to establish whether is it likely that embarrassment has been caused by the error(s). If not, another category of consolatory payment may be appropriate, such as for severe distress. Establish whether the case comes under one of the examples at paragraph 141 above, thus causing humiliation or unnecessary personal intrusion. Remember that the examples at paragraph 141 are not exhaustive.
How serious is the impact?
144 The amount of embarrassment caused can vary greatly according to the situation. For instance, it is likely that, in most cases, incorrect arrest and detention by the police would have a greater impact than disclosure of benefit information to a third party. Always consider the circumstances of the individual case.
What is the likely duration of the impact?
145 Depending upon the circumstances of the individual case, the duration of the impact of an error can vary. An incident where the error is discovered, properly handled and corrected quickly would probably have an impact of a shorter duration than circumstances where highly personal information is disclosed to a third party who has long term contact with the customer.
Has the customer contributed to the situation?
146 There may be instances where the customer has deliberately sought publicity as a result of an error. A decision on the special payment should be based upon the impact of the error rather than the impact of the publicity. There have also been instances of a customer deliberately informing another party of an error and then claiming that the error has caused embarrassment.
How much should be paid?
147 The factors outlined in paragraphs 142 to 146 should be taken into account when deciding whether a special payment should be made and the amount of that payment. Payments made in similar cases should be considered when deciding on the amount.
Delegated limit
148 When, in exceptional cases, a DWP agency or business area considers making a consolatory payment for gross embarrassment, humiliation or unnecessary personal intrusion, payment can be made up to the maximum delegated limit of £750. It is expected that the vast majority of cases will be within that delegated limit. However, each case must be decided on its own merits. Any proposal to exceed the delegated limit of £750 must be referred to DWP Viewpoint for consideration.
Severe distress which has significantly impacted on a customer's physical or mental health
What constitutes severe distress?
149 A payment for severe distress should be very exceptional and considered only when there has been a significant deterioration in a customer's physical or mental health as a direct result of Departmental maladministration. In very rare cases, the severe distress may be experienced by another person, for example, a spouse or other family member, as well as, or rather than by, the customer.
Factors in considering payment for severe distress
Has there been error?
150 As in any other claim for a special payment it has to be established that there has been official error.
Has there been a serious impact upon health as a result of the error?
151 There has to be a direct link between the error made and the impact upon health. Bear in mind that there can be situations where the very involvement of the Department can be a cause of stress. Such cases would not merit a special payment unless the stress is severe and can be directly linked with a Departmental error.
Customer claiming to be upset, angry or distressed by an error is not sufficient
152 The fact that a customer may claim to be upset, angry or distressed by an error is not sufficient in itself to justify a special payment for severe distress. The impact must be serious.
Is there objective evidence of the impact?
153 The customer should normally be asked to provide objective evidence of the impact of the error on their physical and/or mental health. This may take the form of a report from a GP or evidence from an employer that the customer has been unable to work as a direct result of health problems arising from an error. Please note that other forms of objective evidence can also be accepted.
Cases where objective evidence may not be needed
154 In some circumstances it may not be necessary to obtain objective evidence. This will be where it is clearly self-evident that the error would have caused severe distress. An example of this is where a parent may be incorrectly informed of the death of their child. Such cases should be few and far between. It will often be to the customer's advantage to obtain evidence of the impact in his or her case in order that any award can reflect the individual circumstances of the case.
What is the degree of impact of the error?
155 An error will impact upon the health of different people to a different extent. For special payment purposes, it is the degree and duration of the impact that is normally more important than the scale of the error. The more serious the impact, the greater the payment to be considered, subject to the following paragraphs.
Are there factors, other than Departmental error, affecting the customer's health?
156 There will be cases where the objective evidence indicates that there have been other factors, such as personal problems, that have also affected the customer's health. It will be necessary to decide the relative importance of these other factors and the error of the Department when reaching a decision on the special payment.
Is there a pre-existing health condition?
157 In many cases the customer may have a pre-existing health condition that has been affected by the errors of the Department. This does not preclude consideration of payment. The error may have caused a delay in recovery from illness or worsened the condition. In such cases, it will be necessary to ascertain the extent to which the errors have affected the pre-existing condition when deciding whether a special payment is due and how much should be paid. In doing so the agency should ordinarily establish the state of the customer's health prior to the error, during the error and the likelihood of the customer's health improving following resolution of the error.
What is the duration of the impact of the error upon the customer's health?
158 Once it has been established that there has been a serious impact upon health as a result of error, it is necessary to consider the duration of the impact when deciding on the scale of payment.
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The same degree of impact that lasts for two years would warrant a higher payment than a case where the customer has recovered three months later. |
How much should be paid?
159 In deciding how much to award remember the following points:
- payment is only considered in exceptional cases
- take into account the range of payment available
- consider the degree of culpability of the Department, any pre-existing health conditions and scale and duration of the impact as described above.
Delegated limit of £2,000
160 These payments are not intended to put a value on the distress suffered, and will usually range from £25 to £500. However, payment can be made up to the maximum delegated limit of £2,000. The vast majority of payments are expected to be within the normal range. However, each case will have to be decided on its own merits. Any proposal to exceed the delegated limit of £2,000 must be referred to DWP Viewpoint for consideration.