Trying to fight back

The Property & Compensation Consultation, part 7

In my blog Seen to be done? (posted 10 Jan 2013) I considered the position faced by an applicant to the Exceptional Hardship Scheme (EHS) whose application has been refused and posed the question:

“… how is the applicant to judge whether he has been fairly dealt with and what can he do about it if he thinks that this is not the case?”

If you find yourself in this position, I suggest that your first step should be to telephone the Secretary to the EHS Panel and ask for more details of why your claim has been rejected.

If you do not receive a satisfactory explanation and still feel aggrieved, then I suggest that you try and find out as much as you can about the evidence that was set before the Panel and the views of members of the Panel. A helpful step in this process is to submit a “subject access request” to the EHS Secretary for “a copy of all of the data held in respect of the determination of your application and the conclusions of the Panel, including the comments of individual panel members” citing Section 7 of the Data Protection Act. This should gain you a copy of your file, which may include requests for additional evidence and responses to those requests, the notes prepared by the EHS Secretariat for EHS Panel members to refer to during your hearing and any notes made by Panel members for the meeting.

If when you receive the response to your subject access request you discover any items of additional evidence with which you do not agree, you should consider whether you are able to gather any further evidence that refutes the evidence that was submitted to the Panel. If you can, then you should be able to reapply on the grounds of having “new evidence that may be relevant to the reason(s) your application was turned down”. This represents the best, and probably only, chance you have of getting the EHS Panel to change its mind.

If you are unable to refute the evidence upon which the EHS Panel made its decision, then you may be able to question the way in which the EHS Secretariat gathered evidence and submitted it to the Panel. If you feel that your claim was mishandled by the EHS Secretariat then you should, in the first instance, use the HS2 Ltd Complaints Procedure – Exceptional Hardship Scheme (EHS), which is described here.

This procedure requires you to write a letter or e-mail, addressed to the EHS Manager, setting out your complaint. If you are not satisfied with the response that you receive from the EHS Manager, you have the option of escalating your complaint to the Chief Executive. My own experience of the complaints procedure is that it was not an open-minded consideration of the complaint, but appears to have the aim of justifying what the EHS Secretariat had done. Put bluntly, it was a waste of time, but it is a necessary step if you want to escalate your complaint still further.

You may find at this stage that it will be helpful to involve your Member of Parliament. If you don’t know who your MP is, then you can find out from this website, which will also give contact details. You will need to involve your MP to take the final step that I recommend, which is to make your complaint to the Parliamentary Ombudsman (or to use her full title the Parliamentary Commissioner for Administration). All such complaints must be made by an MP on a constituent’s behalf.

The two statutory roles of Parliamentary Ombudsman and Health Service Commissioner for England are combined and the current Parliamentary and Health Service Ombudsman is Dame Julie Mellor. Her, and her organisation’s, role is described on the home page of the Ombudsman’s website as “… to investigate complaints that individuals have been treated unfairly or have received poor service from government departments and other public organisations and the NHS in England”. If this were the case it would be potentially very helpful to an aggrieved EHS applicant, but the Ombudsman’s role is set much tighter than this; she will only investigate complaints where it appears that there may have been “some indication of administrative fault or of service failure”, otherwise termed “maladministration” in Ombudsman parlance. The Ombudsman will also apply the test of “whether injustice or hardship has flowed from [the maladministration]”.

The process of making a complaint to the Ombudsman is described in the leaflet What to do if you’re unhappy with UK government services and requires that you have first exhausted the complaints procedure of the organisation about which you are complaining. I have personal experience of making a complaint to the Ombudsman, having helped a failed EHS applicant to do this. This complaint was rejected, following an initial evaluation. The problem was that, although we felt strongly that the EHS Secretariat’s treatment of the application had been unjust and had resulted in hardship, the Ombudsman was looking, first and foremost, for evidence of maladministration. Since the “rules” of the EHS appear to condone unjust treatment, the Ombudsman found that maladministration had not occurred.

If your complaint is similarly rejected, then I’m afraid that you have reached the end of the road.

Important note: The advice in this blog is offered in good faith, but I am not legally qualified. You should not therefore rely legally on anything in this blog and are advised to seek qualified professional help if you are affected by the issues described.


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