Last week WASPI and two of its solicitors met with the Ombudsman’s team to raise our concerns about the length of time it is taking to reconsider and rewrite his Stage 2 Report on the injustices caused by DWP maladministration.

We were told that only limited information could be shared with us because the law states that the Ombudsman’s investigations must be conducted in private. More may be shared with individual complainants whose complaints the Ombudsman is considering.

However, we were assured that the Ombudsman understands that his reconsideration must proceed with urgency so that decisions on remedying the injustices experienced by 1950s born women as a result of maladministration are made as quickly as possible.

Ombudsman staff told us that all relevant evidence gathered during their Stage 2 investigation is being reconsidered by them along with some new evidence, and in light of the concerns raised by WASPI and others.

The Ombudsman has acknowledged our list of ten key steps that must be taken to produce a report that is lawful, thorough and fair. We were told that the Ombudsman is thinking again on all of the issues set out in that list including, crucially, when DWP letter writing should have started and finished, what would have happened had there been good administration, and how women prove injustice. 

We also had confirmation that those with outstanding complaints will be given a chance to comment on the Ombudsman’s provisional views, and to request all the underlying evidence on which they are based. The Ombudsman’s staff agreed to consider a proposal we made that the underlying evidence is circulated to complainants ahead of the next draft report that includes those provisional views so complainants have as much time as possible to consider it. They also said they would consider giving notice of when provisional views will be circulated.

If you have an outstanding complaint with the Ombudsman and would like to see the evidence that the Ombudsman has identified as relevant to his next draft Report, we recommend that you let your caseworker know now.

The Ombudsman’s staff were unable to say when provisional views might be circulated to complainants, or how long it will be before the investigation is completed. We asked for a broad brush indication and they were unable to give us one.

From our perspective, yet more waiting is immensely frustrating, but it is positive that the Ombudsman is looking at injustice again and re-examining all the evidence. We will continue to press for him to get it right this time when deciding on the injustice 1950s women have suffered.

WASPI are disappointed and frustrated by the length of time that the Ombudsman is taking to rewrite his Second Report on the injustices cause by DWP maladministration. The Court Order requiring that reconsideration was sealed on 12 May 2023. It is unclear precisely what has been done since then.

We can confirm that neither we nor, as far as we are aware, any of the sample complainants have been contacted to comment on a draft, or on anything new that the Ombudsman has gathered from the DWP. That opportunity to comment is guaranteed by the Court Order, which suggests that finalisation of the report is still some way off.

So, like many 1950s born women and their MPs, we have written to the Ombudsman seeking reassurance on the 10 key steps we believe he must now take, including acting promptly. We have not had the courtesy of a reply. We also have asked for a meeting with William Wragg MP, the Chair of the  Public Administration and Constitutional Affairs Committee (PACAC), to whom the Ombudsman reports. That meeting has yet to take place.

There is no set timeframe for the Ombudsman to complete his reports and the Courts will not intervene unless there is a delay so serious that completion of a report is not rational. We are not at that point yet. 

However, we believe that the Ombudsman should practice what he preaches, in other words, act consistently with the published standards to which he holds public authorities accountable. They include:

• ‘openness’ and ‘transparency’ during a complaints process;
• “keep the complainant regularly informed about progress and the reasons for any delays”; and
• “Investigate complaints thoroughly and fairly, basing their decisions on the available facts and evidence, and avoiding undue delay”.

For all these reasons, WASPI has instructed its solicitors, Bindmans, to write pressing for a meeting to discuss progress on the report, completion timescale and for any new evidence gathered to be shared immediately so we can work through and take advice on what we may wish to say about it.

We will update you, hopefully shortly, once our solicitors have heard back from the Ombudsman.

The Court has made the Order WASPI sought, quashing the Ombudsman’s Stage 2 report because of the legal errors we identified – errors which the Ombudsman accepts he made. You can read the full Order here.

The Ombudsman’s reconsideration process will now proceed. But WASPI will not be passively waiting for its outcome. At each stage we will be pressing the Ombudsman not only to complete his investigation in a way that is as rapid as possible but also thorough and fair. We will also be raising concerns about this with MPs, particularly those who sit on the Public Administration and Constitutional Affairs Committee (PACAC) which oversees the Ombudsman’s work. And we will turn to our lawyers for their expert input when responding to the Ombudsman’s draft reports and if we have concerns his investigation may be derailed again.

In particular, we believe there are ten key steps that the Ombudsman must take now to produce a report that will not only be lawful, but helpful to Parliament in prompting rapid, straightforward and meaningful action to address the injustice 1950-swomen have experienced on a massive scale.

Those ten steps are:

· First, complete the investigation with sense of urgency.

1950s-born women were obliged to exhaust the DWP and ICE complaint procedures before approaching the Ombudsman. His investigation has already been very drawn out. Once the settlement is approved by the Court, the investigation must move forward not just fairly but rapidly. Preparation for that can begin now. Justice delayed remains justice denied.

· Secondly, clearly and correctly identify when maladministration causing injustice began. 

Besides being legally flawed, the Stage 2 report was ambiguous on a critical point: the date when the first set of State Pensions Act notification letters should have been sent out to 1950s-born women. If the DWP acting reasonably and without maladministration ought to have decided to send those letters out in August 2005 (as the Stage 1 report categorically found) why would it have taken 14 more months for the letter writing to begin? Paragraph 5 of the Stage 2 report indicated that women ought to have been notified “by December 2006” (in other words, a 14-month letter-writing campaign ought to have been completed by then). Elsewhere in the same report, the Ombudsman found that letter writing ought to have started by December 2006. This is inadequate. The Ombudsman must reach a clear, rational conclusion based on his own Stage 1 finding that maladministration began with the DWPs failure to act decisively in August 2005.

· Thirdly, clearly and correctly identify when maladministration ended.

The Ombudsman must not repeat his legally flawed finding that maladministration ended 28 months before women received notification letters (or should have received them when others in similar circumstances did). Working out when women ought to have received their letters should be straightforward. The Ombudsman simply needs to decide when letters would have started to be sent out, how long a letter-writing campaign would have lasted, of it had been actioned with a sense of urgency, and which groups would have been written to in what order.

· Fourthly, reach a sound, principled conclusion on what would have happened had there been good administration, rather than maladministration, in the way 1950s-born women were notified of their State Pension Age.

The Stage 2 report is riddled with uncertainty, with the Ombudsman commenting, e.g. “[t]here is too much we cannot now know about what would have happened if DWP had written to women about the 1995 Pensions Act sooner.” This is, frankly, not good enough. It is the Ombudsman’s statutory role to adjudicate on what would have happened had there been no maladministration. He cannot abdicate it. As explained above, working out what would have happened had there been good administration, rather than maladministration, should not be difficult. The Ombudsman has been doing just that for 56 years.

· Fifthly, make findings on direct financial losses that do not require women to prove a negative, or provide evidence that no-one realistically will have.

Having found when women would have received a notification letter, the Ombudsman then needs to ask them ‘what would you have done differently, had you received a letter then and how would that choice have affected your finances?’ If the answer to that simple question is that different choices would have been made and women’s financial circumstances would have been better, they must be compensated for their direct financial losses in line with the Ombudsman’s own published policies. Women should be taken at their word not asked to prove counter-factuals to a standard that is impossible for anyone to satisfy.

· Sixthly, take proper account of lost opportunities to make different financial decisions.

As well as direct financial losses, 1950s-born women have experienced losses of opportunities to make different choices. This is a free-standing form of injustice recognised in another of the Ombudsman’s policies (see page 12: “Loss of significant financial opportunities or life chances… where we cannot say on balance that these opportunities would have been taken up”). It was not taken into account in the legally flawed Stage 2 report and must be grappled with in the next iteration.

· Seventhly, properly calibrate distress, anger and hurt.

The Ombudsman must not underplay the impact of the DWP’s maladministration on 1950s women or use their anger and distress at the changes as a reason not to recommend just compensation for the way in which the changes were communicated.

· Eighthly, calibrate injustices depending on their impact on women whose circumstances are different

Not every 1950s-born woman received, or should have received, the same amount of notice of their State Pension Age changes relative to their anticipated retirement age. So, the impact of maladministration will be different depending on women’s circumstances. This must be taken into account, so compensation is fair to all, rather than arbitrary.

· Ninthly, reach conclusions in a fair manner, taking account of what 1950s-born women say.

WASPI and all those with outstanding complaints must be properly consulted on the Ombudsman’s provisional conclusions.

· Tenthly, make recommendations for compensation for 1950s-born women generally that are fair, can be put into place rapidly and are straightforward for everyone.

A just remedy cannot be one that takes years to administer, requires 1950s-born women to meet sophisticated tests to establish eligibility, requires them to prove negatives or counter-factual or treats them disrespectfully and suspiciously.

We will do everything we can to ensure these steps are taken.

What you can do now

You do not need to passively wait and see what the Ombudsman might do either. WASPI is proud of what it has achieved so far with your support, but the fight for justice is not over.

There are three things you can do now straightaway to make a difference:

• continue to support the legal action WASPI is taking through CrowdJustice;
• join us – if you are a 1950s-born woman and have not already done so – WASPI women are strong together; and
• speak or write to your MP, ideally at their constituency office – tell her or him what has happened, how you have been affected by the DWP’s maladministration and about the ten steps the Ombudsman should now take. Ask your MP to contact the Ombudsman urgently and seek a commitment from him to taking those steps.

One of our solicitors, Grace Benton, and barrister, Tom Leary, attended Court today for a short hearing about the agreed settlement. The Judge, Kirsty Brimelow KC sitting as a Deputy High Court Judge, indicated she was happy to quash the Ombudsman's second report as proposed and the Order will be made very shortly. We are urging the Ombudsman to press on with the reconsideration as quickly as possible and will publish a short update soon about the key steps we believe he should take.

WASPI’s judicial review case is currently listed for a brief court hearing tomorrow to review the agreed settlement that will lead to reconsideration of the Stage 2 and Draft Stage 3 Ombudsman reports. Possibly this will be cancelled by the Court and the Order quashing the Stage 2 report will be made without a hearing, however. We will update you once the position is clear.

WASPI’s lawyers have heard from the Court that the settlement papers have been sent on to the allocated case lawyer whose job it is to pass them on to a Judge. No objections have been filed. Everyone agrees that the Court should consider the settlement urgently so the Ombudsman can press on with reconsidering his Stage 2 and Stage 3 reports. We are hopeful the Court will consider our settlement in a matter of days and will issue a further update when that happens.

1. What just happened? Didn’t the Ombudsman say he was going to fight the judicial review case? 

To recap, WASPI’s lawyers wrote to the Ombudsman on 8 February 2023 and asked him to withdraw his Stage 2 report about the injustice caused to 1950s women by the DWP’s maladministration (which was the focus of his Stage 1 report). Although the Stage 2 report has not been published yet, it has been sent to a number of women with outstanding complaints including the six ‘sample complainants’ whose cases the Ombudsman has looked at closely. Astonishingly, the Stage 2 report concluded that none of the six had suffered any direct financial loss because of DWP maladministration, nor had they suffered any loss of opportunities to make different financial choices. Our lawyers’ letter argued the Ombudsman’s reasoning was legally flawed and that this would impact on decisions affecting all 1950s born women who were victims of the DWP’s maladministration. They said WASPI would bring a judicial review if he would not withdraw the Stage 2 report and think again.

The Ombudsman stood his ground, arguing that the case had no merit at all and that he would seek his legal costs of defending himself from WASPI. He also said Alternative Dispute Resolution was unrealistic and refused to engage in it. 

So, we instructed our lawyers to proceed with the claim, which they did, elaborating on the arguments in the letter in the ‘Grounds of Judicial Review’ document.

The Ombudsman then ‘acknowledged service’ of all the Court papers, stating he would defend the claim, but commenting that WASPI’s lawyers and his own were in discussions.

Those discussions concluded at the end of last week with an agreement between the Ombudsman and WASPI that the judicial review claim should be settled.  The settlement agreement (reproduced in full in our last update) has been submitted to the Court for approval.

As summarised in the last update, under the settlement:

• the Stage 2 report will be ‘quashed’ (so it will have no legal effect anymore and will have to be reconsidered);
• the Ombudsman accepts the criticisms we made of the Stage 2 report meant it was “legally flawed” and so the reconsideration will focus on those parts of the Stage 2 report;
• the draft Stage 3 report (which discussed what remedies should follow from the flawed Stage 2 report) will have to be reconsidered too; and
• the Ombudsman will pay some of WASPI’s legal costs (see below).  

The Court has to approve the settlement for the Stage 2 report to be quashed, but we and the Ombudsman have asked the Court to give it urgent attention.

This is a victory for WASPI – and 1950s born women. It will maximise the chances of compensation for the DWP’s maladministration being decided on a proper basis.

2. WASPI describes the settlement as ‘a victory’. So was this the outcome WASPI wanted?

Yes, absolutely. Winning in Court is one thing, but WASPI is pragmatic. We have always taken the view that the best outcome in this case would be an early settlement, which would lead to the Ombudsman’s findings on injustice (which the Ombudsman now accepts were legally flawed, thanks to the judicial review claim) being reconsidered as quickly as possible.  This out of court agreement has saved many months of legal wrangling and reduced legal expenses. And it is important not to forget how many 1950s born women die every day without seeing justice for the DWP’s maladministration.

3. Will there still be a Court Case?

The Court has to consider and approve the settlement because the Ombudsman has no power to withdraw a report once it is issued to complainants and MPs. We also believe it is important that the Court approves the ‘Statement of Reasons’ that explains the Court Order, making it absolutely clear what the legal flaws were in the Ombudsman’s conclusions on injustice in his report.

Our lawyers’ arguments showed the Ombudsman that our objections to his Stage 2 report were not defensible in Court and that the draft Stage 3 report had no proper foundation.  He therefore chose to settle out of Court and do what we wanted him to do.

4. What happens now? 

The Court will consider the application to make a quashing Order and the Statement of Reasons, hopefully within a matter of days (though it can take longer). It is unlikely that there will be a hearing and neither WASPI nor the Ombudsman are seeking one. The Ombudsman will then proceed with reconsidering injustice at Stage 2. He must make changes to his report; he cannot simply resubmit the same report now he has accepted it is legally flawed.  He will also need to reconsider his draft Stage 3 report.

5. Will this delay things? When will we get compensation?

Short of the Ombudsman accepting his Stage 2 report was flawed in response to our lawyers’ letter in February, the settlement is the quickest possible route to a just outcome.  We have the result now that we would have waited for the Court to produce in late summer,  early autumn or even spring next year, depending on when the judicial review was heard and whether there was an appeal. 

Both the Ombudsman and WASPI are keen to resolve the questions of maladministration, injustice and fair remedy to a satisfactory conclusion as soon as possible and this settlement means that the Ombudsman can get straight on with rewriting the report, rather than putting everything on hold while fighting a judicial review. 

Ultimately, the Ombudsman will make a final Stage 2 and Stage 3 report (or a combined one) about injustice and remedy. That will be sent to Parliament and the Government will decide how to respond, including on any recommendations for compensation for the maladministration identified in the Stage 1 report. Normally the Government follows the Ombudsman’s recommendations.

6. If compensation is agreed, will it be automatic, for all 1950s born women, or do you have to apply for it?

We cannot say for sure yet. WASPI’s position is that compensation ought to be paid out rapidly based on clear principles everyone can understand, either automatically or based on a very straightforward test which gives 1950s born women the benefit of any doubt. The Ombudsman may recommend something along these lines (as he has in the past in some other cases), or he may recommend some forms of compensation are payable depending on women showing they have suffered certain forms of loss (an approach also used in the past).

7. How much will compensation cost and how can the Government afford it?

We cannot say what the amount of compensation may be until the Ombudsman has completed his investigation and sometimes a scheme is recommended, rather than a specific amount.

Inevitably there will be a cost to the government of providing adequate compensation for the effects of their maladministration.  This is because the DWP didn’t properly inform women from the outset. If they had done this, the cost would have been completely avoided. Questions about the cost to the taxpayer should be directed at the Government, rather than to the women who suffered emotional and financial loss because of their actions.

8. Does this mean I’ll get my lost years of State Pension?

WASPI are campaigning for compensation for the lack of notice we received (which the Ombudsman has found to be maladministration by the DWP). On other words, we are seeking compensation for the fact that the DWP didn’t do its job properly.  We are arguing for fair, fast and straightforward compensation for the emotional and financial losses – both direct losses and lost opportunities – that women have suffered.

Remember, the injustices were the consequences of the DWP’s maladministration, NOT the Government increasing our State Pension age (which was done by democratic process in Parliament when the law was changed).  We are not campaigning for 1950s women to get back the pension they would have received, had their state pension age not been changed.  That would be a welcome outcome and we understand why other women are arguing for it, but it is not something the Ombudsman can recommend and we cannot see the present government agreeing to it.

WASPI women should consider what different choices we would have made if we had known earlier that our State Pension age would increase, and what emotional and financial impacts that has had on our lives.

9. WASPI doesn’t represent all 1950s born women. I want full restitution.

We understand your position and you are absolutely entitled to campaign for full restitution if you want to.

The settlement of WASPI’s judicial review does not prevent you from doing that in any way, not least because the judicial review is not about whether there should be full restitution or not as a remedy – it is about the Ombudsman’s decision-making on the injustices women have suffered.

WASPI are not campaigning for full restitution. Our reasons of our position are summarised above. We do not claim to represent all 1950s women.  We don’t seek to impact on any other campaign which has a different ask, however we will be pressing forward with achieving the best justice we can for as many WASPI and other 1950s born women as possible.

10. I didn't receive a letter, so what does the settlement mean for me?   

Many women say they didn't receive a letter.  However, the Ombudsman concluded in his Stage I report that no mail shot is 100% successful.  In his Stage 2 report he took into consideration the dates on which the DWP stated letters were sent to calculate when women should have received one, has there been no maladministration.  These can be seen on our website here https://www.waspi.co.uk/2020/08/09/freedom-of-information-requests/

In his next Stage 2 report, the Ombudsman will need to work out when women who did not receive a letter should have received one if there had been no maladministration and then consider what that means for direct financial losses and lost opportunities.

11. I thought the Ombudsman was about to publish his Stage 3 report about compensation.  Why did you delay that?

WASPI had a choice to make. We could either challenge the flawed Stage 2 report as we did (because of the judicial review time limit) or allow it to stand and then await the Stage 3 report which would be based on the legal flaws of the Stage 2 report, in particular the very narrow findings of injustice which did not include any direct financial losses nor lost opportunities for the six ‘sample complainants’.

We decided we had to act and we believe we did the right thing. If the Stage 2 report was left unchallenged, the Stage 3 report could not possibly recommend a just remedy because it would not be responding to the injustice women actually suffered.

12. If compensation is recommended by the Ombudsman, will it apply to WASPI women who have died before compensation is paid?

We don’t know at this stage what the terms would be of any redress recommended by the Ombudsman.  That would be up to the Government to determine. WASPI’s position is that the estates of 1950s born women who have died but suffered injustice as a result of maladministration should receive the compensation those women would have received – otherwise the Government benefits from the delay in providing a just remedy which would be fundamentally wrong.

13. What about the costs of the case? If the Judicial Review isn’t going to proceed to a full hearing what happens to all the Crowdjustice money?

As you will know the Crowdjustice money goes to our lawyers and not to WASPI’s campaign.

Under the settlement, the Ombudsman will pay for some of the costs of the judicial review, but there is likely to be a dispute about how much (which sometimes ends in a process called ‘assessment’, overseen be a judge dealing with costs cases). If there is a shortfall between what the Ombudsman is required to pay and the value of the work our lawyers have done (which is common) we will use some of the CrowdJustice money to close that gap. We believe our lawyers should be paid fairly for their work, which has been exceptional. We could not have secured the settlement without the very best lawyers. Bindmans are one of the top public law lawyers in the country and Blackstone Chambers, where our barristers are based, is one of the most highly regarded. 

Our lawyers have also undertaken work that the Ombudsman cannot be asked to pay for, such as liaising with ‘interested parties’ to the claim who are the six sample claimants and the Secretary of State for Work and Pensions. They have advised us on press issues and fundraising through CrowdJustice, and on updates like this one – none of this work will be paid for by the Ombudsman under the settlement.

Last, the fight is not over. There is plenty more work to be done arising from the judicial review. The Ombudsman will produce further draft Stage 2 and Stage 3 reports and ask us to comment on them and review the evidence on which they are based. We will want our lawyers to advise us on all this, drawing on the in-depth knowledge they have about the Ombudsman’s decision making. And most importantly, we will want advice on whether the final Stage 2 and Stage 3 reports are lawful.

We will need to pay our lawyers fairly for all their work on these tasks.

If there is spare money left over when the Ombudsman’s investigation is concluded, and assuming the Stage 2 and Stage 3 reports are lawful, we will decide what to do with the balance according to CrowdJustice’s unused funds policy.

We have a very important announcement to make. 

In our last update, we told you that discussions were taking place between our lawyers and those representing the Ombudsman - and that WASPI’s position remained that the best outcome in the judicial review would be an early settlement in which the Ombudsman accepted his Stage 2 report into the injustice suffered by WASPI and other 1950s born women should be reconsidered. 

Those discussions concluded at the end of last week. They were very productive and have led to an agreement between the Ombudsman and WASPI that the judicial review claim should be settled.  The settlement agreement has now been submitted to the Court for approval. 

The agreement and the draft Court Order are reproduced below in full. In summary, under the settlement: 

•    the Stage 2 report will be ‘quashed’ (so it will have no legal effect anymore and will have to be reconsidered); 

•    the Ombudsman accepts the criticisms we made of the Stage 2 report meant it was “legally flawed” and so the reconsideration will focus on those parts of the Stage 2 report; 

•    the draft Stage 3 report (which discussed what remedies, including compensation, should follow from the flawed Stage 2 report) will have to be reconsidered too; and

•    the Ombudsman will pay some of WASPI’s legal costs.

The Court has to approve the settlement for the Stage 2 report to be quashed, but we and the Ombudsman have asked the Court to give it urgent attention. 

This is a huge victory for WASPI – and 1950s born women. It will maximise the chances of compensation for the DWP’s maladministration being decided on a proper basis which recognises the full extent of the injustice. 

We will send out a further update very soon with answers to key questions about the settlement. 

The most important thing to say now, however, is this - thank you so much. 

WASPI has been vindicated. But without your contributions, the judicial review would not have been possible and 1950s born women would have been stuck with a report on the injustice they suffered which the Ombudsman now unequivocally accepts is “legally flawed”.  

The ‘Statement of Reasons’ for the draft Court Order (see below) which has been submitted to the Court for approval:

“Purpose of this statement

1.    This document sets out a statement of the matters relied on as justifying the agreed Order that will end the judicial review proceedings. The statement is prepared in accordance with paragraph 24.4.1 of the Administrative Court Guide. The parties agree that the Order and this Statement of Reasons should be made public to inform affected persons and the general public of the reasons for the reconsideration by the Defendant, who is the Parliamentary and Health Service Ombudsman (“PHSO”), of Stage 2 of his investigation into complaints relating to the changes made to the State Pension Age for women (“Stage 2 Report”).

Factual context

2.    The PHSO received complaints that the First Interested Party, the Department for Work and Pensions (“DWP”), had failed to provide accurate, adequate and timely information about changes to State Pension age for women. On 19 July 2021, the PHSO published his findings and presented them to Parliament pursuant to section 10(4) of the Parliamentary Commissioner Act 1967: Women’s State Pension age: our findings on the Department for Work and Pensions’ communication of changes, HC 444 (“Stage 1 Report”).

3.    In the Stage 1 Report, the PHSO found that the DWP had committed maladministration in a number of respects. Materially, the PHSO found that the DWP had not acted promptly in writing directly to affected women to tell them about changes to State Pension age. The PHSO found that, had the DWP made a reasonable decision in August 2005 to write to affected women, letters about the effects of the changes to State Pension age would have started to be sent from no later than December 2006, 28 months before the DWP in fact commenced sending letters. The PHSO’s conclusion was expressed as follows:

“172. The maladministration led to a delay in DWP writing directly to women about changes in State Pension age. If the maladministration had not happened, DWP would have begun writing to affected women by December 2006 at the latest, 28 months earlier than it did (in April 2009).

173. It follows that affected women should have had at least 28 months’ more individual notice of the changes. For women who were not aware of the changes, the opportunity that additional notice would have given them to adjust their retirement plans was lost. The next stage of our investigation will consider the impact that injustice had.”

4.    The Stage 1 Report is not challenged in these proceedings and the PHSO will not be reconsidering the findings it records.

5.    On 8 December 2022, the PHSO completed and closed the second stage of its investigation and sent members of the Claimant’s organisation, whose complaints he was investigating as sample complainants, a final version of the Stage 2 Report. The Stage 2 Report set out the PHSO’s findings on whether and what injustice had been caused by the DWP’s maladministration, focusing on the facts of six sample complaints. The six sample complainants included “Mrs W” and “Ms E”, two members of the Claimant’s organisation. All six have been served as Interested Parties to this claim. The Stage 2 Report has not yet been published, nor has it been laid before Parliament pursuant to section 10 of the Parliamentary Commissioner Act 1967.

6.    The PHSO also shared with the Claimant’s organisation, others whose complaints he was investigating and some Members of Parliament, a draft of the third stage of the investigation which set out the PHSO’s recommendations for remedying injustice (“Stage 3 Report”). 

    The Judicial Review Proceedings 

7.    The Claimant commenced proceedings challenging parts of the Stage 2 Report. The Claimant’s concerns pertain to Part 5 of the Stage 2 Report concerning “Injustice” (in particular, §§254-313 which is summarised in Part 1 at §§15-17). In the Stage 2 Report, the PHSO decided that the assessment of injustice should be approached in the following way: “Because we know direct mail should have begun by December 2006 at the latest, we consider what would have happened if the DWP had started issuing letters then, and whether an additional 28 months’ notice would have meant women avoiding the injustices they claim” (Stage 2 Report, §265 (emphasis supplied)). The PHSO went on to state that it was more likely than not that, had the maladministration not occurred, letters would have been issued in phases based on women’s dates of birth, which was the approach taken when direct mailing began in April 2009 (§266). 

8.    In other words, because of the PHSO’s finding in the Stage 1 Report that the DWP should have started sending letters at least 28 months earlier than it did, the question whether this caused women injustice was addressed by identifying when the sample complainants were sent letters by the DWP (or, in the case of women such as Mrs W who never had a letter, when women in similar circumstances received one) and asking whether they would have avoided the injustices they claimed to have suffered if the letters had been sent at least 28 months earlier. 

9.    The Claimant challenged this approach on the ground that it failed to take into account that, as the PHSO recognised at §82 and §300 of the Stage 2 Report, there had been three periods during which the DWP had paused sending letters to affected women which had extended the time period over which letters were sent . 

10.    On the PHSO’s findings, the direct mailing campaign was conducted by DWP from April 2009 to November 2013 (a period totaling 55 months): see Stage 2 Report at §§82-83 and 266. However, 24 of these 55 months were attributable to three pauses in the mailing campaign. By treating the date on which women should have been sent letters by the DWP as 28 months before the date on which letters were in fact sent the Claimant alleged that the PHSO had failed to take into account the fact that if women should have been contacted before one or more pause periods the delay in notifying them of changes to their State Pension would have been greater than 28 months.

11.    Thus, the PHSO found that financial injustice had not been caused to the sample complainants, reasoning, inter alia, that key decisions relied upon by the sample complainants as demonstrating injustice, such as Mrs W’s decision to give up her job in November 2010, had been taken more than 28 months before the DWP in fact sent letters to sample complainants. In Mrs W’s case, the PHSO assessed that women in similar circumstances had been sent letters by the DWP in October 2013 and therefore considered that she should have received a letter in March 2011, 28 months before October 2013 but after she had given up her job. However, October 2013 was the 30th month in which the DWP sent letters to affected women and if the DWP had started sending letters in December 2006 and had Mrs W been sent a letter 30 months later, she would have received the letter in June 2009 before she gave up her job.

12.    The PHSO accepts that its approach to calculating injustice, as described above, failed sufficiently to consider the potential effect of the pause periods and was legally flawed for that reason.   

13.    The Stage 2 Report also found that “[t]here is too much we cannot now know about what would have happened if DWP had written to women about the 1995 Pensions Act sooner”. The PHSO concluded: “We therefore cannot say it is more likely than not the financial impacts claimed would have been avoided. But we find that the sample complainants are left not knowing whether they could have been in a different financial position. That uncertainty would not exist if the maladministration had not happened” (Stage 2 Report, §304). This approach was also based in part on the PHSO’s approach to assessing how much notice women would have had about the change to State Pension age, as described above, had the maladministration not occurred. The PHSO accepts that, in light of the matters set out above, this analysis also needs to be reconsidered.  

14.    Furthermore, although the PHSO recognised that, according to his applicable policies and established approach to injustice, the loss of an opportunity to make a different financial decision is capable of constituting a form of material injustice, the PHSO failed sufficiently to consider whether the sample complainants suffered lost chances as a form of material injustice (finding only that such lost opportunities amounted to a form of emotional distress: “not knowing”). 

Quashing and reconsideration 

15.    The PHSO has recognised that for the reasons given above, part of the Stage 2 Report is legally flawed and must be reconsidered. 

16.    That reconsideration will focus on §§254-313 of the Stage 2 Report only and any other aspects of the Report (such as Part 1, which summarises the PHSO’s Stage 2 findings) that are affected by any changes that are made. The PHSO accepts that it is appropriate for the Stage 2 Report to be quashed to that extent.

17.    The PHSO has also recognised that the Draft Stage 3 Report is based on the Stage 2 Report, and that it will therefore be necessary for that draft report to remain unpublished and to be reconsidered in light of whatever changes are made to the Stage 2 Report. Since that report has not been completed there is no need for a quashing order in respect of it.

18.    The PHSO has also agreed to provide his provisional views on the changes to the Stage 2 and draft Stage 3 reports to the parties along with the evidence on which they are based and allow them an opportunity to comment before reaching a further decision.”

The terms of the draft Court Order submitted to the Court for approval:

“UPON the Defendant’s investigation into complaints of maladministration against the Department for Work and Pensions (“DWP”) in relation, inter alia, to the DWP’s delay in informing women about changes to the age at which State Pension would be payable

AND UPON the Defendant publishing his report, Women’s State Pension age: our findings on the Department for Work and Pensions’ communication of changes, HC 444 on 19 July 2021 finding that the delay amounted to maladministration (“the Stage 1 Report”)

AND UPON the Defendant completing (but not yet publishing) stage 2 of the investigation report on 8 December 2022 (“the Stage 2 Report”) as well as sharing for comment a draft version of stage 3 of the investigation report (“the Draft Stage 3 Report”) based on the Stage 2 Report

AND UPON the Claimant issuing the claim in CO/793/2023 on 2 March 2023 (“the Claim”)

AND UPON the Defendant agreeing to reconsider the Stage 2 Report and the Draft Stage 3 Report in light of the issues raised by the Claim

AND UPON the Claimant and Defendant agreeing and consenting to the terms of this Order and to the attached statement of reasons (“the Statement of Reasons”)

It is hereby ORDERED by consent that:

1.    The Stage 2 Report is quashed.

2.    The Defendant shall reconsider those aspects of the Stage 2 Report referred to in the Statement of Reasons.

3.    The Defendant shall pay the Claimant’s costs on the standard basis to be assessed if not agreed.

4.    There shall be no order for costs in respect of the Interested Parties.”

Our case is awaiting the Court’s attention and the Ombudsman has ‘acknowledged service’ in the last few days.

‘Acknowledging service’ is a formal step where he, as the Defendant, confirms he has received and considered the papers we have filed with the Court and wants to actively participate in the case. His acknowledgement of service form says he resists our judicial review claim without giving detailed reasons for doing so, which is permitted by the Court rules (the strict requirement for a full defence applies later on, though sometimes a summary is sent to the Court at this stage). 

However, WASPI has always taken the view that the best outcome in this case would be an early settlement which would lead to the Ombudsman’s findings on injustice (which we say are unlawful) being reconsidered again as quickly as possible. Discussions with the Ombudsman’s lawyers are currently taking place to explore whether that is possible. The Ombudsman has also told the Court about this in his acknowledgement of service form.

We will update you on the outcome of the discussions as soon as we can. Meanwhile, as promised, here at this link, are the complete legal arguments WASPI has put before the Court, which are called the ‘Statement of Facts and Grounds’. Note, for obvious reasons our lawyers have blanked out some sentences about the identities of individual complainants and the draft Stage 3 Report (that was sent in confidence to WASPI and those whose complaints the Ombudsman is investigating).

Thank you for your ongoing support for the judicial review.

As you know, we filed the papers for our judicial review case against the Ombudsman on 1st March.

The Ombudsman has three weeks from that date to consider our arguments and respond with a preliminary defence, so we expect to hear from him by 22 March.  

We then have a week to reply to him through our lawyers, as do other interested parties like the Secretary of State for the DWP, through their lawyers.

The case is then referred to a High Court judge (the most senior type of judge dealing with legal cases at this stage) who decides whether there should be permission to proceed taking into account of the strength of the case, its importance, the timing and who is bringing it.  The judge has three weeks to make his decision.

This timescale means that we should have a decision about our case going to court around before the end of April.

Until that point, we all need to share the details of our case and the Crowdjustice appeal far and wide.  Your support has been amazing and we can’t thank you enough for what you have done to help us get this case to court and fight for justice for WASPI women.

Earlier this week, the i newspaper published an interview with John Halford who leads our legal team at Bindmans.

In the interview he explains why we are right to take legal action and how the Ombudsman has got things wrong.

You can read the full article here.

As always, thank you for your amazing generosity and support in getting us to this point.  Please continue to share this page as widely as you can - we are working towards our stretch target now and the more new supporters we can bring on board, the better.

The WASPI team

Incredibly, through digging deep in very difficult times, WASPI’s supporters have helped us reach our initial crowdfunding target of £100,000 to get our judicial review case into court and well on its way. Thank you so much. Without your support, the case would have been impossible to bring.

For now, we have extended the target to a stretch of £150,000 and our lawyers have reached out to the Ombudsman to discuss whether arrangements can be made to make the costs manageable and predictable all the way to the full hearing of the judicial review. We will report back on any agreement reached and what that means for future fundraising. If nothing can be agreed, we will ask the Court to make a ‘protective costs order’ that has the same effect. 

We should also be able to publish our legal arguments soon. Watch this space.

Thank you again.

The papers for our judicial review case against the Ombudsman were filed yesterday. We decided to take that step now, given we are so close to our initial fundraising target and are confident you will help us reach it.

We will be publishing our legal arguments soon, but for now we want to share the introductory words from the witness statement WASPI’s Chair and Director of Finance, Angela Madden, has submitted to the Court. They sum up why we need the Ombudsman’s position to change:

“I wish to say something on behalf of WASPI’s members. We, and the huge number of 1950s-born women left in ignorance of the impact the Pensions Act 1995 would have on us until it was too late to do anything meaningful about it, have been let down very badly: in his Stage 1 report, the Ombudsman found that we are the victims of maladministration on a massive, wholly unprecedented, scale and which began as long ago as 2005. The Department of Work and Pensions (‘DWP’) had denied that maladministration repeatedly in public and in its greatly delayed responses to the complaints we made. However, the DWP did not challenge the Ombudsman’s conclusions that its actions and failures were maladministrative in the Ombudsman’s Stage 1 report.  Those conclusions and the DWP’s response to them were heartening. Even though there were aspects of the Stage 1 report where we felt the Ombudsman should have gone further, we felt we had been listened to.”

She then explains the profound disappointment we felt on reading the final Stage 2 report in this way:  

“It felt that we were right back where we started, with our experiences disbelieved and the injustices we have suffered inexplicably being decoupled from the maladministration that was their cause.  We have read and reread the Ombudsman’s reasons for taking the approach he has to injustice and we simply cannot understand it…”

adding:  

“We understand the Court’s role is limited in a case like this one: it is there to ensure the Ombudsman is put back on track if he has become derailed legally. We believe he has been and that he must think again about the injustices we have experienced. We have put our trust in him. His responsibilities in this investigation have to be exercised in a lawful way, worthy of that trust. We hope the judicial review will mean that happens, either because the Ombudsman decides that he should reconsider during the life of this case, or because the Court decides that he must. We still believe that the Ombudsman is capable of identifying the injustices we have suffered and the appropriate remedy for them.”

We would like to thank each and every one of you who have supported our crowdfunding efforts so far. 

That support has shown that the step we have taken is the right one. Until the injustices are properly identified, a just remedy for them cannot be identified either.

We fight on to make these things happen.

We’re two thirds of the way to our target and we can’t thank you enough for your pledges and the support that has got us to this point.

This morning WASPI pledged £954 to the appeal on behalf of those who have made donations on our website, www.waspi.co.uk , between 23 - 26 February.  Many of these donations were for less than £5.00 but they were what the donor could afford.  It is very humbling for us to know that even when people have so little to spare, they still believe so strongly in our case that they want to donate and we are hugely grateful to them.

Please, as ever, keep spreading the word about our case among your family, friends and colleagues and help us to reach that £100,000 target so that we can fight for justice on behalf of all WASPI women.

The WASPI team

Our fundraising has been going incredibly well over the weekend: we are now over 60% of the way to our target of the fighting fund needed to get our case into court and moving forward with WASPI adequately protected.

We are deeply grateful to everyone who has donated so far. Thank you. 

But what happens once we have raised the funds we need?

This update charts the way ahead for our case.

As mentioned previously, our legal team has put our arguments to the Ombudsman. They have asked him to reconsider and even proposed ‘alternative dispute resolution’ (out of court discussions, sometimes facilitated by a third party) to resolve the dispute. The Ombudsman has responded and he is unwilling to change his position, at least for now – sometimes public authorities have a rethink when the Court gives ‘permission’ for a judicial review to proceed (see below) and cases are sometimes settled then.

The case itself is formally started with a Claim Form, the ‘Grounds’ for judicial review which set out the arguments in greater detail (which we will publish as soon as we can) and supporting evidence.

Once those papers reach the Ombudsman, he has three weeks to respond with a preliminary defence. We will then have a short opportunity to reply through our lawyers. Interested parties (others who are affected) can have a formal role and reply too. The Secretary of State responsible for the DWP is likely to do so, for example.

The case is then referred to a High Court judge (the most senior type of judge dealing with legal cases at this stage) and they decide on whether there should be permission to proceed taking account of the strength of the case (it must be ‘arguable’), its importance, the timing and who is bringing it.

Judicial review is a vital part of the UK’s ‘unwritten constitution’ because it allows the High Court and appeal courts to make sure all other public bodies (including some lower courts) are:

• applying the law correctly;
• explaining their reasoning;
• giving reasons that are rational – based on the evidence and logical; and
• being procedurally fair.

The Ombudsman and his local government equivalents have been challenged through judicial review in the past. Upholding challenges, the courts have ruled that, even though the ombudsmen have been given a special role by Parliament, very a high standard of reasoning and fairness is required (e.g. R v Parliamentary Commissioner for Administration ex p. Balchin No. 2 [1999] EWHC Admin 484, R (Turpin) v Commissioner for Local Administration[2001] EWHC Admin 503 and Miller v Health Service Commissioner for England [2018] EWCA Civ 144).

Judicial review is the only way to challenge the Ombudsman.  There is no appeal, nor is it realistic to think the DWP will ignore his findings and act more generously towards 1950s women when deciding what to do about its maladministration if his findings go unchallenged.

It is therefore critical that the Ombudsman gets it right in the most important part of his investigation into the DWP’s maladministration: deciding on the injustice 1950s women have suffered. 

Once a judicial is granted permission, there are further exchanges of evidence and legal argument leading up to a hearing when another High Court Judge (or very occasionally the one who has also granted permission) will hear legal arguments from barristers representing the people who have brought the case, the public body defending the case (here the Ombudsman) and any interested parties. Members of the public can go to court to watch the hearing and it may be possible to set up a live stream (we will ask the Court for this).

The Judge will then give her or his decision a few weeks later.

Unless there is an appeal, the Judge’s decision will be the final word on whether the challenged decision is lawful or not. If it is not, the decision will be ‘quashed’ (overturned so it has no effect) and must then be remade with the Court’s judgement in mind.

In our case, this would mean a major rewrite of the Stage 2 report. The Ombudsman would have to look at injustice again, avoiding the errors highlighted in the judgment.

Once our judicial review has the funding it needs, we will be ready to go. 

We are determined to press on.

Unless the injustice we have all suffered is properly identified, there can be no just remedy for it.

On behalf of every member of WASPI, and all 1950s women in similar positions, we want to express our heartfelt thanks for all the donations made so far to our crowdfunding campaign to raise the money needed to challenge the Ombudsman’s astonishing and legally flawed findings about the injustice we have suffered. 

We have quite a bit of fundraising to go to make issuing WASPI’s claim this week practical, but every donation takes us closer to this goal. Please do let others know about the case and ask if they can do what they can to support it.

The WASPI team

Here, our solicitors at Bindmans LLP take a break from preparing WASPI’s judicial review against the Ombudsman to answer ten key questions about the case.

Q1: What’s happening with the case right now? 

We and the barristers working on the case are preparing the detailed legal arguments summarised here (and in more detail in our letter here along) with witness statements and a large bundle of documents for the Court. Meanwhile WASPI is hard at work raising the money needed to make the issuing the legal claim possible through CrowdJustice.

As long as enough money is raised, we will issue the claim next week and start the judicial review. It’s critical that WASPI has enough money set aside to protect itself against the Ombudsman’s legal costs and can pay the legal team fairly.

Q2: Why is WASPI challenging the Ombudsman now? The Stage 2 report has not even been published. 

The Ombudsman finalised the Stage 2 report on 8 December last year. Judicial review claims must be issued promptly and within three months of the decisions they challenge. That means we have to issue the claim very soon.

The Stage 2 report will be the foundation for all decisions on compensation and other remedies. If – as we believe – the Stage 2 report is fundamentally flawed because of what it concludes on injustice, there can never be just compensation for the injustices identified.

Q3: But the Ombudsman found maladministration at Stage 1 of his investigation didn’t he? So won’t that mean I get compensation for that?

Not necessarily. There has to be injustice too. And the particular type of injustice the Ombudsman identifies is what forms the basis for his recommendations on remedies, including any compensation. The Ombudsman may recommend compensation for worry and anxiety (normally very small amounts), loss of opportunity (typically more) and direct financial losses (money lost because different choices could and would have been made with a better financial outcome for the individual had there been no maladministration). It is then for the government to decide whether to accept the recommendations.

Q4: Surely the Ombudsman accepts the WASPI women suffered injustice? 

He considers there was injustice, but in the cases he looked at closely in Stage 2 of his investigation (the six sample complainants) he concludes there were no lost opportunities and no direct financial loss at all as a result of the DWP maladministration. These findings will be applied to many other women if they stand unchallenged. The Ombudsman comments that it is possible that some women ‘among the millions affected’ by the 1995 Pensions Act may be able to demonstrate they suffered financial loss. That suggests that if his approach to injustice is right, most 1950s women will not be able to show they suffered injustice in the form of those losses.

In other words, the outcome of this case is likely to affect hundreds of thousands of 1950s women – quite possibly most of them.

Q5: What happens if the case is not taken? 

The Stage 2 report with its errors will be the basis on which the Ombudsman decides what remedies to recommend, including any compensation.

Q6: How strong is the case and what will happen if enough money is not raised to take it forward?? 

No legal case has a certain outcome, but we believe this is a strong one and the Ombudsman’s answers to our arguments are not at all convincing.

However, WASPI will not be able to proceed with the challenge if the fighting fund it is raising is not sufficient: the Ombudsman will be entitled to recover his legal costs if the case fails; WASPI needs enough funds to cover that risk.

Q7: What about Backto60’s judicial review? Doesn’t that set an unhelpful precedent against us? 

No. The issues were very different. Backto60’s case was a very ambitious attempt to challenge the government’s own decision-making in relation to the Pensions Act. It was not likely to succeed. WASPI’s case is much more straightforward. The main targets are the stark inconsistencies between the Ombudsman’s Stage 1 report - which rightly found maladministration by the DWP on a massive scale – and the Stage 2 report, which finds that maladministration led to no injustice at all in relation to lost opportunities or direct financial losses in any of the cases examined.

Q8: Has anyone ever successfully challenged the Ombudsman using judicial review? 

Yes. The Ombudsman is generally a careful decision-maker and has a special role. But everyone makes mistakes and we believe he has made several here based on our experience (which includes successful judicial review cases involving the Ombudsman). In the past the Ombudsman’s decisions and those of his predecessors have been overturned where they have been irrational – that is, illogical or unsupported by established facts – or procedurally unfair.

Q9: How long will the case take? 

We will ask the Ombudsman and the Court to prioritise the case and hopefully it will be heard before the Summer.

Q10: So, how can I help? 

Please donate whatever you can afford to the fighting fund through CrowdJustice.

As promised, we are now in a position to share our legal arguments about where the Ombudsman has gone wrong in deciding whether WASPI women have suffered injustice.  They are set out in full in the Bindmans solicitors' letter here.  Note, some parts have had to be redacted (blanked out) because they refer to information about the Ombudsman's draft Stage 3 report which is confidential at this time.

The key points in the letter are:

1. In his Stage 1 report, the Ombudsman found the DWP had, since 1995, failed to provide timely information about changes to the State Pension age for affected WASPI women.  The DWP ultimately started its direct mailing campaign to inform them in April 2009, but should have started much sooner.  The Ombudsman concluded at paragraphs 171 - 172 of his report that, "[I]f the maladministration had not happened, DWP would have begun writing to affected women by December 2006 at the latest, 28 months earlier than it did".
2. In the currently unpublished Stage 2 Report, the Ombudsman examines whether this maladministration led to injustice and, if it did, what that injustice was.
3. He focuses on six sample complainants (the people discussed in the Stage 1 report).  All of them told the Ombudsman that they made key decisions in their lives that would have been different had they known their State Retirement ages had been changed.  All said they had suffered financial losses because of this as well as loss of the opportunity to make different choices, stress, anguish and upset.
4. The Ombudsman's view is that none of the sample complainants suffered direct financial loss as a result of the DWP maladministration. He says this because, on his calculations, all made their key decisions before the date they would have received their letters from the DWP had those letters been sent out when they should have been. In other words, if there had been no DWP maladministration, it would have made no difference to their decisions.
5. To reach this remarkable conclusion and work out when they should have received their letters, the Ombudsman counted 28 months backwards from the date the women in fact received their letters (or should have, in the case of those who never received a letter).  For example, he considered the case of one sample complainant who was sent a DWP letter in October 2013 which was amongst one of the last batches of letters sent.  He then counted backwards from October 2013, concluding that without the DWP's maladministration she would have received a letter 28 months earlier, so in June 2011.  By then, she had already decided to give up a job believing her State Pension date was unchanged.
6. But this approach makes no sense.  Legally, it is irrational. That is because the Ombudsman's Stage 1 report conclusion was that letters should have started being sent out from December 2006 at the latest (and he also said all would have been sent out in 31 months).  So the logical way to calculate when women would have received their DWP letters had there been no maladministration is to count forward from December 2006 (at the latest).  All women would have received their letters by July 2009.  A woman who was contemplating giving up her job in 2010, for example, would know by then that her state retirement age had been changed.
7. Why does this matter?  In short, it makes a massive difference to the injustice that the maladministration caused.  If someone gave up a job because they did not know their state retirement age had been put back, their direct financial losses could be considerable.  Any woman who made significant choices like this between 2006 and July 2009 could potentially have suffered direct financial loss as a result of maladministration which is very unlikely to be compensated for on the Ombudsman's "counting backwards 28 months" approach.
8. The next problem is that there will be some cases where women cannot show direct financial loss as a result of receiving their letters when they did, but they can show they lost an opportunity to make different choices.  When those sort of choices are significant, the Ombudsman often recommends a higher level of compensation given the injustice.  But the Stage 2 report appears to conclude this is inappropriate in the cases of WASPI women because there was too much uncertainty about what would have happened had there been no maladministration.  This conclusion cannot be reconciled with the Ombudsman's Stage 1 report either, nor with his past practice.
9. This error also matters.  If WASPI women cannot establish either direct financial loss or loss of opportunities that amounted to injustice, then their remedies for the maladministration the Ombudsman has identified, including compensation, could be very limited indeed.
10. Whilst the focus of the Stage 2 report is the six test case complainants, the Ombudsman's findings effectively apply to everyone whose circumstances are similar.  The Ombudsman himself says it is possible that some women among the millions affected by the 1995 Pensions Act may be able to demonstrate they suffered financial loss.  That suggests that if his approach to injustice is right, most will not.

What now?

The Ombudsman will not budge.  We urgently need the resources to follow through on our threat of judicial review and challenge the Ombudsman's Stage 2 decisions.  We need your support.  

Please consider donating through our Crowdjustice page.