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.