Category Archives: legal disputes

How is Post Office paying for increasing costs of Horizon IT litigation – MP asks questions

The Post Office has lost all four High Court rulings  (so far) in a series of hearings over its Horizon IT system. There are still three trials to go. With appeals, the number of hearings and judgements, and  the duration of the case, are indeterminate.

How is the publicly-funded Post Office paying for litigation that is, in essence, its defence of the Horizon system?

By Tony Collins

Labour MP Kevan Jones has this week asked a series of pertinent questions about costs and the Post Office’s dispute with former sub-postmasters over the Horizon branch accounting system.

His Parliamentary questions are likely to draw the attention of business secretary Greg Clark to the increasing costs of a High Court trial in which more than 550 former sub-postmasters seek compensation and damages from the Post Office. They say they were made to pay for unexplained shortfalls shown on Horizon that could have been caused by bugs or other system weaknesses.

The Post Office says Horizon is robust and the shortfalls were the result of dishonesty or mistakes by sub-postmasters or their staff. The Post Office has pursued sub-postmasters for “debts” shown on the Horizon system of millions of pounds in total.

Kevin Jones’ questions follow a judgement last month in which a High Court judge, Mr Justice Peter Fraser, referred to the Post Office’s approach to the costs of the litigation.

“The Post Office has appeared determined to make this litigation, and therefore resolution of this intractable dispute, as difficult and expensive as it can,” said the judge.

Since that judgement, costs have risen further because the Post Office has decided to appeal last month’s judgement. The Post Office has also applied for the judge to remove himself from three remaining trials over the Horizon system. which caused the second trial to be suspended.

This week it has emerged that costs, which could run into tens millions of pounds, are set to rise again. Although the judge has refused permission for the Post Office to appeal his refusal to remove – “recuse”  himself, the Post Office can ask the Court of Appeal to grant that permission.  BBC legal commentator Joshua Rozenberg has tweeted,

 

 

Kevan Jones has asked the business secretary Greg Clark:

  • what steps he is taking to ensure the Government is held accountable for the decisions and actions of Post Office Limited in the handling of postmasters’ problems with Horizon.
  • whether public money has been used to pay costs involved in the ongoing dispute with postmasters since 2000.
  • whether the Lord Chancellor will determine the extent of any conflict of interest on the part of Tim Parker by reason of his dual roles of (a) the Chairman of Post Office Limited; and (b) the Independent Chair of the HM Courts and Tribunal Service Board.
  • what the anticipated increased cost implications are for Post Office Limited in its dealing with serving Subpostmasters following the High Court decision handed down on 15 March 2019.
  • whether the Post Office has ever taken into profit from its suspense accounts any unreconciled sums recovered from Subpostmasters.

Former sub-postmaster Alan Bates, founder of Justice for Subpostmasters Alliance and lead claimant in the case, told Computer Weekly, 

“This move by Post Office Ltd to have the judge recused was just another act by an organisation abusing the use of public money to litigate a valid case into the ground in order to protect the reputations of just a few individuals and a dysfunctional business.”

The Post Office said, “We will be seeking to appeal the judgment on the recusal application and to continue to vigorously defend this litigation. We believe the overall litigation remains the best opportunity to resolve long-standing issues in order to ensure a stable and sustainable Post Office network for the benefit of the communities who rely on our services every single day.”

Freeths, solicitors for the sub-postmasters,  has submitted an application for the Post Office to pay the legal costs in the first trial, likely to be for several million pounds.

Comment:

Kevan Jones is right to ask questions about the publicly-funded Post Office and costs. The Post Office appears to have no cap on how much it is prepared to spend on the litigation; and it has shown little or no concern about how many years the case will continue.

Institutions, particularly public ones,  have a duty to spend money wisely. Not cutting your losses when you are losing a series of High Court hearings is poor judgement.

The Post Office has a choice: continue to pour money into a case that looks, on the basis of evidence so far, to be unwinnable.  Or pay the millions it is giving lawyers to its former sub-postmasters instead.

It’s a decision the Post Office will not make on its own – in which case Kevan Jones and his Parliamentary colleagues must continue their campaign for justice.

Thank you to sub-postmaster “Mrs Goggins”  and former sub-postmaster Jo Hamilton whose tweets alerted me to Kevan Jones’ questions.

Computer Weekly’s coverage

Journalist Nick Wallis’ coverage

Former sub-postmaster and campaigner Tim McCormack’s blog

 

Advertisements

Will more campaigners die as they await justice in extended Post Office IT dispute?

A High Court dispute over the Post Office Horizon IT system is expected to cost tens of millions of pounds. But what is the human cost of delaying the outcome?

Tomorrow a High Court judge will consider an application by the Post Office to recuse – remove – himself from a series of trials that relate to the Post Office’s Horizon IT system. The Post Office accuses him of bias.

The Post Office’s application means that the second of four trials is currently suspended. A final outcome of the various hearings, after appeals,  could be years away.

Will any delayed final outcome have an effect on the 600 or so sub-postmasters who are part of the litigation?

It is a concern expressed by the judge in the case, Sir Peter Fraser, QC who is head of the High Court’s Technology and Construction Court. In his 1,100-paragraph judgement delivered last month after the first trial, he said,

“Even on that intended timetable, some Claimants [sub-postmasters] may be waiting far longer than is ideal to have their claims fully resolved either in their favour, or against them.

“Some of the Claimants are retired; some are elderly; some have  criminal convictions under review by the Criminal Cases Review Commission.

“Nobody involved in this litigation is getting any younger as time passes. The Post Office itself is under a cloud in respect of these unresolved allegations and I consider it to be an obvious point that resolution of this litigation as soon as possible is in the interests of all the parties – all the Claimants and the Post Office – in the interests of justice and the wider public interest.”

Is the Post Office trying its best to expedite an outcome? Mr Justice Fraser suggested the opposite. His judgement said,

“The Post Office has appeared determined to make this litigation, and therefore resolution of this intractable dispute, as difficult and expensive as it can.” [Par 544].

Separately, the judge said,

“It does appear to me that the Post Office in particular has resisted timely resolution of this Group Litigation whenever it can, and certainly throughout 2017 and well into 2018.” [Par 14]

The judgement referred to the Post Office’s “attritional approach of the Post Office to this litigation”. [Par 569]

If the judge is right and if the Post Office board is determined to make the litigation as difficult and expensive as it can, what of the human cost of any delays taking into account the age of some of those involved and the hopes of those with criminal convictions whose cases are under review?

Traumatised

Journalist Nick Wallis who is covering the High Court trials reports that he has been told that some sub-postmasters remain “traumatised” by their experience of losses shown on the Horizon system that they were required to make good.

Some of the sub-postmasters, says Wallis,  “are having to work long past retirement age” with all their life savings taken to pay for losses that are now in dispute as part of the sub-postmasters versus Post Office litigation.

The Post Office contends that Horizon is robust and that it was justified in holding sub-postmasters responsible for discrepancies and shortfalls shown on the system. The sub-postmasters claim damages saying the Post Office unjustly required payments for losses shown on an imperfect Horizon system. They argue the losses were not real shortfalls.

For one justice campaigner, Julian Wilson, a former sub-postmaster from Redditch in Worcestershire,  time ran out in 2016. Nick Wallis knew Wilson as a gentle, generous and good humoured man. The Post Office prosecuted Wilson for false accounting after unexplained shortfalls on the Horizon system.

The Criminal Cases Review Commission was reviewing his conviction when he died.

Wilson had been sentenced to 200 hours of community service and had to pay the Post Office £27,500 plus £3,000 costs. He told the Daily Telegraph in 2013,

“Initially, when there were discrepancies [on the Horizon system], my wife and I were putting the money in. As the discrepancies got larger and larger, we were no longer able to afford it.

“I told my line managers on several occasions that I was concerned about this, and the comment I got back from them was: ‘Don’t worry, the system will put itself right.’

“But it never did, so I was taken to court. I hadn’t taken a penny. Everything we’ve got has gone. In the last few weeks, we’ve been doing car boot sales to try to get some money to put some food on the table. My wife even had to sell her engagement ring.”

Comment

It is by no means certain that all of the 600 or so former sub-postmasters who are fighting for justice will live to know the final outcome of the trials.

If sympathetic to its former sub-postmasters, the Post Office could settle the litigation or seek expedited judgements. On the other hand, the Post Office could, given its deep pockets as a public institution,  seek to replace trial judges and appeal judgements. If so, a final outcome could be delayed with no end date in sight,

Business minister Kelly Tolhurst MP has responsibility for postal affairs. In deciding whether or not to intervene, will she weigh up the cost in human terms of a dispute that began more than 10 years before the start of the High Court Horizon trials?

MPs called the Post Office Horizon dispute a national scandal but to the family of Julian Wilson it is a tragedy. They live with the knowledge that he went to his grave a near-bankrupt convicted criminal whose wife ended up selling her engagement ring  because of events that followed losses shown on a branch accounting system.

Nick Wallis’ Post Office trial coverage

Post Office lacked humanity in treatment of sub-postmasters, says peer – Computer Weekly’s coverage of the Post Office’s trial

Blog of campaigning former sub-postmaster Tim McCormack

Could MPs hold Post Office directors to account for Horizon IT trial costs – after they have left?

By Tony Collins

The Public Accounts Committee and the National Audit Office have been alerted to the costs of the High Court trials over the Post Office Horizon IT system.

Parliamentary committees have the power to hold people to account after they have left an organisation.

Could this happen in the case of the publicly-owned Post Office whose directors have decided to spend, potentially, tens of millions of pounds on an avoidable High Court litigation?

Nearly 600 sub-postmasters are suing the Post Office because they say their lives were ruined when the Post Office required them to make good non-existent shortfalls shown on an imperfect Horizon system. The Post Office says Horizon has always been robust and that they were entitled to hold the sub-postmasters liable for losses shown on Horizon.

The Post Office appears resolved not to settle the case despite campaigns for justice in Parliament and by the Justice for Sub-postmasters Alliance. One unanswered question is whether the Post Office board is hardening its position in the face of the campaigns.

Campaign4Change emailed the Public Accounts Committee about costs of the litigation. As a result, the National Audit Office, which works closely with the accounts committee, contacted UK Government Investments, which represents the Government’s interest as sole shareholder of Post Office Limited.

The Committee told us,

“The NAO has now completed its enquiries and reviewed supporting evidence.

“Post Office Limited is a government owned company which is primarily funded through income from it is operations and is not audited by the Comptroller and Auditor General.

“The NAO has therefore limited its enquiries to understanding the role of UKGI [UK Government Investments] given it has no remit to audit the actions of Post Office Limited.

“The NAO discussed the case with UKGI to understand the governance in place between Post Office Limited and UKGI and to confirm there was appropriate oversight of Post Office Limited’s decision to defend the litigation.”

Regarding the accountability of individual Post Office Limited’s directors, the National Audit Office said,  “Since Post Office Limited’s inception in 2012, UKGI has had a representative on the Board as a Non-Executive Director. The same government representative is also a member of the subcommittee of the Board which specifically considers this issue. These committees are involved in decision making around the litigation case and the representative regularly reports to ministers on these matters.

“From the work performed by the NAO, they have concluded that the involvement of UKGI in decision making appears appropriate and the level of oversight proportionate.”

The Committee said the National Audit Office has not  directly considered the actions taken by the Post Office Board but the case is being kept under review.

Following the NAO’s investigation, the Department for Business Energy and Industrial Strategy, which is responsible for the Post Office, sought an assurance from the Post Office’s CEO Paula Vennells that departmental funds meant for transformation and business investment will not be used on the Horizon litigation.

Also the BEIS department now requires regular written assurances that BEIS funding will be used for the intended purposes only.

Summons?

When a Parliamentary committee decides to summon a witness formally, the witness is summoned to attend the committee by an order signed by the chairman.

Failure to attend a committee when formally summoned is a contempt and if a witness fails to appear, when summoned in this manner, his or her conduct is reported to the House of Commons which can deal with the matter as an act of disobedience.

MPs and peers are expected to look more closely at the actions of the Post Office in the light of its decision to try and remove Sir Peter Fraser, the judge in the Horizon IT case. The Post Office’s application to remove the judge could greatly increase costs of the case which are already expected to run into tens of millions of pounds.

Following the Post Office’s application for the judge’s removal, the second of four High Court trials has been suspended and will not resume until 3 April.

Journalist Nick Wallis reports that the application for the judge’s removal coincided with evidence being given, in part, by the chief architect for the Horizon system at Fujitsu. He was being questioned on the system and possible errors.

Thank you to campaigner Tim McCormack whose Freedom of Information requests unearthed the letter dated January 2019 to the Post Office from the Department for Business, Energy and Industrial Strategy that seeks assurances on funding for the Horizon IT litigation.

Postofficetrial– Nick Wallis

Post Office Horizon IT trial suspended after Post Office accuses judge of bias – Computer Weekly

The power to summon witnesses

The process for formally summoning a witness is outlined in a House of Commons paper: 

“When a committee decides to summon a witness formally, the witness is summoned to attend the committee by an order signed by the chairman. Failure to attend a committee when formally summoned is a contempt and if a witness fails to appear, when summoned in this manner, his conduct is reported to the House… If he still neglects to appear, he will be dealt with as in other cases of disobedience.

“It is the House which will ultimately decide how a case of disobedience should be dealt with.”

Businessman whose wife died from overdose has joined group legal action against the Post Office

By Tony Collins

The Post Office does not comment on individual cases. Its general position is that people who own and run local offices under contract to the Post Office take responsibility for any deficits shown on the Horizon  branch accounting system.

Fiona Cowan had such a deficit,. With a friend, she ran a local post office that her businessman husband Phil had bought in Edinburgh. They owned the local post office site but ran it under contract to the Post Office.

After the deficit appeared, the post office was closed and Fiona was asked how soon she could repay £30,000.

Phil asked if there could be a glitch in the Horizon system. He says he was told that, if so, it would be the only sub post office in the country to have such a problem.

Fiona was charged with false accounting. With no post office, the retail side of their post office business dwindled and Phil sold up at a substantial loss. The Post Office took £30,000 out of a redundancy offer.

Fiona, who suffered from on and off bouts of depression, died of an accidental overdose. She was 47.

Now Forecourt Trader has published an article saying that Phil Cowan has joined the group legal action against the post office.

Phil was quoted as saying, “She [Fiona] went to her grave with this criminal charge hanging over her.”

Forecourt Trader reports that the Post Office did not tell the Cowans that the charges had been  dropped.  Phil subsequently joined the Justice for Subpostmasters Alliance which, with solicitors Freeths, brought a group action against the Post Office.

An initial High Court judgment in the case is due later this month.

The FT reported last year that the Post Office dismissed Deirdre Connolly, a sub-postmistress, after an apparent shortfall of £15,600. The alleged deficit was found during an unannounced branch audit.

The FT said that, out of fear, Connolly made up the apparent loss with help from relatives. The Post Office did not prosecute. Her son later attempted suicide, which she attributed to his witnessing the stress she was under.

In 2015 the Daily Mail reported on Martin Griffiths, a sub-postmaster from Chester, who stepped in front of a bus one morning in September 2013.

An inquest heard that Griffiths, 59, was being pursued by the Post Office over an alleged shortfall of tens of thousands of pounds.

The Post Office reached a settlement with his widow and required the terms of it to be kept confidential.

A group legal action by about 560 sub-postmasters and sub-postmistresses against the Post Office is likely to continue for years if the case goes to appeal. The Post Office has set aside at least £5m in legal fees to fight the case.

It is thought that the Post Office has warned its shareholder – the government – that the legal fees could, ultimately, run into tens of millions of pounds.

The Post Office has said repeatedly that its Horizon system is extremely robust and operates over its entire Post Office network and successfully records millions of transactions each day.

Thank you to journalist Nick Wallis whose Tweet alerted me to the Forecourt Trader article. Wallis is crowdfunded to cover the group legal action in the High Court. He has written extensively on the trial, as has Karl Flinders of Computer Weekly.

Forecourt Trader article on Phil and Fiona Cowan

FT reports on a death following Horizon system shortfall

A system-wide problem with Horizon connectivity?

By Tony Collins

The Post Office has said in the past that its controversial Horizon system has not had system-wide problems.

This month, however, the system has had two serious widespread outages. On 10 May 2018, Computer Weekly reported that about 2,000 Post Office branches were unable to connect to the organisation’s computer system for a few hours on 9 May because of a connectivity issue.

A second problem last week affected “the whole network” according to a spokesperson at the National Federation of SubPostmasters.

“In the past two weeks we’ve had two instances, just under a quarter of the network was affected earlier in the month, and yesterday the whole network was down for a couple of hours,”

The spokesperson told BBC News that its members have suffered financially because of the problems.

“Sub-postmasters only get paid if they are serving customers so any downtime means they are out of pocket, and people are unable to send their mail.

“The Post Office uses a nationwide computer system to make sure all items are tracked correctly before being sent. If this suddenly stops working then it means potential delays to your parcel across all depots in the UK.”

Those reading Post Office statements on its Horizon system over the years could have gained the impression that the system was able to cope with every eventuality. These are some of the Post Office’s comments on the Horizon system:

“… Post Office maintains that Horizon is capable of handling power and telecommunications problems.”

“Horizon is operated by thousands of Subpostmasters, the majority of whom have not had any issue with the system or its effectiveness.”

“Post Office maintains that the fact that almost 500,000 users have used Horizon since its inception and only 150 have raised a complaint to the Scheme shows that it is fit for purpose.”

“Post Office considers it fair to assume that if a loss has occurred then it has been caused in the branch and is something for which, in most circumstances, a Subpostmaster is liable to make good.”

“… there is no evidence of systemic problems with branch accounting on Horizon. All existing evidence overwhelmingly supports this position.

“The very small number of sub-postmasters who have experienced issues with the Horizon system are a minute proportion of the tens of thousands of people who have been successfully using the system across the network of 11,500 branches on a daily basis since 1995.”

“It is also important to recognise, however, that to date this system has handled more than 45 billion transactions and that there have been issues with only a tiny, tiny number of them.”

“Our computer system has been used by around 500,000 people in our network over more than a decade, processing billions of transactions during that time for our customers.”

“We have now spent three years investigating and addressing various complaints by a small number of former postmasters. We have done everything and more than we committed to do at the outset. We set up an independent enquiry, which found no systemic flaws in the system …”

Last week, the Post Office said in a statement: “We’re really sorry for any inconvenience that the connectivity issues at some of our branches caused yesterday. The issue was resolved within a few hours, and our branches are now back to business as usual.”

 Legal action

 Subpostmasters are taking a group legal action against the Post Office through Justice for Subpostmasters Alliance. The subpostmasters and mistresses blame the Horizon system for financial losses that the Post Office has sought to recover from the individual Post Office branch owners.

Some branch owners lost their livelihoods and had their lives ruined. At least one was said to have committed suicide. Some were jailed, made bankrupt or died while awaiting justice.

The Post Office has claimed the number of complainants is “tiny”, but the actual number of subpostmaster-claimants is now 561.

A High Court hearing is planned for November 2018. It will hear from 12 potential “lead cases”, six of which were selected by Post Office Limited and six by Freeths solicitors who represent the claimants.

These individual cases will be decided ahead of the rest of the Group of 561 and will be used to demonstrate some of the key issues, in particular the fairness of the contract between the claimants and the Post Office.

Computer Weekly reported last month that a forensic examination of the Horizon system by specialists commissioned by the Criminal Courts Review Commission has raised further questions.

“The forensic accounting company hired by the Criminal Courts Review Commission to look more closely at the controversial IT system blamed by sub-postmasters for their wrongful prosecutions has completed its initial findings, and from this has decided to make further enquiries,” said Computer Weekly.

Comment

No computer system is infallible,. The Horizon system is decades-old and has had innumerable patches, additions and enhancements.

After two outages this month, one of which is said to have been network-wide, will the Post Office be able to continue with its claim that the system has not had any system-wide problems?

Indeed how credible in general is the Post Office’s case against 541 subpostmasters? At long last the answer to that question no longer rests with the Post Office. A decision on whether injustices that date back years can be corrected will rest with a High Court judge.

It’s a matter the Post Office ought to have settled long ago. Instead it has relied on the public purse to fund the perpetuation of a series of injustices.

Connectivity issue hits thousands of Post Office branches – Computer Weekly May 2018

Post Office hit by computer problems – BBC News May 2018

Justice for Subpostmasters Alliance

 

Judge in Post Office Horizon case calls for a “change of attitude”

By Tony Collins

The Law Society Gazette reports that the High Court judge in the Post Office Horizon case has called for a “change of attitude”.

At a case management conference, the judge Sir Peter Fraser listed some of the problems already reported during the group litigation:

  • Failure to lodge required documents with the court
  • Refusing to disclose obviously relevant documents
  • Threatening ‘pointless’ interlocutory skirmishes.
  • Failure to respond to directions for two months
  • Failure to even consider e-disclosure questionnaires

The case involves a class action – called a Group Litigation Order – against the Post Office brought by more than 500 mostly sub-postmasters.

Justice for Subpostmasters Alliance seeks damages related to the introduction of the Horizon computer system about  17 years ago, which is alleged to have caused financial distress and in some cases bankruptcy.

According to the Law Society Gazette, the judge said the behaviour of legal advisers in the case “simply does not begin to qualify as either cost-effective, efficient, or being in accordance with the over-riding objective”. He added,

“A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders.”

The court has heard of problems trying to establish a timetable for the litigation. The claimants sought a substantive hearing for October 2018, while the Post Office argued the case could be managed for another entire year without any substantive hearing being fixed. Under this proposal, the hearing would not happen until at least 2019.

Fraser noted that to describe this approach as ‘leisurely, dilatory and unacceptable in the modern judicial system would be a considerable understatement’.

The day after a trial was ordered for November 2018, the Post Office asked for a change because its leading counsel already had a commitment at the Companies Court.

The judge suggested it was a ‘clear case of the tail wagging the dog’ if clerks were allowed to dictate hearing date. He said there was reasonable notice to arrange for a replacement counsel.

Fraser added: ‘Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach.’

Comment:

It appears that the judge did not single out the claimants or the Post Office as the main target for his irritation. He was impartial. But his no-nonsense approach might have surprised some at the Post Office.

The Post Office is familiar with control. When the Horizon system has shown a shortfall in the accounts of a local branch, the Post Office has required the sub-postmasters to pay whatever amount is shown, in order to return the balance to zero.

Even when paying the shown amount has led to bankruptcy and destruction of the family life of the sub-postmaster, the Post Office has pursued the case.

It has had control.

It supplied the contract that sub-postmasters signed; it supplied the Horizon branch accounting system; it required payment of what the system showed as a deficit; it investigated complaints by sub-postmasters that the shown deficits might have been incorrect;  it was able to decide what information to release or withhold – the “known errors” Horizon log being one piece of information not disclosed – and it was the prosecuting authority.

It has also been free to rebut public criticisms, as when BBC’s Panorama and forensic accountants Second Sight focused on the concerns of sub-postmasters.

Now it’s a High Court judge who is questioning, among other things, a failure to lodge required documents with the court and refusing a to disclose obviously relevant documents.

The judge’s comments are refreshing. Since 2009, when Computer Weekly first reported on the concerns of sub-postmasters, control has been one-sided.

Now at last it is on an even keel.

We hope the Post Office will reappraise whether it should be using public funds at all to fight the case.

If the case does drag on for years – postponing a judicial decision – who will benefit? Certainly not the sub-postmasters.

Law Society Gazette article

Nine-year outsourcing deal caught on camera?

By Tony Collins

This photo is of a Southwest One board that was surplus to requirements.

Southwest One continues to provide outsourced services to Avon and Somerset Police. The 10-year contract expires next year.

But unless Southwest One continues to provide residual IT services to the police, the company – which is owned by IBM – will be left without its three original public partners.

Photo a metaphor?

IBM and Somerset County Council set up Southwest One in 2007  to propel council services “beyond excellence”.

Joining in the venture were Taunton Deane Borough Council and Avon and Somerset Police. The hope was that it would recruit other organisations,  bringing down costs for all.

It didn’t happen.

An outsourcing deal that was supposed to save Somerset residents about £180m over 10 years ended early, in 2016, with losses for the residents of about £70m. The council and Southwest One settled a High Court legal dispute in 2013.

Taunton Deane Borough Council also ended the deal early, in 2016.

Comment

Was it all the fault of Southwest One? Probably not. The success of the deal was always going to be judged, to some extent, on an assumption that other organisations would join Southwest One.

When that didn’t happen, two councils and a police force had to bear the main costs.

There was also the inherent problem that exists with most big council outsourcing deals: that it’s always difficult for a supplier to innovate, save money on the costs of running council services, invest significantly more in IT, spend less overall and still produce a healthy profit for the parent company.

It could be done if the council, police force or other public body was manifestly inefficient. But Somerset County Council outsourced what was, by its own admission, an excellent IT organisation.

Some at the time had no doubts about how the outsourcing deal would end up.

Southwest One – The complete story by Dave Orr

 

FT reports on a death after Post Office Horizon IT system shortfall

By Tony Collins

The FT reported yesterday on a class action against the Post Office over the “faulty” Horizon IT system.

In an article or more than 1,000 words, it said that 522 former sub-postmasters are involved in the legal action.

A procedural hearing with a managing judge will take place in October 2017, which should lead to a timetable for final resolution by the court.

The FT reported on two families (previously unpublicised cases) whose lives have been devastated by shortfalls shown on the Post Office’s Horizon branch accounting system.  In one case, the Post Office dismissed Deirdre Connolly, a former sub-postmistress, after an apparent shortfall of £15,600. The alleged deficit was found during an unannounced branch audit.

The FT said that, out of fear, she made up the apparent loss with help from relatives. The Post Office did not prosecute. Her son later attempted suicide, which she attributed to his witnessing the stress she was under.

The FT also reported on a successful businessman, Phil Cowan, whose business ventures included a post office in Edinburgh run by his wife and her friend. He said that a £30,000 deficit shown on the branch electronic ledger account was a factor in his wife’s death from an accidental overdose of anti-depressants, alcohol and cold medicine. She was 47.

He attributed the shortfall to a technical glitch.

Cowan told the FT,

“This situation I know for a fact had a huge contribution to her passing away. It had a massive effect on her.”

In 2015 the Daily Mail reported on Martin Griffiths, a sub-postmaster from Chester, who stepped in front of a bus one morning in September 2013.

An inquest heard that Griffiths, 59, was being pursued by the Post Office over an alleged shortfall of tens of thousands of pounds.

The Post Office reached a settlement with his widow and required the terms of it to be kept confidential.

Court case

The legal action between the Post Office and the sub-postmasters could be said to be a simple one, at least from the PO’s perspective. Sub-postmasters signed a contract that held them responsible for losses shown on the branch accounting system (whether or not there was any evidence they gained from the shortfalls).

The Post Office’s lawyers will argue that there is no evidence that Horizon or any of its related elements such as network and communications equipment was to blame for the losses. Under its contract with sub-postmasters, the Post Office is entitled to pursue the former sub-postmasters for the losses.

It is this contract that is the main point of legal relevance, rather than claims by sub-postmasters that the losses were not real, that they didn’t steal any money and have had their lives, and their family’s lives, ruined by the Post Office’s actions against them.

For the sub-postmasters, lawyers will argue that errors were caused by software bugs and inadequate training and support. The FT article referred to a “pattern of bullying and intimidation by the Post Office dating back to shortly after Horizon was rolled out”.

After shortfalls were discovered, people were held and their homes searched,  Alan Bates of the Justice for Sub-postmasters Alliance told the FT. Freeths solicitors are handling the Alliance’s case.

Comment

The Post Office’s enforcement of its contract with sub-postmasters after discrepancies were found on Horizon raises the question of whether the law in this case has little – or perhaps nothing – to do with right and wrong.

The Post Office may have a contractual right to pursue former sub-postmasters for shortfalls shown on Horizon.

But does the Post Office’s conformance with the law – its contractual right to take action – make the action right?

In Vermont, it’s unlawful for women to be fitted with false teeth without the written permission of their husbands. It would be perfectly legal for Vermont’s lawyers to prosecute offenders. But being lawful to prosecute doesn’t make it right to do so.

It was perfectly lawful for the state to prosecute Alan Turing in 1952 (and Oscar Wilde in 1895) for homosexual acts. That the prosecutions were lawful (and were possible factors in their premature deaths) didn’t make the prosecutions right.

If NASA made its space missions conditional on a requirement that astronauts sign a contract that made them responsible for anything that went wrong, they would probably sign – because of their overwhelming desire to go into space. But if something went wrong would it be right for NASA to enforce the contact (assuming the astronauts survived?).

It can be lawful to enforce a contract but wrong to do so.

Post Office happy?

The Post Office (which is still publicly owned) sounds relaxed about going to court. The FT quoted the Post Office as saying,

“We welcome [the group litigation order] as offering the best opportunity for the matters in dispute to be heard and resolved.

“We will be continuing to address the allegations through the court’s processes and will not otherwise comment on litigation whilst it is ongoing.”

Even at this late stage, it’s not too late for the Post Office’s directors to ponder on the matter of right and wrong rather than go ahead with a court case merely because they can.

They have the power to exacerbate the devastation for hundreds of families. They also have the power to withdraw from the court case, settle and reduce the risk of any further personal tragedies.

This is where the distinction between enforcing a legal right and doing the right thing couldn’t be clearer.

Post Office faces class action over “faulty” IT system – FT

Shedding new light on the Post Office Horizon IT controversy?

Days from taking back outsourced IT, Somerset Council is unsure what it’ll find

By Tony Collins

Facing the TV cameras, officials at Somerset County Council spoke with confidence about the new joint venture company they had set up with the “world-class” IT supplier IBM.

“The contract has to succeed; we will make it succeed, ” a senior official said at the time. Greater choice for residents, more control, sustained improvement of services, improved efficiency, tens of millions in savings and enhanced job prospects for staff.

These were some of the promises in 2007.

Since then, Somerset County Council has been through a costly legal dispute with IBM; projected savings have become losses, and Somerset is days away from taking back the service early.

Now the council faces new IT-related risks to its reputation and finances, warns a team of auditors.

In several audit reports on the exit arrangements, auditors warn of a series of uncertainties about:

  •  what exactly IT assets the council will own as of 1 December 2016, when the joint venture hands back IT and staff.
  • how much software may not be licensed, therefore being used illicitly.
  • how much software is being paid for without being needed or used, wasting council tax money.
  • whether thousands of pieces of hardware have been disposed of securely over the years of the contract, or whether confidential data could later turn up in the public domain.
  • the accuracy of some supplied information. “… the same networking hardware items have the same value associated with them even though one is twelve years old and the other only four” said auditors.

Comment

That Somerset County Council laments setting up the Southwest One joint venture with IBM is not new. What continues to surprise is the extent of the difficulties of ending the joint venture cleanly – despite months, indeed more than a year – of preparatory work.

The realty is that uncertainties and risks abound.

When IT journalists ask leading councillors and officers at the start of outsourcing/joint venture deals whether all the most potentially serious risks have been given proper consideration, the spokespeople inevitably sound supremely confident.

If things go wrong, they are sure the council will be able to take back the service under secure arrangements that have been properly planned and written into the contract.

Yet today some of the most potentially serious risks to Somerset’s finances and reputation come from continuing threats such as the possibility confidential data being found on old hardware not securely disposed of.

Or the council may be paying for unneeded software licences.

In short Somerset County Council is taking back the IT service on 1 December 2016 without being certain what it will find.

In future, therefore, when councillors and officials across the country talk with supreme confidence at the start of an outsourcing deal or joint venture about large savings, sustained efficiencies, and a step-change improvement in services that comes with the benefits of collaborating with a world-class private-sector partner, local residents will have every right to be deeply sceptical.

For the reality is more likely to be that the council and its world-class supplier are about to embark on a journey into the unknown.

Thank you to campaigner Dave Orr for alerting me to the council audit reports that made this post possible.

TV broadcast in 2007 days after the council and IBM signed the Southwest One joint venture deal.

**

Excerpts from reports due to be considered by Somerset County Council’s Audit Committee next week (29 November 2016):

“… laptops, servers, storage devices, networking equipment, etc.) have been disposed of without the correct documentation historically, throughout the term with SWO [Southwest One]. There is a high likelihood that without the documentation to show that SWO were meant to have previously disposed of any specific data baring assets in a compliant manner then subsequent fines and loss of reputation will need to be dealt with by the Council.

“This is being addressed as part of the exit works but initial investigations show an expected lack of documentation.

**

“The quality of asset management and therefore exposure to risk (over and above this inherited risk) is expected to improve significantly once asset management returns to SCC [Somerset County Council).”

**

“Asset locations have been updated and improved though there are still issues regarding all asset details not being recorded accurately in the Asset Register. There is a risk that if wrong details are recorded against an asset then incorrect decisions could be made regarding these assets which may in turn cause the Council financial loss and/or loss of reputation.”

**

“… the same networking hardware items have the same value associated with them even though one is twelve years old and the other only four.”

**

“Software assets are now included in the monthly asset register report though the information collected and lack of correlation to meaningful license information means the original risk is not fully mitigated.

“This continued lack of software asset usage information against licensing proof of entitlement as well as the obvious risk of illegally using non licensed software there is also a risk that the Council is wasting public funds and Council officer’s time to manage unnecessary software. This means the Council will not be able to show “Best Value” in these purchases which could lead to fines being imposed by Central Government and loss of reputation by the inefficiencies being reported in the media.”

**

“I cannot though see evidence of the warranty & support arrangements being recorded or accurate recording of end of life assets. Due to a lack of or incorrect detail on the asset information there is the risk of incorrect decisions being made regarding an asset’s usage which could then lead to loss of money or reputation for the Council.”

MPs to debate Capita NHS contract today

By Tony Collins

In the House of Commons today MPs will debate the Capita Primary Care Support Services contract.

It has been secured by Coventry North West MP Geoffrey Robinson, who wants GPs to be compensated for the failures arising from the outsourcing contract.

The debate comes a day after the BBC reported that “more than 9,000 patients’ records in Norfolk, Suffolk and Essex have gone missing” since Capita took on the task of transferring files.

As part of its contract Capita took on the job of transferring patients’ records, when people move from one GP to another.

A BBC survey of 78 GP practices showed that 9,009 records had been missing for more than two months.

Capita told the BBC it did not “recognise these claims”.

An NHS England spokesman said, “We know there have been serious issues with services delivered by Capita which have had an unacceptable impact on practices. We are ensuring Capita takes urgent steps to improve services.”

Patients “at risk”

Paul Conroy, a practice manager in Essex, has started a House of Commons petition on the delays, which has been signed by more than 3,000 people. It calls for an inquiry into the Capita contract and the impact it has had on GP practices.

“GPs rely on that full medical history in order to make key clinical decisions on patient care,” he said.

“If they can’t get hold of that physical record there could be vital information there could be vital information that puts a patient at risk.”

James Dillon, director of Practice Index – an organisation bringing together practice managers – told the BBC,

“GP practices are getting more and more frustrated by the missing patient records.

“Not only is this debacle putting the health of their patients at risk, it is putting added pressure on already stretched practices.”

In a statement, Capita said it had taken on the “challenging initiative” to streamline GP support services and there had been “teething problems”.

“[But] medical records are now being delivered securely up to three times faster than under the previous system,” it said.

“We do not recognise these claims regarding thousands of files being missing whatsoever.

“We request and move on average 100,000 files a week from multiple sites including GP surgeries and also third party run storage facilities which are contracted and managed by NHS England.”

GP magazine Pulse quoted MP Geoffrey Robinson as saying that the secretary of state should intervene directly “as this is extremely dangerous”. Robinson said that some medical records are not being delivered at all, or delivered late or delivered to the wrong practices.

Dr Richard Vautrey, deputy chairman of the British Medical Association’s GP Committee said that the problems arising from the outsourcing contract “are directly impacting on the ability of many GPs to provide safe, effective care to their patients in the area”.

He said, “They are in some cases being left without the essential information they need to know about a new patient and the tools to treat them.”

In August 2016, NHS England published the results of a User Satisfaction Survey of primary care support services over the previous six months. Only 21% of GPs were satisfied with the outsourced service, giving it an average overall score of 2.91 out of 10.

Lunacy?

An anonymous GP told Pulse how the problems are affecting him. He refers to the “performers list” that assures the public that GPs are suitably qualified, have up to date training, have appropriate English language skills and have passed other relevant checks such as with the Disclosure and Barring Service and the NHS Litigation Authority.

Said the GP,

“I moved 12 months ago and still haven’t been able to transfer performers list. I am 6 months late for my appraisal and unemployable except for my current salaried job as a result.

” It would have been easier to emigrate. The department responsible for the performers list at Capita is uncontactable except via a national email that isn’t responded to and a phone line that isn’t able to put you through to anyone.

“… As it is it’s virtually impossible to move region if you a UK GP. I am basically a slave bonded to a geographical region, forbidden to move house and work anywhere else other than short periods. Totally at the mercy of a faceless uninterested bureaucracy incapable of helping. Lunacy and utterly depressing. Why the hell did I become a GP? I curse the day.”

“I urgently need my medical records”

A patient who wrote to Campaign4Change said,

“My medical records were requested at the beginning of June 2016 when I changed to another health centre about 2 miles away.

“[I] phoned Capita today and was told there was no record of this request and to get my solicitor to contact them. Then they put the phone down. I don’t have and cannot afford a solicitor.

“I urgently need my medical records with my new doctor and am feeling helpless and extremely stressed by this.”

Pulse magazine reported yesterday (7 November 2016) the results of a snapshot survey of 281 GP practices carried out by the BMA’s GP Committee. It found:

  • 31% of practices had received incorrect patient records;
  • 28% failed to receive or have records collected from them on the date agreed with Capita;
  • 58% reported that new patient registrations were not processed within the required three days.
  • 81% of urgent requests for records were not actioned within three weeks.

GP practices also noted a reduction in the number of incorrect payments and fewer delays in registrations of the “performers list”.

Comment

It would be a pity if MPs today, in criticising Capita, lost sight of the bigger picture: how such outsourcing deals are considered and awarded.

The root of the problem is that before the contract is awarded officials concentrate their attention on the minutiae of the benefits: exactly how much will be saved, and how this will be achieved.

Pervading the pre-contract literature and discussions are the projected savings. This is understandable but wrong.

It’s understandable because it’s the projected savings that justify the sometimes-exciting time and effort that go into the pre-contract negotiations and discussions.

Large amounts of money are at stake. For officials, the pre-contract work can be a euphoric time – certainly more interesting than the day-to-day routine.

But what happens to negotiation and discussion of risk?

Risk is a table or two at the back of the reports. It’s a dry, uninspiring vaguely technical and points-scoring analysis of the likelihood of adverse events and the seriousness of the consequences materialising.

Sometimes the most serious risks are highlighted in red. But there’s always a juxtaposed “mitigation” strategy that appears to reassure. Indeed it appears to cancel out any reason for concern.

Risk is mentioned at the back of the internal pre-contract because it’s a cultural anathema. It’s the equivalent of visits by Building Regulations inspectors at a theme park under construction.

Who wants to talk about risk when a contract worth hundreds of millions of pounds is about to be awarded?

A bold official may dare to point out the horror stories arising from previous outsourcing contracts. That hapless individual will then be perceived by the outsourcing advisory group to have a cloud over his or her head. Not one of us.

And the horror stories will be dismissed by the officer group as the media getting it wrong as usual. The horror stories, it will be explained, were in fact successes.

Even when big public sector outsourcing deals end in a legal action between the main parties, officials and the supplier will later talk – without explanation or detail or audited accounts –  of the contract’s savings and overall success.

We’re seeing this on the Southwest One outsourcing/joint venture contract.

No doubt some will claim the GP contract support contract is a success. They’ll describe problems as teething. Marginalise them. And later, when it comes to the awarding of future contracts, supporters of the GP outsourcing contract will be believed over the critics.

And so the cycle of pre-contract outsourcing euphoria and post-contract rows over failure will be repeated indefinitely.

It would be of more use if MPs today debated the role of NHS England in the award of the GP support contract.

Blaming Capita will do little good. The supplier will face some minor financial penalties and will continue to receive what it is contractually due.

Countless National Audit Office reports show how contracts between the public and private sectors, when it comes to the crunch, strongly protect the supplier’s interests. The public sector doesn’t usually have a leg to stand on.

A focus today on Capita would be a missed opportunity to do some lasting good.

NHS England letter on Capita contract – September 2016

Capita NHS contract under scrutiny after “teething” problems – June 2016

GPs decry Capita’s privatised services as shambles – The Guardian

Did NHS England consider us in the Capita take-over?

NHS England vows to hold Capita to account

Capita mistakenly flags up to 15% of GP practice patients for removal  

Capita primary care support service performance “unacceptable”