Dear Mr Sheridan
11th Jan
IBM
Thank you for your letter of 7th January.
My determination is a formal document which, as you know, can be subject to an appeal on a point of law from any of the parties. Having published such a determination, I take the view that I should not seek to amend, add to or elaborate upon that decision. I am not therefore going to respond to the second paragraph of my (your??)letter as to do so would involve just such an elaboration.
I do regret the delays which occurred in coming to my determination but have seen no evidence that the delay prejudiced the outcome. This was not the kind of case which turned on oral evidence which became increasingly less reliable over time and thus where delay may prejudice the outcome.
Nor do I accept that two complainants were denied "due process."
It is true that for a considerable period the complainants were told that the intention was to issue an initial report on complaints other than their own and that their complaint would be reviewed in the light of the initial report. I had indeed received representations that this would not be a fair way of proceeding and in responding to those I had undertaken to keep that decision under review. Part of my method of keeping the matter under review was to test out whether it was feasible to produce a single consolidated determination and having so satisfied myself I proceeded along that consolidated route. The members concerned were then given an opportunity of commenting upon a draft of my decision and their comments were taken into account before I reached my determination. That is not, in my view, a process which can be seen as operating to their prejudice.
Incoming work has been increasing year and year and increased very considerably in the 2002-3 financial year, putting the then resources of the office under very great pressure, both during that year and since. When Ms Jacobs (who worked from home) resigned and immediately returned all her outstanding files to the office I obviously needed to re-allocate her work but needed also to take account of the fact that all of the investigative staff were already seeking to cope with a very considerable caseload. I did not have any investigative staff, legally qualified or otherwise, with "spare time."
I therefore took the view that as I had already had a not inconsiderable involvement in the IBM investigation, and as it did clearly involve some disputes of law, it was likely to be quicker for me not to reallocate the complaint to another investigator but to complete the work myself, bearing in mind that I (unlike most of my investigative staff) am a lawyer.
It is the case that I found myself in very considerable difficulty in finding the necessary blocks of timeto make satisfactory progress. My comment to Sandra Gidley MP which you have quoted was made in that context.It is certainly arguable that had I passed the file to another investigator it may have been possible to have produced an earlier draft determination than I was able to do myself although this would have been at the expense of considerable delay to the other files on which my investigators were working.
At the end of the day "the complex leegal case" to which IBM scheme members refer is by law a matter which I needed to determine and it is my view of that law and not that of my investigative staff (whether or not they are legally qualified) which appears in any determination. It follows that at some stage, even had another investigator been involved I would have needed myself to absorb the facts and the various arguments as to the law to be applied to those facts and then to reach my own view. That was always going to take a considerable amount of my personal time which is inevitably at a premium.
I resent the implication in the final sentence of your letter that the matter was not "properly" investigated. Whilst being unhappy about the time it took mr I am satisfied that at the end of the day the proper result was reached and that the, had the delays not occurred the result would have been the same. I have noted that in the event there has been no appeal against my determination.
Yours sincerely
David Laverick
Pensions Ombudsman