Probation Service

5.Mr A complains about the NPS, specifically one probation officer (PO), and the way it handled his prison release. A PO mistakenly believed Mr A had to wait in prison for an additional 21 days for a third-party appeal, but this did not apply to his situation. He was supposed to be released on 8 November 2023 but was detained in prison until 16 November.

6.Mr A feels the PO’s actions and behaviour towards him was vindictive and bias. He says they spoke to him like he was second class citizen, or a nobody, and refused to complete the probation paperwork sooner when other POs and the prison requested this.

7.Mr A also says no one from the NPS explained why he had to stay imprisoned following 8 November.

8.When he complained to the NPS, it tried to pin the blame of his false imprisonment on the Prison rather than the NPS.

9.Mr A says the whole experience caused him and his family disappointment. He also felt very vulnerable during the extended prison experience, as he felt he was being illegally detained, and he did not know when he would be released. He now has nightmares about the experience, where he revisits the prison cell he was detained in.

10.As an outcome of his complaint, he would like some form of financial compensation and service improvements to ensure this issue does not happen to anyone else.

Complaint background 5. In February 2020, Mr A received a custodial prison sentence (due to expire on 4 March 2024).

6. In November 2021, he was released early from prison ‘on licence’. Being released ‘on licence’ means the person is freed from prison before their sentence is complete, but they must stick to a set of rules for the rest of their sentence. However, in August 2022, he was recalled to prison following an alleged breach of his licence conditions.

7. On 1 November 2023, a Parole Board panel met to consider Mr A’s re-release. The Parole Board concluded that the decision to recall Mr A to prison had been ‘entirely appropriate’. However, it went on to say that Mr A now presented a reduced risk to the public and that any risk could be safely managed in the community. On that basis (and with support from both the Prison and the NPS), the Parole Board decided he could be released from prison on 8 November 2023.

8. On 8 November, the Prison contacted the NPS and asked for a timescale for Mr A’s release. The NPS responded the same day and said it understood there was a 21-day period in which an appeal could be made about the Parole Board’s decision to release Mr A.

9. On 14 November 2023, the Prison contacted the NPS again. It said it had been challenged by Mr A (and his legal representative) on the decision to keep him in prison. It said Mr A believed the requirement for him to remain in prison for 21 days did not apply in his circumstances. The Prison asked NPS to confirm its previous advice (that the 21-day reconsideration period applied).

10. On 15 November 2023, the NPS responded and following input from a senior officer, agreed Mr A should have been released earlier (as the 21-day rule did not apply). Mr A was released from prison the following day.

11. When Mr A complained to the NPS about what had happened, it accepted it had initially misinterpreted the regulations. However, it said the Prison had been ultimately responsible for arranging the release so should have corrected the NPS’s misunderstanding. It advised Mr A to complain to the Prison directly.

12. Mr A did as he had been advised but the Prison explained that it could not have released him without the necessary paperwork being in place (and it had been the NPS’s responsibility to provide this).

Administrative background 13. The Parole Board is the organisation that undertakes parole reviews. It is a court-like body which is independent from the Ministry of Justice. Parole Board members make decisions about who can be safely released to serve the rest of their sentence in the community.

14. In some cases, where the Parole Board makes a decision regarding release, the decision will remain provisional for 21 calendar days from the date of issue. This is to allow relevant parties to apply to have the decision reconsidered. Otherwise, the decision will be final once the 21 calendar days have expired.

15. Prisons must not release prisoners until they receive confirmation that the reconsideration process has been completed, and the release decision is final.

16. The reconsideration mechanism applies to prisoners serving indeterminate sentences, extended sentences, certain determinate sentences (where the initial release is at the discretion of the Parole Board) and sentences to which the Terrorist Offenders (Restriction of Early Release) Act 2020 applies.

17. According to UK government guidance for the Ministry of Justice, titled ‘Requesting reconsideration of a Parole Board decision to release a prisoner’ the reconsideration mechanism does not apply to ‘decisions on the re-release of standard determinate sentence prisoners following a recall to prison’.

Delayed prison release 21. All parties agree that the NPS’s initial interpretation of the release process was not correct, as the reconsideration window did not apply to Mr A’s case. There is also no doubt that Mr A remained in prison for eight days longer than the Parole Board’s release date.

22. However, there is a disagreement between the NPS and the Prison over who is responsible for this. Our focus has been to explore this dispute.

23. The evidence we have seen so far suggests that what happened was the result of both an initial confusion about the relevant rules and a miscommunication when seeking clarification of this issue. We have seen evidence that an NPS Officer (responsible for completing the necessary paperwork) raised an internal query with the relevant department within the Ministry of Justice (MoJ) about whether the reconsideration window applied in this case. Unfortunately, that department does not appear to have responded to this query, so the matter was left unaddressed. It was only following the intervention of Mr A’s solicitor that the correct position became clear.

24. We accept it was reasonable for the NPS to seek advice if it was unsure about whether to authorise release (and we can see that a swift response from the relevant department would likely have clarified the situation). However, it seems clear from what subsequently happened that the correct information was available to NPS already and so the advice, although possibly helpful, was not strictly necessary. In other words, NPS should have known from the onset what the relevant rules were and should, on that basis, have correctly authorised Mr A’s release. Its failure to do so is what led to Mr A’s unnecessary detention. This is evidence of maladministration.

25. We have noted Mr A’s contention that the NPS acted out of malice. We have seen no evidence of this. As we have said, the evidence we have seen so far suggests that what happened was because of an unfortunate, albeit avoidable, misunderstanding.

26. Additionally, evidence from the Parole Board hearing shows that the NPS had been supportive of Mr A’s re-release, which would seem to counter the suggestion it was acting with bias against him. We hope this reassures Mr A that the NPS did not act vindictively, although we can recognise why he may think otherwise.

Communication regarding prison release delay and complaint handling 27. Mr A complains no one from the NPS explained why he had to stay imprisoned following 8 November.

28. The evidence we have seen so far shows there was confusion on this issue. As we have said elsewhere, the NPS mistakenly believed that Mr A needed to remain in prison because of the reconsideration period. Although there is no evidence the NPS communicated this directly to Mr A, there is evidence it told the Prison who, in turn, passed the information on.

29. The evidence also shows that, once the matter had been resolved, the NPS explained, in its response to the complaint, what had happened and why.

30. Under our Principles of Good Administration – being open and accountable – we expect organisations to be open and truthful when accounting for their actions. Whilst we accept the initial confusion would have caused uncertainty for Mr A (which we address elsewhere) we are broadly satisfied that the NPS acted in line with our expectations here.

31. Having said this, we are concerned at the NPS’s suggestion that the Prison, rather than the NPS, was ultimately responsible for delaying Mr A’s release. We have seen evidence that the Prison had concerns about the initial advice it had received from the NPS. However, we have seen nothing to suggest it had the power to ignore or override that advice. As the Prison made clear, it could not release Mr A until it had received the necessary paperwork and authorisation, something it did not have as a direct result of the NPS’s error.

32. We have reviewed the Prison’s comments in the light of the relevant guidance on this issue.

33. Section 3 of the MoJ’s ‘Generic Parole Process Policy Framework’ makes clear that a prison release is a collaborative process. It is not a process that can be dictated by a single party, namely a prison. The policy sets out the NPS is responsible for putting in place release arrangements to satisfy Parole Board’s instructions and this is essential for a prisoner to be released from prison.

34. The Prison explained to us what this means in practice. It said it expects the NPS to complete the License conditions for a prisoner and to plan their release. In this case, it said the NPS did not: • approve the premises placement date, • complete the ‘accommodation availability’ documentation • confirm the NPS appointment, which is required to manage the risk in the community.

35. The Prison highlighted that it is the NPS’s responsibility to manage the released prisoner’s risk in the community, and without this information the prison cannot facilitate the prisoner’s release.

36. Under our UK Central Government Complaint Standards, we expect organisations to be thorough and fair when looking into complaints and give open and honest answers. We also expect organisations to give fair and accountable responses that clearly set out how the organisation is accountable.

37. Based on this information we have seen so, we are not satisfied that NPS acted in line with our expectations in this regard. This added to the confusion and uncertainty Mr A experienced because of these events.

Impact

38. We have gone on to assess the impact of what happened. As we have seen, the NPS’s error led to Mr A remaining in Prison for eight days longer that he should have done. We have no doubt this would have had an emotional effect on him (he has told us the uncertainty of not knowing when he would be released has led to him having nightmares about his experience).

39. We do not wish to dispute what Mr A has said. However, we cannot attribute his ongoing emotional reaction solely to the NPS’s error. The evidence we have seen shows that Mr A had already served a significant time in prison prior to this incident (both during his initial incarceration and following his recall). It seems likely these periods contributed to his fear of imprisonment.

40. The NPS explained that release decisions allow a period of time to make arrangements, meaning Mr A would not necessarily have been released on 8 November 2023 had the service run smoothly (it said in some cases this process can take up to three months).

41. Whilst we do not dispute what the NPS has said here, we must look at this through the lens of what happened (rather than what may have happened). The evidence shows that, when NPS accepted its mistake (on 15 November 2023) it was able to arrange Mr A’s release the following day. Whilst we accept it is likely that, given the circumstances, NPS acted with more urgency at this point than may otherwise have been the case, we cannot say this could or should not have happened in the first place. For that reason, we are satisfied that NPS’ error led to Mr A being detained for longer than he should have been.

42. In our view, any unnecessary detention, for however short a period, is an injustice in itself and one that needs to be put right.

1. The view set out in this report is our final decision. This decision is no longer subject to change, as we have now passed the deadline for feedback on our provisional view.

2. We uphold this complaint. This is because we have seen evidence the NPS made mistakes in its handling of Mr A’s release from prison, which led to him unnecessarily being held in detention for longer than he should have been.

3. In our provisional view, we recommended the NPS apologise to Mr A and compensate him with £600. After discussing our remedy proposal with the NPS, we agreed it would instead contact Mr A to discuss his complaint and the remedy with him.

4. We appreciate how important this complaint is to Mr A, and we will explain our decision in more detail below. We hope our explanation provides him with reassurance about how carefully we are considering his complaint.

43. Before finalising our report, we sent a draft copy (known as our provisional view) to both parties. Following this, the NPS raised some concerns with our provisional recommendations. To explore this further, we met with the NPS to discuss the matter.

44. The NPS said it did not feel it had been given a full opportunity to resolve Mr A’s concerns locally. It said that, although it had issued an initial response to his complaint, its complaint procedure was multi-staged. It said it would have expected Mr A to have completed all these stages before bringing his concerns to our attention.

45. We have sympathy with the NPS on this point. Our usual convention is not to fully consider a complaint until the organisation concerned has been given the opportunity to fully respond to it. This is because we believe local resolution of an issue is often the most effective way of dealing with it.

46. We are concerned the NPS did not raise this issue much earlier in this process, not least when we formally advised it of our intention to investigate this complaint (in September 2024) or during our subsequent correspondence with it prior to the issue of our Provisional Views document. However, given the circumstances, we feel it appropriate to allow the NPS the opportunity to resolve the issue with Mr A directly. This is on the understanding that, if NPS is unable to resolve the issue, Mr A can return to us with his outstanding concerns.

47. The NPS also raised concerns that our initial recommendations involved a potential financial remedy. It said this was an unusual situation for it, given that it involves spending public money. It may help to address those concerns if we say more about our approach to such situations.

48. We turn our attention first to a document published by HM Treasury called ‘Managing Public Money’. This document sets out the main principles, specific requirements and good practice for dealing with public resources. In broad terms it applies to UK central government bodies, as well as other specified public sector bodies.

49. Annex 4.14 of this guidance says:

‘Prompt and efficient complaint handling is an important way of ensuring customers receive the service to which they are entitled and may save public sector organisations time and money by preventing a complaint escalating unnecessarily.

If their services have been found deficient, public sector organisations should consider whether to provide remedies to people or firms who complain. This is separate from administering statutory rights or other legal obligations, e.g. to make payments to compensate. Remedies may take several different forms and should be proportionate and appropriate.’

50. The guidance goes on to say

‘When public sector organisations have caused injustice or hardship because of maladministration or service failure, they should consider:

• providing remedies so that, as far as reasonably possible, they restore the wronged party to the position that they would be in had things been done correctly, and • whether policies and procedures need change, to prevent the failure reoccurring.’

51. Further it states

‘Remedies can take a variety of forms, including (alone or in combination): • an apology • an explanation • correction of the error or other remedial action • an undertaking to improve procedures or systems; or • financial payments, for example one-off or as part of a structured settlement.

Financial remedies for individual cases are normally ex gratia payments.’

52. This is further supported by our own guidance, titled ‘Principles of Remedy’ (the Treasury Guidance refers organisations to our Principles as a source of help when dealing with complaints). Under our principle, ‘Putting things right’, we say:

‘There are no automatic or routine remedies for injustice or hardship resulting from maladministration or poor service. Remedies may be financial or non-financial.

An appropriate range of remedies will include… financial compensation for direct or indirect financial loss, loss of opportunity, inconvenience, distress, or any combination of these.

Public bodies should: • calculate payments for financial loss by looking at how much the complainant has • demonstrably lost or what extra costs they have incurred • apply an appropriate interest rate to payments for financial loss, aimed at restoring • complainants to the position they would have been in if the maladministration or poor • service had not occurred • consider what interest rate to pay and explain the reasons for the chosen rate.

Factors to consider when deciding the level of financial compensation for inconvenience or distress should include: • the impact on the individual – for example whether the events contributed to ill health, or led to prolonged or aggravated injustice or hardship • the length of time taken to resolve a dispute or complaint • the trouble the individual was put to in pursuing the dispute or complaint.

Remedies may need to take account of injustice or hardship that results from pursuing the complaint as well the original dispute. Financial compensation may be appropriate for: • costs that the complainant incurred in pursuing the complaint • any inconvenience, distress or both that resulted from poor complaint handling by the public body.

Remedial action may include improvements to the public body’s complaints policy or procedures.’

53. We would also seek to draw attention to our Severity of Injustice scale which is aligned to our Principles and further sets out our approach to financial remedy. This scale allows us to ensure the recommendations we make are consistent and transparent for everyone who uses our service.

54. The figures included in the scale represent the Ombudsman’s judgement about the sort of sums that are both appropriate and proportionate for us to recommend. We do not have standard amounts that we suggest for specific failings, as these may impact the person affected differently in different circumstances. We consider the individual facts of a case in deciding what level of financial payment is appropriate to recommend.

55. Our scale contains six different levels of injustice that a complaint could fall into, which increase in severity. Each level is then linked to a range of the financial amounts we would usually recommend in those circumstances.

56. These levels are broken down as follows: • Level 1 - £0 - A case will generally be level one if we consider the person affected has experienced a low impact injustice such as annoyance, frustration, worry or inconvenience. This would typically arise from a single (one-off) incidence of maladministration or service failure, where the effect on the person complaining is of short duration, and where there are no other adverse effects or ongoing wider impact.  We will usually consider an apology to be an appropriate remedy for these cases.

• Level 2 - £120-£550 - A level two injustice will typically arise when what has gone wrong has had a relatively low impact on the person affected. This will often result in a degree of distress, inconvenience or minor pain. This could also include instances where an injustice was more serious but only took place once, or was of short duration. In these cases we consider that an apology is not suitable by itself.

• Level 3 - £600 -£1200 - Level three cases would have a moderate impact on the person affected (for example, in terms of distress, worry or inconvenience). For a case to be level three, that impact would usually have been experienced over a significant period of time. A case may also be level three if the impact on the person affected was significant, but was only sustained for a short period of time.

• Level 4 - £1,250-£3,700 - A case at level four will involve the person affected experiencing a significant and/or lasting impact, so much so that to some extent it has affected their ability to live a relatively normal life. In these cases the injustice will go beyond distress or inconvenience, except where this has been for a very prolonged period of time.

• Level 5 - £3750 - £12,450 - Typically, level five cases will be when the person affected has experienced a marked and damaging effect on their ability to live a relatively normal life. In these cases recovery is likely to take a significant amount of time.

• Level 6 - £12,500 or more - Level six cases are the most serious we see, involving profound, devastating or irreversible impacts on the person affected. This includes circumstances where the individual may be affected permanently, or where recovery is likely to take several years, and cases involving avoidable death. It would also cover circumstances where a reduced quality of life has been endured for a considerable period. This would include significantly reduced life expectancy or injuries resulting in permanent disability or disfigurement.

57. Our initial recommendation, as set out in our Provisional View document, was in line with Level 3 of our scale. Whilst this recommendation is no longer in place, for the reasons we have said, we would expect that NPS’ further consideration of Mr A’s complaint is taken in light of the documents outlined above, as well as any other relevant guidance (including the NPS’ own complaint guidance and the findings of our investigation).

Summary 58. We uphold this complaint. This is because we have seen evidence the NPS made mistakes in its handling of Mr A’s release from prison, which led to him unnecessarily being held in detention for longer than he should have been.

59. To remedy the injustice Mr A suffered because of these errors, we recommend that, within one month of this report, the NPS: • apologise to Mr A for the injustice he suffered and • Contact Mr A directly to discuss with him a suitable remedy to this injustice (bearing in mind the guidance and documents relating to remedy referred to in this report)