A document disclosed to the Post Office Inquiry, and published yesterday, shows that the Post Office considered requiring that postmasters pay a fee before applying for compensation. The intention was to deter applications. Realising this would be criticised, the Post Office instead designed a scheme which achieved the same effect through stringent (and unrealistic) eligibility criteria and documentation requirements.
Our previous coverage of the Post Office scandal is here.
The design of the scheme
We have previously reported on the Post Office’s HSS compensation scheme, which was designed to compensate victims of the Post Office scandal who had not received a criminal conviction, and didn’t participate in the civil GLO claim against the Post Office.
We’ve said that the HSS scheme appeared to be designed to deter applicants and minimise compensation payments. In particular:
- The scheme application form was highly legal, with lengthy and complex forms to complete – but postmasters weren’t prompted to obtain legal advice, and received no help with legal fees.
- The application form and documentation made it very difficult for postmasters to pursue any damages for loss of reputation, suggesting that such damages would only be available if the postmaster could prove financial loss (which is not legally correct).
- The form and documentation didn’t even mention the possibility of punitive/exemplary damages, although the circumstances make such damages a real possibility.
- Postmasters were required to provide “contemporaneous documentation“. In most cases they didn’t have any. In part because the events were more than ten years ago. In part because, when the Post Office suspended postmasters, it denied them all access to their records.1For which the Post Office was heavily criticised by Mr Justice Fraser – see paragraph 886 of the Common Issues 3 judgment.
These and other elements of the HSS scheme had the effect of minimising the compensation postmasters claimed. The Post Office paid for limited legal assistance for postmasters after it made them an offer; but by then it was too late. Everything was framed by a postmaster’s original application, and that was minimised by the design of the form and the surrounding documentation.
The evidence of intent
Many postmasters believed these elements of the HSS scheme were intentional. I agreed. But it was always possible that the Post Office was acting in good faith, with unrealistic hurdles a result of bureaucratic oversight rather than malice.
We can now dismiss that possibility.
The Post Office Inquiry yesterday published an email from Mark Underwood (Post Office compliance director) to Ben Foat (Post Office general counsel). The email was sent in January 2020 (at the point that the HSS scheme was being designed):
It is fairly shocking there was a discussion about charging fees, and that this was only rejected because of how it would look. Underwood was instead suggesting a “very tight and clearly communicated set of eligibility criteria and requirements in terms of the documentation applicants have to provide”, to “achieve the same desired outcome” as fees.
What was the “desired outcome”?
At the Inquiry yesterday, Edward Henry KC (representing the postmasters) showed the email to Nick Read, Post Office CEO. Henry put to Read that the “desired outcome” was to restrict access to the scheme and deter applicants.
Read replied: “possibly”.
Henry went on to suggest that this was a “more subtle and insidious” way of making it difficult for postmasters to apply, and that this was by design.
“You could certainly draw that conclusion”, said Read.
I don’t see any other conclusion.
- 1For which the Post Office was heavily criticised by Mr Justice Fraser – see paragraph 886 of the Common Issues 3 judgment.
9 responses to “New evidence: the Post Office deliberately designed its compensation scheme to deter postmasters from applying”
Yet another scandal within the scandal. All talk that has emanated from the Post Office from 2022 when it was established, to date, has focused on how the HSS scheme was there to support Subpostmasters who were ‘encouraged’ to come forward when in fact, they were actively discouraged to come forward. A parallel narrative which is periodically employed is to employ the tactic of sowing doubt. This is one of the weapons in the Post Office PR armoury. This narrative suggests if Subpostmasters do not come forward then an observer might conclude they they were ‘guilty as charged.’ This deliberate undermining and damaging messaging was used by Nick Read in his ‘leaked’ letter to the Lord Chancellor shortly after the ITV drama was transmitted which had the ‘Vamos’ note attached from PO lawyers, that claimed 369 of the over 700 convicted Subpostmasters were in fact guilty as charged. This was part of a rearguard action in response to the drama to sow doubt and arose during that period when Government was considering overturning convictions by exoneration through parliamentary decree. It was not widely understood and still isn’t by the wider public, that convicted Subpostmasters could not apply for the £600,000 compensation offer by Government, unless their conviction had been overturned.
Will/are PO compensation/redress payments subject to tax. Please explain the basis for answer,also can TPA please explain how FOS awards are treated and if there is an obligation for a firm paying an award to re-imburse the complainant so as to put them into the same position as if the infringement had not occured.
The Post Office (and by extension, the Government) seem hell bent on getting this wrong despite assurances to MPs and the public. Yes, it will cost money. That is inevitable. And so it should. The manifest unfairness inherent in the whole scandal and the severe adverse impact it has had, and continues to have on people’s lives is almost incalculable. There should be no question that high and fair levels of compensation are due. I’ll take the job of settling the claims and do it for free. It’ll take one week. And the Post Office better have the cheque book ready and plenty money in the account.
I haven’t seen the papers yet, but I expect it failed for the usual technical JR reasons. JR is hard. I doubt the judge is at fault.
Philip Coppel KC and I with Edwin Coe, in early 2022, applied to judicially review the HSS Compensation scheme on grounds that it was demonstrably unfair to applicants. The judge dismissed the application. Almost 3 years later it is established that the scheme was unfair by design. What is the cost and the dimension of further injustice?
It’s not perhaps surprising that it is difficult to persuade claimants that any of the existing arrangements are fit for purpose – as I have been saying for some time.
Who was the judge who dismissed the application? Will they face sanction?
Justice Holgate I think it was in 2021. See Nick Wallis newsletter:
https://www.postofficetrial.com/2021/03/hss-judicial-review-application-fails.htmlk
The lesson is “caveat emptor” on any dealings with the Government or its Quangos
I highly value your insight into these issues and appreciate the nails sent into tax avoidance etc. It is great that someone bothers to warn us about the sharks that swim amongst us