Upheld: Kyle Major Complaints About OASys Reports

1. Mr Major had complained about various aspects of his 2014 and 2015 OASys reports, compiled by the National Probation Service North East (the NPS).

Background: First complaint (NPS_NE_2015_CX)
2. Mr Major first complained to his Offender Manager about his 2014 OASys report in early 2015. He received a reply from the Offender Manager's Countersigning Manager. (We have not seen a copy of either letter.)

3. He complained to the Head of the Sheffield and Barnsley Local Delivery Unit (LDU) on 20 April that the reply had not fully addressed the points he had raised. He asked why he was being portrayed as a violent offender and suggested that his character was being attacked. He referred to 'fraudulent security information', which, he said, was being looked into for him by the 'Government Data Controller'. Mr Major asked for a copy of his OASys report. He said it was supposed to be a factual document and that if he found it to be inaccurate he would have it amended. He went on to raise some issues about his property.

4. The Head of the Complaints Team replied on 12 May. She noted that he had complained about his categorisation as a violent offender and had asked for a copy of his OASys report and for his property to be placed in storage. She said she had asked a Complaints Manager to look into the issues he had raised.

5. The Head of the Complaints Team wrote to Mr Major on 18 June 2015. She said she could not find any reference to Mr Major being described as a violent offender. However, she noted that he had been identified as a MAPPA managed offender, although there was some question about the appropriateness of that. The Head of the Complaints Team noted that the reasons for Mr Major's recall referred to offences of robbery and possession of firearms and ammunition. However, she said that, because he had not been charged or convicted of these, they should not form part of the assessment. She also noted that Mr Major had a number of convictions dating back to 2001 which fell under the OASys Assessment Manual's classification as 'violent'. In addition, Mr Major had an Offender Violence Predictor Score of 54 per cent (one year) and 69 per cent (two years). She explained how the scores were arrived at. The Complaints Manager noted various references to security information, but said that, as this was being looked at by another organisation, she could not comment.

6. The Head of the Complaints Team recommended that the (new) Offender Manager undertook a sentence planning meeting and discussed in full with Mr Major his concerns about his OASys assessment. If 'appropriate and justified', these could be addressed in the completion of an OASys review. She recommended that all sections of the document were fully reviewed, including the scoring of sections 1 - 13. She also recommended that Mr Major's MAPPA status be reviewed and that references to offences leading to his recall be removed from the assessment. Finally, she recommended that Mr Major update the Offender Manager with the outcome of any complaints about Prison Service security information, so that this could be included in any future assessments, if necessary.

7. The rest of the letter dealt with the other matte.rs ra!s~d in Mr Major'~ letter. It concluded by telling him that, if he remained dissatisfied, he had a nght to appeal.

8. Mr Major wrote to the Head of the Complaint~ Team 'to ~ddre~s all the points in the current OASys', which he believed to be non-factual and to be frau~ulent and a deliberate attempt to discolour my character'. He referred her ~o h~s . original 11 page letter to his Offender Manager. He went on to descnbe In detal.1 his many concerns about the assessment. He also raised his concerns about his property once again

9. The Head of the Complaints Team replied on 6 July. Her reference was still NPS NE 2015 C64. She noted that his complaint was about the content of his OASys assessment and a request for his belongings to be stored. She said she had asked the same Complaints Manager as previously to look into the issues he had raised.

10. Mr Major wrote again, raising further concerns about his OASys assessment. This letter was received by the NPS on 15 July.

11. On 9 July, Mr Major sent the NPS a 'pre action protocol letter'. The basis of his claim was that he had been 'unlawfully managed' under MAPPA arrangements. He said this was deliberate targeting. He also complained that he had been unlawfully recalled to prison in October 2013. He said he was seeking £8.000 damages.
12. The Head of the Complaints Team wrote to Mr Major on 29 July. She said Mr Major's letter dated 9 July had initiated legal action at his request. On this basis, the NPS was no longer in a position to continue with the investigation into his complaint about the content of his OASys assessment. The Head of the Complaints Team said that this was in line with Probation Instruction (PI) 51/2014 (Standard Complaints Procedure). This said that complaints would not be eligible if, among other things, the subject matter was subject to the decision of a court or a statutory tribunal. As a result, the complaint would be closed. However, the Head of the Complaints Team said that the correspondence would be retained in the event that Mr Major wanted to pursue the matter following the conclusion of the legal proceedings.

13. Mr Major wrote to the Director (North East Division) on 31 July. He said that the complaint and the pre action protocol letter related to 'completely separate issues'. He said he felt that this was a deliberate attempt to delay and obstruct his complaint. This in turn was having a detrimental effect on his progress.

14. Not having received a response, Mr Major wrote again on 28 August.

15. The Business Manager (Chair to the Appeal Panel) replied on 4 September. He repeated that the NPS could not continue with the investigation of his complaint. He quoted from the same section of the PI. He repeated that the matter could be investigated following the conclusion of the legal proceedings.
Second complaint

16. Mr Major wrote to the NPS in December 2015. Most of his complaint related to his request to move areas not being progressed and his Offender Manager not accepting his calls. He mentioned that he had received a new OASys report, but, comparing it with the previous one, he complained that there had been a deliberate attempt to manipulate files and records. He suggested that this was designed to stop another area accepting him. He said the new document contained 'deliberate and blatant lies' and had failed to give effect to the recommendations in the outcome letter of 18 June.

17. The Head of the Complaints Team replied on 18 December, reference NPS_NE_2015_C64b. She said they would investigate the complaint relating to the request to move areas and his Offender Manager refusing to accept his calls. She added that Mr Major had referred in his letter to information contained in his OASys assessment. She said that, 'as you will be aware', the matters of his OASys assessments and MAPPA were currently in litigation. On that basis, those areas could not and would not be addressed at that time.

18. Mr Major replied on 29 December. He said that the issues relating to the OASys were being considered by the Ombudsman. What was subject to litigation was the recall and MAPPA management. He said the OASys document was completely separate. He said he was not asking the NPS to comment on the content; he was asking them to look at the two reports alongside his letter asking to transfer areas and his complaint of 8 December. He repeated that his 'old' Offender Manager had 'deliberately altered legal information in a desperate attempt to target my character/personality and mental health'.

19. Mr Major made a further complaint about his Offender Manager on 8 January 2016.

20. The Complaints Manager wrote to Mr Major on 18 January, reference NPS_NE_2015_CX. Referring to his allusion to his OASys reports, she noted that he had said that these were being 'investigated' by the Ombudsman. She said that, in that case, the NPS were not permitted to explore the matter further.

21. Referring to her findings generally, the Complaints Manager said that, if Mr Major remained dissatisfied with the outcome, he had the right to make a formal complaint.

22. Mr Major wrote saying that he wanted to appeal against NPS_NE_2015_CX.  Amongst other things, he complained he had not said the complaint about the OASys assessments was being investigated by the Ombudsman. He noted that he had been told on 18 December that the NPS would not investigate the assessments due to ongoing litigation and he had clarified what was in fact in litigation. He said his complaint was being assessed, not investigated by the Ombudsman. He suggested that the response had been a 'desperate attempt to hinder and slow' his progress and the progress of his complaint.

23. The Head of the Complaints team replied on 28 January, quoting the reference NPS NE_2015_C64b, acknowledging receipt of Mr Major's 'complaint'. The complaint. The letter of 25 January had been dealt with as a Stage 2 complaint. She said she hoped Mr Major would be satisfied with the outcome,  but that if he was not, he could submit an appeal.

24. Mr Major wrote back. He said he was confused. He said he had complained on 14 December 2015 and that the Complaints Manager had responded in mid January. He said he had then appealed against that response, but had received a letter acknowledging his 'complaint' and telling him it had been passed to a Complaints Manager. He said he did not think this was correct procedure and that the NPS was attempting not to progress his complaint appropriately. He said he believed he was at the second stage of the complaints process and that it should now be considered by the Appeals Panel. However, it seemed as though his most recent letter was being treated as a fresh complaint.

25. The Head of the Complaints Team wrote to Mr Major on 25 February (reference NPS_NE_2015_C64b) to inform him of the outcome of the complaint he had made. She noted that this had been made following a Stage 1 Complaint Outcome letter dated 18 January. The Head of the Complaints Team explained that there were three stages to the NPS complaints process. Mr Major's previous complaint (which had concluded on 18 January) had been dealt with as a Stage
26.With regard to the OASys assessment, the Head of the Complaints Team quoted from both the Complaints Manager's letter of 18 January (which said Mr Major had said his complaint was being 'investigated') and from Mr Majors letter of 29 December 2015 (which said it was being 'considered'). She said that, in view of what he had told the NPS, she agreed with the Complaints Manager's conclusion that it was 'not appropriate for the complaint's process to interfere with the Prison and Probation Ombudsman's investigation', She did not agree that the NPS was trying to hinder Mr Major's progress.

Appeal
27.Mr Major wrote to the NPS on 7 August 2016, quoting NPS_NE_201S_C64 (the first complaint). He noted that the complaint had been stopped due to legal proceedings. He said he would now like the complaint to be re-addressed and enclosed the two OASys documents and a note setting out all his concerns. letter was virtually identical to her letter of 18 December, except that a different Complaints Manager was appointed to look into the issues raised.

28. The Business Manager (Chair to Appeal Panel) replied on 24 August (same reference number quoted). He said he was awaiting confirmation from 'Government Legal' that the case had been closed.

29. He wrote again on 3 October to say that he had received confirmation that the litigation case had concluded. He was therefore able to progress the 'appeal complaint' .

30. The Business Manager wrote again on 16 November. He said the Panel had had access to letters relating to both complaints. He summarised the issues from the second complaint. The Business Manager said that, on reviewing all the available information, the Panel was satisfied that all aspects of the complaint had been fully investigated and the complaints outcome letters fully addressed all of the issues Mr Major had raised. He said the Panel had specifically noted the recommendations from 18 June 2015, including that a full review of Mr Major's OASys be carried out and a sentence planning board conducted, where all aspects of his case were discussed by Mr Major and his Offender Manager. The Business Manager said that the Panel agreed specific findings in the outcome letter of 18 January 2016 relating to the Offender Manager. It also considered that the Stage 2 outcome letter 'which revisited and again fully considered the issues' Mr Major had raised. The Business Manager said the Panel felt that the issues Mr Major had continued to raise 'had again been fully addressed'.

Complaint to the Ombudsman
31. Following a delay in Mr Major receiving the Business Manager's letter, he wrote to the Ombudsman on 1 February 2017. He said he was unhappy with only one aspect of the Appeal Panel's oecrsion and was not challenging any other. He said his OASys document was 'littered with a substantial amount of inaccurate and false information'. This document was instrumental to his management in prison and in the community, so it needed to be 'reliable, sound and defensive' [sic]. He said it was not. In addition, it was preventing him from re-locating to another area and breaking with his past. It was therefore important to him that it was correct and factual.

Investigation
32. To investigate Mr Major's complaint we reviewed all the correspondence relating to his two complaints. We also referred to PI 51/2014. 33. PI 51/2014 includes the following:  'Informal stage 'All complainants should be encouraged to use the informal stage of the procedure in the first instance, but have the right to go straight to the formal stage if they wish. 'An initial complaint regarding the delivery of probation services may be made in writing, by telephone or through direct personal contact. The aim, when receiving initial complaints, is to resolve them quickly, informally and at the lowest possible level. Therefore, those making complaints should be directed in the first instance to the local NPS 1 CRC office to speak to the person involved, his or her line manager or any other person responsible for the staff member whose actions or sphere of activity are the subject of the complaint. At the end of the informal stage, complainants must be sent a letter outlining the complaint and the outcome of the discussions that have taken place.  'Where a complainant remains dissatisfied with the outcome of the informal stage, he or she should make a formal complaint within the time limit ...
 Formal stage 'At the time they are notified of the outcome [to the formal stage] complainants must be informed that, if they are not satisfied, they have 20 working days from the date of the reply in which to appeal, and that they must state the reasons for their dissatisfaction. There is no obligation to accept an appeal received outside this time limit, but the NPS or CRC has discretion to do so if there are exceptional circumstances or if satisfactory reasons are provided for the appeal's being late.

Appeal stage: The Deputy Director or Chief Executive will convene an appeal panel of at least three people, to include senior staff who have not been involved in the subject of the complaint or its investigation. 'The panel will establish the issues the appeal needs to address and whether it would assist the appeal to interview the complainant and the investigating officer. This will normally be to determine whether the original complaint investigation was sufficient and reasonable.'
Consideration: 34. Mr Major has complained to the Ombudsman about his OASys assessments and the failure of the NPS to address his concerns.

35. I have not seen the response to Mr Major's original letter to his then Offender Manager complaining about his OASys report. However, it is clear that he was not satisfied with it.

36. Mr Major's first formal complaint only touched very briefly on the OASys assessments. Essentially, he simply asked to be given a copy. I am satisfied therefore that it was appropriate for the letter dated 18 June 2015 to be virtually silent on this matter.

37. However, Mr Major subsequently submitted a very detailed complaint about his OASys report, which was received by the NPS on 30 June. The Head of the Complaints Team's letter carried the same reference number as the previous complaint. She said the issues raised would be looked into, but then reversed this decision following receipt of Mr Major's 'pre-action protocol' letter. I do not understand this. Mr Major's pro-action protocol letter related to two discrete issues: his being managed under MAPPA and his recall to prison some time previously. I can see no connection between these issues and his complaint about the contents of his OASys assessment. Even if the assessment referred to MAPPA, it should have been possible to address all the issues raised by Mr Major that did not.

38. Mr Major complained again about his OASys assessment(s) in December 2015.

He was told once again that the matter could not be investigated because this was in litigation. It was not. Unfortunately, the situation was exaceroatea wnen the Complaints Manager said she could not investigate because the matter was being considered by the Ombudsman. This was unfortunate because it took a different line to the one previously taken. It was also unfortunate because Mr Major had said only that the matter was being 'considered' by the Ombudsman. (In fact, we declined to investigate.) I can readily understand how the inference that the Ombudsman was investigating was made. Equally, however, I can see that the different (and incorrect) reason for not investigating would have reinforced Mr Major's suspicion that the NPS were trying to avoid addressing his complaint.

39. Mr Major asked on 7 August 2016 for his complaint about the OASys assessments to be re-opened. He did not mention his other complaints. The Business Manager appears to have recognised this, as he referred specifically to Mr Major's request for the complaint to be re-opened and said he needed confirmation that litigation had concluded. Somewhat bizarrely, however, having received that confirmation, he then accepted the letter as an appeal against the findings of both previous investigations. In the event, the Panel did not consider the OASys assessments at all. As a result, the NPS has never addressed Mr Major's complaint about his OASys assessments. This is poor.

40. .1 am also disappointed that, although the Panel noted that recommendations had been made with regard to the OASys assessment in the letter of 18 June 2015, it did not apparently consider whether those recommendations had been implemented.

41.I should add that I share Mr Major's confusion with the processes followed with these complaints. (This has not been helped by the inconsistent reference numbers quoted on many of the letters.) Both appear to have followed the same path to begin with _ that is, that they were acknowledged by the Head of the Complaints Team and allocated to an independent person to investigate. This suggests that they were considered to be at the formal stage. However, while Mr Major was advised in the outcome letter of 18 June 2015 that he could appeal, the outcome letter dated 18 January 2016 told him that he could submit a formal complaint. As far as I can see, the complaint had already completed the formal stage of the process with its allocation to a Complaints Manager (as opposed to being dealt with by the Offender Manager or her line manager). I cannot see that the second stage added anything at all. I readily understand Mr Major's frustration.

Comments On The Draft Report

42. We shared a draft of this report with Mr Major and the NPS.

43. The NPS said that Mr Major had lodged two complaints with them _ NE2015 C64 and NE2015 C64b. They said Mr Major had written nine letters in relation to the first, between 22 March and 3 September 2015. However, it was judged that this complaint could no longer be investigated following the receipt of Mr Major's pre¬action protocol letter. This was in line with the relevant Probation Instruction. They said they then received a further letter from Mr Major dated 29 September, because he did not feel his complaints had been fully addressed.

44. The NPS said Mr Major then lodged a second complaint on 26 January 2016. He wrote other letters in connection with this complaint and sent the NPS a copy of his letter to the Ombudsman dated 17 August 2016. They said it was their understanding that Mr Major intended his complaint to be investigated first by the ore-action protocol letter and subsequently via this office. They said they made additional enquiries into the status of the litigation in September 2016 and learned that the case had been dismissed by the court. At that point, the NPS decided to action the appeal, which had been on hold because of the litigation. They said they had received previous appeal letters and therefore established that these were sufficient to raise an appeal. As a result, the Appeals Panel reviewed the case and evidence on file 'under both listed complaints log'. They said the Panel 'upheld the complaint' [sic], as it was deemed that 'both stage 2 complaint investigations had been fully investigated' [sic]. They said there were a number of recommendations in the outcome letter. which addressed the issues in Mr Major's complaint.

45.ln conclusion, the NPS said it did not agree with our findings. They wrote as follows: 'On the grounds that Mr Major had stated he had submitted a pre-action litigation letter and subsequently lodged a complaint with the Prisons and Probation Ombudsman. On receipt of confirmation that litigation had not proceeded the NPS opened the case and followed the appeal process as Mr Major had already previously submitted an appeal letter. It was a consideration of the appeal panel that this letter could be utilised to initiate the appeal. In hindsight it might have been fortuitous for NPS to re¬establish contact with Mr Major however it was deemed doing so would have prolonged the appeal process and Mr Major's case had been closed. Unfortunately in an attempt to deal with this matter expeditiously it would appear that this has caused additional issues' [sic].

46.ln light of these comments, we asked the NPS to clarify why they considered that they could not investigate further Mr Major's complaint about his OASys report because he was pursuing litigation about his MAPPA management and his recall.

47. The Business Manager told us that OASys was an intrinsic part of risk assessment, sentence planning and risk management. Therefore it was highly likely that any investigation into any complaint would look at OASys assessments. He said MAPPA categories were assigned according to the offence - that is, Category 1 was for registered sex offenders, Category 2 for other sexual and violent offenders and Category 3 for other relevant offences not covered by the first two. Even so, he said he would expect that any investigation into a MAPPA or recall complaint would take into account the information contained in the OASys. This was because this was where all the CPS information was held, as well as any other relevant assessment undertaken by Probation staff to assess the ongoing risk posed by an offender. He said the report would also include information which MAPPA would use in assessing any additional risk management necessary in managing MAPPA relevant offenders _ for example, agreeing of licence conditions or interactions with other statutory and duty to cooperate agencies. The OASys assessment also provided information on changes of behaviour which increased risk or made risk more likely and set out contingency plans to manage offenders should behaviours change.

48. The Business Manager said that in complaint 2015_c64, Mr Major raised issues about the accuracy of his OASys assessment, which had identified him as a MAPPA case and a violent offender. He said Mr Major was complaining that this was not the case and that this had been raised in his OASys report. The outcome of the initial investigation had been to partially uphold that complaint. However, Mr Major then said that he was taking an alternative route by raising a formal legal complaint. The Business Manager said that this led from the information in the OASys. This then fed through to his subsequent complaint (2015_c64b). He said that, although Mr Major had said that the litigation was in response to his MAPPA status and recall, the NPS had judged that it arose from the stage 2 complaint. He added that, as far as the complaints team were concerned all that information was linked.

49.I should say first, that Mr Major's actions have not been helpful in expediting the progress of his complaints. Pursuing litigation and approaching this office before the local complaints process had concluded served only to confuse and delay matters.

50. On further consideration, I have seen that the first formal response to Mr Major's complaint about his OASys report referred to both his recall and his being MAPPA managed. I agree that it seems likely that this led directly to Mr Major's pre-action protocol letter. In this way, his concerns about his OASys report and his litigation were intrinsically linked. I also accept the point the NPS has made about the close relationship between the OASys report and Mr Major's MAPPA management and recall. In light of this, I consider that it was appropriate for them to suspend consideration of the OASys report pending the resolution of the legal matter.

51. However, nothing the NPS said at fact check stage explained why they failed to address Mr Major's concerns about his OASys report when they re-activated the complaint. The Panel should have recognised that the many issued raised by Mr Major had not been addressed and asked for further work to be done.

Conclusion
52.1 uphold Mr Major's complaint. The NPS has failed, without adequate reason, to address his complaint about his OASys assessments.

Recommendation
53.1 recommend that, within four weeks of the issue of this report, the Director (NPS North East Division):  • apologises to Mr Major for the failure to investigate his complaint;  • arranges for Mr Major's complaint about his OASys assessments to be fully investigated and recommendations (with timescales) made for any remedial action; and • satisfies herself that the complaints procedure is being operated wholly in line with PI 51/2014. (Elizabeth Moody Deputy Ombudsman 11Agust 2017)