Health commentator Richard Bourne gives his experience of trying to extract information from public bodies and tells how accountability and scrutiny are being blocked.
One of the most contentious developments in recent years has been NHS Trusts and Foundations Trusts deciding to form subcompanies. It has been set out elsewhere that these developments (with a couple of notable exceptions) are a tax dodging device allowing VAT to be reclaimed. Proposals often also involve ways to undermine terms and conditions of staff. These subcos are one step short of the even worse outright outsourcing to dubious contractors. Those picked on are usually low paid and predominantly female.
After trade union and campaigner pressure the NHS decided to try and limit the process and produced a wonderfully named addendum to the transaction guidance. After a further couple of years it was obvious that even this was not effective and so it was promised more than 3 years ago that it would be revised – which has still not happened.
One of the worst features of this saga was how many Trusts hid what they were proposing to do. Despite the requirements for partnership working in the NHS they met and discussed things in private. Eventually they announced the decision and then after the decision was made tried to pretend they were consulting staff. Of course, all they were consulting on was the transfer of staff.
Staff were never told what problem gave rise to the solution of setting up a subco and never told what other alternatives had been looked at; probably because the whole process was dishonest.
As many will know most of the more recent attempts have been blocked by the trade unions. When proper scrutiny is applied, and negotiations are honestly undertaken the case for subcos falls apart – unless it is just a tax dodge which it is now accepted is not permissible. Such discussions allowed the trade unions to see the quite ludicrous claims being made about the benefits of subcos and demolish these with things like facts!
However one has gone ahead at the end of last year. Once again decisions made in secret, no proper consultation with staff representatives and no possibility to examine the case. It was not possible to know what other options had been considered or what claims were being made. The Trust refused to disclose relevant information.
Under the process for authorisation by NHS Improvement (as it was) the Trust had to submit a lot of information and finally a certificate with supporting documents to show it had met a long list of requirements. It must have done so as at the end of 2021 the Trust announced it had been given the Green light, despite a Minister in response to a parliamentary question saying they had not!
I sent an FoI request to NHS I asking for all the information they held in relation to the application of the guidance around this transaction. They denied initially that they had any information then they refused to disclose anything as there was “commercial confidentiality”. This was despite the fact that for a previous application by another Trusts I had received a lot of information!
I asked for an internal review setting out why commercial confidentiality could at most only allow some redactions of information in documents that they held and could hardly cover their correspondence with the Trust. No answer. After 4 months my approach to the Information Commissioner resulted in an instruction to NHS I to respond which they failed to do. The Commissioner is to investigate them when they have some staff to do so.
Finally, after 7 months the reply came. They agreed they had misapplied the exemption. But they then claimed two new ones even less sensible than the first attempt. I have asked for a meeting and formally submitted another complaint.
This might be humorous, but it isn’t.
These are public bodies supposed to be open and transparent. They are doing everything they can to withhold information not because it is commercially confidential – because it isn’t, but because they know they have been caught out.
They know they have not applied their own guidance properly. One requirement is a certification that the Trust “Engaged staff in decisions that affect them and the services they provide as pledged in the NHS Constitution, and has plans to comply with any consultation requirements, including staff consultations.” They did not: either they submitted a false certification or NHS I just ignored it.
They also know that if they release the business case it will be shown to fail even the most basic tests of reasonable claims. It may also reveal the degree to which tax concerns were material and to what extent they are claiming benefits from reducing staff terms and conditions.
So they lie and dissemble.
It is pathetic that the FoI Act is so easily avoided and that NHE E or I or whatever they are called now allow this blatant abuse of the principles like partnership working, openness and transparency.
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