Guidance

Planning Inspectorate: claims for repayment of additional costs (ex gratia scheme)

Published 25 February 2016

For claims made on or after 1 April 2016 (v3 14/7/16)

1. Our Policy

1.1 The Planning Inspectorate aims to provide excellent customer service, but we recognise that sometimes things do go wrong. When that happens, we aim to put matters right as quickly as possible. It is important to note, however, that such errors or failures do not give rise to any liability or legal obligation on our part.

1.2 Where something has gone wrong, remedies we may offer include:

• acknowledgement of responsibility, an explanation and an apology;
• remedial action, which may include:
• reviewing service standards;
• revising published material;
• revising procedures to prevent the same thing happening again;
• training or supervising staff;
• a combination of these.

1.3 Where we are unable, through alternative means, to return the affected party or parties to the position that they would otherwise have been in before an error occurred, we will consider claims for payment under this scheme. In the absence of any legal requirement, we aim to determine claims in a consistent manner but the decision as to whether or not we make a payment is discretionary and rests solely with the Inspectorate.

1.4 Claimed costs must relate to additional expenditure that had already been necessarily incurred as a direct result of the acknowledged error or recognised failure on our part.

2. Basis for assessing claims

2.1 In line with guidance from HM Treasury on Managing Public Money Annex 4.14, we will assess the claim on the basis that the proportionate and reasonable direct additional costs of the claimant must have been demonstrably incurred. All claimed costs must be fully substantiated by invoices, receipts, or narratives. We may seek additional information in order to fully assess the costs claimed.

2.2 Where a claimant clearly establishes substantial distress or inconvenience caused by our error or failure, but no unnecessary additional expense has been incurred, and we are unable to put things right by other means, we will consider whether it is appropriate to make a ‘goodwill’ payment.

3. What the scheme covers

3.1 The scheme covers:

• costs incurred as a result of a procedural error, such as a failure to give the correct details of a site visit;
• costs incurred in the redetermination of a case following successful action in the High Court (but see also ‘Redeterminations’ below);
• costs incurred pursuing a complaint about maladministration or poor service that led to the ex gratia claim.

3.2 Redeterminations

a) When a decision is quashed in the High Court, the redetermination procedure addresses any procedural or legal error made. This allows a case to be reconsidered and a new decision issued. The process of redetermination will result in the person being put in the position that they would have been in, had the error not occurred. As such, a compensation payment in respect of the costs involved in the re-determination process will not usually be made.

b) Where an Inspector’s decision is challenged in the High Court, the Secretary of State will defend the challenge wherever there is a reasonable legal argument in support of the Inspector’s decision. The Court may not agree with the Secretary of State’s view as to the law and that will result in the Inspector’s decision being quashed and the matter being redetermined. In such circumstances there will not be an assumption of an error having been made for the purpose of this policy.

c) Where the Secretary of State decides, on the basis of legal advice, not to defend a challenge brought and submits to the Court’s judgment, we will consider what went wrong and whether an ex gratia payment in respect of the costs of the redetermination is appropriate.

d) Where we accept the principle of making an ex gratia payment under the terms of the above, we will only consider reimbursing reasonable and proportionate additional costs arising from the redetermination process or the cost of making a fresh application to the LPA. Where a case is redetermined, we will assume that the evidence originally prepared for and submitted to the Inspectorate will be re-used, limiting the amount of additional work required, and therefore cost to be claimed.

e) The scheme excludes the costs incurred in pursuing the appeal to the decision that was the subject of the High Court action in question. These costs would always have been incurred as a natural consequence of making the case in the first place and are therefore not additional.

4. What the scheme does not cover

4.1 We will only consider making payments under this scheme as a last resort and where there has been an acknowledged error or a failure on our part. This means that we would not usually consider making a payment in the following types of circumstance:

• the process of challenging a decision in the Courts, as such costs should be considered by the Courts at the same time as the challenge;
• unforeseeable circumstances (force majeure) over which the Inspectorate had no control, such as an Inspector’s illness or severe weather causing the cancellation or adjournment of an inquiry;
• delays during the process, as the result of activities that are part of the determination process;
• negative impacts on property prices or profits, as they are not direct additional costs, and relate to what might have happened in other circumstances.

5. Making a claim

Who can submit a claim for payment?

5.1 Statutory parties (eg the appellant, local planning authority, Rule 6 parties) directly affected by an error, and who have incurred additional costs or expenses as a result of the acknowledged error or failure can make a claim. Applications from other parties will be considered in exceptional cases.

5.2 Agents can act on behalf of a claimant, but will need to provide us with written confirmation of their appointment in this capacity from the claimant.

When should a claim be made?

5.3 Claims should be made in writing as soon as possible after all associated additional costs have been incurred. Unless exceptional circumstances exist, only fully documented claims received in writing within six months of the relevant error will be accepted. Where redetermination claims are accepted for consideration (see 3.2 above), the six month period runs from the date of the replacement decision. In exceptional circumstances (which should be explained) we will consider requests outside of this time limit.

5.4 We will not normally consider claims for interim payments. However, we will consider requests to do so on the basis of particular hardship, on a case by case basis.

What should accompany the claim?

5.5 You should send us invoices, receipts and narratives for each amount claimed. It must be clear how each element of additional expenditure directly relates to the error.

Who should the claim be sent to?

5.6 The claim and all associated documentation, including the completed claim template (See A.3 in Appendix A) for cases exceeding £10,000, should be sent to:

• feedback@planninginspectorate.gov.uk – the email Subject should be ‘Ex gratia claim’ or
• Customer Quality Team (Ex gratia claim), 4th floor, Temple Quay House, 2 The Square, Temple Quay, Bristol, BS1 6PN

6. Validating the claim

6.1 In accordance with our Policy (Section 1 above), the first stage of the assessment is to confirm whether there has been an error/failure on our part. Where an error/failure has been identified, and the claim falls within the scope of the scheme, we will confirm this to the claimant in writing.

6.2 If necessary, we will treat the claim as a deemed complaint and carry out an investigation. We will explain this in writing to the claimant. We will confirm the outcome to the claimant in writing, and whether or not the claim falls within the scope of the scheme.

6.3 If a claims falls outside the scope of the scheme, including those where a complaint or deemed complaint has not been upheld, we will explain in writing that the claim is outside the scope of the scheme and has been rejected.

7. Assessing compensation under the scheme where appropriate

7.1 Our initial assessment of claims will be to determine whether we have sufficient information to substantiate the claim. Once we have all the information we require, we will assess whether an ex gratia payment is appropriate and necessary to remedy the error.

7.2 Each claim will be considered on a case-by-case basis and in accordance with the guidance in Appendix A. If we remain unsure about any aspect of the claim (for example, the level of fees claimed, the work undertaken or the detail included in the submitted invoices), we will write ( Reference in this document to ‘write’ or ‘writing’ should be taken to mean by email or by post.) to the claimant requesting further details. Any element of the claim that is considered disproportionate, or that has not been fully justified or substantiated by the evidence provided by the claimant, will be rejected or reduced accordingly. Claims for legal costs in excess of £5,000 may be assessed by the Government Legal Department.

8. Decision making

8.1 Where we take the view that a compensation payment is necessary to put things right, we will aim to complete our assessment and decide on the proposed level of payment within six weeks of your sending all the relevant information. Where matters are complex we might take longer. At each stage, we will let you know the next time you can expect to hear from us and we will keep you informed of progress.

8.2 Once our assessment is complete, relevant internal approvals will be sought on the proposed amount of any recommended payment. For certain cases, this will involve seeking approval from the Department for Communities and Local Government, and potentially from HM Treasury.

8.3 Once approval has been granted, we will write to the claimant setting out the basis of the proposed payment in response to the claim. We will explain how we reached the sum involved if it differs from the original claim. We will ask for details of the bank account into which payment should be made, and we will expect that account to be in the name of the claimant. Where the account details provided are in a different name, the claimant or their agent must provide an explanation.

8.4 We will ask for relevant payment details in response to our letter, within four weeks. Payment will usually be made within 10 working days of these details being provided.

8.1 Appendix A: Guidance on making an ex gratia claim

A.1 If having read the Policy and associated guidance, you have a query or wish to submit a claim, we advise you to contact the Customer Quality Team (Phone: 0303 444 5884 or feedback@pins.gsi.gov.uk) to discuss the details of the claim. We will be happy to advise you further and answer any questions you may have.

A.2 It is the claimant’s responsibility to ensure that the claim and supporting evidence submitted is sufficient for the purpose of assessment. Invoices, receipts and narratives must be provided to support each aspect of the claim. Our preference is for information to be submitted electronically, but hard copies will be accepted.

A.3 Where the value of the claim exceeds £10,000, please contact us (see A.1 above) to request our ex gratia template. Use of the template is optional for claims below £10,000.

A.4 The claimant’s authority to make the claim must be clearly stated at the beginning of the process, in writing or on the template.

A.5 The total amount claimed must balance with the invoices, receipts etc. submitted to substantiate the claim. In cases where the figures do not balance, the claim will be returned to the claimant to resolve the matter.

A.6 We will reimburse costs that are necessary, reasonable and proportionate and directly related to the error/failure. We will not reimburse costs that are optional, unreasonable or excessive. As a guide:

a) Updating and reviewing of case evidence - Where a case is redetermined, we will only reimburse costs involved in the reviewing and updating of evidence, and additional work undertaken following any relevant policy and legislative changes that occurred from the date that the first decision was quashed.

b) Time– Where a claim includes amounts for staff time that is not evidenced by an invoice, the Inspectorate will apply appropriate market rates.

c) Legal costs– Legal work should be undertaken at the appropriate fee earner grade. Costs will be assessed on a 70/30 split between junior and senior levels. We will not reimburse costs that relate to file management, local travel, inter-fee earner discussion, supervision, handover meetings between legal teams, court clerk costs or excessive or unnecessary administrative costs. We will assess Counsel fee rates based on the location of the claimant / appeal site – for example where the client/site are not in the South East/London, we will apply a reduction to claims where London-based Counsel have been instructed.

d) Travel and subsistence costs - Where we are paying compensation for travel and subsistence costs, we will use the following rates (These rates will be updated periodically to reflect changes in Civil Service rates.) (based on rates paid for Civil Service travel and subsistence);

• private car mileage - 45p per mile
• standard class rail travel only,
• essential taxi travel costs only,
• overnight in hotel - max £110 (London), £75 (other major cities) or £70 (elsewhere)
• day subsistence - £6.00 (over 5 hours), £12.00 (over 10 hours) and £23.00 (over 12 hours).

We will not reimburse the cost of alcoholic beverages, newspapers and other similar incidentals.

e) VAT – Claimants registered for VAT will be expected to reclaim VAT paid through HMRC. Claims submitted should therefore be the net costs incurred. We will consider reimbursement of VAT paid by nonVAT registered claimants on a case-by-case basis.

f) Ex gratia claim preparation costs – We will consider reimbursement of the initial, one-off cost of preparing the ex gratia claim. We will not reimburse any subsequent costs eg responding to requests for additional information or clarification from us.

g) Interest - In exceptional cases, we may consider whether it is appropriate to add an interest payment to the amount we offer as an ex gratia payment, for example if the time taken to consider the gratia claim, once fully substantiated, was excessive. Any interest payment made will not exceed the Bank of England base lending rate at the time the offer is made.

In the event that any information submitted in respect of an ex gratia claim is fraudulent or misleading, we reserve the right to recover any monies paid, plus the Inspectorate’s costs and any costs associated with collection of the debt.