11837-21 North East Ambulance Service v Mail Online

Decision of the Complaints Committee – 11837-21 North East Ambulance Service v Mail Online

Summary of Complaint

1. North East Ambulance Service (NEAS) complained to the Independent Press Standards Organisation that Mail Online breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “Eight NHS ambulance bosses were given bonuses worth up to £20,000 this year - despite heart attack and stroke patients now having to wait almost an HOUR to be taken to hospital”, published on 16th November 2021.

2. The article reported that senior executives at three ambulance trusts had been given bonuses and pay rises, stating that “North East Ambulance Service boss Helen Ray had the second highest bonus payment during the year” and that she had received a “performance pay of between £10,000 and £15,000”. It went on to state that Ms Ray’s “salary was also bumped up 76% from more than £85,000 to up to £150,000 during the period”. It said this was “despite the service having an average waiting time of more than 25 minutes for Category 2 calls”. The article also said that “The NHS aims for a maximum of 18 minutes waited for calls of that level of seriousness”. The article also included graphs for waiting times for both Category 1 and Category 2 calls across the UK, and average ambulance response times for both categories, set against the respective national “target time” for each category: 7 minutes for Category 1 and 18 minutes for Category 2.

3. The complainant said that the article was inaccurate in breach of Clause 1 as it had referred to part of the remuneration of its Chief Executive as a “bonus”. It said that Ms Ray did not receive a bonus and instead part of her salary was at risk against a set of objectives on an “earn-back basis”, which was capped at £15,000 per annum. The complainant provided guidance from the NHS on pay for senior managers in NHS trusts and foundation trusts, which set out that when employing managers of a certain level that “an element of earn-back pay will be included, ie a requirement to meet agreed performance objectives to earn back an element of base pay (normally at least 10%) placed at risk”. The complainant said that the Chief Executive’s core pay was £155,00-£160,000 and of this £10,000-£15,000 was at risk subject to the earn-back arrangement. The complainant said that the article was further inaccurate to state that its Chief Executive’s salary had been “bumped up 76 per cent from more than £85,000 to up to £150,000 during the period”. It said that this omitted to mention that the Chief Executive joined the NHS Trust in September 2019, and her pay for the financial year 2019-2020 was only a proportion of the annual salary in her post and that the following year represented the full amount of her salary.

4. The complainant said there had been a further breach of Clause 1. It noted that the graphs in the article showed average waiting times for Category 1 and 2 calls for various English NHS Trusts compared with the national average response target (seven minutes for Category 1 and 18 minutes for Category 2). The complainant explained that there was another target which stipulated the speed at which 90% of calls should receive an ambulance which was more generous (15 minutes for Category 1 and 40 minutes for Category 2). The complainant said that, by referring only to the average times and omitting any reference to the 90% target response times, the article gave the inaccurate impression that the average targets were the timeframe in which people should expect an ambulance to arrive, when that was not the case. It also said that the article was inaccurate when it stated that “[t]he NHS aims for a maximum of 18 minutes waited for [Category 2 calls]”. It said the 18-minute target was an average target which, being an average, recognised that a significant number of actual response times would exceed that timeframe with the overall target still being met and could therefore not reasonably be described as a maximum.

5. The complainant also said that the article had breached Clause 1 as it considered that by linking the Chief Executive’s pay in 2020-2021 with ambulance response time standards in 2021-2022, this would mislead readers to believe that the performance reported in 2021-2022 was linked with the payment in 2021. It said that the article referred to “this year” throughout and that this would lead readers to believe that the performance reported in 2021 (covering the 2021/2022 financial year) was linked with the 2021 payment, which was not the case

6. The publication did not accept a breach of the Code. It said that care was taken to ensure the article was accurate and that its health team had contacted the NEAS press team prior to publication. It said that a NEAS spokesperson had referred to the payment as a bonus in their correspondence with its reporter; it provided this correspondence to support its position. It also said that the fact the bonus was on an “earn-back basis” did not mean that an extra amount of money had been agreed if Ms Ray met certain performance criteria. It said that as Ms Ray did not receive the pay if the objectives were not met, this could be described as a bonus and that this was detailed in the trust’s own annual report. To support its position, it provided the NEAS Annual Report and Accounts for the year 2020/2021. It highlighted that in this report, the additional pay was described in a column titled “Annual Performance Related Bonus” and listed as £10,000-£15,0000 and that Ms Ray’s salary appeared separately in another column listed as £145,000-150,000.

7. The publication said that it was correct to state that Ms Ray’s “salary was also bumped up 76% from more than £85,000 to up to £150,000 during the period” as her salary had increased as stated and as recorded in the annual report. It noted that the publication had contacted the complainant prior to publication to check the details of its report, and that the complainant had not expressed any concerns regarding this point. The publication said during direct correspondence with the complainant that it would be willing to amend this sentence to clarify Ms Ray’s starting date. It proposed the following wording:

She also earned £150,000 during the period – 76 per cent more than the £85,000 the year before, which was lower because she was appointed part-way through the year in September 2019.

During IPSO’s investigation, the publication further offered a footnote clarification regarding the increase in salary:

In a previous version of this article, we reported that North East Ambulance Service boss Helen Ray's salary was bumped up 76 per cent from more than £85,000 to up to £150,000. While the statements of earnings were correct, we would like to clarify that the increase related to her having started partway through the financial year. The figure of £85,000 represented a pro rata percentage of her full yearly salary.

8. The publication said that the graphs used in the article were labelled to make clear they were referring to averages, stating in the captions that the graphs related to “UK average wait times”, and it did not consider that the omission of the 90th percentile target rendered the article misleading. In relation to the “maximum of 18 minutes waited for calls of that level of seriousness” the publication said that in the annual report a table showed that the NHS national “average response target” was 18 minutes for Category 2 calls. It said that it took care to put the 18-minute target to the NEAS prior to publication and that the press spokesperson who said that they were “assuming that your report will reflect that all ambulance services are currently not meeting the target you referred to, but that we're in fact one of the best (only second to London) for the most serious C1 incidents?”. The publication also said that as the preceding paragraph referred to an average waiting time, readers would infer that the 18 minutes was also an average. It added that readers would also have seen the graph which clearly set out that the 18 minutes is a target average wait time. It however, offered to amend the text to state: “maximum average of 18 minutes”.

9. In relation to the complainant’s concerns about linking the Chief Executive’s pay in 2020-2021 with ambulance response time standards in 2021-2022, the publication said that the article could not give details for a financial year that had not yet happened, and that the year 2022 was not mentioned in the article. It said that the period of 2020-2021 was referred to nine times in the article and that the section detailing Ms Ray’s pay and NEAS performance was followed by a statement from the NEAS Chairman who said that “an element of the Chief Executive’s pay is on an earn-back basis depending upon specific performance objectives” and that “[h]aving met those objectives, the Remuneration Committee approved a payment for the 20/21 financial year”.

10. In addition to the amendment and clarification, in order to resolve the complaint, the publication also offered to add that neither the average response target nor the 90% percentile target was met by NEAS for Category 2. The publication also offered to include the results for the 90th percentile target in order to resolve the complaint.

11. The complainant did not consider the offers were adequate to resolve its complaint.

12. The complainant added that its annual report clearly states that “[t]he Trust has no annual bonus arrangements in place” and that it was required by parliament for the trust to use the headings the publication had referred to. It also added that it stated within the report that “in accordance with the contract of employment, an element of the Chief Executive's pay is on an earn-back basis dependent upon performance (£15,000 per annum). This is shown separately in the table. The payment is dependent upon the achievement of specific performance objectives set by the Chairman as part of the annual appraisal process. Further information is included in the Chairman's annual statement on remuneration”.

13. The publication said that the annual report also stated that “[t]he Remuneration Committee reserves the right to approve one-off, nonrecurring payments to recognise exceptional performance, or delivery of specific projects” and that alongside this it stated that there was “no prescribed maximum limit” and that the “performance measures” were “Exceptional performance, as defined by the Remuneration Committee”.

Relevant Code Provisions

Clause 1 (Accuracy)

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

Findings of the Committee

14. The Committee first considered the complainant’s concerns that the article had omitted to mention that the Chief Executive’s pay for the financial year 2019-2020 was only a proportion of her annual salary as she had started part way through the financial year. The article had claimed that her salary had been “bumped up 76 per cent from more than £85,000 to up to £150,000 during the period”. The annual report made clear that the payment was for part of the year, stating that that the Chief Executive’s pay for the period April 2019 to March 2020 was from September 2019 onwards. Omitting to mention this and referring to the payment as “bumped up” was seriously misleading as it suggested that she had received a rise in her annual pay, which was not the case. The publication had failed to take sufficient care not to publish inaccurate or misleading information, and the Committee found that there had been a breach of Clause 1 (i). As the misleading information related to the pay of a Chief Executive of an NHS Trust, in an article which sought to contrast that salary with the Trust’s performance, this was a significant inaccuracy, and therefore the newspaper was obliged, in accordance with the terms of Clause 1 (ii) to correct this promptly and with due prominence.

15. The Committee then turned to the question of whether the action taken by the publication was sufficient to avoid a further breach of Clause 1(ii). The publication offered to amend this sentence to clarify Ms Ray’s starting date and explain that her pay had been lower the previous year due to her starting part way through the year; it also offered to publish a footnote clarification that made clear that the £85,000 represented a pro rata percentage of her yearly salary. Where the claim appeared within the body of the article and where the article was to be amended, this proposed action was sufficiently prominent. The publication had made the offer to amend the sentence during direct correspondence with the complainant once it had been made aware of the complaint; it had further offered the clarification during the early stages of IPSO’s investigation, which was sufficiently prompt. As such, the Committee considered that this was sufficient to meet the terms of Clause 1 (ii).

16. The Committee next turned to the complainant’s concerns that it was misleading to refer to an average response standard as a maximum target: “[t]he NHS aims for a maximum of 18 minutes waited for calls of that level of seriousness”. The publication had said that it was referred to in the annual report as an “average response target” and that readers would have inferred that the 18-minute target was an average as the preceding paragraph in the article referenced an average waiting time. The Committee further considered that the reference to a “maximum” target suggested that this was the very longest that a patient should expect to wait. The annual report stated that the national standard average response target for Category 2 was 18 minutes; this target was not described in the report as a “maximum”. The Committee noted that there was a separate target which 90% of calls were expected to meet, which was 40 minutes. It was the Committee’s view that presenting an average response target as a “maximum” target was a significant inaccuracy, and that the publication had not taken due care over the presentation of this target. There was a breach of Clause 1 (i) on this point. The Committee considered that it was significantly misleading to refer to this as a “maximum” standard in an article which sought to contrast pay with performance against targets, and that it therefore required correction under the terms of Clause 1(ii). The publication had not offered to publish any corrective action on this point, and so there was a further breach of Clause 1(ii).

17. The complainant had also expressed concerns that the article referred to part of the remuneration of its Chief Executive as a “bonus”. The Committee acknowledged the complainant’s position that, while it was required to use the term “bonus” by the government in its annual report, this was not a “bonus” in practice, and that instead part of her salary was at risk against a set of objectives on an “earn-back basis”. The Committee considered that the publication had demonstrated that it had taken care over the accuracy of this claim. The publication had relied on the annual report where this proportion of the Chief Executive’s salary was referred to as “Annual Performance Related Bonus” and it had gone to the NEAS for comment; the press spokesperson had referred to this amount of money as a bonus in their correspondence with the journalist. It was the Committee’s view that the publication had taken care over the accuracy of this claim. Further, where this element of her remuneration was discretionary and received based on an assessment of her performance, it was not significantly inaccurate to describe this proportion of the Chief Executive’s salary as a “bonus”. There was no breach of Clause 1 on this point.

18. The complainant had also expressed the concern that the graphs showed only average waiting times and average targets for both Category 1 and 2 calls for various trusts across the UK and had omitted to refer to the significantly longer timeframe that it would expect that 90% of calls should meet. It said that this was misleading because it would give readers the impression that they could expect an ambulance in the shorter, average timeframe. However, the Committee considered that the graphs made clear that they were showing the average wait times of the respective Trusts. The Committee noted that there was no dispute as to the accuracy of the information presented in the graphics. The publication was entitled to reference the trust’s performance against one of its key performance indicators, which it considered to be relevant context to the decision about remuneration, nor did it suggest that was the only target. The omission of reference to other targets did not render the article misleading or inaccurate.

19. Finally, the Committee considered the complainant’s concerns that, by linking the Chief Executive’s pay in 2020-2021 with ambulance response time standards in 2021-2022, this would mislead readers to believe that the performance reported in 2021-2022 was linked with the payment in 2021. The publication had said that the year 2022 had not been mentioned in the article and that the period of 2020-2021 had been referred to a number of times, in addition to including a statement from the NEAS Chairman who had also referred to the “20/21 financial year”. Where the article had made clear that the Chief Executive’s pay that was being referred to was for the financial year 2020-2021, and where the article had made no reference to the year 2022, the Committee concluded that there was no failure to take care not to publish inaccurate or misleading information, nor did it give rise to a significant inaccuracy or misleading statement regarding this point. The publication was entitled to discuss payments received by NHS executives earlier in the year in the context of current circumstances, and to do so did not render the article misleading.  There was no breach of Clause 1.

Conclusion(s)

20. The complaint was partially upheld under Clause 1.

Remedial Action Required

21. With regard to the Chief Executive’s pay, the clarification proposed by the publication was sufficient to address the requirements of Clause 1(ii) and should now be published. If the article is amended, the correction should be published as a footnote; if the article remains unamended, the correction should be published at the top of the article.

22. With regard to the “maximum of 18 minutes” point, there was a breach of Clause 1(ii) given that no corrective action had been offered. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or an adjudication. The nature, extent, and placement of which is determined by IPSO.

23. The Committee considered that the newspaper had not taken the necessary care when reporting the 18-minute target, which was a national standard. The reference to this target being a “maximum” appeared only once and in the body of the article. In addition, the publication had also promptly offered a correction on the other breach showing readiness to correct what it considered to be a significant inaccuracy. For these reasons, the Committee considered that the appropriate remedy was the publication of a correction to put the correct position on record.

Date complaint received: 17/11/2021

Date complaint concluded by IPSO: 05/07/2022

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