To Mr J Otram
C/o xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
DWP Central Freedom of Information Team
e-mail: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xxx.xxx.xxx.xx
Our Ref: VTR 2978-IR122
DATE 19 April 2012
Dear Mr Otram,
Thank you for your letter dated 1 March 2012 that was received by Department for Work and
Pensions (DWP) Adelphi and forwarded to the DWP Medical Services Contracts
Correspondence Team (MSCCT) to respond to.
As DWP MSCCT Freedom of Information Internal Reviewing Officer, I have read your letter
and accepted this as a request for an Internal Review of FOI reference 2851-412 dated 28
February 2012.
I have therefore conducted a full investigation into your original request to check that the
information previously supplied to you, clearly and accurately answered your request. I have
also reviewed any decisions to withhold information and in doing so I have fully considered the
public interest in disclosure.
In your email you asked to be provided with information answering the following questions:-
I am writing to request an internal review of Department for Work and Pensions' handling of my
FOI request 'Audio recording of work capability assessments'. Your response was dated 28 02
12 with reference: VTR 2851-412
Summary
A. Your reference to the unamended para.4.1.3 in the WCA Handbook (and unamended, since
October 2011) is irrelevant. My questioning related to the subsequently revised and CURRENT
arrangements minister Grayling has been obliged to admit in parliamentary responses (during
February 2012 ) are CURRENTLY in operation where a claimant wants to be provided with a
recording, and have been so for the past 3 months
B. The purported CURRENT 'rules' (and current since December 2011) do not exist in some
record-less vacuum: they are RECORDED; and claimants and the balance of the public have
the right to know what these supposed rules say, AS CURRENTLY RECORDED.
C. I don't accept for one moment that the fact that the DWP may one day get round to
producing yet further paperwork on these issues at wholly unspecified dates in the future can
possibly outweigh thepublic interest in seeing the detailed, recorded and currently operated
'rules' ,NOW.
Detail
I asked to be provided with:
…"copy DETAILS of the way in which claimants ARE advised of this important entitlement."
You have not complied with that request. So now:-
I'll try to make this simple for you. Yes, your department has had the gall to confirm that it is not
even telling claimants in advance e.g. on their obtaining a form ESA 50 with which to
commence a claim, that they do have the right to obtain a recording of the forthcoming WCA.
That contempt for benefits claimants must be assumed to reflect the specific and considered
will of the department's political masters, and is an issue to be taken forward through
constituency offices and the press and other media.
However, as you well know, if or when a claimant nevertheless wants to be provided with a
recording by the DWP or Atos there are specific (and recorded) 'rules' CURRENTLY operated.
These details you have wholly failed to supply and that is a matter for FOIA.
The details concerned cover or INCLUDE, do they not, such matters as:-
- is it sufficient for a claimant merely to tell his or her jobcentre that a recording is required or
must e.g specific written steps be taken? Addressed to whom? And by when?
- what the position is if the claimant's ESA 50 form makes no mention of this perhaps
because at the time that form was submitted, the claimant was unaware either of the right itself
or how to claim such right?
- what delay is deemed acceptable for a claimant to have to encounter in the processing of
his or her claim if Atos is not in fact 'ready' to organise a recorded WCA on the date on which it
would otherwise have been scheduled?
- what, if any ,legally drafted paperwork, e.g affecting Data Protection and copyright matters
between the DWP atos and the claimant, is a claimant asked to sign before being given any
copy recording and when? – who is holding any such text, and if exists, what is IT LINE BY
LINE? – when does a claimant first see any such documentation? – is it provided to claimants
sufficiently far in advance to allow a claimant a reasonable opportunity to obtain legal advice
on a legally-intentioned document?
- who stores and keeps any copy recording retained by Atos?- who has access to it? - for
how long?
I emphasise that I asked you to provide copy details of the way in which claimants are advised
of such very important matters relating to their current entitlements. It may well be that the
DWP is busy trying to devise further and fresh strategies to sabotage the right to a recording in
the future, and I will question you on those as and when they materialise. But I have asked you
for details of the CURRENT 'rules' as now being deployed. You have failed to comply with this
request and that is a FoI and thus legal issue not a political or 'deabting' one. I wish to interest
the ICO as soon as possible in the department's (in my view, I must baldly say, disgraceful)
contention that the FoI Act entitles it to decline to to inform the sick and disabled of detailed
rules potentially of high significance in their lives, and rules currently recorded and in force.
That sort of evasion and protraction on such a matter of intense public interest and immediate
practical relevance is not what section 22 of the FoI Act was intended to produce, and section
22(c) renders the contention risible; no purposive construction of the statute would support
such an idea.
You might well imagine that in addition to the presentation of your no doubt cynically-delayed
response to this request for internal review to the ICO in due course, I would think to add, now,
the situation, as it stands here with this request, to the case for consideration by the ICO as
regards the other matter to date you have declined to deal with properly on internal review, and
already submitted to the Commissioner's Office. It is evidential as regards the behaviour of the
DWP's FoI response team which I consider to be highly obstructive, and I think it is very much
in the public interest that these matters should be thoroughly aired.
The Revised Work Capability Handbook ESA(LCW/LCWRA) Amendment Regulations 2011
Version 4, paragraph 4.1.3 details the current procedure that Atos Healthcare should follow
upon a request by the claimant for the audio recording of an assessment. This procedure
remains in place until it is replaced. The 1 February 2012 Official Report explained that DWP
have not implemented universal recording for claimants going through the Work Capability
Assessment. However, claimants can request an audio recording by contacting the Benefit
Centre which administers their claim or Atos Healthcare directly. In these circumstances, Atos
Healthcare will, where possible, endeavour to provide the requisite audio recording equipment
which will give each party a CD recording of the assessment.
A process guide is currently being agreed by Atos Healthcare and the Department for Work
and Pensions to improve claimant awareness of the steps they should take if they wish to
request audio recording of their assessment.
I am unable to provide you with information relating to the use of the recording devices
including the technical aspects relating to data storage and retention. Although the pilot has
been concluded, the final evaluation report still remains under production and is therefore
exempt for release under Section 22 of the Freedom of Information Act as it is due for future
publication. A copy of the report will, on its release, be available on the DWP website.
This exemption is qualified, and is therefore subject to a public interest test. The public interest
test is where the Department considers whether the balance of the public interest falls in
favour of withholding or disclosing the information requested.
Arguments in favour of disclosure: There are public interest arguments in favour of disclosure
of this information at the present time. Disclosure would for example improve transparency in
the operations of the Department.
Arguments against disclosure: It is in the public interest to ensure that the publication of official
information is a properly planned and managed process, to ensure that the data is accurate
once placed into the public domain. It is also in the public interest to ensure that the
information is available to all members of the public at the same time, and premature
publication could undermine the principle of making the information available to all at the same
time through the official publication process.
In applying this exemption, the Department has balanced the public interest in withholding the
information against the public interest in disclosing the information and consider there is no
overarching public interest argument in favour of releasing this information to you, ahead of its
official release. The Department intends to publish the pilot evaluation report in the near future.
The Data Protection Act places certain obligations on data controllers (DWP is a data
controller) with regard to the recording of interviews, telephone conversations etc, individuals
such as DWP customers are not bound by any such legal expectations. You are within your
rights to use any record of your business with DWP for
domestic purposes, that is your
personal, family, or household affairs (including recreational purposes), however, publishing
the recordings on the internet, or in any other way, is going beyond domestic purposes and
may indicate that you may be acting as a data controller. In addition, HCPs are not obliged to
agree to the recording of a Work Capability Assessment (WCA) and may terminate a WCA if
covert recording is discovered.
If you intend to make the contents of your recording publicly available you need to notify the
Information Commissioner of your actions. The Information Commissioner may take
enforcement action to ensure your compliance with the Data Protection Act.
It is a criminal
offence for a data controller to process personal information when he has not
registered with the Information Commissioner.
In reviewing your request I uphold the decision of the Freedom of Information Officer dated 28
February 2012 in part and have added information where appropriate. I am therefore satisfied
now that all the information that DWP are able to supply to you has been supplied.
If you have any queries about this letter please contact me quoting the reference number
above.
Yours sincerely,
DWP Central FoI Team
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Your right to complain under the Freedom of Information Act
If you are not content with the outcome of the internal review you may apply directly to the
Information Commissioner’s Office for a decision. Generally the Commissioner cannot make a
decision unless you have exhausted our own complaints procedure. The Information
Commissioner can be contacted at: The Information Commissioner’s Office, Wycliffe House,
Water Lane, Wilmslow Cheshire SK9 5AF www.ico.gov.uk