To John Slater
DWP Central Freedom of Information Team
Our Ref: IR’s128, 129, 130, 131, 132, 133 & 134
Dear Mr Slater,
Thank you for your email requesting a review of the Department for Work and Pensions (DWP)
Freedom of Information (FOI) decisions dated 1 March 2018, reference FOI 479, 495, 522,
553, 586, 599 and 653. You asked ‘I am writing to request an internal review of Department for Work and Pensions's handling of
my FOI request 'ESA & PIP Mandatory Reconsideration Data'.
The Department has aggregated the following requests for information (RFI”) using the
Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.
THE REQUESTS FOR INFORMATION
1. PIP Contract Meetings - Minutes and Change Requests for 2016 Date submitted: 4th
2. ESA & PIP Mandatory Reconsideration Data Date submitted: 6th February 2018
3. PIP Contracts - Management Information 2017 Date submitted: 8th February 2018
4. ESA - Info created during Re-referral, Pre-board checks.
Date submitted: 9th February 2018
5. ESA - Contractual Performance Monitoring of CHDA Ltd Date submitted: 12th February
6. ESA - ESA113 form fees & monitoring
Date submitted: 13th February 2018
7. ESA - Contract with CHDA Ltd - Quality Assurance Date submitted: 18th February 2018
DWP REASONS FOR REFUSAL
The Department has justified citing S.12 by claiming “We consider each of the seven requests
to be of a similar nature as they all relate to either decision making or performance delivery of
disability assessments on behalf of the Department for Work and Pensions. In particular, all of
the requests would be allocated to the same team for response as it falls within their
Before I explain why the Department’s reliance on aggregation is unlawfully it may be helpful to
explain what the law actually say.
So far as it applies to these requests Regulation 5 states:
“5.—(1) In circumstances in which this regulation applies, where two or more requests for
information to which section 1(1) of the 2000 Act would, apart from the appropriate limit, to any
extent apply, are made to a public authority—
(a) by one person, or
(b) by different persons who appear to the public authority to be acting in concert or in
pursuance of a campaign, the estimated cost of complying with any of the requests is to be
taken to be the total costs which may be taken into account by the authority, under regulation
4, of complying with all of them.
(2) This regulation applies in circumstances in which–
(a) the two or more requests referred to in paragraph (1) relate, to any extent, to the same or
similar information, and (b) those requests are received by the public authority within any
period of sixty consecutive working days.”
WHY DEPARTMENT CANNOT RELY ON AGGREGATION The FOIA and Regulation 5 refer
to requests covering the same or similar information. Whilst it does not define ‘same’ and
‘similar’, most reputable dictionaries offer definitions of both words as:
Same: “Identical; not different”
Similar: “Having a resemblance in appearance, character, or quantity, without being identical”
This clearly means that any similarity was relate to the contents of the information requested.
This is entirely consistent with other aspects of the FOIA such as assessing the public interest
test. Therefore for the Department to lawfully aggregate the RFIs the specific content of the
information requested must be the same or similar according.
However this is not what the Department has done. Its justification is that the requests relate
“decision making or performance delivery of disability assessments”; and
“would be allocated to the same team for response as it falls within their specialised
Point 1 is clearly an attempt to suggest that the requested information falls within a particular
theme or thread. This is often raised as justification for aggregation and is flawed. This was
addressed in Benson v IC and the Governing Body of Buckinghamshire New University
(EA20110016) at :
“Whilst the Tribunal understood the Commissioner’s analysis the Tribunal felt that it was not
compelling and relied on concepts that were not actually within the legislation – e.g.
‘overarching theme’. The Tribunal felt that any consequent uncertainty should, on balance, be
resolved in the Appellant’s favour.”
The Department is clearly making the same mistake of attempting to rely on concepts that are
not within the legislation.
Point 2 is irrelevant. It matters not which team within an organisation RFIs are dealt with. There
is no statutory exemption to refuse a RFI purely because it falls to be dealt with by a particular
For the avoidance of doubt I list the information being requested by each RFI and then explain
why the RFIs refused by the DWP cannot lawfully be aggregated.
RFI1: PIP Contract Meetings - Minutes and Change Requests for 2016
Information: Minutes of meetings and change requests.
RFI2: ESA & PIP Mandatory Reconsideration Data
Information: Datasets held by the Department about Mandatory Reconsiderations (“MR”).
Questions about the type of data held by the DWP in respect of MR for ESA & PIP and how it
can be interrogated using the DWP standard IT systems.
RFI3: PIP Contracts - Management Information 2017
Information: Management information submitted to the DWP each month by its two contractors
RFI4: ESA - Info created during Re-referral, Pre-board checks.
Information: Information created/recorded by a healthcare professional when deciding to call a
person to attend a face to face assessment.
RFI5: ESA - Contractual Performance Monitoring of CHDA Ltd
Information: The performance monitoring report” and “Balanced Scorecard report” supplied to
the DWP by CHDA Ltd each month for the period 2016.
RFI6: ESA - ESA113 form fees & monitoring
Information: Fees paid to GPs to complete the form ESA113 required by the DWP and various
questions about the process.
RFI7 - ESA - Contract with CHDA Ltd - Quality Assurance
Information: Audit reports that relate to quality assurance.
No reasonable person can conclude that the information being requested in the RFIs listed
above is the “same” or “similar”.
I trust the common sense will prevail and the Department will reconsider what I believe is a
genuine mistake and deal with each of the RFIs separately and on their own merits. I note that
the Department has suggested that at least one of the RFIs would breach S12 on costs. If this
is the case I expect the Department to provide a detailed estimate of its costs and an
explanation why it is not possible to provide the requested information within the statutory
However, should be Department persist with this flawed approach and it ends up before a
Tribunal I will seek an order for costs to be made against the Department.’
Please be assured that your request has been given our full consideration and that all aspects
of your review were taken fully into account.
As explained in our original response and in relation to aggregating costs, the Freedom of
Information (FOI) Act allows for the following:
two or more requests for information must have been made to the same public
they must be either from the same person, or from ‘different persons who appear to the
public authority to be acting in concert or in pursuance of a campaign’ (section 12(4)(b)
of the FoI Act);
the requests must relate to the same or similar information; and
they must have been received by the public authority within a space of 60 consecutive
I have considered whether for aggregation purposes your requests ask for the same or similar
As all of the requests relate to contracted health assessments, the performance of those
assessments and the benefit outcome from those assessments, I agree with the original
decision, in that it is a same or similar area; particularly as the same team, with a particular
area of responsibility within the whole of DWP would be required to answer six out of seven of
the requests; the seventh being a statistical one on the same subject, which would require
information from DWP statisticians.
With regard to FOI 653 which would singularly exceed the cost limit; this is due to the fact that
you have requested all audit reports for 2016 and 2017 which would amount to at least 17,000
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.
If you have any queries about this letter please contact us quoting the reference number above.
DWP Central FoI Team
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. General y 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.org.uk/Global/contact_us
or telephone 0303 123 1113 or 01625 545745