Audio Recording Case Law - DWP IRR Response

John Slater made this Freedom of Information request to Department for Work and Pensions

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Department for Work and Pensions,

In its response to an IRR (DWP Reference: IR 752 and IR757, dated 2nd January 2013 the DWP stated:

“And for your further points, as you have already been informed that there is no 'statutory right' to have the WCA recorded and that the case law confirming a person has a right to record also makes clear that the second party has the right to make reasonable restrictions and requirements for this to take place, and is therefore under no obligation to take part in a recorded interview if such requirements are not met, we have nothing further to add.”

Apart from the statement misrepresenting what data has been previously supplied please supply me with the following data:

A copy or direct me to “the case law confirming a person has a right to record also makes clear that the second party has the right to make reasonable restrictions and requirements for this to take place, and is therefore under no obligation to take part in a recorded interview if such requirements are not met”.

There are two key pieces of case law (one at the European level) relating to this situation and neither of them reflects what the DWP has stated.

Please do not try to avoid complying with my request by stating that:
- the DWP has already provided the data as it hasn’t.
- the data is easily available online as the FOIA requires you to direct me to it and simply saying it’s available online isn’t sufficient.

If the DWP fails to comply with my request within 20 days I will submit one IRR (allowing a further 20 days) before issuing a complaint to the ICO (I’m sure you are aware that the DWP is being monitored by the ICO).

If the DWP refuses or is unable to provide the data requested I will issue a complaint to the ICO as it will be clear that the DWP will have lied in its response.

Yours faithfully,

John Slater

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Jim Otram left an annotation ()

Nice one, John.

And I think that one IRR (and 40 working days max from start to finish) before reference to ICO, is a very good new year resolution for us all to follow.

DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear

Please see your FOI response attached

Kind regards

Health & Disability Assessments (Operations)/Department for Work and Pensions/Room 306/Block 31/Norcross/Norcross Lane/Blackpool/FY5 3TA

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Dear Department for Work and Pensions,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Work and Pensions's handling of my FOI request 'Audio Recording Case Law - DWP IRR Response'.

I will try a final time before referring the matter to the ICO. The previous DWP answer stated that:

• “Section 21 of the Freedom of Information Act allows us to direct you to information which is already reasonably accessible to you. The information you requested is already publicly available, many services such as Lexis or Westlaw provide information on case law to the public, and individuals are also free to obtain legal advice on these issues.

The reply to your FOI case (3806) published on the What Do They Know website on 21 January 2012 notes the reference number (CIB/3117/2008) of the relevant case law. “

I will address each point in turn.

The Ministry of Justice (MoJ) guidance for the Section 21 exemption states:
• As a matter of good practice, you should consider either providing the requested section 21 material to the applicant or directing him or her to the whereabouts of the information.
• The information must be ‘reasonably accessible’.
• The application of Section 21 requires personalisation to decide if the information is reasonably accessible to the applicant. This decision must include if any special qualifications/skills would be required, would costs be prohibitive, access to otherwise closed or private sources, etc.
• A public authority’s duties under section 16 may mean that they should explicitly highlight how an applicant might obtain the information they seek.

The DWP application of section 21 is flawed and I suggest is an attempt to avoid stating that it cannot provide the requested information.

The DWP has stated that there is case law “confirming a person has a right to record also makes clear that the second party has the right to make reasonable restrictions and requirements for this to take place, and is therefore under no obligation to take part in a recorded interview if such requirements are not met.”

I requested that the DWP either provide me with or direct me to this case law.

As I am unable to read the minds of the people within the DWP I am unable to know which of the more than 500 years of English case law the DWP is relying on. Therefore, the information cannot be considered to be ‘reasonably accessible’ to me. It is normal practice when citing case law to provide a reference (e.g. Lumba v. Secretary of State for the Home Department (2011) UKSC 12).

Westlaw and Lexis are both subscription services aimed at commercial users. The subscription costs of are prohibitive for me and therefore the ‘personalisation’ requirement means that the DWP cannot rely on them to justify its section 21 claim.

Therefore in order to comply with MoJ ‘good practice’ and its section 16 obligations the DWP should provide me with the correct legal citation for any case law that it claims supports its position.

CIB/3117/2008 is not ‘relevant case law’ for the reasons shown below:
• Commissioners’ and Upper Tribunal decisions on questions of legal principle are treated as binding on tribunals and on decision-makers acting on behalf of Government departments and local authorities. It is clear that the only ‘question of legal principle’ that can possible be attributed to this case is good cause.
• Under the heading “Why the appeal tribunal decision involves an error of law” Judge Wikeley stated:
“21. In addition, the tribunal in the present case made no findings as to the reasonableness or otherwise of the official policy about tape-recording medical examinations. It simply assumed that the Departmental policy was reasonable and that therefore the appellant had not shown good cause for refusing to submit to the medical examination. The tribunal also failed to consider whether the appellant had been given an adequate opportunity to consider his options in the light of the stated policy. Although the Medical Examination Centre proforma reporting the incident has a box ticked to say that the appellant “refused” a new appointment, it is by no means clear that he was actually offered one and, if so, on what terms.
22. The misunderstanding by the tribunal of the extent of the principle in CIB/849/2001 and the failure to make appropriate findings of fact in relation to the issue of the reasonableness (or otherwise) of the conditions and the question of good cause involve errors of law. I therefore allow the appeal and set aside the tribunal’s decision.” This means that the original tribunal made no findings at to the reasonableness of the DWP Policy.
“48. Any challenge to the current Departmental policy as regards the recording of medical examinations might well have to be by way of proceedings for judicial review. It would not be appropriate for the Upper Tribunal to express any view on the prospects of such a challenge.” This means that Judge Wikelely specifically ‘ducked’ the issue of whether the DWP policy related to recording medical examinations by stating that it was not appropriate for the Upper Tribunal to express any view.

This is my final IRR to the DWP on this matter and should it continue to refuse to comply with the FOIA I will refer the matter to the ICO. Unless I receive a response within 20 days I will issue a complaint to the ICO.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/au...

Yours faithfully,

John Slater

DWP freedom-of-information-requests, Department for Work and Pensions

This is an automated confirmation that your request for information has
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DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear Mr Slater

Please see your FOI response attached

Kind regards

Health & Disability Assessments (Operations)/Department for Work and Pensions/Room 306/Block 31/Norcross/Norcross Lane/Blackpool/FY5 3TA

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Dear DWP DWP Medical Services Correspondence,

Another one for the ICO! This is really very simply. The DWP either has the case law it refered to or it doesn't. The real problem is if it doesn't as that means it lied in its response to an IRR!

Yours sincerely,

John Slater

DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Please see attached reply to your Freedom of Information request

Many Thanks

Business Management Team | Department for Work and Pensions | Contracted Customer Services Directorate | DWP Operations | Room 306, Block 3, Norcross, Norcross Lane, Blackpool FY5 3TA | www.dwp.gov.uk | Please consider the environment before printing

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DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Mr Slater

 

Please see attached reply in relation to your Freedom of Information
request

 

 

Many Thanks

 

Business Management Team | Department for Work and Pensions | Contracted
Customer Services Directorate | DWP Operations | Room 306, Block 3,
Norcross, Norcross Lane, Blackpool FY5 3TA | www.dwp.gov.uk | Please
consider the environment before printing

 

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Dear Department for Work and Pensions,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Work and Pensions's handling of my FOI request 'Audio Recording Case Law - DWP IRR Response'.

In light of the DWP most recent response following intervention by the ICO please find below a copy of the letter I sent to the ICO today.

I suggest that it would be in everyone's interest if the DWP simply admitted that CIB/3117/2008 is not relevant case law for its WCA recording policy.

Origins and Definition of Case Law
“The UK is a common law country and as such judgments and case law are particularly important as the doctrine of precedent applies. This means that the judgment of each case can bind all subsequent cases depending on the seniority of the court (the court system has a hierarchical structure.). As such case law becomes part of the law by either setting legal precedents where there is no legislation or interpreting legislation.

In England and Wales the lowest courts are the magistrates and county and crown courts. Following on from this there is the High Court (which has many divisions depending on the subject) and then the Court of Appeal (both Civil and Criminal) followed by the highest court in the country the Supreme Court (formally the House of Lords)” [Oxford LibGuides of the Bodleian Libraries University of Oxford]

The doctrine of Precedent
“Case law provides the bulk of law in the United Kingdom and acts as a source of law through the mechanism of the doctrine of precedent. For a case to be cited in court it must have been reported in a Law Reports series by a barrister. According to the doctrine of precedent a court is bound by the decisions of a court above it and, usually, by a court of equivalent standing. Superior courts have the power to overrule decisions of lower courts and in certain cases to overrule their own decisions.” [University of Oxford - Faculty of Law & Bodleian Law Library]

Upper Tribunal Decisions
“Commissioners’ and Upper Tribunal decisions on questions of legal principle are treated as binding on tribunals and on decision-makers acting on behalf of Government departments and local authorities. This means that the principles of law laid down in the decisions must be applied in other cases” [Ministry of Justice - Introductory Note – The Upper Tribunal (Administrative Appeals Chamber) Issue No.4 Dec 2009.

In order to deal with the DWP claim that The Upper Tribunal (Administrative Appeals Chamber) decision CIB/3117/2008 [2009] UKUT 56 (AAC) is case law it may be useful to decide upon an agreed definition of ‘Case Law’ and which Upper Tribunal (UT) decisions count as Case Law. I suggest that the definitions reproduced above are adequate.

I suggest that the first point to agree is which UT decisions are treated as Case Law. The Ministry of Justice (MoJ) states that only UT “decisions on questions of legal principle are treated as binding on tribunals and on decision-makers acting on behalf of Government departments and local authorities”. Therefore, if CIB/3117/2008 (copy attached) is indeed Case Law the Judge’s decision must have been about a question of legal principle. I further suggest that as the DWP are citing the case in relation to its policy on recording WCA it follows that the legal principle concerned must relate to recording WCA or medical assessments in general.

Judge Wikeley found for the appellant “The appellant’s appeal to the Upper Tribunal (formerly the Social Security Commissioner) is allowed. The decision of the Cheltenham appeal tribunal dated 4 June 2008 under file reference 205/08/00178 involves an error on a point of law.” I therefore suggest that the decision by Judge Wikeley is indeed case law.
However, I suggest we must identify exactly which ‘point of law’ the lower court erred upon. Judge Wikeley explained this as follows:

“The primary legal issue in this appeal is relatively straightforward. The question is this: was this tribunal right to decide that the appellant had not shown good cause for failing to submit to a medical examination for the purposes of incapacity benefit? I conclude that the tribunal applied the law incorrectly.

The underlying legal issue, however, is more complex. Does a claimant have a right to insist on tape-recording, on his own terms, such an incapacity benefit medical examination? I suggest that he does not, but do not need to resolve that question definitively. I provide some guidance on the application of the ‘good cause’ principle in such cases.”

Judge Wikeley clear identifies the ‘point of law’ as being ‘good cause’ (this relates to claimants being required to show good cause for failing to attend a medical examination for any reason). He suggests that claimants do not have the right to record a medical examination on their own terms and then states “but do not need to resolve that question definitively”. I suggest that by making such a statement Judge Wikeley is expressly disposing of recording medical examinations as far as his decision is concerned. There are numerous examples throughout the decision supporting this position. An example is paragraph 48 “Any challenge to the current Departmental policy as regards the recording of medical examinations might well have to be by way of proceedings for judicial review. It would not be appropriate for the Upper Tribunal to express any view on the prospects of such a challenge.”

I suggest that there is adequate evidence within Judge Wikeley’s decision that CIB/3117/2008 is not Case Law in relation to recording medical examinations either of terms imposed by Claimants or the Secretary of State as it fails to deal with any related principles of law.

It is reasonable to assert that the DWP is aware of how case law is established, the doctrine of precedent and how this applies to UT decisions. I suggest therefore that the DWP insistence on stating that there is case law that supports it current non-statutory recording policy (that it imposes on all claimants) means that it must cite the relevant cases in response to this FOIA request.

I further suggest that the DWP is barred from being deliberately dishonest in its response to FOIA requests. This bar arises out of a constitutional and legal requirement to adhere to the rule of law, exercise powers fairly and observe the Seven Principles of Public Life: selflessness, integrity, objectivity, accountability, openness, honesty and leadership to name but a few.

I suggest that the DWP insisting that CIB/3117/2008 is case law in relation to recording WCA is fundamentally dishonest and that if it is unable to cite any appropriate case law it must issue a response to my FOIA request stating that is unable to provide the information requested.

I suggest that if the Information Commissioner allows the DWP to publish dishonest information in its responses to FOIA requests it would is acting against the interests of justice. This is because the DWP frequently states that it has the right to impose conditions on recording and it has case law supporting its position. This has the effect of deterring claimants from challenging the DWP position and reinforces a position that is solely based on policy but is presented as Law to the public.

I do not believe it is credible for the DWP to claim that it genuinely believed it to be relevant case law given the quasi-judicial nature of its day to day operations.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/au...

Yours faithfully,

John Slater

DWP freedom-of-information-requests, Department for Work and Pensions

This is an automated confirmation that your request for information has
been accepted by the DWP FoI mailbox.

By the next working day your request will be forwarded to the relevant
information owner within the Department who will respond to you direct. 

If your email is a Freedom of Information request you can normally
expect a response within 20 working days.

Should you have any further queries in connection with this request do
please contact us.

For further information on the Freedom of Information Act within DWP
please click on the link below.

[1]http://www.dwp.gov.uk/freedom-of-informa...

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J Newman left an annotation ()

There is of course a critically important democratic issue underlying this dialogue and it is a disgrace that DWP knowingly attempts to mislead the people whom it is employed to serve.

John Slater left an annotation ()

You are of course spot on. The problem for me with this one is that the DWP are citing CIB/3117/2008 as relevant case law for recording when it isn't even close. The point of law dealt with by Judge Wikeley was Good Cause and not the DWP recording policy.

I am actually quite happy that the DWP keeps telling these lies and misrepresenting the facts as it helps my ICO complaint about releasing the Legal Advice that Jobcentre Plus obtained (so under the FOIA the Client is JCP and not the whole DWP).

There is clear case law that LPP should be overturned if it proves either way that the public authority is misrepresenting or misusing the legal advice or discloses wrongdoing by the authority. There is another case that applies if the basis for the authority's actions is unclear or open to question.

My favourite is the one that relates to disclosure adversely affects the course of justice.

J Newman left an annotation ()

The managerial principle of “empowerment” for staff is all very well as long as they have the wherewithal to discharge their responsibilities competently. DWP does not take FoI legislation seriously and seems happy to position quite important decisions at too junior a level, which is I suspect what is going on here – the person trying to deal with this is simply (with all due respect) over their head and lacks the managerial support needed to provide the service and quality of response they should. I would cite as a clear example the fact that DWP’s unique & incorrect interpretation of 20 working days was made by nobody more senior than a team leader despite the fact that it was transparently outside of the law.

John Slater left an annotation ()

I think you are right. I'm not going to let the DWP get away with this one easily. Hopefully the ICO will 'encourage' it to admit that it has been misleading everyone. As far as the legal advice is concerned I will take that to appeal if the ICO upholds the LPP exemption.

DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Mr Slater

Please see attached reply to your Freedom of Information request

Many Thanks

Business Management Team | Department for Work and Pensions | Contracted Customer Services Directorate | DWP Operations | Room 306, Block 3, Norcross, Norcross Lane, Blackpool FY5 3TA | www.dwp.gov.uk | Please consider the environment before printing

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