DWP Reply to RFI re WCA Audio Recording

Alf Denning made this Freedom of Information request to Department for Work and Pensions

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The request was partially successful.

Dear Department for Work and Pensions,

In it’s reply to Mr Lindley (Ref: FOI 1 225 dated 8 April 2015) the DWP stated:

“In response, the consent form is not a contractual agreement. It has been designed to ensure that the claimant and the Healthcare Professional (HCP) have both given their consent for a recording to be undertaken. The parties have equal rights and protection afforded by the Data Protection Act 1998 and the DWP reserves the right to take appropriate action where the recording is used for unlawful purposes. “

Please provide me with the following information:

RFI 1 – What “right” is the DWP reserving in respect of taking “appropriate action where the recording is used for unlawful purposes”? Please specify the legal standing that the DWP believes it has and the nature of the action that the DWP believes it can take (i.e. can it initiate direct legal action or is it limited to making a complaint to the Information Commissioner?)

RFI 2 – Given that the personal data contained within the audio recordings belong primarily to the claimant and may contain some personal data belonging to the HCP, but will never contain any information that belongs to the DWP, on what basis can the DWP intervene in this data protection relationship (i.e. is there a statutory basis or is the DWP simply imposing an internal policy?)

RFI 3 – The DWP stated “The parties have equal rights and protection afforded by the Data Protection Act 1998”. Could you please direct me to the rights afforded to the DWP by the Data Protection Act 1998 in respect of the recordings?

RFI 4 – The current version of the consent form referenced by the DWP includes the following:

Statement 1: “For Centre for Health and Disability Assessments on behalf of the Department for Work and Pensions”

Statement 2: “The copy of the recording you have is to be used solely in relation to your claim for benefit and should not be published or reproduced”

If, as claimed, the purpose of the form is to “ensure that the claimant and the Healthcare Professional (HCP) have both given their consent for a recording to be undertaken.”

Could you please provide me with any information explaining the purpose of the two statements above and how they relate to consent by the HCP and the claimant?

Yours faithfully,

Alf Denning

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DWP Health Services Correspondence, Department for Work and Pensions

1 Attachment

Dear Mr Denning,
 
Please see our response to your recent Freedom of Information request.
 
Yours sincerely
 
Correspondence Team |Business & Strategy Management Division | Health
Services Directorate | Finance Group | Department for Work and Pensions |
Green Zone 2nd Floor, West Wing, Phase 2 | Peel Park | Brunel Way |
Blackpool | FY4 5ES |
 
 
 

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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 'DWP Reply to RFI re WCA Audio Recording'.

Thank you for you very evasive and incomplete response. I would be grateful if the Department provided the requested information rather than present what seems to be substantially opinion.

RFI1
Whether the DWP is the lawfully the Data Controller for the audio recordings is open to question but is irrelevant to my RFI. Being a Data Controller, as defined in the Data Protection Act 1998, imposes obligations on the DWP. It does not confer a right to the “take appropriate action” as is claimed by the DWP.

The Department’s response regarding ‘appropriate action’ stating that it “would depend on each individual case and how the information had been used” is evasive and therefore inappropriate. In its response to Mr Lindley cited in my RFI the DWP stated “DWP reserves the right to take appropriate action where the recording is used for unlawful purposes.”

The available routes open to the DWP within the context of this statement are limited. It either has legally prescribed rights to take direct legal action or it can make a complaint to the relevant authority, such as the Police or Information Commissioner. If the DWP has been prescribed rights to take direct legal action in the circumstances it describes please disclose them. If it has not been prescribed such rights and as with any legal personality its action is limited to making a complaint to the relevant authority (e.g. Police, Information Commissioner) then please confirm that this is the case.

RFI2 & RFI3
The DWP response is predicated on a statement that it is the data controller for the audio recordings. Since it has made this claim please provide me with any information that shows that it is lawfully processing this data? No organisation is simply allowed to obtain data, let alone sensitive personal data, and subsequently justify its actions by claiming to be the data controller. I believe that the appropriate Upper Tribunal case that defines how the DPA should be applied, via 8 propositions, is Goldsmith International Business School v IC and Home Office (GIA/1643/2014).

This is an important point as the DWP openly states that it does not need the audio recordings on the consent form but processes them anyway.

RFI4
The DWP stated “I can advise that, for the DWP, the consent form serves many purposes.”
Please disclose what these ‘many purposes’ are as such consent forms are required to be open about what the signatory is agreeing to.

The DWP has failed to provide the requested information in respect of the purpose of the two statements repeated below and explain how they relate to consent of the HCP and the claimant to the WCA to be recorded? If they serve no purpose in respect of obtaining consent to record the WCA then please say so. Also please explain why they are present on the consent form that the DWP claim is purely about the relevant parties agreeing for a WCA to be recorded.

It would also be helpful to explain on what legal basis the HCP can act for Centre for Health and Disability Assessments which in turn is acting on behalf of the DWP (i.e. can either of these parties sign a legal agreement, which a consent form is, on behalf of the DWP/Secretary of State).

Statement 1: “For Centre for Health and Disability Assessments on behalf of the Department for
Work and Pensions”

Statement 2: “The copy of the recording you have is to be used solely in relation to your claim for benefit and should not be published or reproduced”

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

Yours faithfully,

Alf Denning

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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References

Visible links
1. http://www.dwp.gov.uk/freedom-of-informa...

DWP Health Services Correspondence, Department for Work and Pensions

2 Attachments

Dear Mr Denning,
 
Please see our response and associated document to your recent Freedom of
Information review request.
 
Yours sincerely
 
Correspondence Team |Business & Strategy Management Division | Health
Services Directorate | Finance Group | Department for Work and Pensions |
Green Zone 2nd Floor, West Wing, Phase 2 | Peel Park | Brunel Way |
Blackpool | FY4 5ES |
 
 
 

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