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ESA65B, ESA50, UC50 and ESA1: ICO Case Reference Number RFA0833480

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Dear Department for Work and Pensions,

RE: ESA65B, ESA50, UC50 and ESA1: ICO Case Reference Number RFA0833480
https://www.whatdotheyknow.com/request/6...

Please disclose a copy of all the responses you sent to the ICO, with regards the above case and ICO correspondence which can be viewed via https://www.whatdotheyknow.com/request/6...

As well as information held about the ESA50 5 December 2019 "latest version" [Coded: ESA50 12/19] and it being replaced on 16 December 2019 with an earlier 2018 version [Coded: ESA50 05/18] on your webpage https://www.gov.uk/government/publicatio...

Plus information held that refer to the all the changes/amendments introduced in the ESA50 5 December 2019 "latest version" [Coded: ESA50 12/19].

Together with any information held on why the ESA50 5 December 2019 "latest version" was removed as a download from https://www.gov.uk/government/publicatio...

By what date or within what time frame does the DWP expect to amend its ESA50, UC50 and ESA1 forms/online applications so they comply with the GDPR and 2018 Data Protection Act so claimants are given an opt-in choice via freely given consent to the statement:

“I agree to my doctor or any doctor treating me, being informed about the Secretary of State’s determination on limited capability for work, limited capability for work-related activity, or both…” ?

Can you provide information on what legislation, guidance and policy the DWP relies upon to send its ESA65B letter to claimant GPs/Doctors, whilst its ESA50, UC50 and ESA1 forms/online applications do not comply with the GDPR and 2018 Data Protection Act requirements on valid claimant consent, further to the guidance sent to your by the ICO 22 July 2019
https://www.whatdotheyknow.com/request/6... to quote

"DWP should stop any processing [sending the ESA65B] which is based on the invalid consent"

When will the DWP be refreshing GDPR compliant opt-in consent with all claimants before sending out ESA65B letterPer specific DWP advice to the ICO via https://www.whatdotheyknow.com/request/6...
and as outlined in DWP guidance:

"Refresh consent for people already in the process It is unlikely that consent obtained under the requirements of the 1998 Data Protection Act will be considered valid under the GDPR. When the consent forms and process have been updated to comply with the GDPR, existing consent should be refreshed using the new process in most circumstances."
Disclosed 15 July 2019
https://www.whatdotheyknow.com/request/5...

To date, has the DWP suspended sending claimant GPs/Doctors the ESA65B, as the letter does not comply with the GDPR and 2018 Data Protection Act? When did it stop sending/suspend the ESA65B letters, after advice from the ICO in July 2019?

Ref:

16 December 2019

Updated version of ESA50 'Capability for work questionnaire' - English version.

5 December 2019

Added latest version of ESA50 'Capability for work questionnaire' - English version.
https://www.gov.uk/government/publicatio...

Yours faithfully,

Frank Zola

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

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no-reply@dwp.ecase.co.uk on behalf of Operations FOI Team, Department for Work and Pensions

Our ref: FOI2020/13521

Contact email: [1][email address]

Dear Frank Zola,

Thank you for your request for information which was received on 18th
March. Your request is being considered under the terms of the Freedom of
Information Act 2000.

You can normally expect a response to your FoI request within 20 working
days. However due to the current situation with COVID-19 it may not be
possible for us to reply to you within this timeframe.

The DWP will make every effort to respond to FOIs as we would usually but
the current situation may mean that available Departmental resources are
needed on other high priority areas.

We kindly ask for your understanding during this unprecedent ed situation
and we will aim to deal with your FOI request as soon as is practically
possible.

If you have any queries about this letter, please contact the department
using the email address and reference number above.

Yours sincerely,

DWP Central FoI Team

Department for Work and Pensions

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no-reply@dwp.ecase.co.uk on behalf of Operations FOI Team, Department for Work and Pensions

1 Attachment

Dear Frank Zola,

I am writing in response to your request for information, received 18
March.

Your response is attached

Yours sincerely,

DWP Operations FOI Team

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 'ESA65B, ESA50, UC50 and ESA1: ICO Case Reference Number RFA0833480'.

I do not consider you have correctly applied FOI disclosure exemptions to my information request, nor undertaken proper public interest considerations that should favour disclosure and I therefore ask you to undertake a review of your decision not to disclose any partial or full disclosure of the information requested.

I highlight that you did amend and publish a new ESA50 on 5/12/19, a copy of which can be viewed at
https://mrfrankzola.files.wordpress.com/...
and therefore I do not consider your exemptions concern formulation and development of government policy but cover operational decisions and application, implementation or adjustments to policy and that the processes that led the DWP to publish the amended ESA50 on 5/12/19 do not automatically amount to government policy making.

Publication of the amended ESA50 into the 'real world' on https://www.gov.uk/government/publicatio... highlight that my information request does not only concern formulation and development of government policy.

Your said in your response:

"DWP use consent as the lawful basis for sharing the ESA65B with the GP, pursuant to Article
6(1)(a) of the GDPR. "

and then go to say

"As you are aware, DWP are currently revising and amending existing consent statements as
necessary."

these quoted responses , show that the DWP knowingly and fully understand that it's current, in use, ESA1, ESA50 and UC50 (as a fact) do not comply with the GDPR nor the Data Protection Act 2018 and that is the reason you amended the ESA50 "consent statements" and then uploaded the new version to https://www.gov.uk/government/publicatio... on 5/12/20. You made these ESA50 amendments in direct response to the correspondence you received from the ICO, copies of which can be seen at: https://www.whatdotheyknow.com/request/6...

I consider your blanket use of Section 35 of the FOI Act, without highlighting which sections you claim apply to the exemptions you assert mean they are not valid.

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

Yours faithfully,

Frank Zola

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.
 
If your email is a Freedom of Information request you can normally expect
a response within 20 working days.
 
However please be advised that due to the current situation with COVID-19
we cannot guarantee a response within this timescale.
 
Every effort is being made to respond to FOIs as we would usually but the
current situation means that available Departmental resources will be
needed on other high priority areas.
 
We kindly ask for your understanding during this unprecedented situation
and we will aim to deal with your FOI request as soon as is practically
possible.
 
Email FOI responses will be issued from [1][email address]
We recommend that you add this address to your email contacts otherwise
the response may be treated as Spam or Junk mail.  
 
Should you have any further queries in connection with this request do
please contact us.
 
[2]http://www.gov.uk/dwp
 
 

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1. mailto:[email address]
2. http://www.gov.uk/dwp

no-reply@dwp.ecase.co.uk on behalf of DWP Central FOI Team, Department for Work and Pensions

Dear Frank Zola,

Our Ref: IR2020/18241

Contact email: [1][DWP request email]

Thank you for your Freedom of Information (FoI) review request.

You can normally expect a response to your FoI review request within 20
working days. However due to the current situation with COVID-19 it may
not be possible for us to reply to you within this timeframe.

The DWP will make every effort to respond to FoI reviews as we would
usually but the current situation may mean that available Departmental
resources are needed on other high priority areas.

We kindly ask for your understanding during this unprecedented situation
and we will aim to deal with your FOI request as soon as is practically
possible.

If you have any queries about this letter, please contact the department
using the email address and reference number above.

Yours sincerely,

DWP Central FoI Team

Department for Work and Pensions

References

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1. mailto:[email address]

Operations FOI Team,

1 Attachment

Dear Frank Zola,

I am writing in response to your request for information, received 10
April.

Your response is attached

Yours sincerely,

DWP Operations FOI Team

Frank Zola left an annotation ()

"we are now aiming to have the ESA1 and
ESA50 live from mid-August and can share copies with you once they have been published. "
https://www.whatdotheyknow.com/request/6...
21/7/20 update
https://mrfrankzola.wordpress.com/2020/0...

We don't know whether the most recent response to this request contains information or not – if you are Frank Zola please sign in and let everyone know.