Dear Department for Work and Pensions,

I write in respect of the “Agreement Relating To Health And Disability Assessment Services” between the Secretary of State for Work and Pensions and CHDA Ltd. In the contract document HDAS - Schedule 2.1 (Service Requirements) it states:

“41. ASSESSMENT ASSURANCE
41.1. The Authority will separately contract for the provision of Assessment Assurance (AA) for assessment quality. The AA provider will be responsible for:

• Monthly audit of a statistically valid sample of reports submitted to the Authority and grading these using the same criteria as used by the Supplier, see paragraph 40.4. This will:
o determine Supplier performance against the agreed Contractual standards;
o be used to determine / calculate Service Credits
o provide feedback to the Authority and the Supplier.
• Audit of additional cases as necessary, e.g. to look at trends, examine certain sites in more detail, investigate specific concerns, etc, reporting findings to the Authority and the Supplier;
• Audit of a proportion of new entrant HCP portfolios each quarter to ensure that the correct recruitment, training, approval and audit processes have been followed. The findings will be reported to the Authority and the Supplier;
• Audit of a proportion of all HCP portfolios each quarter to ensure that CPD, audit processes, etc have been followed. The findings will be reported to the Authority and the Supplier;
• Audit of a sample of the audits completed by each of the Supplier’s auditors, providing feedback to the Supplier. This check will be reported to the Authority on an annual basis and will decide whether an auditor is re-accredited to carry out audit.

41.2. The Authority will be responsible for ensuring that the AA provider meets the required standards, for the documentation of processes / procedures and reporting outcomes.

41.3. The Supplier must make available resources from its quality auditors to support the activity carried out by the AA provider. The Supplier will have the opportunity to discuss any findings prior to the results being reported to the Authority, but the responsibility for determining these results rests with the AA provider.”

In its response FOI 2559 of 30 January 2018 the Department stated:
“In response to RFI1, the Department set up an internal Independent Assessment Assurance team. As such no contract documents exist and our response to this point remains unchanged. “

RFI1 – Please disclose all the reports arising out of the regular audits carried out by the internal assessment assurance team (including the raw data upon which the reports are based) for the 2016 and 2017.

Under Section 40 Supplier Quality Audit it states:
“40.1 The Supplier must put in place a regime for auditing the quality of reports as follows:”

It then goes on to specify the contractual requirements for auditing the reports.

Section 40.5 states:
“Subject to Clause 12 and any other express terms and conditions of the Agreement relating to retention of records and data, the Supplier must retain the audit records for a minimum of two years. “

RFI2 – Please disclose the “audit records” reference above in Section 40.5 for 2016 and 2017.

This request is made on the assumption that the Department will carry out relevant redaction of personal information exempt under the FOIA (Section 40 (2)).

Yours faithfully,

John Slater

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 'ESA - Contract with CHDA Ltd - Quality Assurance'.

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 February 2018
URL: https://www.whatdotheyknow.com/request/p...

2. ESA & PIP Mandatory Reconsideration Data
Date submitted: 6th February 2018
URL: https://www.whatdotheyknow.com/request/e...

3. PIP Contracts - Management Information 2017
Date submitted: 8th February 2018
URL: https://www.whatdotheyknow.com/request/p...

4. ESA - Info created during Re-referral, Pre-board checks.
Date submitted: 9th February 2018
URL:
https://www.whatdotheyknow.com/request/e...

5. ESA - Contractual Performance Monitoring of CHDA Ltd
Date submitted: 12th February 2018
URL: https://www.whatdotheyknow.com/request/e...

6. ESA - ESA113 form fees & monitoring
Date submitted: 13th February 2018
URL:
https://www.whatdotheyknow.com/request/e...

7. ESA - Contract with CHDA Ltd - Quality Assurance
Date submitted: 18th February 2018
URL:
https://www.whatdotheyknow.com/request/e...

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 specialised area.”

THE LAW
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 to:
1. “decision making or performance delivery of disability assessments”; and
2. “would be allocated to the same team for response as it falls within their specialised area.”

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 [29]:

“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 team.

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 for 2017.

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 limits.

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.

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,

John Slater