ESA Work Capability Assessment Medical Assessment

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 refused by Department for Work and Pensions.

Dear Department for Work and Pensions,

The ESA Regulations 2008 and Social Security Act 1998 state that a claimant may be called to attend a ‘medical examination’.

The criteria that claimants are required to meet in order to be found as having LCW or LCWRA are defined in Schedule 2 and Schedule 3 respectively of the ESA Regulations 2008/12. However, I have been unable to find a description of, or definition of what the ESA “Medical Examination” (WCA) cited in the ESA Regulations 2008/12 and Social Security Act 1998 actually is and how it has been deemed to be a lawful test for determining LCW and LCWRA. For the avoidance of doubt the “Medical Examination” that I am referring to the face-to-face ESA WCA currently carried out by Atos Healthcare HCP on behalf of the DWP and I will refer to it as the “ESA Medical Examination (WCA)” below.

Therefore, please:

Direct me to the relevant legislation that defines and approves the structure and content of the ESA Medical Examination (WCA) itself (please don’t simply direct me to schedule 2 and 3 of the ESA Regulations 2008 as that is obviously not the information that I am requesting). Please don’t try to be clever and talk about assessments versus examinations as I will interpret that as refusing to comply with the FOIA and complain to the ICO. If no such information exists then please simply say so.

Please provide me with any definition, specification and design documents related to the ESA Medical Examination (WCA). If no such information exists then please simply say so.

Who approved the ESA Medical Examination (WCA) and certified it as being lawful and fit for purpose as being the “Medical Examination” cited in regulations? If no such information exists then please simply say so.

Yours faithfully,

John Slater

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DWP DWP Medical Services Correspondence, Department for Work and Pensions

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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 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 Work Capability Assessment Medical Assessment'.

As usual the DWP has not provided the information requested and has not confirmed whether it holds said information or not as required by the FOIA.

My request was perfectly clear that it related to the actual physical medical examination carried out by Atos Healthcare on behalf of the DWP known as the Work Capability Assessment (WCA). I specifically explained that simply directing me to regulations that listed the activities, descriptors and points would not fulfil my request and yet that it exactly what the DWP has done. I am perfectly aware that the legislation cited allows the Secretary of State to enact regulations. However, the regulations that I have read and the DWP has cited do not define the actual structure and content of the WCA examination. Maybe it will help if I use simpler language:

Question 1: Are there any regulations that describe or specify the structure and content of the physical WCA undertaken by Atos HCP on behalf of the DWP (e.g. what questions a HCP should ask, what physical examinations they must undertake etc). The appropriate answer is yes or no.
(Please do not direct me to the regulations that simply list the Activities, Descriptors and Points such as The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011as this does not fulfil my FOIA request and I will interpret it as the DWP refusing to comply with its statutory obligations.)

Question 2: If the answer to Question 1 is yes please direct me to the relevant regulations. If there are no such regulations the FOIA requires the DWP to state that it does not have the data requested. This means the DWP should not send me a list of irrelevant regulations or opinions.

Question 3: I can only assume that the author of the previous DWP response does not understand a typical product lifecycle. Any product, including ESA, would have to go through the following stages:
• Concept (I imagine that these first two phases would be the )
• Feasibility (normal steps involved in the production of regulations )
• Design
• Implementation
• Integration and Test
• Roll Out
• Improve
• Withdraw

I will clarify the documents I am seeking.
Definition & Specification for WCA – These would state exactly what the physical WCA is, what it must cover, what it must actually do (requirements), responsibilities for each organisation involved, role specification (e.g. HCP, admin), possible outcomes, things that must not be done, etc.

Design of WCA – This would define how the definition and specification are to be implemented. It should define the structure and workflow for a WCA, the tools and scripts required, the physical examinations that a HCP will need to undertake, map the results of physical examinations undertaken to the points listed in the regulations, the data a HCP will need to gather and so on.

The documents provided by the DWP to date do not meet these criteria. If the documents referred to are the only ones that the DWP has then please state that the requested data is not available. If documents that satisfy these criteria do exist please provide them.

Question 4 – The DWP failed to answer my request to state who approved the actual ESA Medical Examination (WCA) as carried out by Atos HCP and certified it as being lawful and fit for purpose as being the “Medical Examination” cited in regulations? It is reasonable to expect that someone senior within the DWP signed off the WCA to confirm that it is lawful and fit for purpose. If no such information exists then please simply say so.

Please note that this is the only IRR that I will submit for this data. If the DWP is evasive or attempts to mislead me I will send 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/es...

Yours faithfully,

John Slater

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

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DWP DWP Medical Services Correspondence, Department for Work and Pensions

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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,

Thank you for the latest in a long line of unhelpful responses and I note that the DWP states that it has issued its final response. I do not believe that the DWP has fulfilled its statutory obligations under the FOIA and will be making a complaint to the ICO.

The DWP comment regarding my request being vexatious is outrageous and will also form part of my complaint to the ICO.

I will also be exploring what other action I can take against the author of the IRR (IRR131 14 March 2013) under the Civil Service Code and if a criminal complaint would be appropriate due to misconduct in public office as the author’s behaviour clearly matches the definition provided by the Crown Prosecution Service.

Yours sincerely,

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 Work Capability Assessment Medical Assessment'.

In light of the DWP previous response:

“You have confirmed that you know where the legislation is and how to find it. The reviewing officer can therefore only assume that in asking for information you already know how to find if it exists, your intent was not either not one to obtain recorded information held by the Department but rather an attempt to enter a debate, or it was an attempt to get the Department to spend resources on something which would obviously be exempt under Section 21 of the Act. Therefore, I find that the previous response was handled incorrectly as it should have rather treated that request as vexatious under Section 14 of the Act.”

I have been advised that the DWP needs to confirm definitively in writing that it regards this FOIA request as vexatious before the Information Commissioner can investigate the matter. The statement reproduced above is not definitive as it only states “should have”.

Therefore, please confirm in writing that the DWP official position is that this request is vexatious under the Freedom of Information Act.

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

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.

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please click on the link below.

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DWP DWP Medical Services Correspondence, Department for Work and Pensions

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Dear Mr Slater

Please see your FOI response attached

Kind regards

Health & Disability Assessments (Operations)/Department for Work and Pensions/2nd Floor/Peel Park/ Brunel Way/Blackpool/FY4 5ESS

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GEOFFREY REYNOLDS (Account suspended) left an annotation ()

John not one of your requests have been vexatious.

Its the new ploy by the fiction department of the DWP for evading pertinent questions that bring into doubt the validity of their ill thought out schemes that persecute the poor and disabled.

Have you noticed how often they send out utter claptrap to avoid the questions being asked?

They are backing themselves into a tight corner as the snippets they choose to release start to form a jigsaw of corruption at the highest levels.

Even jobcentreplus staff are becoming sick of being used as cannon fodder for their increasing deceit.

The truth is starting to emerge leaving in its wake an indelible stain and a trail of bodies that they try to ignore..........

Dear DWP DWP Medical Services Correspondence,

Thank you for your prompt response. Sadly it appears that the DWP struggles with basic English comprehension and has deliberately and unreasonably misinterpreted by FOIA request. What I said was

"Direct me to the relevant legislation that defines and approves the structure and content of the ESA Medical Examination (WCA) itself(please don’t simply direct me to schedule 2 and 3 of the ESA Regulations 2008 as that is obviously not the information that I am
requesting)"

It will be interesting to see what the ICO makes of this as I will now complain about the DWP handling of my request.

Yours sincerely,

John Slater

John Slater left an annotation ()

Geoffrey,

Thanks for your kind words. I agree with you on that I don't think any of my requests are vexatious. It is interesting that since the ICO issued new guidance on the matter the DWP has been citing it more and more as an excuse to avoid answering. I guess it is like a child with a new toy, it just wants to play with it all the time!

I have now sent a complaint to the ICO asking it to rule on the DWP claim that my request is vexatious. It will be interesting to see how the DWP react when the ICO finds against them. By its very nature claiming that a request is vexatious is a slur on the requester's character and as such I shall be seeking a public apology from the DWP. If it refuses then I will take the matter to the ICE and if necessary the Parliamentary Ombudsman.

A Beresford left an annotation ()

Interesting. I don't see where this is vexatious?

John Slater left an annotation ()

A Beresford,

I think the DWP logic is that because I told them that schedule 2 and 3 of the ESA Regulations 2008 doesn't contain the information I asked for then I know where the information is so my request is vexatious.

I think this was "explained" by the DWP in its response "The DWP confirms that as the information requested was provided to you and you have confirmed in writing that you know where to find the legislation, you appeared to be asking for information which you already had access to."

if you can follow that logic then .....

DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear Mr Slater

Please find an additional response relating to IR131

Kind regards

Health & Disability Assessments (Operations)/Department for Work and Pensions/2nd Floor/Peel Park/ Brunel Way/Blackpool/FY4 5ESS
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Jim Otram left an annotation ()

"... the Commissioner has confirmed that the response dated 14 March 2013 was handled incorrectly and reference to the term vexatious should not have been used on this occasion."

Someone here recently called the DWP's behaviour in the wake of recent cases decided with reference to s.14 FoI Act as like a kid with new toy. Looks as if they have now broken it.

Well held, JS.

John Slater left an annotation ()

DWP response to ICO complaint:
"As you were not content with the outcome of the internal review decision dated 14 March 2013 (ref IR131) you applied directly to the Information Commissioner’s Office for a decision. The Commissioner has examined all your evidence and has decided to uphold your complaint.

In that decision, the Commissioner has confirmed that the response dated 14 March 2013 was handled incorrectly and reference to the term vexatious should not have been used on this occasion. The Commissioner’s decision is that both the initial FoI and Internal Review responses were dealt with constructively and in both decisions provided information under the FoI regime, it was therefore not appropriate to make reference to Section 14(1), at this time.
...
I apologise on behalf of the Department for any confusion the use of the term “vexatious” has caused. "

Thanks Jim. It must have been very painful for someone at the DWP to actually write an apology!

Dear DWP DWP Medical Services Correspondence,

Thank you for the apology, which I accept.

A final point worth noting is that there was no confusion regarding the use of vexatious. The DWP was incorrect when it claimed my request was vexatious.

Use of the term is extremely emotive and in my opinion has the potential to be defamatory if abused. I hope that the ICO decision will encourage the DWP to think carefully about any future use.

Yours sincerely,

John Slater

J Newman left an annotation ()

Hear, hear!!!

I love the suggestion that there has been some "confusion" - as if to say JS misunderstood their message. No room for confusion, ambiguity or anything else as far as I can see now.

DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear Mr Slater
 
Please see the attached follow up letter regarding your recent Freedom of
Information request.
 
Regards
 
Business Management Team | Department for Work and Pensions | Contracted
Customer Services Directorate | DWP Operations | 2nd Floor, Peel Park,
Brunel Way, Blackpool FY4 5ES | [1]www.dwp.gov.uk | Please consider the
environment before printing 
 
 
 
 

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J Newman left an annotation ()

Going back to the original question about definitions, amazingly there is not one for "work" either.