Justifcation of 4 Week Deferment

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

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Dear Department for Work and Pensions,

In its reply to an IRR (DWP Ref: IR 643 & IR 820 04 January 2013) the DWP stated:

DWP Statement
Regulation 23 of the Employment and Support Allowance Regulations 2008 provides that a claimant may be called to attend a medical examination (as part of the Work Capability Assessment) to determine whether he has limited capability for work, with at least seven days written notice of the time and place of the examination.

My Understanding
This explains that the regulations mean a claimant may be called to attend a medical examination.

DWP Statement
The ability to defer a WCA for any reason at all for a period of up to four weeks from the initial appointment date is a concession made by the Department to acknowledge that claimants may have a pre-existing appointment or commitments which would prevent them attending the original appointment.

My Understanding
The DWP accepts that it has absolutely no statutory underpinning for only allowing a 4 week deferment. It is my understanding that that the Secretary of State for Work and Pensions can only derive powers from:

• The Royal Prerogative.
• From Parliament via legislation.
• Acting as a corporation sole (which I believe has the effect of making the ministerial post a legal personality). I believe that this gives the Minister the same common law rights as any other legal person (i.e. a claimant).

Clearly the right to arbitrarily impose a limit for a deferment to 4 weeks is not something that derives from the Royal Prerogative and the DWP has admitted there is no legislative foundation. Therefore, this imposition can only come from acting as a corporation sole, a normal legal person.

DWP Statement
There is no legislative requirement to record the WCA and nor does the Department require such recording.

Understanding
Yet another DWP attempt to misdirect and confuse by providing data that is irrelevant to the FOIA request. However, the fact that the DWP does not require such recording is informative and I will this address later.

DWP Statement
Any request to postpone the WCA for such a purpose can therefore only be accommodated within the existing concessionary period of four weeks.

My Understanding
This is simply a DWP policy and not a statement of law (something a Tribunal has told the DWP previously). Whilst this sounds very impressive this is no more than the opinion of the Secretary of State (as a legal person) and therefore is simply an ‘offer’ to the claimant. It carries no more weight under law that the opinion or counter offer of a claimant. This opinion is subject to the “Good Cause” or “Reasonable Person” test as is any other opinion. If this matter were to be brought before a court or tribunal the DWP would have to prove that its stated position is “reasonable”.

Question 1: Given that the DWP has admitted that the 4 week limit for a deferment has no statutory basis, please provide me with documentation that shows:
- How the 4 week limit was derived and decided upon?
- Which Minister approved the 4 week limit?
- The justification for “reasonableness” of the 4 week limit.

Question 2: The DWP states that it “does not require such recording”. On this basis why does the Audio Recording of Medical Assessments Consent Form include the following text, “However DWP may request a copy of the CD at any time”?

Question 3: Would the DWP consider a counter-offer from a claimant that resulted in their WCA being deferred for longer than 4 weeks or will it only proceed on its own terms? Please provide me with documentation that contains guidance to decision makers on this matter.

I remind the DWP that the ICO is monitoring DWP FOIA responses for the first quarter of 2013. Therefore, if the DWP fails to respond appropriately or attempts to employ its usual tricks of providing a response that is unrelated to the FOIA request I will send the DWP a single IRR. If the DWP fails to correct its failure within 20 days (the ICO believes that 20 days is sufficient time to response but for the most complex of requests, which this isn’t) I will send a complaint to the ICO.

Yours faithfully,

John Slater

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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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Jetset Willy left an annotation ()

"In response to Q3, Appointments may be deferred for up to four weeks from the date of request,
for any circumstance, including the non-availability of recording equipment. After this time the
case will be withdrawn from the system by Atos Healthcare and returned to DWP to make a
decision. "

Methinks were going around in circles!.

John Slater left an annotation ()

I suspect that when the file is returned to the DWP the claimant will be asked to justify why they failed to attend and be put at risk of their benefits being withdrawn.

I do know that they 4 week deferment is only DWP policy and therefore is not law. The issue is then that the DWP is then acting as the Judge in making a decision on its own policy. This is unlawful and has been for 100’s of years.

It does appear that the DWP is not prepared to consider a counter offer from claimants (it is their legal right to do this) for a longer deferment. I suggest that this proves that the Secretary of State is not using his powers reasonably and fairly which means he is acting unlawfully.

GEOFFREY REYNOLDS (Account suspended) left an annotation ()

It takes a fraction of a second to send a text....

Seconds to send an e-mail....

Yet the DWP cannot get recording equipment in four weeks, nor offer a tribunal for up to a year....

But are quite capable of withdrawing benefits through sanctions in no time at all......

Perhaps its me being too critical.....

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 'Justifcation of 4 Week Deferment'.

DWP Response to Q1
Thank you for confirming that the 4 week deferment is purely departmental policy (i.e. it has no statutory backing whatsoever) and that the departments holds no information about how it was derived or justification as to the reasonableness of the time period.

DWP Response to Q2
Thank you for confirming that the DWP believes it is entitled to request a copy of a WCA recording from Atos to use as part of its various ESA decision making processes. Sadly this also confirms that the DWP would be acting unlawfully under the Data Protection Act 1998 and I will forward its response to the Information Commissioner (IC). I imagine that the IC will not be happy that the DWP is obtaining and processing such sensitive data unlawfully.

DWP Response to Q3
Sadly the DWP has elected to ignore my question and respond with rhetoric. Please answer the question which is very simple:

“Would the DWP consider a counter-offer from a claimant that resulted in their WCA being deferred for longer than 4 weeks or will it only proceed on its own terms? Please provide me with documentation that contains guidance to decision makers on this matter.”

If the DWP will never consider a counter-offer from a claimant, who is entitled to make such an offer under their common law rights, please state this clearly.

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

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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References

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

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

show quoted sections

J Newman left an annotation ()

Clearly there are some matters it is better not to record (no matter how important) and feign ignorance. I can quite imagine senior Civil Servants agreeing not to be too specific and let the courts sort it out as and when the need arises – at least this buys some time.

This unilateral approach will continue as long as DWP individuals cannot be held personally culpable for the unreasonableness they perpetrate. As it is they can do pretty much what they like including withdrawing benefits and leave the TS to sort it out with no repercussions whatsoever. The can do this with the security of knowing that even the ICE does not recognise the concept of a decision making – all decisions are completely legitimate opinions.

Dear DWP DWP Medical Services Correspondence,

DWP Response to Q3

Thank you for confirming that the DWP does not hold any information regarding claimants making counter-offers to the DWP in relation to deferment of their WCA for a period greater than 4 weeks. This can only be taken to mean that the DWP will not consider such a counter-offer from claimants and that its position is completely inflexible.

Yours sincerely,

John Slater