Primary or Secondary Legislation related to issuing and delegating duties to outside contractors ESA50 Reminders etc

Mr A P Sinnott made this Freedom of Information request to Department for Work and Pensions

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The request was successful.

Dear Department for Work and Pensions,

I respectfully realise that the purpose of FOI is primarily the provision of recorded information held by the Department as opposed to entering into any debate of providing legal opinion, which I do not seek, only clarification relating to information

Primary legislation is of course Acts of Parliament or Statutes, for example the Social Security Act, the Welfare reform Act. Delegated legislation is made by people acting under the authority of Parliament. These are Statutory Instruments these are in the form of Regulations, for example, the ESA Regulations. A Regulation is a form of Secondary legislation but not nearly as powerful as an Act of Parliament. ESA is typically governed by the Welfare Reform Act and the ESA Regulations

A Report Written by the House of Commons Work and Pensions Committee entitled “The role of incapacity benefit reassessment in helping claimants into employment: Government Response to the Committee’s Sixth Report of Session 2010-12” [Paragraph 63] stated “Instances have occurred where vulnerable claimants have had their benefit stopped as a sanction for non-attendance at a WCA appointment when the non-attendance arose because of administrative errors on the part of Atos or JCP”

The active contract between the Secretary of State for Work and Pensions (Authority)and Maximus Health and Human Services (Supplier) - Health and Disability Assessment Services Service Requirement’ (HDAS – Schedule 2.1 (Service Requirements) (Referrals) contains the following;
• 19.7. In most cases, on receipt of a referral, the Supplier must issue the relevant questionnaire to the Claimant. This is currently a clerical form completed by the Claimant
• 19.8. The Claimant has 28 calendar days to complete the questionnaire and return it to the Supplier, unless an extension is agreed by the Authority
• 19.9. As a minimum, if the form has not been returned within 21 calendar days of issue, the Supplier must issue a reminder to the Claimant
• 19.10. Once the questionnaire has been returned, the Supplier must undertake an initial paper-based review of the case to decide the next appropriate steps. This can include completing the assessment on the information available, gathering FE or scheduling a Face-to-face consultation
This review must be undertaken by a HCP as defined in Part F. Further information on the current policy is outlined in paragraphs 19.19 and 19.20
• Medical services is responsible for gathering any information required to support the WCA process. This includes
• 1. sending the questionnaire (form UC50)
• 2. sending a reminder if the claimant does not reply within three weeks
• 3. deciding if further medical evidence is required from the claimant’s GP or health care professional

The DMG-42456 (Decision Makers Guide) States – “before a claimant can be treated as not having LCW (limited capability for work), the DM (decision maker) has to be satisfied that the prescribed conditions are met. These include the way in which this information was requested and the amount of notice that was given”

However no specific guide to legislation, primary or secondary (as is usually provided to assist the Decision Maker) for reference purposes is available in the DM guide

Due to the above information my FOIA requests, initially, are as follows;

Q1 – Please direct me to the relevant clauses in any primary or secondary legislation (eg The Welfare Reform Act; The ESA Regulations) or any tribunal precedents that lawfully permits the DWP acting for and on behalf of the Secretary of State (Data Controller) to delegate CHDA (Maximus), Atos, Capita etc (all outside contractors, mostly working in separate silos and locations to DWP Decision Makers) to issue (process) paperwork, forms, questionnaires / reminders to the Claimant, for example, ESA50, BF223 and other associated forms? If there is no primary or secondary legislation then please confirm this

Q2 – If this condition is simply an internal DWP policy then please state this explicitly and provide any information held regarding its development and approval

Q3 – Please direct me to the relevant clauses in any primary or secondary legislation (Statutes or Statutory Instruments) that allows Maximus (CHDA) to schedule a Face-to-face consultation, for the purpose of deciding eligibility for Employment and Support Allowance without a completed ESA50. Please confirm whether or not the DWP hold this information

Yours faithfully,

Mr A P Sinnott

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DWP Strategy Freedom of Information, Department for Work and Pensions

Thank you for your Freedom of Information request.

You can expect a reply by 12th June 2017 unless I need to come back to you to clarify your request or the balance of the public interest test needs to be considered.

If you have any queries about this letter please contact me quoting the reference number above.

Yours sincerely

DWP Strategy FoI Team

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DWP Health Services Correspondence, Department for Work and Pensions

1 Attachment

Dear A Sinnott,
Please see our response to your recent Freedom of Information request.
Yours sincerely
DWP Health Services Correspondence Team

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