Right to Impose Reasonable Conditions

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,

In the DWP response (Ref: VTR 3828-3538, dated 17 October 2012) the following answer was provided:

“In answer to Q4a & b, claimants can ask to have their assessment recorded or can ask to record it themselves and all requests will be accommodated where possible. However DWP has the right to impose reasonable conditions on recordings, and does not have any legal obligation to provide recording equipment. “

In relation to the comment - “However DWP has the right to impose reasonable conditions on recordings”:

Question 1 - What ‘right’ is the department referring to (i.e. what specific legislation is being relied upon). The FOIA requires the department to direct me to specific information so please do not attempt to fob me off by telling me that generic legislation is available online.

Question 2 - What does the department define as ‘reasonable’? (It is logical to assume that such a definition exists if such a right truly exists).

Please provide the requested data within the context that common law, statute (including the Data Protection Act), ICO Guidance and various Medical Defence Organisations are absolutely clear that it is perfectly legal for a claimant to record (overtly or covertly) any medical assessment and publish it online.

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...

show quoted sections

References

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

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 'Right to Impose Reasonable Conditions'.

Yet another one added to the ever growing long list of FOIA requests that the DWP decides not to respond within the statutory 20 days. Isn't is strange that the requests that get ignored are always the 'difficult' or potentially embarassing ones!

I think it's probably time for a complaint to the ICO about the DWP total disregard for legislation. I'm sure there are quite a few people who would endorse the complaint!

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

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...

show quoted sections

References

Visible links
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 attached response

Kind regards

Health and Disability Assessments (operations), Department for Work and
Pensions, Room 306, Block 3, Norcross, Norcross Lane, Blackpool, FY5 3TA

show quoted sections

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 'Right to Impose Reasonable Conditions'.

I see that the DWP is incapable of stepping away from its old tricks in relation to FOIA requests.

Response to Question 1
As is my right under the FOI Act I wish to clarify the data provided and confirm that all data has been provided or it has been confirmed that do such data exists. The first sentence confirms the legal position that the DWP has absolutely no legal right to impose these so-call ‘reasonable conditions’ as in a round-about way it has stated that it holds no such data. The second sentence then attempts to perpetuate the myth that the DWP may impose such conditions.

I’m sure that it will not be contested that the DWP and Atos Healthcare are not legal entities and as such my question relates to the legal powers of a Government Minister executed by Civil Servants. These powers can only derive from legislation, common law, acting as a corporation sole or Royal Prerogative. If the Minister (or Civil Servant) acts outside the rights provided by the sources listed they are acting Ultra Vires (in effect illegally).

Therefore, in its answer to question 1 is the DWP categorically stating that it holds no data or cannot direct me any (as required under the FOIA Act) that empowers the Minister (and hence the DWP Civil Servants) to impose these so-called ‘reasonable conditions’. The appropriate answer is either ‘No’ or to provide the data requested.

To clarify the second sentence, is the DWP stating that despite having no legal basis on which to do it the DWP imposes these ‘reasonable conditions’? The appropriate answer is either ‘Yes’ or to provide the data requested.

Response to Question 2
The DWP has attempted to employ this tactic on other FOIA requests without success. Question 2 is a clear request for data. Does the DWP hold data that defines what it considers ‘reasonable’ in relation to the conditions it imposes? Might I suggest that the person who deals with this IRR takes the time to read my original request and answer it appropriately? An apology for the ‘debate’ answer would be appropriate but I doubt the DWP is incapable of saying sorry!

It’s good to see that department trotting out the usual implied threats and perpetuation of imposing conditions in relation to recording WCA. These threats are clearly pitiful scare tactics as it is not the Department (via the Minister) that will be able to issue any action. If a claimant did attempt to modify a recording and use it inappropriately the legal entity suffering a loss would be the HCP. Therefore, the HCP would need to issue legal action (e.g. for libel etc). Should a breach of the Data Protection Act occur it would be for the ICO to take action.

This is my last IRR before I sent this 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/ri...

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...

show quoted sections

References

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

J Newman left an annotation ()

No integrity left whatsoever.

In terms of assessing what is and isn’t reasonable, Decision Makers MUST have been provided with guidance. This would either take the form of a generalised assessment process, specific instructions about certain events or both. It HAS to be auditable to ensure that two people confronted with the same data would make the same (and correct) decision. This would HAVE to be recorded somewhere to ensure consistent roll-out and is so legitimately subject to FoI. A position that suggests none of this has been considered and implemented is untenable as well as incompetent.

Another new constraint has crept in here – CD or tape only – no digital formats. I wonder why. I think I might ask.

More generally, personally I am always reluctant to draw any inferences from roundabout DWP responses (e.g. if they don’t say yes, it must mean no or vice versa) as it will then be regarded as an opinion. I have therefore started using ICO to establish clarity in line with the legislation – if the information does not exist they must clearly say so and perhaps open up a plausibility challenge that ICO could pursue too.

Like you I believe that FoI legislation is one of the few routes available to expose some of the stuff that is going on and therefore has to be pursued in every respect with vigour.

John Slater left an annotation ()

Did the DWP ever have any integrity?

Based upon my limited experience of working with Public Sector organisation I can believe that no guidance exists or that anyone ever thought it was necessary. Things such as repeatability of process, audibility, documentation etc are concepts that most public sector organisations have no knowledge or experience of. Perhaps one way of considering this is that we are talking to an organisation in English when the only language they know is Chinese (I selected this to symbolise the gulf that exists). I think for the DWP ‘reasonable’ means whatever it needs to be this week and it doesn’t see a problem with it being something totally contradictory the following week.

What you and I (and many others here) regard as ‘the basics’ are almost certainly totally alien concepts to the DWP. I know people involved with the Universal Credit Programme and the reality couldn’t be further from what IDS is saying publically.

I find the DWP answers amusing now. I wouldn’t mind if they had some level of intelligence behind them as at least that would create a challenge. I have a vision of a truculent child stamping their feet when producing these atrocious responses.

You raise an interesting point regarding formats. It would be interesting to know what format the Neal 9102 machines purchased by the DWP employ, as the Neal website does not state that they are PACE compliant or provide any technical data. From what I can see the machine finalises the CDs when they are either full or at the end of the WCA. This presents a potential problem as I have a DVD player (albeit 7 years old now) that ‘fails to finalise’ DVD for no good reason and the recording has to be repeated onto a fresh DVD. Of course if this problem were to happen at the end of a WCA then the recording will be lost.

Like you I have a few complaints with the ICO and I suspect that this one will be joining them. I believe that the DWP will try to do anything rather than admit that it has absolutely no right to impose these conditions and that if people use recordings for something inappropriate the DWP has no legal standing to do anything about it other than complain to the ICO or possibly the police if something criminal has occurred. Either was the decision to purse action won’t be the DWP!

Jim Otram left an annotation ()

Good stuff, JS and JN, if I may so.

I particularly noted that audio-format 'condition' too. It's a new one here so far as I am aware - the other recent reference being in response to Sarah Conner:

http://www.whatdotheyknow.com/request/12... (Q2)

And in neither case was it information specifically required by the request! Whereas, I did ask the DWP to state ALL conditions and - after a staggering delay - this 'condition' was not mentioned in the response very recently received. The DWP is an utter shambles of an outfit – as well as a deliberately disingenuous, misleading one, in my view.

As regards the main response here: yes, of course " ..there is no specific statute regarding the Department’s right to impose reasonable conditions on recording"; neither, is there any legislation which would prevent a normal claimant taking an audio-recording of a WCA, overtly or covertly, in the first place - and there never has been .

And in reference to the DPA, you can almost see their little legs whirring round as they try to 'back-pedal' on the many earlier inaccurate statements with which they have, I think, misled the public concerning this Act over the past year and more.

The statements made in that statutory connection still are misleading in some respects, though, in my opinion. (Detail for another annotation, perhaps.)

J Newman left an annotation ()

Oh dear. I was hoping all might not be lost, but it rather sounds like it is.

With all due respect of course, I too suspect some of the responses have been issued by a teenager on a week’s work experience and without particularly good school results in English. The contradiction is that many are deliberately and aggressively evasive which takes more “training”.

What is “legal” here is clear, but it will not stop DWP imposing its own policy-driven conditions. I don’t really mind that either AS LONG AS there is no consequence to claimants which there is through the “no-show” misrepresentation and subsequent impact on benefits, albeit temporarily until the TS does the necessary. Backdating payments is all very well, but does not help the loss of weekly income by 1/3rd – I wonder how DWP employees (and those on service contracts) would react to an equivalent drop in income?

John Slater left an annotation ()

Hi John,

I agree that some of the responses are clearly produced by someone with a modicum of intelligence but they are still generally clumsy and very obvious attempts to evade. People who are skilled at this sort of thing would leave us wondering if we did actually get what we asked for or give us so much data we would have to work very hard to work out that it wasn’t what we asked for.

In principle ‘the DWP having sensible conditions that it wishes to impose sounds ok. The trouble is that politicians and civil servants appear to be incapable of understanding what ‘reasonable’ or ‘sensible’ actually means and all of them neglect to remember that they are public servants. I do have a huge problem with Government departments such as the DWP imposing conditions as they see fit. My main concern is that I believe it is illegal and despite everything else I do believe in our legal system.

The DWP and Atos Healthcare do not exist legally under our system of law. Atos Healthcare is a trading name of Atos Origin IT Services UK Limited. All the paperwork I have seen (including the so-called WCA recording consent form) breaches the UK law in respect of trading names. Atos Healthcare as an entity cannot be party to any legal agreement as it simply doesn’t exist.

The DWP has no legal personality at all. The legal personality in all this is the Minister (which is why the parties in the Medical Services Contract are the Secretary of State for Work and Pensions and Atos Origin IT Services UK Limited). I believe there is a case that all of the paperwork that claimants receive and are expected to sign are legally dubious as they refer to the DWP rather than the Minister and clearly breach the law in relation to the use of trading names.

It is my understanding that the Minister can only obtain powers from the following sources:

- As a corporation sole (in effect this gives them the same powers to do things as we do).
- From common law and legislation (powers granted via statute are essential here as I believe that this is also the only way that the Minister can delegate powers to organisations such as Atos Origin and HCP).
- Royal Prerogative. There are ongoing attempts to limit powers in this area. It is my understanding that this doesn’t allow Ministers to impose the kind of conditions we are talking about.

If my understanding is correct (and I am not a lawyer) then I have a huge problem with the Government acting illegally for any reason as that leads to a very dangerous place. Perhaps we are already in a situation where the DWP will continue to try to impose (bully?) conditions on us all unless we stop it. There are examples in the press of public and certain private organisations believing that they can do what they want (the BBC and Jimmy Saville, the Police and Hillsborough and the News of the World and phone hacking).

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 'Right to Impose Reasonable Conditions'.

A complaint regarding the DWP handling of this request has been sent 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/ri...

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...

show quoted sections

References

Visible links
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

Jetset Willy left an annotation ()

They are still stating they have a 'Right'
I wonder if banging my head against a brick wall would garner an educated reply?

John Slater left an annotation ()

The DWP has no rights at all. The Minister does have the same legal ability to do things like create a departmental policy or have an opinion about things as we do as the Minister is a legal person. I think the DWP is attempting dress up departmental policy as ‘right to impose’ which is why it is being so unhelpful. The latest response confirmed that:

- “the Department does not hold information that empowers the Minister, or any DWP Civil Servants about imposing ‘reasonable conditions’. There is no specific statute regarding the Department’s right to impose reasonable conditions on recording.”
- “the Department does not hold data that defines what it considers ‘reasonable’ in relation to the conditions it imposes.”

This must mean that the DWP is relying on its common law rights to do this. The problem for the DWP is that we have exactly the same common law rights and can impose our own conditions on recording WCA. The trouble is that this leads to an impasse and the DWP decides to terminate the WCA and ask the claimant to provide good cause for failing to attend.

The problem with this is that the DWP is acting unlawfully doing this. This is because it has no statutory backing for its actions it is acting as the Judge in a case that it is a party to (it is considering the reasonableness of its own policy compared to that of the claimant). This has been unlawful since 1610 (Bonham’s Case).