Sensitive Personal Data during WFI (inc Health and Work Conversation)

Currently waiting for a response from Department for Work and Pensions, they must respond promptly and normally no later than (details).

Dear Department for Work and Pensions,

In it’s response ref: FoI 4157 dated 30 November 2016 the Department stated that:

“The Health and Work Conversation is a conversation rather than a tool. The conversation will consist of the following principal elements:

• An opportunity for the Work Coach to get to know individuals, to build rapport and trust, and to understand more about the individual as a whole person: their background and the things that really matter to them in their lives.
• A goal-setting exercise, in which the individual chooses a short-term personal goal andworks with the Work Coach to plan steps to achieve their goal. This goal can be related to health or work, but does not need to be about either of these. Individuals will identify ways to overcome possible obstacles they face in their everyday lives, to increase their motivation and build resilience. Work Coaches will use discretion throughout to ensure that these exercises are used only where circumstances are appropriate.
• The HWC will be followed by an action planning exercise, in which the Work Coach and individual will work together to devise a Claimant Commitment once it is introduced.
• The work coach will inform the claimant about the support available to help them to improve their situation.”

It seems highly improbably that any such “conversation” could take place without discussion of the claimant’s illness (physical and mental health), disability, treatment and so on. Such information is as sensitive personal data (“SPD”) in for the purposes of the Data Protection Act 1998 (“DPA”). The DPA defines SPD as:

“(a) the racial or ethnic origin of the data subject,
(b) his political opinions,
(c) his religious beliefs or other beliefs of a similar nature,
(d) whether he is a member of a trade union (within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 c. 52. 1992),
(e) his physical or mental health or condition,
(f) his sexual life,
(g) the commission or alleged commission by him of any offence, or
(h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.”

Schedule 3 Data Protection Act 1998 prescribes the conditions required for the lawful processing of SPD. These include the following:

“1. The data subject has given his explicit consent to the processing of the personal data.

7.—(1) The processing is necessary—
(a) for the administration of justice,
(b) for the exercise of any functions conferred on any person by or under an enactment, or
(c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department.”

The nature of consent is such that a claimant can refuse to disclose their SPD at any point, even if consent had been previously given. Therefore unless the DWP can satisfy S.7 of Schedule 3 of the DPA it does not have the power to require ESA claimants to disclose SPD during interviews such as work-focused interviews (including the so called “Health and Work Conversation”).

RFI1: Please confirm or deny if the DWP has statutory powers that require a claimant to disclose SPD during ESA related interviews such as work-focused interviews (including the so called “Health and Work Conversation”).

RFI2: Please direct me to primary or secondary legislation (the specific section or regulation please) that require a claimant to disclose SPD during ESA related interviews, such as work-focused interviews (including the so called “Health and Work Conversation”).

RFI3: Please disclose any guidance issued to work coaches related to the avoidance of SPD when carrying out ESA related interviews, such as work-focused interviews (including the so called “Health and Work Conversation”). If no such guidance exists please confirm this.

Yours faithfully,

John Slater

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