The rights of those examined for illness\disability to take or otherwise obtain an audio-recording of the process.

Rick Sykes 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 rights of those examined for illness\disability to take or otherwise obtain an audio-recording of the process.

A. Prior or to submitting argument to Wikeley J in the case known as CIB\3117\2008, the DWP will have taken legal advice. This freedom of information request calls on you to produce ALL that legal advice, in full and as originally drafted, please.

B. By September 2010 at the latest, the DWP was in receipt of legal advice to the effect that its continuing unreasonable obstruction of the recording of sickness\disability assessments was illegal. This was revealed in a document entitled RPF–27 (dated Sept.\Oct. 2010) in a freedom of information response to Mr John Slater at the What Do They Know website ("WDTK") on 07 12 2012 - your reference: FOI3954-3775: http://www.whatdotheyknow.com/request/13...
This freedom of information request also calls on you to produce ALL THE LEGAL ADVICE REFERRED TO in item 1.2 of the document RPF- 27, in full and as originally drafted, please.

Please note:-

1. I specify 'in full and as originally drafted' because as the extensive evidence available, over the past year and from WDTK alone, reveals, the DWP has consistently and repeatedly misrepresented the law over a prolonged period; it is not capable of honestly and accurately summarising or reflecting the legal position on this issue, whether first framed in statute or judicial ruling, or indeed within the advice the production of which I now seek.

2. Redaction of the names of otherwise unidentified litigants and (junior) staff will nevertheless be acceptable.

3. I am fully aware you will attempt to claim exemption from production of this information on the basis of equivalence to legal professional privilege (litigation privilege and advice privilege) under section 42 of the Freedom of Information Act 1998.

4. That exemption is, however, subject to the public interest test, concerning which the courts have identified several factors which can indicate the public interest in disclosure outweighs the public interest in refusal to disclose.

5. Those factors include the number of people affected - which reaches millions in this case; the amount of money involved - which reaches billions in this case; the misrepresentation of legal issues\advice received - in this instance to claimants in person, extensively, and others, including freedom of information enquirers; partial disclosure of advice given – which is obviously the case here; and, crucially, lack of transparency by the public body or authority involved – with which the history of this matter reeks, right up to the present day.

6. As regards 'crucial lack of transparency', I would also observe at this point that while that might be judicial, and judicious, terminology, in the case of the DWP's behaviour in this matter, in my opinion, it would be not be unreasonable for the sick and disabled to call it prolonged deceit and bullying.

7. As regards the DWP's accidental disclosure of illegality in RPF–27, please don’t waste my time and yours trying to explain it away in some duplicitous fashion begging the substance of this enquiry. As you well know, there have been lawyers and other informed advisers who have spotted the illegality of DWP's treatment of the ill and disabled in this respect, long before now. The accidental disclosure concerned is simply a very useful 'tipping point' in the chain of argument and evidence.

8. The factors and evidence I will present for consideration by the Information Commissioner's Office ("ICO") in due course will not be confined to those I have outlined above. Amongst other matters, I will include certain documentation you issue to staff, and to claimants, and evidence of the instructions you have issued denying specific individual claimants to date (whose details do not belong on the website hosting this request) the right to a recording. And I will draw the ICO's attention to the DWP's failure over many years to issue proper written information to claimants and their advisers despite the ruling in CIB\3117\2008, the judgment in which was given in March 2009..

9. I also expect the ICO to be particularly interested in the DWP's extensive and repeated misrepresentation of the relevant provisions of the Data Protection Act, at WDTK, and offline.

10. Finally, again, in terms of 'a crucial lack of transparency', I will also include a detailed item headed 'obstruction' – under which I shall not fail to provide ample examples of the DWP's gross, extensive and manifold refusals, over a long period, to respond to freedom of information requests on the subject of recording medical assessments within the statutory time periods allowed.

Let's see if you can avoid your response to this one providing yet another such example.

Yours faithfully,

Rick Sykes

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

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John Slater left an annotation ()

Rick,

You might be interested to know that I sent a complaint to the ICO a few weeks ago regarding the legal advice it holds in relation to recording. My complaint states that the DWP has clearly waived any right to claim LPP as it has clearly distributed it beyond the department (RFP 27 further supports this) that sought the advice and has also stated it on the WDTK website (or it has lied by stating the opposite in which case public interest comes into play).

Regards
John

Rick Sykes left an annotation ()

John. Thank you for your, interest, annotation and above all that revealing RPF-27 enquiry. It is a great pleasure to note how far round the net that has already travelled.

I have indeed noticed your reference to the ICO, as regards disclosure of the legal advice in issue. In many senses, my query here is specifically designed to bolster, and as it were 'slot in', behind it - by emphasising not only the fact that the horse has bolted, but that the stable it left behind is very dirty indeed.

The work here, though, is far from done. In the light of the current situation, achieved by the pressure of enquiry from many quarters (from Parliamentary Q's to WDTK), it is perhaps unlikely that the DWP will now risk blatantly refusing a recorded assessment to an ESA claimant. But it can still bully behind the scenes.

Further, it has no plans to offer any Atos 'hcp'-recording to any DLA\PIP claimants now, or, as from April 2013, when the DLA\PIP re-assessment programme rolls out.

And that makes the identification of its (continuing and unaffordable) 'dual-deck CD' requirements for personal recording equipment as an 'unreasonable obstruction' a crucial point for the many (over 2 million) people due to face those assessments, starting next year, as well as for those making claims right now.

In framing my 'seasonal set' of queries here, I am very obviously indebted to the incisive earlier enquiries of you and John Newman, and many others who I will not list for fear of leaving someone out.

Merry Xmas to all FoI enquirers.

Rick.

B. Adams left an annotation ()

I wonder if this can be true.... it must be Christmas

The new equipment is now in place and we are now looking at how we can meet both current requests for recording as well as fulfilling older requests from people currently waiting to have their assessment recorded.  We will make every effort to accommodate customers’ requests, and we hope that it is only in exceptional circumstances that this won’t be possible. http://blog.atoshealthcare.com/

Jim Otram left an annotation ()

B.A I don't think it a coincidence that DWP instructed Atos to start 'advertising' the process for obtaining a recording 7 days after it accidentally let slip that it has known for a long time its obstructive practices were in illegal, in the RPF- 27 response to John Slater on 07 December.

(And I have argued elsewhere that the most certain way the DWP can ensure it is operating illegally is not to tell people what the 'recording rules' are in the first place.)

The website entries show more junior haste than mature consideration, and I particularly like the entry of 14th Dec. referring to a backlog of 'older requests' for recording - which nails the inaccuracy of the 'older' Atos piece about not be able to postpone WCAs 'on the basis of recording', very nicely.

The 'blog' stuff about using personal equipment is highly misleading. The ridiculous, oppressive rubbish about needing 'professionally operated' recording equipment 'calibrated by an engineer' immediately prior to recording has been discarded, but what the piece does not say is 1) that you must have a dual-deck recording device to make simultaneous recordings 2) you will have to take the equipment to be approved by Atos staff a separate appointment on a day prior to the WCA.

This obviously remains firmly in the category of 'unreasonable obstruction' which is exactly what the DWP's legal advice told it not to produce at least two years ago.

The DWP is trying to shore up its position with regard to WCAs by saying it would be only be in exceptional circumstances that Atos wouldn't able to record. That is not good enough. You cannot leave a handful of claimants – or even one claimant - to face the (for many impossible) expense and difficulty involved in overcoming the 'personal equipment hurdles', while every one else gets a recording free. In court the DWP would go down in flames on this, and they know it.

So, in fact, the situation is 'no change'. You may be bullied and threatened if you hold out for a recorded WCA, but in the end, if you stand your ground, the DWP will back down, no matter how long it takes to set up a recorded appointment.

Rick's query here open up an even bigger can or worms for the DWP. People are going to want recordings of the new DLA\PIP assessments starting next year. I have heard that Capita may be planning to provide a recording service in any event – but Atos are not. Which would leave only the 'personal equipment' route for some parts of the country, while others get it free. Given how long it took the DWP to get a modest amount of new kit in place this year, it looks like the DWP has once again organised a predictable train crash, and is just sitting on the rails waiting for it to happen, whilst preening itself for its cleverness in hiding behind half-truths.

J Newman left an annotation ()

Nicely summarised Jim.

Dear DWP freedom-of-information-requests,

The rights of those examined for illness\disability to take or otherwise obtain an audio-recording of the process

CORRIGENDUM

The reference to the Freedom of Information Act in my request of 24 12 2012 should of course read the Freedom of Information Act 2000 (not 1998 as inadvertently stated).

Yours faithfully,

Rick Sykes

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.

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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.

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Nigel Dale left an annotation ()

http://www.whatdotheyknow.com/request/dw...

This may be of help to you, this was denied on cost grounds, but they do say they may have the info.

Rick Sykes left an annotation ()

Tum-te-tum.

I hate to quarrel with any aspect of this admirable and potent site's free service, but I have just checked the time-for-reply date ascribed by it to this request.

If 24 12 12 (actual date of receipt by DWP) was day 'nought' for the purposes of the 'within 20 working days' statutory period, I would suggest that the permitted response time ends at midnight today, rather than midnight tomorrow.

No?

DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear Mr Sykes

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

John Slater left an annotation ()

I don't know if the DWP are simply stupid or deceitful. The claim that the tribunal found the DWP policy reasonable is totally dishonest. The real text from the tribunal judgement is below:

"21. In addition, the tribunal in the present case made no findings as to the reasonableness or otherwise of the official policy about tape-recording medical examinations. It simply assumed that the Departmental policy was reasonable and that therefore the appellant had not shown good cause for refusing to submit to the medical examination. The tribunal also failed to consider whether the appellant had been given an adequate opportunity to consider his options in the light of the stated policy. Although the Medical Examination Centre proforma reporting the incident has a box ticked to say that the appellant “refused” a new appointment, it is by no means clear that he was actually offered one and, if so, on what terms.

22. The misunderstanding by the tribunal of the extent of the principle in CIB/849/2001 and the failure to make appropriate findings of fact in relation to the issue of the reasonableness (or otherwise) of the conditions and the question of good cause involve errors of law. I therefore allow the appeal and set aside the tribunal’s decision."

The DWP have simply extracted some text and used it completely out of context. This section of the judgement was the narrative about the tribunal judgement that Judge Wikeley then set aside!

Perhaps an IRR to ask the DWP why it needed to lie about this tribunal?

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 'The rights of those examined for illness\disability to take or otherwise obtain an audio-recording of the process.'
Your Reference: FOI 4264-5130

The rights of those examined for illness\disability to take or otherwise obtain an audio-recording of the process.

For the reasons clearly indicated in the request of 24 12 12 - to which you responded, late, on 28 12 13 - the public interest in disclosure is obviously paramount in this case involving, as it does, obstruction, deceit and illegality on the part of the DWP.

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

Yours faithfully,

Rick Sykes

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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DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear Mr Sykes

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 ()

I'm lost for words! The only phrase missing is "just trust us".

DWP refuses to believe anything it regards as not being evidence-based, but expects us to do exactly that here. If the advice is genuine and soundly based, why on earth would they NOT want to disclose it as potentially it would take the steam out of the situation or at least allow a better informed debate? Only one answer to this I'm afraid.

Rick Sykes left an annotation ()

You are dead right there, John - and of course I had largely drafted my referral to the ICO before I put this request in (!)

Nevertheless, courtesy no doubt of the ICO's current monitoring of the DWP's performance, we have reached this point a few days earlier than might otherwise have been the case, which is useful.

I will not bw making that referral for a few days yet, and if anyone here would like to add succinct illustration (or list) of their own experience(s) of the DWP's distinct 'lack of transparency', 'deceit', 'obstruction' etc in connection with audio recording sickness\disabilty assessments, they are most welcome to do so by annotation here.

The entire 'dialogue', annotations included, forms part of the referral to the ICO.

In my analysis, 'obstruction and deceit' includes mispreresenting the law in FoI responses (eg s 36 DPA), and grossly delaying, or producing blatantly evasive, responses to FoI requests concerning recording - as well as eg. trying to bully claimants into accepting unrecorded WCAs, misleading them on the telephone, and producing illegal, unaffordable 'policy', which it won't even own up to in full.

(And I am encouraged by JN's very recent outright victory over the DWP via the ICO.)

Rick Sykes left an annotation ()

I am sorry to say I learned last week that my reference to the ICO in this matter didn't get over that office's interpretation of the facts and the 'legal privilege' exemption in the Act, despite there being a strong countervailng 'public interest' argument.

So, unless I appeal - and I'm considering it, because I think there are flaws in the reasoning of the decision - we won't get to see the full advice which I asked for.

Still, although desperately late in the day, the ICO treated the matter with considerable courtesy and apparent thoroughness, and one could interpret this para. from the decision as a clear, even brave, shot across the bows of the DWP:-

" Finally, there is a public interest in openness and transparency. This public interest is particularly marked in this case. There is no doubt that some claimants have a deep mistrust of the whole Work Capability Assessment process. They may suspect the government is not acting to safeguard the interests of those who are genuinely unfit for work and is attempting to frustrate their ability to challenge the fairness of the process. It is absolutely not for the Commissioner to express a view on the whether such suspicions are well founded. However he does recognise that whilst such suspicion exists there is an increased public interest in disclosing the legal advice on which the DWP's policy on this matter is based. Furthermore, withholding the advice simply deepens that suspicion. "

Perhaps that represents a modicum of cheer (and I am told that the full 'decision notice' will be posted at the ICO website in due course ref: FS50489761).

Season's greetings to all FoI enquirers at WDTK.

Rick Sykes left an annotation ()

Meanwhile,for anyone interested in the detail, here is a 'home-made' link to the ICO decision in question:-

https://drive.google.com/file/d/0B5j83PP...

Anita Bellows left an annotation ()

The response of the ICO is very encouraging in terms of the need for openness and transparency. By refusing to release information, DWP might be making the release of information more likely.

Ed Young left an annotation ()

Case Ref: FS50489761

Date: 27/11/2013
Public Authority: Department for Work and Pensions

Summary: The complainant requested legal advice on the right of those attending a medical examination as part of the process for claiming benefits to make audio recordings of those examinations. The request was in two parts. The first sought the legal advice obtained for a particular appeal against a decision to refuse a claim and the second sought the legal advice referred to in a particular document. The Department for Work and Pensions (DWP) initially confirmed it held the advice in respect of both parts but refused to provide it under section 42 (legal professional privilege). The DWP also applied section 35 (formulation and development of government policy) to the legal advice captured by the second part of the request. During the Commissioner’s investigation the DWP advised him that in fact it did not hold any legal advice relating to the appeal. However it maintained its reliance on sections 35 and 42 to withhold the information falling within the second part of the request. The Commissioner’s decision is that the DWP is correct to state that it does not hold any advice relating to the particular appeal and that it is correct to withhold the other information under section 42. In light of this he has not gone onto consider the application of section 35. The Commissioner does not require the public authority to take any steps.
Section of Act/EIR & Finding: FOI 42 - Complaint Not upheld

View PDF of Decision Notice FS50489761 - http://ico.org.uk/~/media/documents/deci...