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Seen to be done: The tribunal took place at the Law Courts in Cardiff (pictured), in public - which allowed friends of Vox Political to hear the case.

Seen to be done: The tribunal took place at the Law Courts in Cardiff (pictured), in public – which allowed friends of Vox Political to hear the case.

The Information Commissioner’s Office and the Department for Work and Pensions have highlighted the weakness of their own case for hiding the number of people who have died while claiming sickness and disability benefits – by failing to turn up at a tribunal on the subject.

They had the opportunity to explain why mortality statistics for people claiming Employment and Support Allowance since November 2011 have been suppressed, at a tribunal in the Law Courts, Cardiff, yesterday (April 23).

But, rather than be grilled on the reasons for their decision by a judge, a specialist in this area of law, and a ‘lay’ person (representing the opinions of right-thinking members of the public), they chose to stay away.

The tribunal had been requested by Vox Political‘s Mike Sivier, after he made a Freedom of Information request for access to the information – and it was refused on the grounds that it was “vexatious”.

The Department for Work and Pensions said he had written an article about his request on the blog, containing the line, “I strongly urge you to do the same. There is strength in numbers.” According to the DWP, this line constituted a co-ordinated, obsessive and protracted campaign of harassment against the department.

One line in a blog article, added as an afterthought – an obsessive campaign designed to “disrupt” the workings of the DWP. It’s ludicrous.

The DWP claimed it had received 23 requests that were similar or identical to Mike’s, in the days following his own, and inferred from this that they were from other members of this fictional campaign. Mike has only been able to track down evidence of seven such requests and, of them, only one mentions him by name. Without a tangible connection to Mike or Vox Political, the case is not made out – and one connected request does not constitute a campaign.

In fact, Mike’s own request was made after he read that a previous request had been refused – that of disability researcher and campaigner Samuel Miller. Mr Miller had published this fact in the social media and expressed that he was “furious” about it, and this inspired Mike to write his own request. Who knows how many other people did the same in response to Mr Miller? Yet he has (rightly) not been accused of starting any conspiracy.

Mr Miller’s original request has now received a reply, after the Information Commissioner’s office ruled that it had been mishandled by the DWP. This reply contained the wrong information and Mike urged Mr Miller to point this out. Clearly Mr Miller’s claim is not being treated as vexatious, even though it has inspired others to follow his example – as Mike’s article shows that he did. The contrast in treatment betrays a clear double-standard at the DWP (and the Information Commissioner’s office, after appeals were made to it in both cases).

Perhaps it is because of this fatal flaw in their logic that neither the ICO nor the DWP saw fit to send representatives to the tribunal. This left the floor free for Mike to make his own case, with nobody to speak against him or cross-examine him. Tribunal members asked questions, but these were entirely helpful in nature – allowing Mike to clarify or expand on his argument.

So the claim that the number of similar requests, received soon after the blog article appeared, indicated a campaign against the DWP was refuted with the simple observation that the subject was of topical interest at the time, because of what had happened to Mr Miller. Mike said an appropriate comparison would be with complaints to the BBC over the now-infamous radio show involving Jonathan Ross and Russell Brand. The corporation received only a couple of complaints from people who listened to the show at the time, followed by thousands from people who heard about it later. Mike asked: “Were all those thousands of complaints vexatious in nature? Were they the result of organised campaigns against Messrs Ross and Brand? Or were they genuine expressions of horror at behaviour they considered to have gone beyond the pale? The BBC accepted the latter choice because logic mitigates in its favour.”

The claim that abusive or aggressive language exhibited by blog commenters indicated harassment that was likely to cause distress to members of the DWP was batted away with the argument that nobody from the department would have seen it if they had not gone looking for it (after reading the FOI request from a Vox Political reader who referenced the blog).

Mike said it would be “like a social landlord gatecrashing a residents’ association meeting, listening to the grievances of the tenants and then saying they are harassing him and he’s not going to service any of their requests for repairs. That is not reasonable”.

The DWP had claimed that actioning the 24 requests it insisted on connecting with Mike’s “could impose a burden in terms of time and resources, distracting the DWP from its main functions”, but Mike showed that this was not true, as an email to the ICO, dated October 21, 2013, makes clear: “We can confirm that the Department does hold, and could provide within the cost limit, some of the information requested.”

Nevertheless, the ICO had upheld the claim, saying on November 27, 2013: “For the DWP to respond to all of the requests, it is not simply a matter of sending an email to 24 people. There is a requirement to collate the information, consider exemptions under the Act which may apply, provide a formal response and then, if necessary refer the decision to an internal review…. The Commissioner considers that 24 requests on the same topic in a few days could represent… a disproportionate use of the FOIA.”

In his speech to the tribunal, Mike responded: “It is reminiscent of the line in the TV sitcom Blackadder The Third, when the title character, butler to the Prince Regent in Georgian times, demands a fortune in order to buy votes in a by-election for a ‘tupenny-ha’penny place’. Challenged on the amount, he responds: ‘There are many other factors to be considered: Stamp duty, window tax, swamp insurance, hen food, dog biscuits, cow ointment – the expenses are endless.’” He said the ICO’s claim “smacks of desperation”.

One aspect that worked in Mike’s favour from the start was the fact that both the DWP and the ICO have accepted that there is a serious purpose to his request – publication of figures showing how many people have died while claiming ESA. This is important because the assessment regime for this benefit has been heavily criticised as harmful to claimants and the government has claimed that it has made changes to decrease any such effect. The only way the public can judge whether this has worked, or whether more must be done to prevent unnecessary deaths, is by examining the mortality statistics, but these have been withheld. This is the matter at the heart of the request and the fact that the ICO and DWP acknowledge this is a major element in Mike’s favour.

Perhaps realising this, the ICO tried to claim that the intention was changed by the volume of requests submitted: “The purpose of the totality of the requests as a whole may have gone beyond the point of simply obtaining the information requested and may now be intended to disrupt the main functions of the DWP.”

It is not reasonable to suggest that the purpose of an action changes, just because other people carry out the same action within a similar time-frame. Mike put it this way: “Millions of people make a cup of tea in the advertising break after Coronation Street; would the Information Commissioner suggest that this was a campaign to overload the national grid?”

With nobody on hand to provide the ICO/DWP side of the case, the hearing ended at around midday, after Mike had been speaking for two hours. He was grateful to be supported by his McKenzie friend, Glynis Millward, who provided help and advice, and by a group of Vox Political readers who attended to hear the case.

Now the bad news: No decision was handed down on the day. The tribunal judge explained that the panel must now think about the issues raised and discuss their findings. He said they would aim to provide a full, written decision within 21 days.

It is interesting to note that Mr Miller has acted on Mike’s advice and has been advised that a revised response to his request should be with him soon.

If this response contains updated information under the same headings as the original ‘ad hoc’ statistical release provided by the DWP in July 2012 (and from which we derived the 73-deaths-per-week figure that shocked so many people at the time), then a decision by the tribunal to release the same information may seem redundant. In fact, it is possible that the DWP may provide the information to Mr Miller, simply to spite Mike.

But this would be yet another misunderstanding of what this case is about. Mike doesn’t care who gets the mortality statistics first; for him, it is not about who gets to say they were the one who forced the government into submission – this is about getting the information out to the public, so the people can decide whether ESA does more harm than good.

The tribunal’s decision will still be important as it will establish whether the DWP – and other government departments – will be able to manipulate the principles behind the Freedom of Information Act to avoid providing politically inconvenient information in the future.

In Mike’s opinion, a decision in the government’s favour would effectively turn the Act into a dead letter.

So – for now – the long wait continues.

But it is nearly over.

Follow me on Twitter: @MidWalesMike

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