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[Picture: Skwawkbox blog]

[Picture: Skwawkbox blog]

The headline is a paraphrase of what This Writer’s legally-minded friend actually said, but once you’ve read this article you’ll understand why.

Readers of This Blog will be aware that the DWP released some data about the number of people who died while claiming incapacity benefits, in response to my Freedom of Information request of May 28, 2014 – nearly 15 months after I asked for it.

You should also be aware that the information in the DWP’s release of August 27 was incomplete. However, the DWP withdrew its appeal against my FoI request and tried to claim that it had fulfilled its obligations.

Does anybody think This Writer was going to accept that?

For clarity, here’s what I received from the Information Commissioner at the end of April/beginning of May:

“The Commissioner’s decision is that the Department for Work and Pensions has incorrectly applied section 22 to withhold requested information.

“The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.

  • To disclose the number of Incapacity Benefit and Employment and Support Allowance claimants who have died since November 2011 until May 2014, broken down into the following categories:

– Those that are in the assessment phase
– Those that were found fit for work
– Those that were placed in the work-related activity group
– Those that were placed in the support group
– Those who have had an appeal completed against a Fit for Work (FFW) decision”

I sent an email to the First-tier Tribunal (information rights) asking it to issue directions to the DWP for the full information to be provided immediately, under its case management powers. I wrote:

“The Information Commissioner’s decision was for the Department for Work and Pensions ‘to disclose the number of Incapacity Benefit and Employment and Support Allowance claimants who have died since November 2011 until May 2014’, meaning the date of my request, May 28. The DWP has provided information only up to February 28, 2014. Withdrawal of the appeal indicates that the information I requested – up to May 28, 2014, should be forthcoming, but I note that the updated decision sent by the DWP along with the withdrawal of the appeal states: ‘You will note that those statistics have now been published in a way which provides all of the information you requested.’

I consider that to be either a mistake or a joke that is in extremely poor taste.
“Furthermore, the decision notice orders the DWP to disclose the number of people who died, broken down into categories including:
  • ‘Those that were found fit for work”
    and
  • ‘Those who have had an appeal completed against a Fit for Work (FFW) decision.’

“In its response, the DWP provides only information on those found fit for work, or with an appeal completed against a fit for work decision, who died within an extremely limited period of time after the decision was made and their claim was ended. That is not what I requested, nor is it what the Information Commissioner’s ruling demands. In withdrawing its appeal, the DWP has agreed to provide the number of people who died between December 1, 2011 and May 28, 2014 – including all those who died between those dates after a ‘fit for work’ decision, not just those yielded up by the ‘regular scans’ mentioned in the footnotes to the statistical release provided on August 27.

I await those figures. I will not accept any excuses about the cost of producing them. By withdrawing its appeal, the DWP has undertaken to provide them, as demanded in the Information Commissioner’s ruling of April 30. I note that, in its own words, the DWP has also tried to claim that it has provided ‘all the information… requested’.  Therefore I have reason to believe the DWP will not honour this demand unless it is compelled to do so.

“I note also that the vagueness of the DWP’s statistical release, dated August 27, 2015, has created considerable confusion. Is the number of individuals who died after completing an appeal (tables 2.5 and 2.6 in the release) to be considered as being in addition to those who died after a fit for work decision (tables 2.3 and 2.4)? Are the former statistics merely subsets of the latter? How many of the appeals were granted and how many were refused? Considering this is the part of my original request that the DWP itself asked me to change, it seems odd that the answers provided have been made as difficult to understand as possible. The Department for Work and Pensions is a government organisation and therefore staffed by public servants whose job it is to make matters as easy for the general public as possible. Clearly whoever wrote this statistical release has forgotten their duty to the public and needs to be reminded of it – and the figures must be amended to make them as clear as possible.

“Reference to the DWP’s other statistical release of August 27 casts doubt on the veracity of the information in table 2.1, which claims to provide the total number of individuals who died while claiming IB/SDA and ESA. However, the figures in the statistical release entitled Mortality statistics: Out-of-Work Working Age benefit claimants do not make sense. Death figures per year for 2009-2013 are provided for the total incapacity benefits population (IB/SDA and ESA) and also separately but if the separate totals are added together, the sum is greater – every year – than the number claimed for the incapacity benefits population as a whole – by 80 in 2009, 50 in 2010, 640 in 2011, 1,880 in 2012 and 1,330 in 2013. Whilst I accept that combining the separate benefit populations will produce a number greater than that of the total incapacity benefit population, because claimants were being migrated across from IB/SDA to ESA, almost as soon as ESA was set up, I do not accept that any benefit claimant can die twice. They can only die once, and they would have been claiming only one benefit when they did so. Therefore the total number of deaths claimed in Mortality Statistics: ESA, IB, and SDA is questionable.

“Table 2.2 in Mortality Statistics: ESA, IB, and SDA sets out the ‘total number of ESA off-flows with date of death at the same time’. This table includes a group marked ‘Unknown’. Reference to the footnotes shows that “Where the claimant is not in receipt of anybenefit payment, such as ESA (Credits only), then the phase is shown as unknown. This is unsatisfactory. If a group is mentioned, then the population of that group should be explained completely.  Comments that it includes people on National Insurance credits only do not explain why they are only receiving those credits. This is particularly important because reference to Mortality statistics: Out-of-Work Working Age benefit claimants shows that, between 2012 and 2013, the population of this group decreased from 207,390 to 172,670 – a fall of 17 per cent – while the number of deaths increased from 1,550 to 1,810 – a rise of 13 per cent. As these people were not in the support group of ESA, their mortality rate should be the same as that of the general population, indicating only 394 deaths in 2012 and 328 in 2013. The fact that the actual mortality rate was nearly six times as high creates serious cause for concern about the incapacity benefits system – although, again, as the figures provided by the DWP appear to be questionable, it may be that none of these figures are reliable at all.

“It seems clear that the Department for Work and Pensions has produced two statistical releases that do not stand up to scrutiny, in an attempt to ‘fob off’ information requesters like myself with claims that the Department has provided ‘all the information… requested’. This is utterly unsatisfactory and this government department must be called to account.”

The Tribunal’s Registrar wrote back as follows:

“By withdrawing the appeal, DWP made themselves subject to the requirement of the Information Commissioner’s decision notice that they were to provide you with all the information that you asked for.  The Tribunal no longer has the ability to use rule 5 as the appeal has ended.  The Tribunal does have power is to reinstate the appeal if a party asks the Tribunal to do so.  You have not specifically asked for that and, in any event, I doubt you would want that to happen because with the way things currently stand you should receive all the information you sought.

“Enforcement of the Information Commissioner’s decision notices is dealt with by the Information Commissioner’s Office.  If you are concerned that you have not yet received all the information, you should contact the Information Commissioner’s Office to ask them to enforce their original decision notice.”

It seems clear that this is intended to be taken as confirmation that the DWP has a duty to provide all the information that was requested – and it is now up to the Information Commissioner to hold the DWP to account. If the information is not forthcoming within a very limited period of time, the Department will be in contempt of court.

That did not stop the DWP’s lawyer – who I will not embarrass by naming here – from writing to the Information Commissioner’s Office as follows:

The DWP holds no information within the scope of the ICO’s order which has not been disclosed.  They hold no data for the period February to May 2014 (though we will in future), but there is no finding in the ICO’s decision which says we did hold data for those particular months.  The DWP have disclosed everything the ICO has directed.  The Appellant seems to have misinterpreted what DWP have disclosed, and our clients’ will be writing to him in an attempt to clarify any misunderstandings.

Does anybody believe that? Now you can see why our legally-minded friend called the DWP lawyer a “cheeky madam”.

The most recent information in the request is from more than 15 months ago, at the time of writing. Let’s look back to the DWP’s ‘ad hoc’ statistical release of July 2012. Didn’t it include figures from the previous November, no more than eight months previously? It therefore seems likely that the DWP lawyer is being economical with the truth. The claim that there is no finding in the ICO decision which says the DWP held data for those months is irrelevant, and the claim that the DWP had disclosed everything the ICO had directed is a lie. You only have to look back at the direction itself (you don’t have to go far – it is quoted at the top of this article) to see that.

I have written a response – seen by all three other parties, as follows: “The decision is perfectly clear. The DWP has withdrawn its appeal against it. Now the DWP must comply fully, or find itself in contempt of court.”

Now we have to wait for the Information Commissioner’s response. Note that I have pointed out that clarification of the DWP’s very poorly-phrased statistical releases is required; hopefully the commissioner will reinforce that with a direction for the Department to comply.

You will, of course, be updated on further developments.

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