Hollow victory for DWP after ‘ESA deaths’ tribunal

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.

It is with a heavy heart that I must report that a tribunal has upheld the Information Commissioner’s decision that my Freedom of Information request, seeking an update on the number of sickness benefit claimants who have died, was vexatious.

The tribunal agreed unanimously that my blog article, to which I appended a single line suggesting other readers should also submit FoI requests to demonstrate that there are many people who want the latest figures released, was an abuse of the system.

If you are unaware of the situation or your memory needs to be refreshed, you can read the article here.

But judge Chris Ryan criticised both the Information Commissioner and the Department for Work and Pensions for every other excuse they invented to prevent the death figures from being made public.

This was not a glowing endorsement of the Information Commissioner’s – and the DWP’s – stance; in fact, as you will see, the wording of the decision suggests the exact opposite.

The very first line of the decision notice states that my request “was in itself innocuous”, meaning that there would have been no reason for the DWP to have refused it if not for the effect of the blog article.

But you know, dear reader, that I wrote my request after at least two previous requests – one of which must have been equally “innocuous” as I based the wording of my own on it – had been rejected by the Department. That was why I appealed for public support in the first place.

“The combination of the importance of the statistics in their own right and the appellant’s belief, rightly or wrongly, that the Department had no intention of publishing updated figures, led him to take the steps for which he has been criticised by the Department,” wrote Mr Ryan in his decision notice.

He then proceeded to trash – comprehensively – all the IC’s (and DWP’s) other reasons for suggesting that it could not answer my request.

“The Information Commissioner accepted that the request had a serious purpose,” he wrote. [All italics and boldings in the quoted sections are mine]

“In terms of the burden the request imposed, the appellant drew attention to statements made by members of the Department’s staff to the Information Commissioner during his investigation, in which it was confirmed that the requested information was held and that it could be located and released without exceeding the relatively modest maximum cost permitted for responding to an information request… we do not believe that any great weight should be attributed to it [the burden on the DWP] in our determination.”

Turning to motive, Mr Ryan stated that the Information Commissioner had claimed that the request, viewed in isolation, may not have been intended to disrupt the DWP’s main function – but, taking account of the requests that were apparently generated by the blog, this purpose was altered to a stage where it was intended to disrupt the Department’s functions.

But his judgement was this: “The appellant was motivated by a determination to ensure that the Department took the request seriously.”

(You should note that I dispute the claim that 23 ‘lookalike’ requests were generated by my blog. I have only ever seen seven of these, with no proof that the other 16 exist at all; of the seven, only one makes any reference to me, while the person responsible for another posted a comment on the blog that ties it to me as well. That’s three messages – not enough to justify any claim of vexatiousness.)

The Information Commissioner had also tried to bolster his decision by claiming that my article, and its comment column, could cause harassment and distress to DWP staff, but Mr Ryan wrote: “We do not think that there is much strength in the Information Commissioner’s argument.

“The request itself is expressed in sensible and balanced terms and, although some of the messages published on the appellant’s blog adopted a more strident tone, we saw nothing that a reasonably robust employee should not have been able to contemplate without distress, assuming (which is not certain) that it was drawn to his or her attention… Little weight ought to be attributed to the risk of staff members feeling harassed or distressed.

“The accumulated effect on the Department, in terms of administrative burden and impact on staff, was therefore relatively light.”

But this did not excuse me from my principle crime, which appears to have been encouraging the rest of you to get involved: “It was in… seeking to bolster his statutory rights with the persuasive power that comes from communal action, that the appellant converted an unexceptional request, on a matter causing justifiable public concern, into one that constituted misuse of the freedom of information regime and could therefore properly be refused on the basis that it was vexatious for the purpose of FOIA section 14.”

That was very discouraging to read!

But look at this: “We have considerable sympathy for the appellant.

“We do not know if he was justified in suspecting that the Department had deliberately concealed statistics about those who died while receiving, or being assessed for, state benefits.

“However, the request did seem, on its face and in context, to be one which might well have resulted in disclosure of the information requested.”

Now, you know, and I know – and the tribunal also knows – that the DWP rejected at least two other FoI requests that were phrased along either identical or similar lines as my own, but those last few comments, along with the others strung throughout the decision, make it clear that the tribunal’s view is that there was no reason to reject any of them.

Therefore the only reasonable reading of this decision is that the DWP was wrong to reject those previous requests.

I must now consider options for the future. The tribunal’s decision seems to clear the way for a request made in exactly the same way as mine (but without the appeal for others to add their voices to it) to receive a full response.

But we are dealing, here, with the Department for Work and Pensions under Iain Duncan Smith. It seems more likely that the tribunal’s decision will be ignored and the same excuses will be trotted out, including a now-invalid claim that the Secretary of State is considering how best to publish the figures.

For that excuse to work, he would have had to publish them very quickly and it is now nine months since the claim was first made. As the figures are time-sensitive – that is, for them to be useful in considering changes to the system, they should be released as soon as they are known – it makes no sense to delay and the DWP’s claim that doing so is “in the public interest” is disproved.

If I do submit another request, the wording of it will have to be carefully considered, to include all the information that the tribunal provided in support of it. Obviously I cannot ask any readers to take any action in this matter at all.

In summary, this is a setback but not a defeat. The tribunal has come to a finding based on its reading of the law, but has made it perfectly clear that it was made with reference to events that happened in connection with my request, and not because of my request itself. The tribunal’s opinion was that there was nothing wrong with the request.

With this in mind, we may move on.

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79 thoughts on “Hollow victory for DWP after ‘ESA deaths’ tribunal

  1. Ida worrall

    would a petition requesting the information be released ‘in the public interest’ also be considered ‘vexacious’? after all we are only asking that these figures which they now admit they have and as the judge said would not cause the work to be disrupted to be PUBLISHED thus put into the public domain, as happened befor they realised ‘the public’ were looking at them and ringing alarm bells

    1. Mike Sivier

      In another part of the decision, the judge said a petition is “merely a means of reinforcing a message” and doesn’t trigger a statutory procedure, which is what an FoI request does. Petitioning will not force the DWP to do anything.

  2. Niki

    What a shame, but as you say, many positives and a very hollow victory for the DWP. Have they relapsed the figures to the other chap who was expecting them?

      1. PendanticGeek

        So by the precedent set in this tribunal if an earlier request is pushed through to Tribunal it can not be refused.

  3. Florence

    So sorry Mike, it’s a real kick in the gut when this happens. Please don’t let it knock you back – or any of us – in trying to get the truth from IDS / DWP. It just reinforces the obvious that they know that the figures will cause massive negative impact for them. I for one will be writing to my MP and others to try and get this state of affairs out in the open. Perhaps people reading this could appeal to their own or other Labour MPs who have worked hard to get debates on these issues involved, such as Dennis Skinner or Michael Meacher, to pick the baton up now? And perhaps although the use of petitions has been indicated to not carry much weight, the one for FGM actually did make Gove take action. So let’s not be fobbed off. This is too important to be able to recognised and mourn those thousands driven to their deaths by IDS.

    Also many thinks to your McKenzie friend too, for all the hours put in on this with you.

  4. nicola159nicola

    Doesn’t Samuel Miller also have the same FOI pending? I thought I read that somewhere.

    Ida Worrall mentioned a petition, which I think is a good idea as some sort of support to the new FOI. If you could get 100,000 signatures behind your FOI would it not attract media publicity? Having said that, has there been any media interest on this?

    Anyway, thanks for doing this and I think I speak for everyone else when I say we’ll back you on any further action.

    1. Mike Sivier

      Samuel won an appeal to the Information Commissioner, and then the DWP sent him the wrong information. He demanded the correct information but the DWP missed the deadline. I haven’t heard anything about it since.

      There has been very little media interest on this. A reporter from the Western Mail came to the tribunal but her editor wouldn’t run the story until there was a result, and it seems unlikely, now the result has turned out to be negative.

      1. Big Bill

        This decision would appear to clear the way for Samuel to similarly appeal, his request being, apparently by the tribunal’s definition, innocuous and therefore properly actionable by the correct information being delivered to him, something the DWP have notably failed to do. I don’t know how practical that would be though, since he’s disabled and lives in Canada, SFAIK. How would he get here to face the Tribunal? Can he have a champion? Whatever, we’re getting close here, IDS must be pooping his pants (the ones we paid for) while this goes on, it seems inevitable this is all to hide information of real weight and moment, the release of which would surely finish him politically.

      2. Mike Sivier

        Samuel already has appealed, to the Information Commissioner, and won. The DWP then treated him with contempt by providing the wrong information. He requested the correct details, was told a date when he would receive them, and that date passed without any communication from them at all.

      3. Samuel Miller (@Hephaestus7)

        Mike, your efforts in this matter have been outstanding and herculean, and most appreciated by yours truly. This is only a temporary setback, so don’t be discouraged.

        As you point out, I had asked the DWP to put the new statistics in context, and they missed the promised deadline of April 25th. Now that the outcome of your Tribunal is known, I will pressure the DWP to elaborate on their intentions with regard to compliance and cc the Information Commissioner’s Office.

        (Montreal, Canada)

      4. Atos Miracles (@AtosMiraclesfb)

        reading down the thread with Samuel replying, etc…we are all not a massive big conspiracy..we don’t sit huddled in on-line corners thinking of ways to ‘hassle’ the govt. We’re just individuals who see the suffering and want to help alleviate it…nothing more. No big plan to hurt society but rather to help individuals and enable them to stay alive…to stay alive wiht dignity and within their legal rights. No big deal. In doing so we help society in many ways…perhaps now things have to be quantified in money terms but we save in coroner’s courts, bereaved and distressed families needing extra support…our page even helps people back to work should theyb e well enough. It costs society nothing. There is no ulterior motive, just wanting decent people to live in a decent way. The govt’s ‘Big Society’ at its most vibrant and giving back.

    2. Mike Sivier

      I don’t think it’s a good idea to say you’ll support anything else I do on a public forum – the DWP will probably use it to make another claim that I’m being vexatious!

  5. Mr.Angry

    Well done Mike you did your best it appears the DWP are above the law when it comes to them. Would love to know if Mr.Miller receives any information but doubt it. Clearly the information if released would be incriminating and so it should.

  6. Cedawnow

    Hollow victory indeed. It disgusts me that the DWP didn’t even turn up and they still win. As for the decision of the Tribunal well I need to take some time to process it but to claim that your request was vexatious not because there was anything wrong with your request but that other people also requested the info seems rather spurious to me and dare I say it vexatious.

  7. johndeee

    How utterly bizarre is the logic and implications of this ruling!

    Consider then, that from now on, if one feels that one has a legitimate social concern, then one must refrain from encouraging others to take an interest – even if one’s request for more information from the government has been denied on more than one occasion!

    And we must not forget that what we are talking about here is the number of our friends, family, and neighbours dying!

    Therefore, I feel that I must apologise for the unintended consequence of posting my support, and the reply that I received from the DWP, as a comment on your blog.

    How surreal is that?

    Nevertheless, the important thing is that the information gets out eventually. I hope that the figures will become known sooner, rather than later – but I fear that the real figures may be too shocking for that to happen.

    Please continue to keep us informed, Mike.

    And please feel free to censor any of this post if you feel it appropriate.

  8. Nick

    the bottom line mike is that thousands have died we know that as a fact’ what we would have liked is some closure into how thousands of people have died having been found fit for work by the DWP.ATOS and then within a few weeks of a medical they’ve died somehow

    We have evidence that some took their own lives through committing suicide but for many we have nothing at all other then a press statement never to be spoken about ever again

    as for you being vexatious i believe you to be the main originator of the request for the update death count so i find you innocent of the charge that you were vexatious.

    as for other blogs i read then yes they may well be a concern of those blogs being vexatious but i find in your favour mike and that you have always had the desire to understand on why the sick and disabled in going through the welfare reform process have died and for the rest of both yours and mine lives that will always be the case

    As for the rest of the country what i would say to those people is that looking the other way and not showing any kind of interest in the deats of the sick and disabled only goes to make life much worse for the sick and disabled leading the government to further persecute them’ and as we have seen over the past few years leading many to their deaths prematurely

  9. samspruce

    It is like a madman enters your house, rapes your daughter, kills your mother, shoots your dog and you smack him twice. On the subject of whether you should smack someone you are clearly in the wrong for doing it twice. How very vexatious.

  10. Rose-Marie Mcginn

    Well done Mike for all you have done. Seems strange that freedom of information act only allows one request – they should pick one and answer it. Can the hague request the figures would they be compelled to answer. Its worth a go or the united nations is it worth emailing them. Hope we get the truth soon. Love Rose-Marie

  11. prayerwarriorpsychicnot

    Despicable, and not surprising. It demonstrates a core of rottenness in the system. And the mainstream media – not a dicky bird I suppose? But it is worthwhile doing what you are doing. If the only way the powers-that-be can win is by cheating, they discredit themselves. Transparent double-bind their response. If only you had asked they would say there was no public interest. If more than you ask, they say it is vexatious. Heads they win, tails they win. A technique they use a lot.

  12. Damien Willey

    As you say, a setback, but not a defeat. You almost cracked it Mike, Please do have another attempt, lessons learned on how to play it, I’m sure next time you’ll give them no excuses and although I cannot help in any way, know that you have my support and likely the support of many many more

  13. Phil The Folk

    Mike there are always lost battles in a war. It’s not finished by a long chalk my freind. Lessons learned and a new approach that’s all. The truth will out! All power to you for what you have done.

  14. Samwise Gamgee

    What’s to stop you making another FOI request in a purely private capacity, without making any comment on your blog or any other public forum? Would you be allowed to make another FOI request for the same data as before, or has your “card been marked” as it were?

    Anyway thanks for all your work on this, people deserve to know the truth.

  15. peeve

    I am very sorry you didn’t win – I had high hopes that you would. What also bothers me about this case is that the DWP’s refusal to part with the information must be politically driven, caused by the knowledge that the figures would be damaging to the Tories’ attack on disability benefits. Yet the Civil Service is supposed to be above mere party politics. I mean, I know I’m being naïve in saying that, but aren’t civil servants at least expected to pay lip service to the concept of neutrality? Might there be an MP or two who has a bee in his or her bonnet about Civil Service impartiality (or the lack thereof), who might therefore take up the cudgels on this issue? Just a thought.

    1. Mike Sivier

      I suggested that the refusal was politically-motivated in my “statement of case”.
      Don’t blame the civil service for this – the refusal was ordered by a minister in the DWP.

  16. Petra

    Sadly the answer was what I expected but still hoped that you would succeed anyway.
    After all your hard work (and that of others) It just goes to show how little value we have to the powers that be… Hugs …

  17. Jim Drummond

    The only remedy then is the EU for a ruling and/or an application for them to request the death figures. The person would be that lady that has already told our government off. I can’t remember her name!

  18. Gen William Taggart

    Sorry to here this, but it was expected, the Tribunals rarely make findings which stand directly against any given government body, if it entails a possible prublic outcry.

    Instead they look for a lesser issue to dispose of the case.

    Even then when that does not work, they will resort to fraud as I have highlighted here. http://r-force.org/blog/?p=224

    The HMCTS are flatly refusing to investigate this, and have now sent an intimidatory letter trying to imply that I was taking up a considerable amount of HMCTS staff time.

    Well is it so odd to request to be sent a copy of the directions that should have been sent to me (by law) before the hearing?

  19. Lloyd Kennedy

    Well done Mike . By my estimate there must have been at least 30 000 deaths and African tyrants have ended up in the Hague for less .

  20. Pingback: Hollow victory for DWP after ‘ESA deaths’ tribunal | Britain Isn't Eating

  21. A6er

    So sorry to hear this update Mike, I really had hoped the Tribunal would see that for a request to be “vexatious”, then surely it would need to be copied by more than 7 (proven) similar ones.

    As this travesty of a Coalition trundles on, I get more and more cynical that these decisions are already made beforehand over glasses of brandy in some Tory Gentlemans club.

    We (the UK) are so quick to denounce evil,tyranny and corruption in other countries around the world yet we (the people) are suffering under such conditions on a daily basis too.

    1. Mike Sivier

      Only two other requests were proven to be anything to do with me; seven similar ones were submitted around the same time; another 16 were alleged but not demonstrated.

  22. thelovelywibblywobblyoldlady

    I am gutted for Mike, I really am, but I will say the same to all of you as I said to him…he has NOTHING to reproach himself for, he did an excellent job at the tribunal. The trouble is with first tier tribunals, they deal with “raw law” …. the statutory legislation and regulations which leave very little wiggle room (or remedies or relief to use the correct terms)
    As Mike says, it’s a case of recover and regroup; the information will come out eventually, in some form or another, of that I am sure. Hopefully, this will happen before the next election…tick tock Tory boys!

  23. Rob Herring

    Mike, thanks for your work on this. Perhaps you could get Kate Green MP, Shadow Spokesperson for the Disabled to ask? It would appear to be a natural enquiry given her job title.

  24. creatorsnotconsumers

    Thank you for this update Mike and whilst the tribunal upheld the vexatious claim, it’s a pretty hollow victory given the supportive judgement. So, well done and all the best and thank you for your superb work.

  25. Surplus Labour

    So sorry to hear this Mike. Been following you closely. Thanks for all your efforts on this and all your interesting and informative work on your blog.

    The fight goes on. 🙂

  26. Julia Smith

    Thank you so much Mike for all you did with this. I feel there is more to this than the obvious. It sounds as though they had been ordered to fail your application on the vexatious grounds…BUT they have gone out of their way, it seems to me to tell you how to get a favourable response. I think they were impressed by you, they appreciated what you were trying to do but their hands were tied…but reading through, they couldn’t have made it more clear if they’d said “Put in another request leaving out the problem sentence” in their summary….
    What recourse does Samuel have now ? It’s obvious to all of us that they deliberately sent him the wrong information.
    I think we should get 38 Degrees to organize the petition anyway…in preparation just in case the next request gets denied. (((hugs))) xxx

  27. Atos Miracles (@AtosMiraclesfb)

    Obviously very mixed emotions in response to this…interesting to see where this leads and who can get the results needed under legal remits. You did great carrying this through and it WILL get us the facts somehow. We all just want the dead to be acknowledged, respected and ways of evaluating the pain and exaccerbation that brought them to that stage. Knowing that can SAVE lives in the future. That’s why we’re all here and trying…to help and save people their suffering.IIt just shouldn’t be this hard and complex. :'(

    1. Mike Sivier

      You’re absolutely right that this is about saving lives in the future. It’s easy to quantify the number of people who have died – let’s face it, the DWP has those figures; it just won’t release them – but it isn’t so easy to work out how many thousands could be saved if we find a way to put a brake on what’s going on. That might make it quite hard for other people to grasp but it’s what keeps me hacking away at it.

    1. Mike Sivier

      I could never get answers back from everybody who had been affected. The government has the figures and, if democracy was working properly, the government would supply them.

  28. beastrabban

    Reblogged this on Beastrabban’s Weblog and commented:
    Mike here reports the disappointing news that the Information Tribunal upheld the DWP’s refusal to supply him with the information he requested under the FOIA, on the number of people, who have died since being declared fit by Atos, as ‘Vexatious’. Mike regards this as setback, not a final defeat, as the Tribunal’s official decision contains strong criticisms of the government’s refusal to release the information, and state the request in itself was not vexatious. Mike is therefore carefully considering his next step to obtain this information. Clearly he has to be very careful in order to avoid any further refusal on such spurious grounds.

  29. Jean Casale

    Judicial abuse occurs when judges substitute their own political views for the law. Lamar S. Smith

  30. Peter

    I am not a person of very much legal knowledge but to draw a parody if I may be permitted. I have been killing people for years and burying the bodies in my back garden. The neighbours become suspicious and alert the police. The police come to my house and ask to see my back garden laugh at them and accuse them of being vexatious as I slam the door on their face. Wait till they leave and go back into my van again business as usual.

Comments are closed.