This is my reply to Wesley Stephenson (senior producer, BBC Current Affairs) following up on his response to This Writer’s complaint about the segment on Radio 4’s More or Less covering the DWP’s release of statistics relating to deaths of claimants of incapacity benefits – published as promised in a previous article.

Dear Mr Stephenson,

Thank you for your email of September 14 in which you have attempted to defend your programme against my complaints about it. Please accept my apologies for the slight delay in responding – I had to take a step back and calm down a little after reading your comments, and also had to attend to other matters.

On consideration, the most striking element in your response is the claim that your piece “was about the way the press and particularly The Guardian had reported it”. In case you hadn’t noticed, the Guardian piece refers quite clearly to the fact that the DWP released its information in response to Freedom of Information requests. Any reporter worth the name, investigating the veracity of such a report, would naturally look into the nature of those requests, in order to determine the value of the response from the DWP – and only then would they turn to the media reports in order to decide whether they were accurate or not.

What you have done is engage in an extremely offensive game of ‘Chinese whispers’. “The Guardian said this about the DWP figures but we’ve looked at them and they say that.” Of course, none of what you’re saying matters one jot if the DWP’s figures haven’t properly answered the original Freedom of Information request – and they haven’t. The Information Commissioner’s Office is currently investigating why the DWP deliberately failed to follow the terms of the Decision Notice that was issued at the end of April.

What you are telling me is that, rather than investigate the substantive issue, you have chosen to reinforce a distortion that supports the Conservative Government’s line. That is very clear from your reference to the discredited Full Fact article. But even that article mitigates against you, now that the DWP’s own comments have been added in.

They begin: “Once found FFW [Fit For Work] an ESA [Employment and Support Allowance] claim ends” so anybody who died within two weeks of their claim ending, after being declared “Fit For Work” would also die within two weeks of that finding – or as near to that period as makes no difference. In any case, your comment that “We don’t know whether the 2,380 claimants died after being declared “fit for work” is nonsense because the Freedom of Information request – which you didn’t bother to check – specifically wanted “the number of IB and ESA claimants who have died since November 2011 [up to the date of the request, May 28, 2014]. Please break that figure down into the following categories:… b) Those that were found fit for work”. The fact that they died after being declared “fit for work” is the only reason they are mentioned at all.

Your claim that “The ESA claims of 2,380 people with a ‘fit for work’ decision didn’t necessarily end because they were declared ‘fit for work’ but they will have also have ended because they died” is nonsense. The DWP itself stated quite clearly that the claim of anybody with a ‘fit for work’ decision ends immediately that decision is recorded.

You mention that “people will have still been counted as receiving ESA if they had received a FFW decision and had then appealed”, which is a further indication that you really should have read my Freedom of Information request, the Information Commissioner’s decision notice and the DWP’s response. My request goes on to call for figures relating to “those who have had an appeal completed after a Fit for Work decision”. The DWP provides a figure of 1,340 individuals in this category. What we don’t know – because the DWP was, again, deliberately vague about it (and we can say this is deliberate because there was nothing to stop the DWP from clarifying, as it is now being forced to do) – is whether those who appealed are included in the 2,380 or whether they should be added to that number, so those of us who have been checking the figures properly are saying that 2,380 is the minimum number of ESA claimants to have died after being found fit for work, while the maximum is 3,720.

Add in the number of IB/SDA claimants and that figure rises to a maximum of 4,010 incapacity benefits claimants (ask Nick Dilworth about that – I’m on very good terms with him) – but there is a question mark hanging over whether even that may be done, because adding the total number of deaths of people on IB/SDA together with those on ESA produces a greater number of deaths, in the relevant years, than the DWP’s own combined death figure. It seems that, according to the DWP, you can die twice. Would you like to investigate that, perhaps?

Looking back at the DWP’s comments on the Full Fact page brings us to your error in claiming that “people will have still been counted as receiving ESA if they had received a FFW decision and had then appealed”. The DWP states: “anyone who died during a mandatory reconsideration period would not be classed as being in receipt of ESA at the time of death and should therefore not be included in the figures.” THERE IS NOTHING IN MY FOI REQUEST THAT PERMITS THE DWP TO REMOVE THESE CLAIMANTS FROM THE FIGURES. The request calls for the number of claimants who have died between November 2011 and May 2014, including all those who were found fit for work. Don’t you wish you had checked that? Mandatory Reconsideration was introduced in October 2013 to ensure that claimants who had been found fit for work would have been cut off from ESA while the reconsideration was taking place and would have had no other form of income. How would they have survived? The fact that they were removed from the figures is extremely suspicious. You could have reported this. You didn’t.

“If the claimant goes on to appeal the MR [Mandatory Reconsideration] decision then the ESA claim is reopened,” the DWP continues. This is correct. But we all know that Mandatory Reconsideration was designed to cut down the number of appeals (the question being whether it does so by ensuring the deaths of the claimants) and in any case, as I have already mentioned, there is a further category in my FoI request to cover claimants who have made appeals.

The DWP continues: “Therefore anyone who died during an appeal period (whichever stage of the appeal process they are in) would be classed as being in receipt of ESA at the time of death and would be included in the table 2.3 figures.” If you had asked me, I would have been able to tell you that the relevant part of the original FOI request was for “those who have an appeal pending”. For some reason the DWP did not want to separate this group out from the rest, and asked me to change it to “those who have had an appeal completed after a FFW decision”. You could have asked why the DWP did that. You didn’t.

Let’s have some more of the DWP’s Full Fact reply, as it is relevant to yours: “Yes it is possible that someone may not have appealed the FFW decision and due to time required to update the system they were still in receipt of ESA when they died.” This would, of course, have been within the two-week ‘scan’ period the DWP mentioned but in any case is irrelevant to the terms of the FoI request, which merely required that claimants had died after a FFW decision.

Back to the DWP: “It should also be noted that, as detailed in the publication, the data in tables 2.3 to 2.6 (and table 1) should be viewed with some level of caution as the figures are derived from unpublished information and have not been quality assured to National Statistics or Official Statistics publication standard.” Quality-assured or not, the information has been published – by the DWP, after a delay of between 15 months and three years and nine months. It is not unreasonable to expect the DWP to have managed some kind of quality assurance during that time – especially as the DWP has spent at least two years assuring members of the public that the figures would be published. Considering the period of time we’re discussing, they could even have provided ASMRs – the ONS provides a very handy methodology for doing just that which means it could have been done overnight and checked within a week. You could have asked about that. You didn’t.

DWP again: “I can confirm that the figures to which you refer include people who died up to 2 weeks after their ESA claim ended i.e. those where death is believed to be the reason for the claim ending, as specified in the publication. The FFW decision may have occurred at any point in the preceding period.” It is interesting that the DWP admits it only published information on “those where death is believed to be the reason for the claim ending”, which was not any part of the terms of my FoI request – or anybody else’s. The DWP was instructed (by the Information Commissioner) to provide information on all claimants who died from the beginning of December 2011 to the end of May 2014, after a FFW decision. The end of the claim – as I keep having to point out – is utterly immaterial.

You can see, therefore, that the Full Fact article is also utterly immaterial to the issues at hand. In fact, considering the fact that it has been quoted by Conservative MPs including the Prime Minister, it is hard to believe any claim that it was not written to support the claims of the Conservative Government and therefore your own reliance on it is also suspicious.

Let’s look at your claim that “at no point did we mention you or make any suggestions about what you were trying to achieve the the FoI request”. In the piece, Mr Harford goes into what he describes as a “subtext” that the claim is unfair – “that the people who are being tested and then pronounced fit to work are either so ill that they promptly die or perhaps the strain of being forced into work has hastened their deaths”. It’s sloppy reporting to say people were being forced into work because – as you should know – the jobs simply aren’t there for them; they were being forced to seek work that, the evidence indicates, they weren’t fit enough to carry out. But that’s a side-issue. The fact that Mr Harford suggests a subtext implies that this was behind the initial request that forced the DWP to publish the figures – whether you mentioned it or not. As I said in my complaint, there was nothing in my request to suggest such a thing; in essence Mr Harford and the More or Less team made it up.

On whether the number of deaths was “bigger than we would expect”, you say “it was fair to give the figure for the number of people receiving ESA who had died, to give a sense of the size of the number that had been reported” – but this figure is not accurate. The request was for the full number of deaths after being found ‘fit for work’ – didn’t I already mention Mark Wood, who died of starvation, months after his own FFW decision? Where does he fit into these DWP statistics? He doesn’t, does he? How many other people like Mr Wood are there, who have been omitted from the figures because their deaths happened after the end of the DWP’s self-imposed claim end date period? Remember, the DWP was asked to include ALL deaths; this shows that the Department chose to omit – how many? I don’t know. I wanted to. The DWP refused to provide that figure in what I understand is “contumelious disregard” of the Information Commissioner’s decision. So the figure you provided is only a fraction of the total number of deaths and you have misled the public. It would have been far better for you to have said that the DWP has provided this figure but we don’t know how many have died after its self-imposed time limits. You didn’t.

Your claim that “the ‘fit for work group’ contains a number of people who have an above average chance of dying” is contentious, to say the least. By definition, people who receive a FFW decision have been told that they are no more likely to die than the average – because they are now to be included among the general population and not among people whose conditions mean they should receive incapacity benefits. Your line, “Just because people are deemed fit for work doesn’t mean they should only have an average chance of death” is unintentionally hilarious. Didn’t you stop to think that ALL the people you mentioned – men, people with lower qualifications and older people – are all included in the wider working-age population who have never claimed incapacity benefits and are therefore among those with an “average” chance of death? I’m a man, and fairly close to the older age range mentioned, but in the nearly-two-weeks since your programme aired, it seems I’ve managed to avoid death. That’s not a miracle.

You mention the Ben Goldacre article, but he got the wrong end of the stick too. DWP didn’t give “the right answer to the wrong question” – it gave the wrong answer to the question it was given.

Now, to return to the second paragraph of your letter, given the number of inaccuracies I have identified above, can you see that the comment that “thousands of people die after breakfast”, in context, was in extremely poor taste? Yes, the piece said that “we know nothing about how or why they died” but stating that “thousands of people die before breakfast” implies – before anything else is even said – that the controversy over these figures is a storm in a teacup. It isn’t.

I think it might be useful to tell you a little about possible future developments. As the DWP’s response to my FoI request was so poor, I have written to the Information Commissioner, requesting enforcement of the terms of the request. The Commissioner is investigating why the DWP has only provided information up to February 2014, rather than May, and also why the DWP – after giving an undertaking to provide the full figures for people who died after being found fit for work, has failed to do so. My suspicion is that the Department will say it did not provide numbers for people who died after its ‘scan’ period because it does not hold them. In that case, why offer them in the first place? The DWP never made any objection to any of the wording of the FoI request, other than that which I’ve already mentioned about appeals pending/concluded.

Finally, you may wish to consider the following, alarming, evidence I received yesterday from the Information Commissioner’s solicitor, who writes: “The Act is only concerned with recorded information and not whether the information which is recorded is accurate, logical or consistent with other information.”

This means, of course, that all of the information provided by the DWP may be complete and utter nonsense – moonshine, intended to confuse and diorientate the public in order to keep us further from the facts. That would explain the discrepancy between the number of deaths recorded for all incapacity claimants and those for IB/SDA and ESA when added together. If you had investigated this matter properly, you might have been able to ask some searching questions about this, too. But you didn’t.

I await your response to this with, I have to admit, diminishing hope. You’ve made a proper mess of it so far.

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