The Department for Work and Pensions has made a desperate attempt to deny responsibility for causing the deaths of an unknown number of former incapacity benefits claimants, in a recent email to This Writer.

The DWP has written to me in a new attempt to wriggle out of providing a full response to my Freedom of Information request about the deaths of claimants. I have already discussed one aspect of this letter in a previous article. A representative of the Department (who goes unnamed in the letter – it seems they are all terrified of telling me who they are), responding to my assertion that a recent statistical release has misrepresented the full extent of the deaths caused by DWP decisions, stated:

“You requested information in respect of ESA and IB claimants who had died, broken down into various categories. This is what the Department has provided. An individual who is no longer an ESA or IB claimant does not fall within the scope of your request.”

Oh, really?

It seems this is an attempt to trap me by sticking to the exact wording of the request. But what was my request, again? Dated May 28, 2014, it was: “Please provide the number of Incapacity Benefit and Employment and Support Allowance claimants who have died since November 2011.”

So I can refute the DWP’s claims with one name: Michael O’Sullivan.

That was the real name of ‘Mr A’, a disabled man whose suicide north London coroner Mary Hassall ruled in early 2014 was a direct result of being found ‘fit for work’ after a DWP work capability assessment to determine whether he should receive Employment and Support Allowance. The DWP is legally responsible for causing his death.

Mr O’Sullivan’s death took place in late 2013, six months after the work capability assessment. This means he was an Employment and Support Allowance claimant between November 2011 and May 28, 2014, and that he died between those dates.

He clearly falls “within the scope” of my request. Look at it again if you have any doubts.

Where does Mr O’Sullivan appear in the DWP’s figures, published on August 27, this year? He doesn’t.

This is how the DWP hides the meaning of its ‘fit for work’ decisions. If the DWP is able to run a claimant off-benefit, using its spurious ‘biopsychosocial’ method of assessment that attempts to claim most illnesses are only figments of the imagination (seriously!), then the Department claims anything happening to that person afterwards is none of its business.

But the coroner’s ruling makes nonsense of that claim.

Now, it could be argued that this was just one man and we have no reason to believe that anyone else died in similar circumstances; perhaps the DWP will try that one on us.

The answer is – of course – that, conversely, we have no reason to believe that nobody else died in similar circumstances either, without any evidence to prove it. Where is the evidence, one way or the other? If the DWP doesn’t have any, then we are looking at a serious case of negligence – because of the responsibility identified by the coroner. If an investigation discovers that further deaths have taken place, then corporate manslaughter charges should be laid.

In fact, we should question why corporate manslaughter charges have not already been laid, as a result of Mr O’Sullivan’s case.

For these reasons, I am sticking by the words I wrote in my email to the Information Commissioner’s Office of September 2, to which the DWP was responding (inadequately):

“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.”

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To cut a long story short: It looks as though the DWP has blown it, big-time.

Dedicated VP readers who read the article earlier this week will know that the Department for Work and Pensions had until yesterday (October 16) to provide a full response to my Freedom of Information request on the deaths of incapacity benefits claimants.

I received a response by email at around 7.15pm on Thursday – and it’s another attempt at evasion…

… a very poor attempt.

Let’s remind ourselves of the request. On May 28, 2014, I asked:

“Please provide the number of Incapacity Benefit and Employment and Support Allowance claimants who have died since November 2011. Please break that figure down into the following categories:

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

On April 30 this year (2015), after I appealed against the DWP’s refusal, the Information Commissioner ordered the department to disclose all the information I had requested.

Here’s the start of the DWP’s response of October 15:

“In its Grounds of Appeal, the Department noted that it did not in fact hold information to the 28 May 2014 at the time of the request… Accordingly, the Department did not hold all the necessary data to respond to your request in full as at 28 May 2014.

“At the time of your request, the Department only held processed data, which could be analysed within the FOI cost limit, in relation to all five parts of your (amended) request up to 31 December 2013… Accordingly, the Department maintains that it has provided all the information which could have been provided to you, within the FOI cost limit, at the time of your request had it not intended to publish the information in the future.

“We can confirm, however, that the Department would now be able to provide the information you requested for the period 1 March 2014 to 28 May 2014 within the FOI cost limit on receipt of a new request under the Freedom of Information Act.”

Oh, really?

What a shame, then that this excuse doesn’t carry any weight at all or make the slightest bit of difference to the DWP’s obligations. In fact, this seems to be an admission of even worse skulduggery than we had discovered previously.

Firstly, the Freedom of Information Act 2000 states that, when a request has been made in accordance with the Act, the requester is entitled to be informed in writing by the public authority whether it holds the information, and to have that information communicated to him or her. Paragraph 4 states that the information “is the information in question held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated … being an amendment or deletion that would have been made regardless of the receipt of the request.”

In the letter, the DWP states it now has the information, so it is data that the DWP would have collected regardless of my request, so it is data that the DWP must communicate to me immediately, in accordance with the law, as it has not yet communicated the information I requested back in May 2014. Publishing part of the information does not mean the request has been honoured.

But wait – there’s more.

In the original refusal notice of August 12, 2014, the DWP stated: “We can confirm that we do intend to publish further statistics on this topic and these will answer a majority of your questions. As the statistics are intended for future publication this information is exempt from disclosure under the terms of Section 22 (Information intended for future publication) of the FOIA.”

The only part of my request that the DWP specifically stated would not be answered was the line that originally referred to “those who have an appeal pending”; the Department claimed compliance would cost more than the £600 cost limit. But the letter admitted that, under section 16 of the Act, the Department had a duty “to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it”. Therefore the letter suggested I change that part of my request to one referring to “those who had an appeal completed” under a ‘fit for work’ decision. Ever willing to be reasonable, I agreed to the change.

The letter does not state that any of the information was not held by the DWP. If it had, then the Department would have been duty-bound to provide advice to me – at the time – to help me get the facts I wanted. So, not only was I misinformed about the availability of the information, but I was also deprived of the opportunity to revise my request – perhaps to have the missing information when it became available.

Either this was negligence on the part of the DWP, or it was a conscious and malicious decision to hide that important information from me. Either way, it seems the DWP is guilty of maladministration because its action was incorrect and has led to an injustice.

It is also a form of false argument known as ‘moving the goal posts’. Failing to address the points I make in my demand for the information, the DWP has instead raised a further point which had not been an issue previously. I call “foul”.

Considered in this way, the assertion that I should submit a new FoI request is risible. It is not up to me to submit a new request; it is the DWP’s responsibility to correct the omissions it made in its handling of the original – and to explain why my request was handled so poorly.

I shall be consulting with the Information Commissioner’s lawyers regarding the implication of maladministration.

And that’s not all!

It seems whoever wrote Thursday’s letter failed to realise that the DWP is not responding to my original FoI request any more. It is responding to the Information Commissioners decision of April 30, ordering the Department to release all the information relevant to my request. The Department was allowed to delay the release while it had an appeal pending – but it dropped the appeal after releasing the limited and unhelpful figures that were published on August 27. The Information Commissioner’s legal team had contacted the DWP after I pointed out that my request, and the Commissioner’s decision notice, had still not been honoured in full.

So it doesn’t matter what information the DWP had on May 28, 2015. Taken from any angle you like, the DWP has a duty to provide all the information it currently holds, relating to my request. That’s the law.

Those of you who read the previous articles on this subject will know that the Information Commissioner’s lawyers were seeking further information from the DWP, to aid an investigation into whether the Department had contumeliously (I now love that word; it means scornfully and insultingly; insolently) disregarded the Commissioner’s decision.

Considering the content of the DWP’s letter, it seems very clear the answer to that question is: Yes.

This lays the DWP, its officers and ministers, open to legal action for contempt of court. Oh, and I still want my information.

Watch this space.

Afterword: This article takes us only partway down page three of a six-page DWP letter. Expect further points to be addressed in future articles.

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When the government wants information from a citizen, you have to provide it within a certain time limit under threat of sanction. Why is it, then, that the government is allowed all the time in the world when the roles are reversed?

The story so far: A long time ago (May 28, 2014, in fact), This Writer submitted a Freedom of Information request, asking for the the number of incapacity benefits claimants who had died between the end of November 2011 and May 28, 2014.

The DWP claimed to have answered with a ‘statistical release’ on August 27 this year, but I proved that this answered only those parts of the request that suited the DWP’s own purposes and called on the Information Commissioner to demand that the DWP provide the information in a timely manner – or be convicted of Contempt of Court.

On September 25 I had an email from the Information Commissioner’s Office, saying the DWP had pleaded for more time to make a “substantive” response, but may be able to answer the ICO’s queries about the matter – let alone my FoI request! – by October 2.

Having heard nothing by the end of last week – seven days after the deadline – I got back in touch with the ICO. Today I had a reply, to the effect that the DWP “has not been able to provide a final and substantive response at the time of writing.  It has therefore asked for a further short extension in which to reply”.

The solicitor handling the case believes the Commissioner’s position on any future action needs to be more fully informed by way of further explanation from the DWP, and has therefore granted the extension – but added: “In the event that the DWP does not provide a substantive response by the end of this week, I will seek instructions … as to how to proceed.”

Let’s bear in mind that to prove contempt of court, it must be shown that the DWP has contumeliously (it means scornfully and insultingly; insolently) disregarded the Information Commissioner’s decision that it should divulge all the information I requested. That decision was made on April 30 this year, meaning the DWP has managed to delay honouring that decision by more than five months (so far).

I would say that constitutes contumelious disregard, wouldn’t you?

In response to the email, I have written back as follows: “As far as I can see, the DWP is stringing you along with promises that it doesn’t intend to keep – or perhaps only when it suits ministers. This is not acting in good faith.

“It is many months since the full, complete and unabridged information should have been published. Look at what this organisation has done to prevent that publication – appealing against the Information Commissioner’s ruling, then withdrawing that appeal after several months in order to claim that a limited release of heavily-edited information was a full and frank disclosure, and now delaying from one week to the next.

“This is not acceptable.”

Having withdrawn its appeal against the Information Commissioner’s decision, Iain Duncan Smith must provide all the information I requested – including the full number of people who died after being found fit for work, not just those dying within a two-week period of the end of their claim – or be in contempt of court.

The information should prove extremely interesting, in the light of a coroner’s finding that a DWP ‘fit for work’ decision directly contributed to the death of Michael O’Sullivan in late 2013. The coroner’s verdict was recorded in January 2014 – more than a year before the DWP started issuing – false – claims that there is no evidence to suggest a causal link between DWP benefit decisions and the deaths of claimants.

Some may say that it is impossible to draw any conclusions without this vital information from the DWP.

Some may say the fact that the DWP is failing to provide it – after almost a year and a half – tells us all we need to know.

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Remember the Vox Political Freedom of Information request? The one asking for the number of incapacity benefits claimants who had died between the end of November 2011 and May 28, 2014? The one the DWP claimed to have answered with a ‘statistical release’ on August 27?

The one This Writer proved had answered only those parts of my request that suited the DWP’s own purposes?

Today, I received an email from the Information Commissioner’s solicitor, saying that the Department for Work and Pensions may be able to provide a “substantive” response to queries about the matter by the end of next week. That’s more than 17 months after the original request was submitted! The legal maximum period for a response is 20 working days.

I had written to the Information Commissioner, pointing out that the DWP had not followed the terms of his decision notice but had withdrawn its appeal against that decision. Therefore it must provide all the information – including the full number of people who died after being found fit for work, not just those dying within a two-week period of the end of their claim – or be in contempt of court.

The information about everybody who died after being found fit for work should prove extremely interesting, in the light of a coroner’s finding that a DWP ‘fit for work’ decision directly contributed to the death of Michael O’Sullivan in late 2013. The coroner’s verdict was recorded in January 2014 – more than a year before the DWP started issuing – false – claims that there is no evidence to suggest a causal link between DWP benefit decisions and the deaths of claimants.

So you can see that the DWP is now between a rock and a hard place.

Without any further information from the government department, it is impossible to draw any conclusions. However, since the DWP is saying it needs until early October to provide a response to the Information Commissioner’s queries – let alone my original FoI request, it seems clear that there was never any intention to answer the request in a full and honest manner. It seems that the DWP has instead attempted to answer only those parts of the request that suited its own agenda.

Now that ministers are being made to account for their actions, they are stalling for time. To me, that mitigates very strongly in favour of a finding that the DWP did, indeed contumeliously (it means scornfully and insultingly; insolently) disregard the Information Commissioner’s decision.

That is the current situation. Further updates will appear, as and when appropriate.

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