Tag Archives: First-Tier

“Isn’t the DWP’s lawyer a cheeky madam?”

[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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Unrepentant IDS will persecute the sick no matter what the death statistics say

ids-auschwitz-meme

The publication of the DWP’s damped-down death statistics (we’ll be given ratios because the actual number of deaths is too inflammatory, we’re told) will be a victory for those of us who have campaigned for the facts, no matter what they actually say.

If you didn’t know already, the DWP only announced that it would publish these figures on Thursday (August 27) after This Writer supplied his submission to the Information Tribunal on the DWP’s appeal against providing the actual numbers – a submission which included a request to have the appeal struck out on the grounds that it is an abuse of process.

Suddenly the date of publication went from being “before the end of autumn” (according to Priti Patel) to August 27. Clearly the DWP was terrified that it would lose control of events and the public would get accurate information, and acted accordingly.

In short: IDS and his department fell apart like a paper bag in a thunderstorm.

It is impossible to say what the statistics will reveal, when they are finally published (at 9.30am on Thursday, it seems). Perhaps they will provide exhaustive information on the deaths that have taken place, broken down into the groups requested by This Writer and others (it is said to be in response to FoI requests), and also providing information on the causes of the deaths, with appendices containing the raw data used to produce the report.

Alternatively, we could get a dumbed-down piece of fluff that provides as little as possible that can be used to find out the extent of the carnage, but can be waved at us by Iain Duncan Smith as evidence that he has given us what we wanted… and as evidence that any figures demanded by the Information Tribunal are of little consequence.

That is the aim – damage limitation. To make it seem that nothing out of the ordinary is happening. Plausible deniability.

The DWP already believes it has plausible deniability for every dodgy death on its books; no DWP representative can be said to be directly responsible for any of the deaths – they were a consequence of claimants’ illnesses, right? Even the suicides can be claimed as indicative of claimants’ poor mental health – except we know that anyone confessing suicidal thoughts at a work capability assessment is immediately asked why they haven’t already killed themselves.

Not conclusive? Maybe not. But then, that isn’t the only evidence available. It’s all part of a bigger picture.

In December last year, This Blog published a series of articles (here’s one) explaining how the DWP’s behaviour may be equated with the Nazi ‘chequebook euthanasia’ programme that eventually became known as Aktion T4 – a programme that caused the deaths of 70,000 German people with (among other problems) mental illnesses, before its methods were used against entire races the Nazis considered undesirable, in the extermination camps.

“It could be argued that the Coalition Government doesn’t have any blood on its hands. Nobody goes around the United Kingdom subjecting the sick and disabled to so-called ‘mercy’ killings, after all,” I wrote.

“They just subject people – who are already in an unstable frame of mind – to a highly pressurised ‘fitness’ test and then demand to know why, considering their condition, they haven’t killed themselves yet. Then they let those people do all the work themselves.”

On Thursday, it’s just possible that we might find out how successful they’ve been. If there have been more than 70,273 deaths in the last few years, the Conservative Party will have beaten the Nazis.

And Iain Duncan Smith intends to continue. Only this week, he announced a new plan to purge the Employment and Support Allowance benefit bill of mentally ill claimants. He told us “Work is good for your health”.

In fact, if you have a mental illness, work can drive you to an early death via a combination of (among others) stress, anxiety, depression and paranoia.

Duncan Smith’s claim that “Work is good for your health” may therefore be seen as a lie – almost as great a lie as the slogan from which it was adapted.

You’ll be familiar with it: “Work makes you free” – it hangs in its more familiar form of “Arbeit macht frei” over the gates of the Auschwitz extermination camp that Duncan Smith visited in 2009.

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Location revealed for ‘benefit-related deaths’ Tribunal hearing in November

The battleground: Field House, in London. It doesn't look like much from the outside but it is where the DWP will try to slither out of its Freedom of Information oblligations - again.

The battleground: Field House, in London. It doesn’t look like much from the outside but it is where the DWP will try to slither out of its Freedom of Information oblligations – again.

The First-tier Tribunal (Information Rights) has provided details of the venue for the ‘benefit-related deaths’ hearing at which the DWP will appeal for permission not to publish the exact number of people who have died while claiming incapacity benefits since November 2011.

It will be at Field House, 15 Bream’s Buildings, London EC4A 1DZ, starting at 10am on November 10 this year. Apparently it’s a five-minute walk from Chancery Lane tube station; those of you with disabilities will need to plan extra time to allow for your conditions (although obviously you don’t need This Writer to remind you of that).

All tribunal hearings of this kind are open to the public, so if you are able to attend, please make a note of the date and location in your diary and come along. If you can’t, tell all your friends to come in your place.

Here’s a map:

150821tribunallocationmap

 

Any and all support on the day would be welcome. The Conservative Government, by rush-publishing its fudged ‘ASMR’ statistics on benefit-related deaths, is hoping to quiet public unrest about the number of deaths that have taken place after its “welfare reforms”.

It seems clear that ministers are terrified that this issue will continue to blow up in their face.

This is your chance to show that you are not going to let it lie down and die.

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FOI? Or just FU?

140113FoI

It seems Yr Obdt Srvt has become the victim of DWP game-playing that shows contempt for sick and disabled benefit claimants whose lives are threatened by poor decision-making.

You may be familiar with the following saying (or at least with the fact that George W Bush wasn’t): “Fool me once, shame on you; fool me twice, shame on me.”

I mention this as a precursor to the following story, for reasons that should become clear.

Back in May, I sent another Freedom of Information request to the Department for Work and Pensions, again asking for an update of the ad-hoc statistical release Incapacity Benefits: Deaths of Recipients from mid-2012 (long-term readers will be aware a previous request was refused as “vexatious”).

In it, I pointed out: “A response to a previous Freedom of Information request (FOI 2013-IR665) stated that ‘Whilst we currently have no plans to directly update the ad hoc report on “Incapacity Benefits: Deaths of Recipients” published on 9th July 2012, the Department does monitor requests we receive for new statistics and consider whether we can produce and release analysis that will helpfully inform public debate. The Department is therefore looking at this issue with a view to seeing what statistics could be produced on a regular basis.’

“It went on to state that ‘the balance of the public interest test falls in favour of withholding this information. As I have explained above, statistics on this issue will be published in due course.’

“I have studied DWP release schedules extensively and in the 11 months since I made my request, I have found no publication of statistics on this issue… Was the DWP’s statement that ‘statistics on this issue… will be published in due course’ made in error?

“If this is the case, then there can be no public interest argument against disclosure of this information in response to either my previous request or any future request, as it is not set to be published as part of the DWP’s current schedule. I remind you that this is time-sensitive information; it is important that the data becomes public knowledge as soon as it is available, in order to inform government policy and avoid preventable fatalities in the future.”

If this was not the case, I continued, then – as at midday on May 28 this year, what was the date on which it is planned that the DWP will be publishing figures from November 2011 to those which are most up-to-date?

If no date of publication was set down, I concluded, then the DWP had a duty to provide an update, to me, immediately.

I reminded the Department’s FOI officers that an email from the DWP to the Information Commissioner’s office, dated October 21, 2013, stated that “we can confirm that the Department does hold, and could provide within the cost limit… the information requested.”

The substantive issue: A DWP statistical release in 2012 showed that more than 200 people were dying every week as a result of Iain Duncan Smith's changes to assessment procedures for incapacity benefits - either they were put into groups where unreasonable demands were placed on them or the stress and anxiety of constant re-assessment was too much for their bodies to take. Many were driven to suicide.

The substantive issue: A DWP statistical release in 2012 showed that more than 200 people were dying every week as a result of Iain Duncan Smith’s changes to assessment procedures for incapacity benefits – either they were put into groups where unreasonable demands were placed on them or the stress and anxiety of constant re-assessment was too much for their bodies to take. Many were driven to suicide.

Apart from acknowledging receipt, the DWP ignored my request. I therefore invoked my right to have it reconsidered, immediately after the legally-prescribed period ran out. By this time the DWP was already breaking the law.

Apart from acknowledging receipt, the DWP ignored my reconsideration request. Are you getting angry about this yet? Remember, it is about deaths caused by government policy. I therefore notified the Information Commissioner and requested a ruling on this matter.

The Commission responded late last month, saying the DWP had 10 working days to get a response back to me. Tomorrow was the deadline and the response arrived today.

You’re really not going to like it.

“Unfortunately there was a mistake in the response you were sent for FOI 2013-IR665. Due to an administrative error an Annex A (about the Public Interest Test) appeared at the very end of the letter. It was not intended for this response and as such there is no mention of it anywhere in the main letter.

“So the answer to your first question ‘Was the DWP’s statement that ‘statistics on this issue [incapacity benefits: deaths of recipients] will be published in due course’ made in error?’ with respect to the reply you received is yes. That statement was not intended to be part of the response and was therefore made in error. We therefore attach a corrected copy of the reply to FOI 2013-IR665 and apologise for any inconvenience caused.”

That is not good enough. There was no way I could have read that response without believing that I was being told updated statistics were to be published in the future; any other interpretation would have defied common sense.

Also, it makes a nonsense of what was said in the body of the response – that the DWP was working on releasing figures on a regular basis.

And it means one of two things: Either the DWP was lying then, when it said work was progressing on what could be published, or it is lying now, by saying the information about the public interest test was included in error.

Either way, it seems clear that the intention was to stop my request from progressing any further.

Let’s move on to the really insulting part. Today’s response states, and I quote verbatim:

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. This exemption is qualified, and is therefore subject to a public interest test. The public interest test is where the Department considers whether the balance of the public interest falls in favour of withholding or disclosing the information requested.

“Arguments in favour of disclosure: There are public interest arguments in favour of disclosure of this information at the present time. Disclosure would for example improve transparency in the operations of the Department.

“Arguments against disclosure: There are public interest arguments against disclosure of this information at the present time. These arguments include that it is in the public interest to adhere to the existing publication process for official statistics, which includes time for the data to be collated and properly verified.

“It is also in the public interest to ensure that the publication of official information is a properly planned and managed process, to ensure that the data are accurate once placed into the public domain. It is also in the public interest to ensure that the information is available to all members of the public at the same time, and premature publication could undermine the principle of making the information available to all at the same time through the official publication process.

“On this occasion, the balance of the public interest test falls in favour of withholding this information. As explained above, statistics on this issue will be published in due course.

“We do not have a planned publication date at this stage but we will pre-announce the agreed date.”

That’s right – having apologised for misleading me into believing that updated information was to be produced when it wasn’t, the DWP went on to say that updated information was to be produced, but it wasn’t going to provide that information to me – even though no publication date has been set – for precisely the same reasons, to the letter, for which it had just apologised.

I get the impression that someone in Caxton House is trying to be funny.

What a big joke – to put off a Freedom of Information request about thousands of needless deaths with an excuse that has already been used wrongly, on the basis that it was wrong then but it isn’t now.

No. Not funny.

Pants: Iain Duncan Smith

Pants: Iain Duncan Smith

The situation is reminiscent of one mentioned in an article earlier today, wherein someone blew the whistle on Iain Duncan Smith’s expenses claim for underwear so he called her into a meeting and reduced her to tears with a show of belligerence. The substantive issue was of no interest to the man we call RTU (Returned To Unit); his only worry was that it should be hidden from the public. The same applies here.

As mentioned at the start: Fool me once, shame on you; fool me twice, shame on me. I won’t be fooled again.

The information is held by the DWP, and could be provided easily enough.

The public interest test cannot be applied to my request as the DWP has not proved that statistics on this issue will be published in due course. For this to apply, a publication date would have to have been provided in the response and none was forthcoming.

Therefore I conclude that the DWP’s response is false and will be appealing to the Information Commissioner again – and to the First-Tier Tribunal if necessary. The tribunal is likely to take a very dim view of this as, after a previous hearing, its members stated that “we have considerable sympathy for the appellant”.

We have to prove that these people are not above the law.

Follow me on Twitter: @MidWalesMike

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