Earlier today, Vox Political reported that Labour’s Lord Carter had claimed some hip operations were “costing more than double the amount that they should, with some expensive replacements not lasting as long as cheaper ones”.
A quick stroll through the Internet has now turned up an example of the kind of operation it is likely he meant – and, don’t be surprised, it’s by a private healthcare company.
The report is a few years old (from 2012) but there’s no reason to believe standards have improved at all. Here’s what the Daily Mailhad to say about one person’s experience:
Mrs Collett had been sent to the Haslar Hospital in Portsmouth, under a contract agreed between the NHS and Netcare, a South African health company.
When she came round from the surgery, she was shocked to be told she’d suffered a third-degree burn to her foot, which was scorched almost to the bone.
But worse was to come. She was also in constant pain from her hip replacement.
Within two months, it dislocated twice.
Mrs Collett says a GP told her the prosthesis in her leg was too short and was also loose because insufficient cement had been used to fix it.
The Mail reckoned 17 per cent of hip replacements were being carried out privately in 2012. It seems doubtful that this number has fallen in the years since.
Private healthcare is now monitored by the Care Quality Commission – but that organisation has itself come under fire for failings of its own.
A report by the Centre for Health and the Public Interest, dated August 2014, states very clearly that the NHS is gambling with patients’ health every time it passes them on to the private sector:
The same requirements to report incidents do not apply to private providers as they do to the NHS, which in itself makes it hard to monitor how safe or otherwise private services are. Information about clinical negligence claims against private providers are not publicly available, as they are in the NHS.
Patients themselves have fewer rights in the private sector. Whilst there is a general requirement to operate a complaints procedure, unlike the NHS complaints procedure, those used by private providers afford no statutory rights to the complainant and there is no recourse to the Health Service Ombudsman in the case of private care. There is no statutory requirement to provide for independent advice and support with complaints which is the case with the NHS. Consequently it is much harder to hold a private provider to account.
Even taking legal action for clinical negligence against a private provider is more problematic than with the NHS, where everything is overseen by the NHS Litigation Authority. A claimant against a private provider can be faced with complications over whether it is the hospital or the individual surgeon or sub-contractor who is liable.
All too often, in addition to the patient who is harmed through no fault of their own, it is the NHS which ends up picking up the pieces (and the tab) when things go wrong in private healthcare.
Worse still, the Conservative Government is clearly complicit in this failure of care:
Bizarrely, as recently as  the Government passed the Care Act, which exempted providers of privately funded care from the new criminal offence for providing false or misleading information to the regulators. As if this could only happen in a publicly run service.
So, if you’re an NHS patient sent to a private hospital for a hip replacement, you could come out in worse condition than you went in, with very little ability to gain financial redress or even to have the mistake corrected – and this is the way the government wants it.
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.
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
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.
The European Union’s trade commissioner, Karel De Gucht, reckons he’s going to consult the public over the controversional Transatlantic Trade and Investment Partnership – the EU/US free trade agreement.
He says he is determined to strike the right balance between protecting EU firms’ investment interests and upholding governments’ right to regulate in the public interest.
Bear in mind, this is for the investment part of the deal, which includes investment protection and the red-hot disputed subject of investor-to-state dispute settlement, where firms would be allowed to sue governments if regulations got in the way of their profits, as the deal currently stands.
A proposed text for the investment part of the talks will be published in early March.
“Governments must always be free to regulate so they can protect people and the environment. But they must also find the right balance and treat investors fairly, so they can attract investment,” said Mr De Gucht.
“Some existing arrangements have caused problems in practice, allowing companies to exploit loopholes where the legal text has been vague.
“I know some people in Europe have genuine concerns about this part of the EU-US deal. Now I want them to have their say… TTIP will firmly uphold EU member states’ right to regulate in the public interest.”
Do you believe him?
The European Commission wants to use TTIP to improve provisions already in place that protect investments by EU-based companies in the US, and vice versa.
In practice, we are told, there would be a require for this protection to defer to states’ right to regulate in the public’s interest.
There would also be new and improved rules, including a code of conduct, to ensure arbitrators are chosen fairly and act impartially, and to open up their proceedings to the public. This comes after significant unrest about arbitrators being chosen exclusively from big business, with a natural bias towards the interests of their employers.
It seems “no other part of the negotiations is affected by this public consultation and the TTIP negotiations will continue as planned”.
Is this the only part of the deal that affects the public interest, then?
I don’t know. The TTIP negotiations have been shrouded in mystery since they began last June. Can anyone outside the talks – and those taking part are sworn to secrecy – say they are an expert?
Since the talks began, the Commission has held three rounds of consultations with stakeholders – big businesses operating in both Europe and the USA “to gather the views and wishes of the public and interested parties across Europe”, it says here.
“The Commission has also done public consultations before the start of the TTIP negotiations.” Have you taken part in any such negotiations?
The rationale behind the talks is that the EU is the world’s largest foreign direct investor and the biggest recipient of foreign direct investment (FDI) in the world, so it must ensure that EU companies are well-protected when they invest in countries outside the EU. This involves reciprocal agreements to protect foreign companies.
“Investment is essential for growth, for jobs and for creating the wealth that pays for our public services, our schools, our hospitals and our pensions,” the argument goes. But who gets the wealth? The people who work to make it – whose living and working conditions are likely to be reduced dramatically to lowest-common-denominator terms? Or the company bosses who are ironing out the terms of this agreement while most of us are being told to look the other way?
Let’s look at an example of this in action. According to OpenDemocracy.net, the TTIP talks “could see England’s NHS tied into a privatised model semi-permanently.
“The idea [is] that the Health and Social Care Act was developed to allow foreign transnational corporations to profit from NHS privatisation.
“Even worse is the idea that, once passed, an international trade agreement will leave us irreversibly committed to privatising the NHS. Even with a change of government and the repeal of the Act, we’d be facing the insurmountable obstacle of international competition laws.”
The article demands that the government must be clear with the public – will our health service be opened to multinational business as part of this trade agreement?
Leftie politics sheet the New Statesman agrees: “This will open the floodgates for private healthcare providers that have made dizzying levels of profits from healthcare in the United States, while lobbying furiously against any attempts by President Obama to provide free care for people living in poverty. With the help of the Conservative government and soon the EU, these companies will soon be let loose, freed to do the same in Britain.
“The agreement will provide a legal heavy hand to the corporations seeking to grind down the health service. It will act as a Transatlantic bridge between the Health and Social Care Act in the UK, which forces the NHS to compete for contracts, and the private companies in the US eager to take it on for their own gain.
“It gives the act international legal backing and sets the whole shift to privatisation in stone because once it is made law, it will be irreversible.
“Once these ISDS tools are in place, lucrative contracts will be underwritten, even where a private provider is failing patients and the CCG wants a contract cancelled. In this case, the provider will be able to sue a CCG for future loss of earnings, causing the loss of vast sums of taxpayer money on legal and administrative costs.
“Even more worrying is that, once the TTIP is enacted, repealing the Health and Social Care Act in the UK will become almost impossible.”
The public has the democratic right to contest the agreement, and fight for a health service that protects them, the Statesman says, “but how can they when MEPs do nothing to inform opinion or gather support back home? The NHS is in a very precarious position. It seems that soon, with the help of Brussels, its fate will be sealed.”
Would you like your MEP to speak up for you – in other words, to do what he or she was elected to do and actually represent your interests? Then why not get in touch and ask why they’ve been so quiet about this for so long? It’s easy – you can find their contact details here.
The EU has released a ‘factsheet’ summarising how it would like you to understand changes to existing investment protection rules and the ISDS system.
The previous Vox Political article about TTIP is here.
What we’re fighting for: It seems certain that Jacqueline Harris (pictured) died because her benefits were stripped from her after a one-question medical assessment. The DWP wants to hide the number of other people who are dying in similar circumstances. [Picture: Daily Mirror]
Long-term readers will know that the author of this blog has spent the last few months trying to get officials at the Department for Work and Pensions to release mortality statistics for people undergoing the assessment procedure for Employment and Support Allowance.
It is in the public interest for the nation to know how many seriously ill or disabled people are dying while they wait to undergo the controversial Atos-run medical assessment, while they await the result, and while they appeal against a result that puts them in the wrong group or claims they are fit for work.
These deaths may be due to deterioration in their health – whether or not it was caused by the process – or suicide prompted by the process or the decision.
An initial Freedom of Information request was rejected by the DWP on the grounds that it was “vexatious”. I disputed that claim, and eventually had to appeal to the Information Commissioner for a ruling after ministers proved intractable.
The first obvious implication of this behaviour is that the number of deaths has been increasing and the DWP is trying to hide that fact from us. During 2012, when the department was still publishing the figures, we saw the average number of deaths leap from 32 per week to 73 per week.
The second obvious implication is that DWP policy is causing the deaths. With regard to this, your attention is drawn to the fact that this decision has been published a matter of days after it was revealed that Jacqueline Harris, of Kingswood, Bristol, died from a suspected overdose after the DWP signed her ‘fit for work’ – on the basis of a ‘medical assessment’ that consisted of one question – “Did you get here by bus?”
The partially-sighted former nurse, who required walking sticks, had a bad back and was in constant pain due to arthritis in her neck, lost all her benefits on the basis of her one-word answer – “Yes.” Amazingly, she lost an appeal against that decision and her death followed soon after.
An inquest has been opened and adjourned, so it is not possible to state the cause of death for certain – but any suggestion that the DWP decision was not a factor must beggar credulity.
That is the context in which the Information Commissioner’s ruling arrived.
You’re really not going to like it.
“The Commissioner’s decision is that the DWP has correctly applied the vexatious provision.”
It seems it is therefore impossible to use the Freedom of Information Act to extract this information from the Department for Work and Pensions. Ministers will never provide it willingly, so it seems we are at a dead end.
Apparently, “The DWP explained to the Commissioner that on 25 June 2013 they received 11 identical FOI requests and in the following days another 13 identical requests. They claim that this was the direct response to an online blog written by the complainant [that’s me] on 25 June 2013.
It seems that I am at fault for encouraging this as, after detailing my FOI request, I did write, “I strongly urge you to do the same. There is strength in numbers.” After a commenter asked if they could copy and past the request, I responded, “Sure, just make sure they know you’re making it in your own name”. And the following day, another commenter wrote, “If we swamp the DWP with requests they surely must respond”. Then on June 29, in another article, I added, “If you believe this cause is just, go thou and do likewise.”
The Information Commissioner’s decision notice states: “In this case, there were 24 identical requests which were sent to the DWP in a short space of time and the Commissioner has seen three identical complaints from the individuals that the DWP believes are acting in concert.
“Given that this issue was raised in a previous request at the end of 2012, it is apparent that the wording of the complainant’s online blog on 25 June 2013 prompted the numerous requests on this issue at the end of June 2013.
“Taking this into account the Commissioner has determined that there is sufficient evidence to link the requesters together and to accept they are acting in concert.”
It seems that there isn’t strength in numbers after all – or rather that the way that the large (by the DWP’s standards) number of us expressed ourselves was detrimental to our efforts. I take responsibility for that. I should have said that if you really believed in the issue, you needed to do something that was clearly separate from my own efforts. With hindsight this seems obvious, but only because we have all learned about the process as we went along. Would anybody have known better?
Regarding the impact of dealing with the requests, “The Commissioner accepts that when considered in the wider context, 24 requests on one topic in a few days could impose a burden in terms of time and resources, distracting the DWP from its main functions.
“The Commissioner accepts that the purpose of the requests may have gone beyond the point of simply obtaining the information requested and may now be intended to disrupt the main functions of the DWP.”
Surely, one of its main functions is the continued well-being of those claiming benefits. If people like Jacqueline Harris are dying because of DWP policy, it could be argued that the requests were reminders of its main function – not a distraction.
I have maintained throughout this process that there was no intention on my part to disrupt DWP functions. The only intention has been to see the mortality figures published. It seems neither the DWP nor the Information Commissioner are willing to allow that.
You have to wonder why, don’t you?
There are gaps in the argument which might provide future possibilities.
According to the decision notice, “The DWP argue that ‘the nature of the actual request is not the issue here. It is merely how these requests were instigated and orchestrated which led to them being treated as vexatious.”
In that case, why did the DWP not honour Samuel Miller’s original request for the information, which was turned down in June? If the nature of his request “is not the issue here”, then it should have been honoured and my own FOI request would never have been made. By its own intransigence, the DWP has wasted not only its own time but mine and that of 24 other people.
How many other requests were made, on the same subject, that the DWP could not associate with this blog?
Also, I was surprised to read the Information Commissioner’s statement: “However, the most significant factor is that the complainant runs an online blog in which the main focus is the DWP and their ‘cover-up’ on the number of Incapacity Benefit and Employment and Support Allowance claimants who have died in 2012.”
If that was the most significant factor in this ruling, then the decision is invalid. This blog was not set up to focus on the DWP’s admittedly despicable behaviour towards its clients; its focus is on British politics in general. Look at the articles published in the last week, covering topics ranging from immigration to the minimum wage, to the economy, and – yes – concerns about the DWP. If DWP ministers think the entire blog was set up to harass them, they’re getting ideas above their station.
It could also be argued that the quoted belief of the DWP, that “it is reasonable to view the requests as part of an obsessive campaign of harassment against it and its officers” is insupportable. If 24 people made FOI requests, but only three complained about the response, this is hardly obsessive. Were any of these people writing in on a regular basis, or were they corresponding only after they themselves had been contacted? I think we all know the answer to that.
Also, the Commissioner’s comment that “the disparaging remarks and language used in the blog cannot be overlooked and does demonstrate a level of harassment against the DWP” is insupportable. The language of the articles has been moderate, when one considers the subject matter. Regarding remarks made by other commenters, the DWP and the Information Commissioner should bear in mind that the comment column is a forum where people may express their opinions. If the DWP doesn’t like those opinions, it should modify its corporate behaviour.
It seems I have a further right of appeal, to the First-Tier Tribunal (Information Rights). I will consider this; observations from interested parties are encouraged.
Blind Justice: In Tory-led Britain, it’s also deaf. And ignorant. In fact, can it really be described as ‘justice’ at all?
A story has appeared on the BBC News website, stating that elite barristers have joined the chorus of opposition to the government’s plan to cut legal aid for criminal cases by almost a quarter.
It states that the Treasury Counsel, a group appointed by the Attorney General to prosecute the most serious crimes, has followed the lead of the Bar Council and the Law Society in saying the plan to cut £220 million from the annual £1 billion legal aid budget is unsustainable.
This is accurate, but fails to address the most damning indictment against Chris Grayling and the Ministry of Justice in this matter.
According to the Treasury Counsel’s written response: “HM Government has indicated that it rejects or can ignore much of the content of the thousands of Consultation Responses, …particularly as to the future effect on the supply and quality of criminal advocacy services from the proposed changes to legal aid funding.”
It continues: “Criminal legal aid remuneration is identified as an appropriate target for ‘reduction’: this is based on a ‘belief’. The belief is that ‘further efficiency and cost savings in criminal legal aid remuneration” are both possible and sustainable’.”
This means that Chris Grayling and his cronies have decided to ignore evidence-based opposition to their plans because of an unfounded, unquantifiable “belief” that cutting funding will not affect the quality of the legal advice available in criminal cases.
If this matter were itself a court case, it could be settled with a simple question: When has this ever been proved in the past?
Can you think of any time when cutting budgets has not harmed a service – or actually improved it? Of course not.
The response – written by people who are appointed by the Coalition Government’s own Attorney General, let’s not forget, and who may therefore be taken as broadly sympathetic to its aims, continues: “The Minister of State said, ‘This is a comprehensive package of reform, based on extensive consultation. I believe it offers value for the taxpayer, stability for the professions, and access to justice for all’… yet the Impact Assessment attached to the new Paper simply makes no attempt to evaluate or monetise the behavioural changes that will most certainly result from its proposals.
“The entirely obvious and predictable outcomes are lost quality and reduced supply. These are airbrushed in the Impact Assessment by repeated “steady state” assumptions. The behavioural changes are not then, uncertain. Neither will any steady state remain. They are, though, unpalatable; they will not improve the public interest.
“In a telling acknowledgment of this, the Ministry in its new consultation paper wholly abdicates its responsibility for this assessment by first making neutral assumptions and then asking the consultees what the impact will be. The Minister of State has lifted his telescope to his bad eye.”
The assessment of the Treasury Counsel is that cumulative changes since 1997, and a real terms cut of nearly half since 2007, mean Grayling’s proposals “will do significant harm to the operation of the criminal justice system… In particular, they will have both an adverse and disproportionate effect on the supply of such services by the acknowledged experts – the criminal Bar”.
Not only that, but the response says the cuts could be achieved in less harmful ways, such as “the proper working through of existing changes. Or, for example, in the proper letting and administration of government contracts for CJS services; court interpreters, custodians and other activities are telling examples of incompetent administration and wasting money – and these on services ancillary to the main process, that are provided by trading companies rather than professionally regulated people.”
In other words, allowing the market into the Criminal Justice Service (that’s the ‘CJS’ in the quotation) has lowered its quality and increased its cost.
The bottom line: “We consider that the proposed reductions, in whichever iteration, are unnecessary, have an effect much larger than claimed and will produce unsustainable results.” In terms of quality of service, it seems that it is the government’s proposals that are unaffordable.
The Attorney General himself, Dominic Grieve, indicated his own lack of enthusiasm for the proposals in a letter to the Bar Council in June. This accepted that opposition to the proposals cannot be explained away by self-interest, acknowledging that there is serious and principled opposition to the proposals which cannot be attributed to mere selfishness.
“Many… took the view that these proposals would cause the edifice to collapse,” he wrote, adding that he would continue to draw Grayling’s attention to the concerns that had been expressed to him.
It seems, considering the latest developments, that the Ministry of Justice not only has a bad eye but also a deaf ear.
What a shame its members are not speechless as well. For the sake of balance, here’s what a Ministry spokesperson had to say: “At around £2 billion a year we have one of the most expensive legal aid systems in the world and even after our changes would still have one of the most generous. We agree legal aid is a vital part of our justice system and that’s why we have to find efficiencies to ensure it remains sustainable and available to those most in need of a lawyer.
“We have engaged constructively and consistently with lawyers – including revising our proposals in response to their comments – and to allege we have not is re-writing history.”
Is it constructive for a government department to ignore evidence that it has specifically requested?
Is it consistent to run a consultation process, and then throw away the results because they don’t agree with ministers’ “belief”?
Of course not.
Grayling’s plans are ideologically-based and entirely unsupportable and should be laughed out of court.
Fear of fallout: Is Iain Duncan Smith desperately trying to keep a lid on the number of people who have died while going through his murderous ESA assessment regime, because he knows the resulting public outrage would finish him – and may even topple the government?
Emailed to the Department for Work and Pensions today:
Thank you for your response to my Freedom of Information request. I am writing to request an internal review, on the grounds that your refusal of my request, on the grounds that it is “vexatious”, is unreasonable. I believe the decision may also be politically motivated.
Your letter states that your refusal is entirely based on a single line – not in my FOI request itself, but on my political blog website – at the end of an entry in which I gave details of the request, the reasons it is necessary, and the information required. That line was “I strongly urge you to do the same. There is strength in numbers”.
Your letter states: “With this as the stated aim of the exercise I believe your request is designed to harass DWP in the belief that encouraging others to repeat a request which they know has already been raised will affect the outcome of that request.” Although you do not make clear what “this” is, the statement must be considered irrelevant. The stated aim of the exercise is the release of statistical information about people who have died, during 2012, while going through a DWP policy process, namely the Atos-led work capability assessment system for Employment and Support Allowance, while appealing against it, or after having had the benefit refused. This fact is made abundantly clear in the main body of the article and it is unreasonable to suggest that an afterthought on the last line changes the entire tone of the piece.
Paragraph 86 states that, “if a public authority has reason to believe that several different requesters are acting in concert as part of a campaign to disrupt the organisation by virtue of the sheer weight of FOIA requests being submitted, then it may take this into account when determining whether any of those requests are vexatious”. It is unlikely that the ICO will consider an afterthought comment at the end of a blog post to be, in any way, “acting in concert as part of a campaign to disrupt”. A concerted campaign would, in my opinion, require me to be contacting other individuals and telling them what to do and when to do it, in order to cause the kind of disruption the guidance describes.
Skipping ahead to Paragraph 92, this states that “it is important to bear in mind that sometimes a large number of individuals will independently ask for information on the same subject because an issue is of media or local interest. Public authorities should therefore ensure that they have ruled this explanation out before arriving at the conclusion that the requesters are acting in concert or as part of a campaign”. You have no proof that I have launched a campaign against the DWP. Even if others making the same request have mentioned my name or the blog article, this does not constitute a campaign – it indicates that the issue is of interest to the public. They would not be asking if they did not want the information. It is the information that is important – not any unjustified claim by the DWP that it is being harassed.
Since you have made that claim, let’s look at Paragraph 87, which supplies examples of evidence an authority might cite in support of its case that a request is vexatious. The example that “requests are identical or similar” can be ruled out because this is likely in a case that has come to public attention at a particular time. Also to be ruled out is the example stating there is “an unusual pattern of requests, for example a large number submitted within a relatively short time” – this is to be expected when a matter of public interest comes to public attention.
The question of whether you have received email correspondence in which other requesters have been copied in or mentioned is relevant, though. Have you received such correspondence? I have not, and as the suggested instigator of your imagined campaign, I think I would need to be a part of such communication!
The question of whether a group’s website makes an explicit reference to a campaign is also relevant. My website is my own, and does not belong to a group but, for the sake of fairness, let’s ignore that in your favour. Does my comment, as quoted by you, make an explicit reference to a campaign of harassment against the authority? Of course it does not. I’m sure the Information Commissioner would laugh at such an inference.
Paragraph 89 states that “If the available evidence suggests that the requests are genuinely directed at gathering information about an underlying issue (in this case, the number of deaths occurring in relation to a DWP policy process), then the authority will only be able to apply section 14(1) where it can show that the aggregated impact of dealing with the requests would cause a disproportionate and unjustified level of disruption, irritation or distress. You cannot prove this.
The DWP habitually collects the information I requested, and has already turned the data from 2011 into an ‘ad hoc’ press release without claiming that it caused a disproportionate or unjustified level of disruption, irritation or distress.
At a meeting of the Commons Work and Pensions Committee on July 10, David Frazer, your Director of Information, Governance and Security Directorate, said: “If Ministers themselves want to use information publicly, and it’s not readily available from a first-release publication or a tabulation tool, then we also produce what’s known as an ‘ad hoc’ statistical release… It’ll have the key numbers and advice on how to interpret.”
We know that ‘Incapacity Benefits: Deaths of recipients (9 July 2012)’ was an ‘ad hoc’ release – so Mr Frazer was saying that the information it contained is gathered as a matter of course. It should, therefore, be easy to gather it together and release it into the public domain.
Mr Frazer said: “We put out regular publications that say [for example]‘this is the latest number of people on working-age benefits; here’s a summary of the key trends and matters around that.” He went on to say this was supported by background information and charts created by dedicated statisticians and analysts. In that context, it stretches credibility for the DWP to claim it does not keep statistics on the results of ESA work capability assessments, including – especially – the number of people who have died. This government department has an army of experts compiling data on its activities every day.
In your refusal letter, you argued that “Compliance with multiple repetitions of a known request also causes a burden, both in terms of costs and diverting staff away from other work, due to the significant time required to administer these requests.”
However, we know from the evidence of Mr Frazer that this is not the case. He said, on the record, that the DWP makes its responses to FOI requests publicly available on its website: “Besides sending them to the person that’s made the FOI request, they’re readily available to everybody else”. Clearly, then, if someone sends in an FOI request for identical information to that requested by someone else, they can be directed to the relevant webpage with a minimum of effort from DWP staff. The time required is tiny, not “significant” – therefore any claim that a request is “vexatious” on such grounds is obstruction on the part of the authority – abuse of the legislation.
And consider this: If the purpose of s.14 is to protect the resources of a public authority from being squandered on disproportionate use of FOIA, the fact that multiple requests are being made, by different people, means that this use of your resources is NOT disproportionate but would, in fact, rectify an omission in the Department’s statistical coverage. This is information that should be in the public domain and it is remiss of the DWP to withhold it. Some might say it constitutes dereliction of duty.
So you see, the aggregated impact of dealing with the requests, according to the DWP’s own Director of Information, would not cause a disproportionate and unjustified level of disruption, irritation or distress. It may be handled as a matter of course and, in any case, the information should be publicised as it is a matter of public interest.
You may wish to claim that public interest arguments are irrelevant as ICO guidance states there is no public interest test when considering whether a request is vexatious. This would be a misreading of the rules. Public interest is relevant when considering the context of the request, and the guidance states that a public authority may take this aspect into account. The subject of my request is clearly a matter of substantial public interest, acknowledged as such by the DWP, otherwise the ‘ad hoc’ statistical release of 2012 would not have been published.
I draw your attention also to paragraph 27 of the guidance. The information about an “accusatory tone” is irrelevant as my tone, although formal, may not be considered aggressive in any way. But the paragraph goes on to state that if the “request has a serious purpose and raises a matter of substantial public interest, then it will be more difficult to argue a case that the request is vexatious“. As you know, my request was for very specific information that has been withheld from the public (in my opinion) unreasonably, and it is in the public interest to have that information published.
Finally, taking all of the above into account, it seems likely that there is a political motivation behind the refusal of my request. Paragraph 13 of the ICO’s guidance states explicitly that “Section 14(1) is concerned with the nature of the request rather than the consequences of releasing the requested information,” but in his evidence to the Work and Pensions Committee on June 10 – in relation to this very request – Mr Frazer revealed that it is likely my request was refused by a Minister, for political reasons. He said: “In the first instance we have officials who will look at what the request is; they will look at whether it would produce a disproportionate cost for what it is – they will make that judgement, but I believe it will come down to Ministers to make that call.”
With regard to this alone, it is clear that the DWP is abusing the ‘vexatious’ exemption. It is not intended to shield the government from politically challenging fallout.
So you see, there are no possible grounds for refusing my request. Please carry out an internal review – with alacrity. There should be no difficulty with this as John Shield, your director of communications, has already promised the Commons Work and Pensions committee that he would check this request, to make sure the response is “copper-bottomed, 100 per cent accurate”. He will find that it is not.
Afterwards, you must immediately release the information I requested. My FOI request was made after I learned that a previous request, made in November last year, had been refused. The DWP delayed responding for more than seven months before notifying the requester that it had no intention of releasing the details he had requested. It is now eight months since that original request was made. According to the ‘ad hoc’ statistical release last year, this means an average of 2,482 people are likely to have died while going through the process in the intervening time – but those figures are out of date. How many deaths have really taken place?
If you persist with your negative decision, I will have to complain to the Information Commissioner’s Office for a ruling.
Getting a little worried, George? According to a commenter on this blog, IDS is “not listening to anyone and will be carrying on until the bitter end”. So much for democracy, then.
The Department for Work and Pensions has turned down my Freedom of Information request on the number of people who have died while going through the Atos benefit assessment process, or shortly afterwards – claiming that I am harassing officials with a co-ordinated, web-based campaign to disrupt the organisation.
I know what you’re thinking. You’re thinking, “They’re having a laugh, aren’t they?”
My request was for the department to provide the number of Incapacity Benefit and Employment and Support Allowance claimants who have died in 2012. 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 an appeal pending
I stated that I was aware that the DWP came under criticism last year because it did not follow up on the conditions of people who had been found fit for work and signed off the benefit, and said I hoped this had been rectified and follow-up checks carried out, so details of
Former ESA/IB claimants who have died after being put onto Jobseekers’ Allowance, and
Former ISA/IB claimants who were taken off benefit but put onto no other means of support, and the number of these who have died
could be provided.
Here’s the response. Read it and weep:
“Upon considering your request I consider it to be vexatious in nature and therefore under section 14(1) of the Freedom of Information Act the Department is under no duty to answer your request.
“To be a vexatious request the Information Commissioner’s guidance notes that we should consider, amongst other things:
whether compliance would create a significant burden in terms of expense and distraction
whether the request has the effect of harassing DWP or causing distress to staff.
“On your website where you share information about the request you have raised with other people, you have stated “I have therefore, today, sent a Freedom of Information request to the DWP … I strongly urge you to do the same. There is strength in numbers”. With this as the stated aim of the exercise I believe your request is designed to harass DWP in the belief that encouraging others to repeat a request which they know has already been raised will affect the outcome of that request.
“Compliance with multiple repetitions of a known request also causes a burden, both in terms of costs and diverting staff away from other work, due to the significant time required to administer these requests.
“The ICO also advises that if a public authority has reason to believe that several different requesters are acting in concert as part of a campaign to disrupt the organisation by virtue of the sheer weight of FOIA requests being submitted, then it may take this into account when determining whether any of those requests are vexatious.
“As your request is part of a website based campaign I consider that it meets the above criteria and therefore is vexatious in nature.”
Readers may remember I sent my request after a previous attempt by Samuel Miller had failed. His request did not succeed because he was a single individual the officials thought they could push around – now mine has failed because they say I’m acting mob-handed and they think I’m trying to push them around!
In other words, they’re trying to have it both ways.
If I recall correctly, they refused Mr Miller’s request on the spurious argument that the previous FOI request – for which he was requesting an update – was a one-off. This was clearly nonsense.
We all know that it is in the public interest to know how many people are dying as a result of government policy. The DWP certainly knows it because of the reaction the information received when it last became public knowledge – press coverage and public outrage. Therefore there is no justification for any argument that it has not monitored these figures. Any claim that it has not had reason to monitor deaths after people were thrown off the benefit may also be rejected because of the strong public reaction against the Department for failing to provide this information last year.
Now they are rejecting my request on the specious argument that I am harassing them by the strength of my numbers… My number being exactly one. I have not organised anybody else into doing anything; I merely suggested that if the DWP refuses to answer a lone voice, it may pay more attention if others make the same request.
I find it extremely interesting to note that DWP officials are monitoring my blog. I made no mention of it in my email to them. Some might find that sinister.
I take issue with the claim that “harassment” of the DWP is “the stated aim of the exercise”.The stated aim was for the DWP to release its figures on the number of people who have died, either while going through the assessment process for IB or ESA, or afterwards – as stated in the FOI request. The suggestion that others might wish to do likewise was clearly an afterthought.
I dispute the claim that compliance with multiple repetitions of a known request causes a burden in terms of costs and staff time. In the Internet age, only one response to a request needs to be written; it can then be sent to multiple recipients at no cost in money or time, as readers of my blog are aware after receiving identical messages in response to correspondence they have sent on other matters. In any case, this is beside the point as the comment about compliance with multiple requests is irrelevant. I had no reason to expect that anyone would follow my lead when I put in my own request – it was a single request for information and any suggestion that it was part of an orchestrated campaign of harassment is paranoid hysteria.
Furthermore, it distracts from the fact that there was no reason to refuse the original request by Mr Miller. If the DWP had simply answered his questions, there would have been no reason for my request or any of the many others the department seems to be claiming it has received (for which I have no proof other than the vague implication that this is the case).
Bear in mind that this is the same government department that accused a disabled woman of harassment, alarm or distress under Section 5 of the Public Order Act, against everybody working for it – and sent the police around to her Cardiff flat, just before midnight on a Friday night last year, to put the frighteners on her. They are well-acquainted with the practice of turning the facts upside down. Just who was being harassed, again?
This leaves us with the impression that the Department for Work and Pensions will do anything to withhold the figures on the number of deaths caused by its policies.
It seems unlikely that a government department would go to such lengths unless those figures reveal a serious problem with the policy; therefore we may reasonably suspect that the number of deaths has increased, perhaps dramatically.
In turn, considering that we know ministers, the Secretary of State (Vox‘s Monster of the Year 2012 – Iain Duncan Smith), and the Prime Minister have all been warned that the assessment system they have brought in (admittedly inherited from Labour but altered under the Coalition) – and all have refused to instigate changes to make it more humane – it seems possible that a legal case for corporate manslaughter of the many thousands who have died could be made – IF the current figures were made available.
This means that its own actions have put the DWP, its officials and ministers, precisely where I want them.
We all knew they were unlikely to give up the information without a struggle, and the shape of our campaign would be dictated – to a certain extent – by their response to our reasonable requests. Now we have that response, we may proceed.
… But we’ll leave our departmental interlopers guessing about exactly what we’ll be doing, I think!
Why is HE looking so happy? Could it be that Nigel Farage’s meeting with Rupert Murdoch signifies support for UKIP from News Corporation? If so, would it really be in the public interest, or in that of the individuals concerned?
Was the Leveson Inquiry into media standards just an incredibly lengthy distraction from the ravages being wrought on the British system of government by the Coalition? In the light of current evidence, it seems so.
The inquiry found, and I quote from the executive summary, “the political parties of UK national Government and of UK official Opposition, have had or developed too close a relationship with the press in a way which has not been in the public interest. In part, this has simply been a matter of spending a disproportionate amount of time, attention and resource on this relationship in comparison to, and at the expense of, other legitimate claims in relation to the conduct of public affairs.”
We know that the Coalition government has resisted efforts to put Lord Justice Leveson’s recommendations into practice.
Now we see that UKIP leader Nigel Farage is courting Rupert Murdoch, the long-time boss of News Corporation, which owns many British newspapers and a huge stake in BSkyB satellite broadcasting. Murdoch was cast as one of the principal villains in the inquiry, as staff at his newspapers were responsible for hacking the phones of celebrities and other people in the news – most notably the family of Milly Dowler – thereby hindering police investigations.
“Too close a relationship with the press in a way which has not been in the public interest”. Although UKIP came second in the Eastleigh by-election, that party is in no position to call itself an official Opposition, but the BBC report saying Murdoch is “interested” to find out more about it is disturbing.
Even more disturbing is the fact that Farage would not comment on what was discussed during the meeting.
From Leveson, again: “The evidence suggests that politicians have conducted themselves in relation to the press in ways which have not served the public interest. They have placed themselves in positions in which they risked becoming vulnerable to influences which are neither known about nor transparent.”
The Daily Telegraph seems to think Mr Farage discussed the possibility of an electoral pact with the Conservatives if David Cameron stood down as leader. If that is true, then he was seeking an assurance of support from Murdoch, whose newspapers can do much to sway public opinion – often in spite of the facts.
Would this serve the public interest? No.
If Murdoch wished to influence Farage on such matters, would we be allowed to know about it? No. Would it be transparent? No, because that would show that the press was manipulating politicians, a situation strongly opposed – not only by Leveson but by the general public.
So the details of the meeting are kept from us. Never mind.
The fact that it took place at all is damning enough.
Still, we can thank Farage and Murdoch for several things.
First, the Leveson Inquiry into the culture, practices and ethics of the press was lengthy, expensive and pointless. Nothing has changed.
Second, the press – the Murdoch press, at the very least – is still keen to influence British politics for its own purposes.
Third, politicians – as represented here by Nigel Farage – are equally keen to be influenced and corrupted by the press, if it will help them gain power.
Do not trust the Murdoch press.
Do not trust Farage or UKIP.
Do not trust any UK administration that does not, at the very least, follow the Leveson recommendations.
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