The Department for Work and Pensions has tried to provide reassurance over the accuracy of its claimant death statistics – but has succeeded only in confirming that it has muddled the figures.
Responding to the Department’s statistical releases of August 27, I told the Information Commissioner’s lawyers: “Reference to the DWP’s other statistical release of August 27 casts doubt on the veracity of the information in table 2.1 [of the response to my own Freedom of Information request], 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.”
See if you can make sense of the reply:
“We can confirm that the combined figure for incapacity benefits is lower than the separate ESA and IB/SDA figures added together. This is because duplicates are removed when the figures are combined. We refer you to the footnotes to Data Table 3 in the “Mortality Statistics: Out-of-Work Working Age benefit claimants” publication, where we explained: “In the incapacity benefits group, each person is only counted once even if they claimed both IB/SDA and ESA in the same year.”
That’s right, Data Table 3 – which refers to the DWP’s claimed total for all incapacity benefits claimants. But if you add the figures in the tables that relate to ESA and IB/SDA individually, you get the discrepancies I have mentioned.
“Therefore, for the purposes of the “Mortality Statistics: Out-of-Work Working Age benefit claimants” publication, if an individual moved from IB/SDA to ESA and then died in the same year, they would be included in both the IB/SDA figures (table 4) and the ESA figures (table 5), but would only be counted once in the Incapacity Benefits table (table 3).”
That is precisely what I said – and it’s ridiculous. They could only have been on one benefit when they died. The DWP is admitting its tables are inaccurate. But wait – it gets worse:
“We can confirm that deaths are only counted once in the “Mortality Statistics: ESA, IB and SDA” publication [the response to my FoI request]. Anyone who moved from IB/SDA to ESA and then died is only included in the ESA figures, as they would have been an ESA claimant at the time of death.”
How do we know that? The statistical release does not show anything of the sort and the fact that the DWP can’t even get its facts right in a “clarification” offers no reassurance at all.
“We trust that this has clarified the matter and answered your queries.”
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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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Distortion With Prejudice: Will we ever get FACTS from the Department for Work and Pensions – or just more spin and spiel?
Problems in interpreting the DWP’s August 27 release of mortality statistics for claimants of incapacity benefit may be due to the government department’s failure to record its information in any reasonable manner, according to the Information Commission.
A solicitor for the Information Commissioner’s Office said this could be the case in response to concerns raised by Yr Obdt Srvt about the fudged statistics the DWP offered in response to my Freedom of Information request, sent on May 28 last year.
The comment raises serious concerns about the usefulness of the Freedom of Information Act, as it implies that any public authorities could discharge its duties by recording nonsense and publishing it as fact.
In her email, the solicitor (who will go unnamed to prevent embarrassment) wrote: “The [FOI] Act is only concerned with recorded information and not whether the information which is recorded is accurate, logical or consistent with other information.
“Where any recorded information appears to be inaccurate, illogical or inconsistent with other published information, it may be desirable for a public authority to provide an explanatory not to accompany the disclosure but neither the Act nor the material decision notice compel the DWP to provide such accompanying explanation.”
In other words, anything that has been published by the Department for Work and Pensions – regarding this or any other statistical information – may be untrue.
A prime example of this is in the DWP’s claims regarding the total number of deaths in its document Mortality Statistics: Employment and Support Allowance, Incapacity Benefit and Severe Disablement Allowance’, in which death figures per year for 2009-2013 are provided for the total incapacity benefits population but also separately for the ESA and IB/SDA populations. If the separate totals are added together, than the sum is greater – every year – than the number claimed for the population as a whole.
This writer does not accept that any benefit claimant can die twice.
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It seems the Secretary of State for Justice – Chris Grayling – cannot rely on the support of his own Attorney-General over his plans to stop people who need Legal Aid from getting it.
Dominic Grieve (for it is he) has written to barristers concerned about the Ministry of Justice’s proposals. In this letter, it appears clear that he is entirely unenthusiastic about the proposals – inconsistent with his membership of the same government as Grayling.
I am grateful to Jack of Kent for the following analysis.
The letter notably contains no words that could be described as an endorsement of the proposals. He accepts 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.
And the last sentence suggests that the Attorney-General is not personally confident that the Lord Chancellor is capable of making a fully informed decision, indicating that the government’s own senior law officer does not believe that the Ministry of Justice will make a policy decision on an appropriate evidential basis.
Here is the text of the letter in full (it can be found on the Internet here).
“A number of you wrote to me on 4th June drawing to my attention concerns about the Ministry of Justice proposals for the reform of legal aid. From regular attendance at Bar Council meetings I am well aware of the deeply and sincerely held concerns the Bar has on the effect these proposals, if implemented, will have. I recognise that those concerns go beyond the personal, financial implications to individual members of the Bar – serious though those may be – but extend to the potential impact on the quality of the justice system this country is rightly proud of.
“The Consultation paper meeting was one of the main topics for consideration at the Bar Council meeting of 20th April. I was asked to speak at the close of the Council’s debate. I emphasised that this was a consultation exercise carried out by the Lord Chancellor [Mr Grayling]. He, like other Ministers, had savings that his department had to absorb and where savings are to be made depends on where priorities lay. I said that on the whole, the service provided by the legal profession is taken for granted and that there was a general view that whilst lawyers complained about every financial cut imposed, the edifice will continue to function as it has in the past. I said that it was apparent now, from listening to what had been said at the meeting, that many present took the view that these proposals would cause the edifice to collapse. In my view, it was vital that the Bar use the consultation exercise to explain why these proposals will damage the justice system and what the overall impact will be.
“I know the Bar Council has provided a thoughtful yet powerful response to the consultation – one of many from the Bar. It was important that the consultation was responded to and I am grateful to all who have taken time to write to me and provide me with the particular insights of those who carry out Government work through membership of the Panels.
“Policy in this area is owned by the Lord Chancellor and not me. But I have already spoken to the Lord Chancellor and will continue to draw to his attention the concerns that have been expressed to me. I will endeavour to ensure, as far as I can, that the decision he reaches in due course is a fully informed one.”
These proposals would cause the edifice to collapse. That’s what some of us have been saying all along.
What do you think of the Attorney-General’s letter?
Whatever conclusions Grayling reaches, they may become apparent on July 3, when the Commons Justice Committee questions him about his proposals.
Hopefully, these questions will take into account not only the plans themselves, but the Attorney-General’s letter and the concerns which led him to write it, and also news stories demonising legal aid barristers and solicitors as “cashing in” (such as a Sun story last week), featuring supporting comments from Grayling himself.
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