‘Mandatory reconsideration’ – more money-saving by sending the sick to their deaths

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adjournment debate, allowance, anecdotal, appeal, assessment rate, benefit, council tax reduction, death, Department, detritus, disability, disabled, DWP, employment, ESA, ex-Murdoch, food bank, government, health, high interest loan, housing benefit, Independent, IPSO, Jobseeker's Allowance, JSA, mandatory reconsideration, mark hoban, Mike Penning, Mike Sivier, mikesivier, minister, Pensions, people, politics, press regulator, Richard Caseby, Sheila Gilmore, sick, social security, spin machine, support, The Guardian, tribunal, Vox Political, welfare, Wonga.com, work, yellow press

National disgrace: The green benches were almost empty during yesterday’s debate on the DWP’s new ‘mandatory reconsideration’ regime – and the potential number of deaths it is causing.

It is hard to know where to start. Perhaps with DWP minister Mike Penning’s failure to answer the questions raised in yesterday’s adjournment debate on the ESA ‘mandatory reconsideration’ process, despite having prior notice of Sheila Gilmore’s entire presentation? Perhaps with the DWP’s failure to release accurate statistics, which is especially appalling as press officer Richard Caseby attacked a newspaper for inaccuracies very recently? Perhaps with the DWP’s continuing denial of the deaths caused by its increasingly-bizarre and unreasonable attempts to save money?

(Apparently they’re “anecdotal” so they don’t count. Does everybody recall when Iain Duncan Smith used similarly anecdotal evidence to support his claim that his benefit cap was “supporting” people into work, last year?)

The debate was brought to Parliament by Labour’s Sheila Gilmore who, in her own words, has been trying to get a succession of useless Conservative ministers to acknowledge the homicidal nature of their incapacity benefit “reforms” ever since she was elected. This was her sixth debate on the subject.

Yesterday’s debate was about the stress and poverty caused by the government’s decision to impose ‘mandatory reconsideration’ on ESA claimants who have been found fit for work and want to appeal against the decision. The benefit – originally paid at the ‘assessment’ rate – is cut off during the reconsideration period, meaning that claimants have no income whatsoever; housing benefit and council tax reduction claimants have their claims interrupted during this time.

People might be able to accommodate this if the reconsideration period lasted the maximum of two weeks that was implied when the new system was introduced, but it doesn’t take a maximum of two weeks.

The average length of time an ESA claimant – a person who is so seriously ill that he or she cannot work for a living, remember – has to wait for a decision after ‘mandatory reconsideration’ is seven to 10 weeks.

That puts a different complexion on matters.

Ms Gilmore called on Mr Penning to confirm the length of time claimants are being made to wait for a decision after ‘mandatory reconsideration’ – and asked when the DWP will publish statistics on average times and the total number of claimants who are waiting for a decision (rumoured to be 700,000 at this time).

She said the minister had defended a decision not to set a time limit on reconsiderations, despite concern from the Administrative Justice and Tribunals Council that the absence of such a limit could have the effect of “delaying indefinitely the exercise of the right of appeal to an independent tribunal”.

Oh yes – claimants can apply for Jobseekers’ Allowance in the meantime – but this has a high level of conditionality. They have to be available for work, actively seeking work, attending work-focused interviews, searching for jobs and making a minimum number of applications every week.

What these Conservative DWP ministers are saying is that sick people waiting for an ESA decision must undergo a process that is itself extremely stressful, can worsen existing physical or mental conditions, and can lead to them being sanctioned or refused benefit altogether for failing to meet the requirements of Job Centre Plus advisors (who are not, let’s be honest, the most sympathetic people in the country).

Most who have applied for JSA have been refused outright or failed to attend necessary appointments due to their various conditions; or they did not apply, either because they could not face the trial of another benefit application or because they did not know they could.

They were forced to turn to the food banks that the DWP has accused of “misleading and emotionally manipulative publicity-seeking” and “aggressively marketing their services”, rather than being vitally important now that the government has reneged on its responsibility to citizens.

Or they turned to high-interest loans – run, undoubtedly, by some of the Conservative Party’s most faithful donors – and amassed debts at such high interest rates that they would struggle to repay them, even after being provided backdated payments. “One constituent sold off his few remaining possessions to survive,” said Ms Gilmore.

The Tories have engineered a situation where people who are seriously ill can be found too fit for ESA and too sick or disabled for JSA.

Ms Gilmore said she had been told by previous minister Mark Hoban – last September – that claimants could request “flexible conditionality”, to ease these pressures – but the DWP’s benefits director acknowledged in April – seven months later – that “not all advisors had been aware of this”.

So claimants had been deprived of a right to extra help because DWP ministers had not provided accurate information to them or to employees.

Ms Gilmore said, “It is hard to have confidence in the Department, given that previous assurances were clearly unfounded,” and it is interesting that this should be revealed in the same week that the useless ex-Murdoch yellow-press spin-machine detritus DWP press officer Caseby (Dick to his… well, to everybody) claimed The Guardian should be blackballed from new press regulation authority IPSO for failing to print, you guessed it, accurate information from the DWP.

Ms Gilmore also pointed out the cost to the taxpayer of all this hustling of claimants between benefits: “There is also an administration cost involved in a claimant receiving the assessment rate of ESA, ceasing to receive it, claiming JSA and then potentially claiming the assessment rate of ESA again. These are significant costs when multiplied by the number of people involved. In addition, if everybody claimed JSA successfully, they would receive benefit at exactly the same rate as they would have been getting on ESA, so if there are any savings to be anticipated, is it because ministers thought that people would, in fact, struggle to claim JSA during the reconsideration process, given that administration costs are likely to outweigh anything else?

“I am sure that cannot be the case,” she added. Of course that’s exactly what ministers wanted.

Her point was as follows: Why not amend the law so that ESA claimants can continue to receive the benefit at the assessment rate during the reconsideration process? “The only way that could be more expensive for the Government would be if ministers expected sick and disabled people to go without any benefit — and I am sure that that cannot be the case,” she said, ramming home her previous point about benefit savings.

Reinstating assessment-rate ESA during ‘mandatory reconsideration’ would be simpler than setting a time limit and may be an incentive for the government to speed up the process, she added.

Finally, she called on Mr Penning to publish the number of successful reconsiderations, rather than lumping them in with original decisions so it is impossible to tell exactly what has happened. She said this was particularly important because the DWP has been celebrating a drop in the number of appeals.

Her claim was that it is premature to celebrate a drop in appeals – or to claim the DWP was making more correct decisions – when the number of successful applications for ‘mandatory reconsideration’ was not known and many cases may still be caught up in the process as part of the enormous backlog built up by the Department.

Mr Penning made no offer to reinstate assessment-rate ESA during the reconsideration period.

He made no offer to impose a time limit on reconsiderations.

He made no attempt to confirm the size of the ‘mandatory reconsideration’ backlog or the length of time taken to reach decisions.

His response was about as inhuman as he could make it, within the Chamber of the House of Commons:

“I would rather have slightly more delays than have decisions incorrectly taken and then turned over at tribunal.”

This is an admission that he would rather push sick people into unendurable poverty, debt, stress and possibly towards suicide than make his department do its job properly.

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If the DWP reckons it’s getting decisions right, why are people still suffering?

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allowance, appeal, assessment rate, backdate, benefit, breast cancer, chemotherapy, Coalition, Conservative, Department, disabilities, disability, DWP, employment, ESA, flour, government, health, housing benefit, learning, mandatory reconsideration, Mike Sivier, mikesivier, paste, Pensions, people, politics, sick, social security, statistic, stress, support, time limit, Tories, Tory, tribunal, Vox Political, water, welfare, work

He knows he’s in trouble: Mike Penning, shortly after removing his foot from his mouth while talking about ‘mandatory reconsideration’.

The minister for disabled people, Mike Penning, seemed to think he had something to celebrate this week, after official figures showed the number of benefit decision appeals dropped by 79 per cent between January and March this year (compared with the same time in 2013).

He said it means the government’s new ‘mandatory reconsideration’ process is helping people to challenge wrong decisions earlier and helping target government support on those who need it most: “Getting more decisions right the first time avoids the need for protracted tribunal appeals… This new safeguard gives claimants the chance to raise their grievance promptly, provide further evidence and have their claim reassessed without the unnecessary stress of an appeal.”

How wonderful for him.

Does the man with learning disabilities who was living on a paste made of flour and water, after his benefits were suspended, feel the same way, one has to wonder?

How about the woman with breast cancer who was forced to stop chemotherapy – putting her life in danger, one must presume – because she was assessed as ineligible for benefits?

The fact is that ‘mandatory reconsideration’ was brought in to make it harder for benefit claimants like these to challenge a decision that they are capable of work.

If a claimant is unhappy with an adverse decision, they can demand a ‘mandatory reconsideration’ and it will be revisited, usually by a different decision-maker – but the Department for Work and Pensions will not pay even the ‘assessment rate’ of the benefit that has been claimed until a new decision has been reached, and there is no time limit within which the DWP must carry it out. Once a decision has been made, and if it is favourable, there is no guarantee that the benefit will be backdated to cover the whole period since the original claim.

If the claimant is still unhappy about the decision, they may then take it to appeal. This is unlikely as, by then, they will have been forced to live without any means of support for an extended period of time and other benefits such as Housing Benefit may have been denied to them because of the DWP’s adverse decision.

This is the whole point of the nasty game – cutting the number of appeals. When a benefit case goes to court it is both expensive and potentially embarrassing for the Department for Work and Pensions. Of course it is – when a judge tells a government representative that their decision has been irrational or needlessly cruel, it’s a slap in the face for both the decision maker and, ultimately, the government whose benefit ‘reforms’ made that decision possible.

‘Mandatory reconsideration’ was brought in at the end of October last year, and the figures for January to March are the first quarterly statistics to indicate its effect.

Mr Penning said: “This new safeguard gives claimants the chance to raise their grievance promptly, provide further evidence and have their claim reassessed without the unnecessary stress of an appeal.” Would this be “unnecessary stress” to DWP employees? Claimants now have even more “unnecessary stress” to handle.

It should also be noted that we can’t trust the government’s statistics on the number of appeals it has been handling.

A Freedom of Information request by the iLegal website has revealed that, between April 2012 and June 2013, the DWP received 406,070 ESA appeals – and officially recorded outcomes of only 12,800. What happened to the rest?

It seems Mr Penning has learned to speak with a forked tongue.

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Will you give British sovereignty to a foreign business?

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America, Britain, British, business, Conservative, corporation, Derek Vaughan, dispute, election, EU, Europe, Green Party, health, investment, investor, ISDS, Jill Evans, Kay Swinburne, Labour, member, national, NHS, Parliament, partnership, referendum, service, settlement, sovereign, state, Tories, Tory, trade, transatlantic, tribunal, TTIP, UK, union, United States, USA

[Image: The Guardian]

It is the eve of the European Parliamentary elections. How much do you really know about what your candidates would do – if elected?

Much of the debate so far has focused on personalities rather than policies – but does it really matter that Labour won’t commit to an in-out referendum on our EU membership (which is a UK Parliament issue in any case) if its MEPs do their job properly and defend the interests of the British people in the Brussels assembly?

Does it matter that the Conservatives are promising such a referendum, if they give away your right to a high-quality health service, along with your rights at work, to American companies?

These are the issues that really matter.

A few months ago, Vox Political was running articles on the highly controversial Transatlantic Trade and Investment Partnership, currently being negotiated between the European Union and the United States of America. Much of the groundwork has been carried out in secret, hidden from public scrutiny, but the information that has been made available has aroused serious concern that this agreement will weaken existing standards and regulations that protect workers and consumers in the EU.

In particular, the Investor-State Dispute Settlement (ISDS) would allow any foreign company operating in the UK to make a claim against the government for loss of future profits resulting from any regulatory action by the government, such as new legislation. Such claims would be considered by an unelected, unaccountable tribunal composed of three corporate lawyers whose decisions are likely to favour the corporations and would override national laws.

It is widely believed that the TTIP will be used by our Conservative-led government as a means of locking-in its detrimental changes to the National Health Service.

With this in mind, I wrote to three of the four current Welsh MEPs (the fourth is standing down), asking a few simple questions:

Do you want the health of your constituents to depend on a foreign company’s balance sheet?

Are you in favour of sales or the safety of your constituents?

Do you support attacks on workers’ rights?

Do you support the people who elected you – or are you a puppet of the corporations?

The response from Labour’s Derek Vaughan was characteristically short and to the point: “As you would expect, Labour MEPs oppose the ISDS in certainly anything which would allow the Tories/UKIP to argue for further privatisation of the NHS.

“You may also wish to take this matter up with those who really are the puppets of corporations.”

We’ll come to them shortly. Derek’s answer – though brief, tells you everything you need to know about Labour. They aren’t staying silent (as a recent Liberal Democrat letter asserted) and they aren’t pandering to corporate interests. Labour will defend British institutions against any European ruling or agreement that infringes on them. That’s a promise.

Jill Evans, for Plaid Cymru, had a little more to say: “I share your concerns regarding the TTIP as does the rest of my group in the European Parliament, the Greens/EFA group.

“We are 100 per cent against ISDS as we do not believe that extra-judicial powers should be given to foreign investors. We have been working hard to lobby the Commission to get them to make changes to the TTIP… The TTIP will include a strong focus on … co-operation but the regulatory cultures and social and environmental standards on both sides of the Atlantic are very different; conflicts over GMOs and Hormone Beef are just two examples.

“The TTIP is also controversial from an industrial policy point of view. The two blocs are not complementary, but in fierce competition for global markets and the setting of global industrial standards. Transatlantic cooperation could, however, pave the way for higher global ecological standards and for a faster conversion towards a sustainable green economy. Both the EU and the US need to find new avenues to create social wealth. The task we are set with is trying to find the right balance.”

So Plaid and the Greens are as strongly-opposed to the ISDS as Labour, but acknowledge there are advantages to be had – if this agreement is negotiated by the right representatives. This is why it is so important that you use your vote wisely. A vote for UKIP might seem like a worthwhile protest against the UK’s Conservative government, but what good will it do when the Kippers, who support corporate power, wave through measures to strip you of your rights?

And then we have Kay Swinburne, representing the Conservatives. Her response was the longest of the lot, perhaps suggesting that she knew her party’s stance was harder to justify.

“Transatlantic trade flows (goods and services trade plus earning and payments on investment) averaged $4 billion each day through the first three quarters of 2011. In 2008 EU/US combined economies accounted for nearly 60 per cent of global GDP,” she stated.

“However, for all its value and importance, the EU-US trading relationship still suffers from numerous obstacles, preventing it reaching its full potential to provide growth and jobs. It has been estimated that the deal could bring an extra £10bn to the UK annually, which would give a huge boost to jobs in our economy at a time when we are still suffering with the effects of the economic crisis.”

There is little evidence for this, and even that is poor. The European Commission’s own impact assessment admits that a 0.5 per cent increase in growth would be “optimistic”, and independent research suggests that a meagre 0.01 per cent increase in the growth rate over 10 years is more likely. The North American Free Trade Agreement between the US, Canada and Mexico led to a net LOSS of almost a million jobs in the US. You have to ask why this MEP is arguing against the facts.

“That is an extra £400 to every UK household and while some reports criticise the economic focus, I would argue that this is exactly the kind of stimulus package we should be focusing on,” she continued. Again, this is inaccurate. Every household will not gain an extra £400 because of business deals carried out between very few, very large, corporations. In fact, much larger amounts of money will go to the kind of people who have too much of it already.

“ISDS is a system that allows investors to initiate proceedings directly against a government should they believe that their property has been expropriated illegally, that is, not in conformance with the laws of that country itself,” she continued, skimming over the possibility that a legal challenge could be mounted against changes in a country’s laws – such as Labour’s planned repeal of the Health and Social Care Act that allowed the creeping privatisation of the NHS, if the Conservatives are defeated in the 2015 UK general election.

“The Conservatives in the European Parliament support the inclusion of an ISDS chapter in the agreement, because even with developed countries it ensures certainty for our investors, including SMEs.”

She does not explain what that certainty may be. Is it the certainty that they can run roughshod over their workers? That their profits will take precedence over our health? What about certainty for our citizens?

“Rest assured that this is not a mechanism that will allow for fundamental laws of the EU, such as the REACH legislation on chemicals or the Tobacco Products Directive, to be overturned by a foreign company.” That does not offer any consolation if the laws of the UK do not remain similarly inviolate.

“The EU and its Member States will and must remain able to adopt and enforce, in accordance with their own and EU laws, measures necessary to pursue legitimate public policy objectives in the fields of social and environmental standards, security, the stability of the financial system, and public health and safety.” This seems encouraging, but is overshadowed by what this Conservative MEP has already stated.

“The European Parliament, as well as the UK Government, will also have to give final approval to the deal.”

This is why we need a sceptical European Parliament, and a critical UK Parliament when the deal comes to Westminster for ratification.

That is the information provided by the Welsh MEPs. Labour and the Green Party will stand up for you, while the Conservative Party and UKIP will stand up for the few.

Put in that way, it isn’t a choice at all.

But is the electorate well-enough informed to make the appropriate decision?

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Hollow victory for DWP after ‘ESA deaths’ tribunal

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allowance, benefit, benefits, Conservative, Department, disability, disabled, DWP, employment, ESA, FOI, Freedom of Information, government, Iain Duncan Smith, IB, IC, Incapacity Benefit, Information Commissioner, Mike Sivier, mikesivier, Pensions, people, politics, sick, social security, support, tribunal, vexatious, Vox Political, welfare, work

Seen to be done: The tribunal took place at the Law Courts in Cardiff (pictured), in public – which allowed friends of Vox Political to hear the case.

It is with a heavy heart that I must report that a tribunal has upheld the Information Commissioner’s decision that my Freedom of Information request, seeking an update on the number of sickness benefit claimants who have died, was vexatious.

The tribunal agreed unanimously that my blog article, to which I appended a single line suggesting other readers should also submit FoI requests to demonstrate that there are many people who want the latest figures released, was an abuse of the system.

If you are unaware of the situation or your memory needs to be refreshed, you can read the article here.

But judge Chris Ryan criticised both the Information Commissioner and the Department for Work and Pensions for every other excuse they invented to prevent the death figures from being made public.

This was not a glowing endorsement of the Information Commissioner’s – and the DWP’s – stance; in fact, as you will see, the wording of the decision suggests the exact opposite.

The very first line of the decision notice states that my request “was in itself innocuous”, meaning that there would have been no reason for the DWP to have refused it if not for the effect of the blog article.

But you know, dear reader, that I wrote my request after at least two previous requests – one of which must have been equally “innocuous” as I based the wording of my own on it – had been rejected by the Department. That was why I appealed for public support in the first place.

“The combination of the importance of the statistics in their own right and the appellant’s belief, rightly or wrongly, that the Department had no intention of publishing updated figures, led him to take the steps for which he has been criticised by the Department,” wrote Mr Ryan in his decision notice.

He then proceeded to trash – comprehensively – all the IC’s (and DWP’s) other reasons for suggesting that it could not answer my request.

“The Information Commissioner accepted that the request had a serious purpose,” he wrote. [All italics and boldings in the quoted sections are mine]

“In terms of the burden the request imposed, the appellant drew attention to statements made by members of the Department’s staff to the Information Commissioner during his investigation, in which it was confirmed that the requested information was held and that it could be located and released without exceeding the relatively modest maximum cost permitted for responding to an information request… we do not believe that any great weight should be attributed to it [the burden on the DWP] in our determination.”

Turning to motive, Mr Ryan stated that the Information Commissioner had claimed that the request, viewed in isolation, may not have been intended to disrupt the DWP’s main function – but, taking account of the requests that were apparently generated by the blog, this purpose was altered to a stage where it was intended to disrupt the Department’s functions.

But his judgement was this: “The appellant was motivated by a determination to ensure that the Department took the request seriously.”

(You should note that I dispute the claim that 23 ‘lookalike’ requests were generated by my blog. I have only ever seen seven of these, with no proof that the other 16 exist at all; of the seven, only one makes any reference to me, while the person responsible for another posted a comment on the blog that ties it to me as well. That’s three messages – not enough to justify any claim of vexatiousness.)

The Information Commissioner had also tried to bolster his decision by claiming that my article, and its comment column, could cause harassment and distress to DWP staff, but Mr Ryan wrote: “We do not think that there is much strength in the Information Commissioner’s argument.

“The request itself is expressed in sensible and balanced terms and, although some of the messages published on the appellant’s blog adopted a more strident tone, we saw nothing that a reasonably robust employee should not have been able to contemplate without distress, assuming (which is not certain) that it was drawn to his or her attention… Little weight ought to be attributed to the risk of staff members feeling harassed or distressed.

“The accumulated effect on the Department, in terms of administrative burden and impact on staff, was therefore relatively light.”

But this did not excuse me from my principle crime, which appears to have been encouraging the rest of you to get involved: “It was in… seeking to bolster his statutory rights with the persuasive power that comes from communal action, that the appellant converted an unexceptional request, on a matter causing justifiable public concern, into one that constituted misuse of the freedom of information regime and could therefore properly be refused on the basis that it was vexatious for the purpose of FOIA section 14.”

That was very discouraging to read!

But look at this: “We have considerable sympathy for the appellant.

“We do not know if he was justified in suspecting that the Department had deliberately concealed statistics about those who died while receiving, or being assessed for, state benefits.

“However, the request did seem, on its face and in context, to be one which might well have resulted in disclosure of the information requested.”

Now, you know, and I know – and the tribunal also knows – that the DWP rejected at least two other FoI requests that were phrased along either identical or similar lines as my own, but those last few comments, along with the others strung throughout the decision, make it clear that the tribunal’s view is that there was no reason to reject any of them.

Therefore the only reasonable reading of this decision is that the DWP was wrong to reject those previous requests.

I must now consider options for the future. The tribunal’s decision seems to clear the way for a request made in exactly the same way as mine (but without the appeal for others to add their voices to it) to receive a full response.

But we are dealing, here, with the Department for Work and Pensions under Iain Duncan Smith. It seems more likely that the tribunal’s decision will be ignored and the same excuses will be trotted out, including a now-invalid claim that the Secretary of State is considering how best to publish the figures.

For that excuse to work, he would have had to publish them very quickly and it is now nine months since the claim was first made. As the figures are time-sensitive – that is, for them to be useful in considering changes to the system, they should be released as soon as they are known – it makes no sense to delay and the DWP’s claim that doing so is “in the public interest” is disproved.

If I do submit another request, the wording of it will have to be carefully considered, to include all the information that the tribunal provided in support of it. Obviously I cannot ask any readers to take any action in this matter at all.

In summary, this is a setback but not a defeat. The tribunal has come to a finding based on its reading of the law, but has made it perfectly clear that it was made with reference to events that happened in connection with my request, and not because of my request itself. The tribunal’s opinion was that there was nothing wrong with the request.

With this in mind, we may move on.

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Sickness benefit death statistics – a quick update

Tags

allowance, benefit, benefits, Coalition, Conservative, death, Department, DWP, employment, ESA, FOI, Freedom of Information, government, health, IB, ill, Incapacity, Mike Sivier, mikesivier, Pensions, people, politics, request, Samuel Miller, sick, social security, statistics, support, Tories, Tory, tribunal, Vox Political, WCA, welfare, work, work capability assessment

(No, I haven’t had the tribunal’s decision yet!)

Those of you who have read my report on the benefit deaths tribunal will know that Samuel Miller received a response to his own Freedom of Information request for updated death statistics of incapacity benefit (and ESA) claimants a few weeks ago – but it did not cover the correct dates and was not ordered in a similar way to the ‘Incapacity benefits: Deaths of recipients’ report released in 2012.

It was impossible for anyone to consider it an update of the figures in that report, as the Department for Work and Pensions was claiming by sending it to Mr Miller.

I reported on Thursday that he had requested another response, made out in an appropriate manner, and that he had been advised he would receive this soon.

In fact, he was told the response would arrive yesterday (Friday).

Guess what?

That’s right – no show.

“As you know, I had asked the DWP to put these latest mortality statistics into context. Well, they haven’t responded by today’s date, as promised,” Mr Miller said on Twitter.

Quelle surprise.

Perhaps we can hope this is a simple mistake and the numbers will be with him soon.

Just don’t hold your breath waiting – or you may become another government statistic.

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Case proven? Government stays away from benefit deaths tribunal

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abusive, aggressive, allowance, assessment, BBC, benefit, benefits, Blackadder, campaign, co-ordinated, Coalition, commenter, complaint, Conservative, dead, dead letter, death, Democrat, Department, die, disability, disabled, disrupt, distress, double standard, DWP, employment, ESA, figure, FOI, Freedom of Information, government, harassment, harm, health, ICO, ill, Incapacity Benefit, Information Commissioner, Jonathan Ross, language, Liberal, Mike Sivier, mikesivier, mortality, number, obsessive, Pensions, people, politics, protracted, Russell Brand, Samuel Miller, serious purpose, sick, social security, statistic, support, Tories, Tory, tribunal, vexatious, Vox Political, WCA, welfare, work, work capability assessment

Seen to be done: The tribunal took place at the Law Courts in Cardiff (pictured), in public – which allowed friends of Vox Political to hear the case.

The Information Commissioner’s Office and the Department for Work and Pensions have highlighted the weakness of their own case for hiding the number of people who have died while claiming sickness and disability benefits – by failing to turn up at a tribunal on the subject.

They had the opportunity to explain why mortality statistics for people claiming Employment and Support Allowance since November 2011 have been suppressed, at a tribunal in the Law Courts, Cardiff, yesterday (April 23).

But, rather than be grilled on the reasons for their decision by a judge, a specialist in this area of law, and a ‘lay’ person (representing the opinions of right-thinking members of the public), they chose to stay away.

The tribunal had been requested by Vox Political‘s Mike Sivier, after he made a Freedom of Information request for access to the information – and it was refused on the grounds that it was “vexatious”.

The Department for Work and Pensions said he had written an article about his request on the blog, containing the line, “I strongly urge you to do the same. There is strength in numbers.” According to the DWP, this line constituted a co-ordinated, obsessive and protracted campaign of harassment against the department.

One line in a blog article, added as an afterthought – an obsessive campaign designed to “disrupt” the workings of the DWP. It’s ludicrous.

The DWP claimed it had received 23 requests that were similar or identical to Mike’s, in the days following his own, and inferred from this that they were from other members of this fictional campaign. Mike has only been able to track down evidence of seven such requests and, of them, only one mentions him by name. Without a tangible connection to Mike or Vox Political, the case is not made out – and one connected request does not constitute a campaign.

In fact, Mike’s own request was made after he read that a previous request had been refused – that of disability researcher and campaigner Samuel Miller. Mr Miller had published this fact in the social media and expressed that he was “furious” about it, and this inspired Mike to write his own request. Who knows how many other people did the same in response to Mr Miller? Yet he has (rightly) not been accused of starting any conspiracy.

Mr Miller’s original request has now received a reply, after the Information Commissioner’s office ruled that it had been mishandled by the DWP. This reply contained the wrong information and Mike urged Mr Miller to point this out. Clearly Mr Miller’s claim is not being treated as vexatious, even though it has inspired others to follow his example – as Mike’s article shows that he did. The contrast in treatment betrays a clear double-standard at the DWP (and the Information Commissioner’s office, after appeals were made to it in both cases).

Perhaps it is because of this fatal flaw in their logic that neither the ICO nor the DWP saw fit to send representatives to the tribunal. This left the floor free for Mike to make his own case, with nobody to speak against him or cross-examine him. Tribunal members asked questions, but these were entirely helpful in nature – allowing Mike to clarify or expand on his argument.

So the claim that the number of similar requests, received soon after the blog article appeared, indicated a campaign against the DWP was refuted with the simple observation that the subject was of topical interest at the time, because of what had happened to Mr Miller. Mike said an appropriate comparison would be with complaints to the BBC over the now-infamous radio show involving Jonathan Ross and Russell Brand. The corporation received only a couple of complaints from people who listened to the show at the time, followed by thousands from people who heard about it later. Mike asked: “Were all those thousands of complaints vexatious in nature? Were they the result of organised campaigns against Messrs Ross and Brand? Or were they genuine expressions of horror at behaviour they considered to have gone beyond the pale? The BBC accepted the latter choice because logic mitigates in its favour.”

The claim that abusive or aggressive language exhibited by blog commenters indicated harassment that was likely to cause distress to members of the DWP was batted away with the argument that nobody from the department would have seen it if they had not gone looking for it (after reading the FOI request from a Vox Political reader who referenced the blog).

Mike said it would be “like a social landlord gatecrashing a residents’ association meeting, listening to the grievances of the tenants and then saying they are harassing him and he’s not going to service any of their requests for repairs. That is not reasonable”.

The DWP had claimed that actioning the 24 requests it insisted on connecting with Mike’s “could impose a burden in terms of time and resources, distracting the DWP from its main functions”, but Mike showed that this was not true, as an email to the ICO, dated October 21, 2013, makes clear: “We can confirm that the Department does hold, and could provide within the cost limit, some of the information requested.”

Nevertheless, the ICO had upheld the claim, saying on November 27, 2013: “For the DWP to respond to all of the requests, it is not simply a matter of sending an email to 24 people. There is a requirement to collate the information, consider exemptions under the Act which may apply, provide a formal response and then, if necessary refer the decision to an internal review…. The Commissioner considers that 24 requests on the same topic in a few days could represent… a disproportionate use of the FOIA.”

In his speech to the tribunal, Mike responded: “It is reminiscent of the line in the TV sitcom Blackadder The Third, when the title character, butler to the Prince Regent in Georgian times, demands a fortune in order to buy votes in a by-election for a ‘tupenny-ha’penny place’. Challenged on the amount, he responds: ‘There are many other factors to be considered: Stamp duty, window tax, swamp insurance, hen food, dog biscuits, cow ointment – the expenses are endless.’” He said the ICO’s claim “smacks of desperation”.

One aspect that worked in Mike’s favour from the start was the fact that both the DWP and the ICO have accepted that there is a serious purpose to his request – publication of figures showing how many people have died while claiming ESA. This is important because the assessment regime for this benefit has been heavily criticised as harmful to claimants and the government has claimed that it has made changes to decrease any such effect. The only way the public can judge whether this has worked, or whether more must be done to prevent unnecessary deaths, is by examining the mortality statistics, but these have been withheld. This is the matter at the heart of the request and the fact that the ICO and DWP acknowledge this is a major element in Mike’s favour.

Perhaps realising this, the ICO tried to claim that the intention was changed by the volume of requests submitted: “The purpose of the totality of the requests as a whole 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.”

It is not reasonable to suggest that the purpose of an action changes, just because other people carry out the same action within a similar time-frame. Mike put it this way: “Millions of people make a cup of tea in the advertising break after Coronation Street; would the Information Commissioner suggest that this was a campaign to overload the national grid?”

With nobody on hand to provide the ICO/DWP side of the case, the hearing ended at around midday, after Mike had been speaking for two hours. He was grateful to be supported by his McKenzie friend, Glynis Millward, who provided help and advice, and by a group of Vox Political readers who attended to hear the case.

Now the bad news: No decision was handed down on the day. The tribunal judge explained that the panel must now think about the issues raised and discuss their findings. He said they would aim to provide a full, written decision within 21 days.

It is interesting to note that Mr Miller has acted on Mike’s advice and has been advised that a revised response to his request should be with him soon.

If this response contains updated information under the same headings as the original ‘ad hoc’ statistical release provided by the DWP in July 2012 (and from which we derived the 73-deaths-per-week figure that shocked so many people at the time), then a decision by the tribunal to release the same information may seem redundant. In fact, it is possible that the DWP may provide the information to Mr Miller, simply to spite Mike.

But this would be yet another misunderstanding of what this case is about. Mike doesn’t care who gets the mortality statistics first; for him, it is not about who gets to say they were the one who forced the government into submission – this is about getting the information out to the public, so the people can decide whether ESA does more harm than good.

The tribunal’s decision will still be important as it will establish whether the DWP – and other government departments – will be able to manipulate the principles behind the Freedom of Information Act to avoid providing politically inconvenient information in the future.

In Mike’s opinion, a decision in the government’s favour would effectively turn the Act into a dead letter.

So – for now – the long wait continues.

But it is nearly over.

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Freedom of Information tribunal on benefit deaths – April 23

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allowance, assessment, benefit, benefits, campaign, dead, death, Department, die, DWP, employment, ESA, fit for work, FOI, Freedom of Information, Group, harassment, IB, ICO, Incapacity Benefit, Information Commissioner, judge, Mike Sivier, mikesivier, mortality, Pensions, Reform, support, tribunal, vexatious, Vox Political, work, work-related activity, WRA

Vox Political may seem a little quiet over the next 30 hours or so. This is because the site’s owner, Mike Sivier (that’s me), will be travelling to Cardiff to take the Information Commissioner and the Department for Work and Pensions to a tribunal.

The aim is to secure the release of mortality figures – death statistics – covering people who were claiming Incapacity Benefit or Employment and Support Allowance during 2012.

Figures for later dates were not part of the Freedom of Information request that forms the basis of this action (submitted back in June 2013, nearly a year ago), so it is unlikely that these will be forthcoming. The hope is that the tribunal will judge in favour of the information being released, ensuring that further requests cannot be blocked by the DWP.

The government’s claim is that a single-sentence, off-the-cuff line at the end of a Vox Political article about the FoI request constitutes a co-ordinated, protracted and obsessive campaign of harassment against the DWP, and for that reason the request is vexatious.

It is utterly ridiculous. It brings the DWP and the Freedom of Information Act into disrepute. Yet it is enough to prevent this valuable information from being published.

It is important to have the data in the public domain, as a yardstick by which the government’s so-called ‘reforms’ to the benefit system may be judged. Between January and November 2011, 73 deaths were recorded every week, just among people in the work-related activity group of ESA and those going through the assessment process. The government does not monitor the progress of people it has marked ‘fit for work’ and thrown off-benefit altogether, and this group is four times as large as the WRAG, meaning the death toll could be anything up to five times larger than we understand at the moment.

The government has claimed that it has been implementing changes designed to make ESA serve its claimants better. An increased death rate will disprove that. Of course, a lowered death rate would support the government’s position but, if this were the case, it is logical to expect the government to have publicised it widely without any prompting.

This is why tomorrow’s tribunal is important.

People are dying every day and nothing will be done to stop it unless the severity of the situation is made clear.

Let’s all hope we get the result we need.

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Information tribunal on deaths of IB/ESA claimants – next week

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'ad hoc', allowance, campaign, Cardiff, claimant, death, Department, DWP, employment, ESA, figure, FOI, Freedom of Information, harassment, IB, IC, Incapacity Benefit, Information Commissioner, law courts, Mike Sivier, mikesivier, mortality, Pensions, release, statistic, support, tribunal, vexatious, Vox Political, work

I have just sent out a ‘diary marker’ to press organisations, notifying them of the Information Tribunal that will be held in Cardiff next week.

Inevitably, there will be organisations I have missed – and I also want as much of the social media as possible to be aware of this and to be spreading the word. For that reason, I’m publishing the text of the press release below.

If you have a Facebook page, blog site, Twitter account or whatever, please feel free to use what follows and make sure people know that this is going on.

Diary marker

Tribunal – Law Courts, Cathays Park, Cardiff, April 23, 2014 at 10am

Incapacity benefits – deaths of claimants

A tribunal will decide whether the Department for Work and Pensions should be ordered to release its statistics on the number of people who have died while claiming Incapacity Benefit or Employment and Support Allowance, at a hearing next week.

The First-Tier Tribunal (formerly the Information Tribunal) will be hearing an appeal by Vox Political blogger Mike Sivier, against a decision by the Information Commissioner and the DWP to refuse a Freedom of Information request on the subject.

The DWP published an ‘ad hoc statistical release’ in July 2012, showing that 10,600 claimants died between January and November 2011. Of these, 3,500 – or 73 people every week – were either going through the assessment process or had been put in the work-related activity group, intended for people who were expected to recover within a year, when they died.

The revelation provoked outcry from people suffering from disabilities and long-term illnesses, and seems to have discouraged the DWP from continuing to publish the figures.

Mr Sivier made his request in June 2013, after learning that the DWP had refused previous requests. The department at first claimed there was no intention to release any further statistics, and the information would take a great deal of time and effort to gather and collate – this is not true. In fact, the DWP later admitted that it does hold the information, and could provide it within the cost limit.

The next excuse was that the Secretary of State, Iain Duncan Smith, accepted that there was interest in the figures and was considering how to publish them. This was claimed in August 2013. Since no plan to publish these time-sensitive figures after nearly nine months, we must conclude that, like the previous claim, it is not true. The figures are time-sensitive because it is important that the system be improved to prevent unnecessary deaths. Delays in publication mean the figures are unlikely to be used in that way.

Seeing that the DWP had brushed aside privately-made requests, Mr Sivier ensured that his was public knowledge by writing an article about it in his blog (at https://mikesivier.wordpress.com/2013/06/25/dwp-refuses-to-provide-information-on-esaib-deaths-what-is-it-hiding/). As an afterthought, he included a line encouraging readers to follow his example, if they believed the issue was important, reasoning that the DWP may give more weight to it if it was known that there was general concern.

The DWP refused the request, claiming it was “vexatious” under section 14(1) of the Freedom of Information Act 2000. Officers had visited the blog and concluded that the last line, “I strongly urge you to do the same. There is strength in numbers,” constituted a co-ordinated campaign of harassment against the department.

Mr Sivier believes this is nonsense and appealed to the Information Commissioner on this basis. But the Commissioner was persuaded by the DWP and upheld the decision, forcing Mr Sivier to take the matter to the tribunal.

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Gotcha! Bureaucrats’ bid to stifle freedom of information is uncovered

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allowance, appeal, campaign, claimant, death, Department, die, died, disability, DWP, employment, ESA, FOI, Freedom of Information, harassment, hearing, IB, ICO, Incapacity Benefit, Information Commissioner, irrelevant, mortality, office, Pensions, Research, rights, Samuel Miller, support, tribunal, vexatious, violate, violating, violation, work

It seems DWP responses to Freedom of Information requests are now known before the questions have even been considered.

Disability researcher Samuel Miller received an email from a senior case officer at the Information Commissioner’s Office today (Monday), referring to his long-standing request for information on Employment and Support Allowance/Incapacity Benefit claimant mortality – the number of people who died in 2012 while claiming these benefits.

It stated: “I have reviewed all the information available to me and note that the Commissioner has dealt with a similar complaint.

“You may be aware of the decision notice issued in [the case of my own FoI request, which is well-documented on this site]. That case has now been appealed to the Information Tribunal by the complainant.

“Under the circumstances I would strongly recommend that we do not proceed any further with your case until the Tribunal has reached a decision.

“I understand that this is a highly sensitive and important issue to you, but there is little to be gained by continuing the case as it stands. This is because DWP has not specifically applied an exemption when refusing your request, other than stating it does not intend to publish a further report and is monitoring requests etc. Therefore, I would have to direct DWP to issue a new refusal notice citing an appropriate exemption, and the process would in effect begin again. An internal review would be required before bringing your complaint to the Commissioner. I note that your original request pre-dates that in [my case] so it is unlikely that DWP could apply the same exemption to your request in hindsight.

“I appreciate that this seems like unnecessary ‘red tape’ however, we are bound by the legislation we oversee. The most that could be achieved at this stage would be to potentially find DWP in breach of section 1 and section 10 of the FOIA.”

For information, section 1 covers a general right of access to information, and may apply as Mr Miller’s request was not recognised as coming under the FoI Act, while section 10 refers to the timescale in which a public authority must respond to a request for information (20 days in the case of FoI requests) so it is likely that this section was breached by no less than six months.

The case officer continued: “In the event that the Tribunal disagrees with the Commissioner’s decision they can order DWP to disclose the information requested. If that proves to be the case then the information will be in the public domain and likely to be on the DWP website.

“Given the above, I recommend that this case is now closed. I would be grateful if you would confirm that you have no objection to this.”

The first thing to note about this is that it seems the Information Commissioner’s Office feels qualified to predict the result of a FoI request to the DWP.

Why go straight to rejection, when the request has not yet been considered in the context of the Freedom of Information Act? Should it not be examined in that light first, before proceeding to consideration of whether to provide the information or refuse it?

If the question has not been considered as a Freedom of Information request, a case officer from another organisation cannot – legally – tell a requester whether it will be refused or not.

This casts doubt upon the validity of the entire process.

Secondly, it seems both the Department for Work and Pensions and the Information Commissioner’s Office have chosen to link Mr Miller’s request with my own. This is inappropriate. My request was made after his was rejected, in response to that rejection, but is a separate request and each should be judged on its own merits.

For example, my request was rejected due to a claim that I had organised a campaign of harassment against the DWP. This is nonsense when applied to me, and irrelevant when applied to Samuel; nobody even knew about his request until he received his reply.

In my case, the Information Commissioner sided with the DWP for the even more ridiculous reason that I run a blog “in which the main focus is the DWP and their ‘cover-up’ on the number of IB and ESA claimants who have died in 2012”. That was “the most significant factor” in his opinion, but even the most disinterested glance through this site disproves it. Samuel Miller has a site, but it is concerned with documenting the problems facing disabled people and any suggestion that it is part of a plot to bring down any part of the government would be ludicrous.

Mr Miller is furious at this treatment of his entirely appropriate and legally-submitted request which, let’s not forget, pre-dates my own, as another part of the same matter. It isn’t.

As he put it in an email today: “No disrespect intended… but I take umbrage that the ICO is violating my rights by linking my case to your Tribunal appeal.  My case should be judged on its own merits, without the taint of a ‘vexatious’ ruling.

“It’s very upsetting that The Information Commissioner’s Office regards us as conjoined twins, joined at the hip like Chang and Eng Bunker (1811–1874).”

I sympathise completely.

I hope the ICO case officer will soon be receiving notice that Mr Miller does object to this treatment, that he wants his request considered on its own merits, and that he will consider any further action after a decision has been made in the proper manner.

But I feel constrained to go on record right now to say that, if he does, I will have had nothing to do with it.

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Let’s start the New Year with some hopeful news

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allowance, benefit, benefits, claimant, Coalition, Conservative, court, death, Democrat, Department, Department for Work and Pensions, die, disability, disabled, DWP, employment, Employment and Support Allowance, ESA, Freedom of Information, government, health, Iain Duncan Smith, Incapacity Benefit, Information Commissioner, Liberal, Liberal Democrat, Michael Meacher, Mike Sivier, mikesivier, mortality, Parliamentary Question, Pensions, people, politics, service, sick, social security, support, Tories, Tory, tribunal, unemployment, vexatious, Vox Political, WCA, welfare, work, work capability assessment

The Information Commissioner and the Department of Work and Pensions will have to defend, before a tribunal, their decision to refuse my Freedom of Information request on claimant mortality.

Readers will recall that this blog, along with others, has been trying to use official channels to secure publication of the number of people who died while going through the claim process for Incapacity Benefit or Employment and Support Allowance during 2012.

This process has been drawn out beyond reason; the first request for the information was made before that year ended, and it is now 2014. First, the DWP flatly refused to provide any information, saying it had no intention to publish the figures – this was despite having published a statistical release on claimant deaths in 2011. Then, after I submitted a FoI request, the claim was that it was “vexatious”, and I had launched an “orchestrated” campaign “deliberately designed to irritate or harass the department and/or disrupt its business” – all based on a line at the end of the Vox Political article on the subject, in which I suggested readers who felt strongly about it might like to submit a FoI request of their own.

The Information Commissioner upheld the DWP’s decision, claiming that the most significant factor in his decision was that “the complainant runs an on-line 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”. This is clearly unsupportable, as would be clear to anybody glancing through the blog.

In this context, it is my pleasure to announce that HM Courts and Tribunals Service has accepted my notice of appeal and a hearing will be held, with all parties present, between the end of March and mid-May, 2014. The date has yet to be confirmed.

While this has been going on, Michael Meacher MP has submitted a Parliamentary Question on the same subject (you can read about it on his blog). If he succeeds in getting the information before I can, I still intend to go ahead with the appeal.

It is important that government departments should not believe they can crush a legitimate request for information that is a matter of pubilc interest by playing fast and loose with the Freedom of Information Act.

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