DWP lied about duty to keep benefit claimants safe, document suggests

The Department for Work and Pensions (DWP) lied when it claimed that it had no “duty of care” to protect disabled benefit claimants, new evidence suggests.

Work and pensions secretary Therese Coffey has repeatedly told MPs that her department does not have a legal duty to “safeguard” its claimants, and that such tasks are instead the responsibility of local agencies such as social services departments and doctors’ surgeries.

Her denials are important because they follow a decade of cases linking DWP’s policies and practices to the deaths of disabled people, particularly those who were being assessed for employment and support allowance (ESA) and personal independence payment and had experience of mental distress.

DWP has continued to deny that it has a duty of care to these and other claimants, even when it was confronted with one of its own secret reviews – believed to have been written in 2014 or 2015 following the death of an incapacity benefit claimant – which recommended that the department should carry out a review of its “ongoing Duty of Care”.

When Disability News Service (DNS) asked about this review through a freedom of information request, DWP stated that the recommendation “was not progressed as the Department does not have a legal safeguarding duty to review”.

But DNS has now seen a second document, this time obtained by Leigh Day, solicitors for the family of Errol Graham, who starved to death in 2018, months after DWP cut off his employment and support allowance (ESA) when he failed to attend a work capability assessment.

This document is a copy of pre-2016 internal guidance for DWP staff, written to assist them in dealing with claimants who need support in using its services.

The guidance states: “Where the claimant has a known background of mental illness there are minimum requirements that Jobcentre Plus should be adopting to ensure that we are not found to be neglectful in our duty of care towards these claimants.”

This means there are now at least two DWP internal documents, both dating from before 2016, that mention DWP’s ongoing duty of care to claimants.

Meanwhile, Coffey and her department continue to insist that there is no such legal duty now and that one did not exist at the time the documents were written.

Last September, Coffey told the Commons work and pensions committee: “I do not think it is the responsibility of DWP to have that statutory care duty.

“We are not the local councils, the social services, the doctors and other people who have that.”

In February, she repeated the claim, telling the same committee: “We don’t have a statutory duty specifically relating to safeguarding.”

Her department has also made the same claim in a freedom of information response to campaigner Amanda Hart, claiming that the “legal position is that there is no legal duty of care on the Secretary of State or her officials in the execution of their statutory duties”.

The new evidence was raised by Labour’s Debbie Abrahams yesterday (Wednesday), when Justin Tomlinson, the minister for disabled people, was giving evidence to the work and pensions select committee.

DNS had shared the new evidence with Abrahams earlier in the week.

Abrahams asked Tomlinson: “Can you confirm, do you or do you not have a duty of care to vulnerable claimants?”

He declined to comment, and referred the question to John Paul Marks, DWP’s director general for work and health services, who also failed to answer the question and instead talked generally about the department’s “culture and behaviour”.

After the evidence hearing, Abrahams told DNS: “If the government are committed to protect and safeguard vulnerable claimants, they need to set up an independent public inquiry into the scale of deaths and the drivers behind them.

“The prevarication over whether the Department for Work and Pensions has a duty of care for claimants, when their own internal guidance says that they do, is quite breath-taking.”

Alison Turner, the fiancée of Errol Graham’s son, said the failure of DWP to be transparent and honest about its duty of care was “really frustrating”.

She said: “The system is supposed to be there for the most vulnerable in society.

“They need a department they can trust. Nobody will be able to trust a word that comes out of their mouths anymore.

“To have a fully-functional department, you need to have a fully-functional relationship with the people that the department serves.

“You can’t have a fully-functional relationship with the people that the department serves, if you can’t even tell them the truth and stick to it.

“If you can’t be open and honest and transparent… then that is highly concerning.”

Errol Graham’s family (see separate story) are seeking permission to take their case to the court of appeal, after the high court ruled in March that DWP had not acted unlawfully in October 2017 by cutting off Errol’s ESA.

Turner, who is disabled herself, said DWP needed to be “absolutely clear, once and for all” about its duty of care.

She said that for Coffey to say there was no duty of care, “she may as well have stood in front of my face and said, ‘Do you know what, Errol died, so what, we don’t have a duty of care, so we have got to make no improvements.’”

She added: “We all make mistakes, but you don’t repeat those mistakes over and over again and then sit there and say, to those families in absolute pieces… we are not bothered that you have lost a family member, we are not bothered that you are torn to pieces or your kids have got to grow up without their grandad.

“That’s the attitude, as far as I’m concerned. The DWP sits behind a brick wall and isolates itself from the people it serves.

“It will never work unless it works with the people it is supposed to provide a service to.”

This week, DNS shared the internal guidance with DWP.

Asked if DWP could finally confirm that it does have a duty of care towards claimants, and if it does not, when this changed, and why, a spokesperson said in a statement: “Our sincere condolences remain with Mr Graham’s family.

“It would be inappropriate for us to comment further at this time.”

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