Watchdog warns DWP over repeated failure on freedom of information laws

The Department for Work and Pensions (DWP) has been warned by the information commissioner for “systemically failing to comply with the law” over how it has dealt with requests for information on disability benefits, universal credit and claimant deaths.

The Information Commissioner’s Office (ICO) issued a practice recommendation to DWP after finding it had a “consistently poor level of performance” on handling requests for information under the Freedom of Information Act (FOIA).

This included “a pattern of requests” in which DWP had “failed to correctly interpret the request, locate all of the information falling within the scope of the request or has failed to confirm what information, if any, is held”.

The information commissioner has issued only about 15 practice recommendations in the last three years, mostly to councils, police forces and government departments, and just nine since launching a new “regulatory manual” last July.

But DWP has now been told it has repeatedly breached the Cabinet Office code of practice because of how it has handled a series of requests for information, including at least one from Disability News Service (DNS).

If DWP fails to confirm that it has complied with the report’s recommendations by 23 June, it could be issued with an enforcement notice and possibly be subject to an “adverse comment” in a report to parliament by the information commissioner.

In the new report, information commissioner John Edwards noted an increase in the number of complaints which have led to him ordering DWP to “disclose the requested information”.

He also pointed to an increase in the amount of information being withheld by DWP where it previously would have been “disclosed or proactively published”.

This included a report that showed how many disabled people who receive disability benefits had been unable to afford essential living costs such as rent, heating or food, even before the current cost-of-living crisis, and which was only published after it was obtained by the Commons work and pensions committee.

Edwards said cases were increasingly being brought to him where the public interest in releasing information was “not being adequately considered” by DWP.

He said that the nature and importance of DWP’s responsibilities meant there was a “high public interest” in its information because of the “vulnerable nature” of those who relied on its services and the “large amount of public money which funds the department”.

DWP admitted to ICO that staff responding to freedom of information (FOI) requests do not have to carry out any training, although “training, guidance and advice” is available if they ask for it.

Several cases examined by the ICO related to DWP’s failure to locate information about its decision not to extend the £20 uplift to universal credit to those on legacy benefits during the pandemic.

Others related to its refusal to confirm whether it held information that had been requested.

And one case saw it repeatedly fail to provide information that had been requested about secret internal process reviews into the deaths of benefit claimants.

One of the cases related to the repeated attempts by DNS to obtain figures that would show how many disabled people would lose out in the move to universal credit.

DWP even attempted to brand DNS “vexatious” for trying to secure the figures.

But the information commissioner finally forced DWP to release the information, which proved that at least one million disabled people would eventually be left worse off through the move to universal credit.

Ministers such as Justin Tomlinson, the former minister for disabled people, and former work and pensions secretary Therese Coffey had repeatedly claimed that around one million disabled households would receive a higher entitlement under universal credit than they would have received under their previous “legacy” benefits.

But every time they repeated the figure, they failed to say how many disabled households were expected to receive a lower entitlement under universal credit.

It took two-and-a-half years for DNS to force DWP to release the figures, with the information commissioner’s help.

Campaigner John Slater, who has spent years using freedom of information laws to hold DWP to account for its failings, said: “I’m delighted that the ICO has taken this action and I hope that it improves the culture within the DWP in respect of FOIA.”

He said he had made “numerous complaints” to the ICO about DWP using identical responses to different requests for information, particularly when it was arguing against there being a public interest in releasing the information.

He said: “In some cases the DWP used exactly the same text in responses to requests submitted years apart.”

He added: “I welcome the recommendation that training be provided to [DWP] people dealing with requests for information.

“It is incredibly frustrating to see exemptions being relied on when there is clearly no basis for the DWP to do so.

“I suggest that this [training] needs to be extended to people carrying out redactions.

“Hopefully, improved training will reduce the number of instances where the DWP relies on various exemptions throughout the investigation by the commissioner only to replace them with a raft of new exemptions when it appeals a decision notice to the [information rights tribunal].”

Jon Baines, senior data protection specialist at solicitors Mishcon de Reya, who provided pro bono legal support for DNS in a lengthy data protection case against DWP, said: “It’s encouraging to see the commissioner exercising his formal powers against public authorities who fail to comply with FOI.

“Delays in the FOI process, and the lack of sanctions for those delays, have been one of the biggest frustrations for requesters, but also – by extension – for the public, in recent years.”

An ICO spokesperson said: “With the launch of our new FOI and transparency regulatory manual last year, we have been taking more proactive regulatory action against public authorities that are systemically failing to comply with the law.

“Practice recommendations are supportive tools that set out steps that public authorities can take to improve their service to those making information requests.

“While they are not enforceable in and of themselves, they may inform our consideration of whether further action is needed, depending on the authority’s future performance.”

DWP told DNS this week that it now responded within the statutory timeframe in 98 per cent of the requests received, an improvement which is mentioned briefly in the information commissioner’s practice recommendation but does not relate to the key issues covered by the ICO report.

In a statement, a DWP spokesperson added: “The department is carefully considering all points raised by the Information Commissioner’s Office and will take any necessary steps to implement any changes required ahead of the ICO’s deadline.

“The department takes very seriously its compliance with the Freedom of Information Act and compliance with the Cabinet Office code of practice.”

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