Further to the Information Commissioner (ICO) telling the DWP that claimants must “opt-in” (consent) before their GP can be informed of a ‘fit-for-work’ Work Capability Assessment (WCA) ‘ decision by sending the GP a DWP ESA65B letter*, the ICO has clarified its opinion about the ESA65B letter and has told the DWP it can no longer issue the letter, unless it obtains the “opt-in” consent of claimants for past and new Employment Support Allowance and Universal Credit (UC) claims that could lead to a ‘fit-for-work’ WCA decision and a subsequent ESA65B or UC letter informing their GP to no longer issue ‘fit-notes’.
ICO Case Reference: RFA0833480
(Concerning claimant “opt-in” consent to send the ESA65B letter)“We have explained to DWP that, as the ICO’s guidance states, if existing consents don’t meet the GDPR’s high standards, an organisation [DWP] needs to seek fresh GDPR-compliant consent, identify a different lawful basis for the processing, or stop the processing.” [emphasis added]
Private complaint correspondence with ICO, concerning the ESA65B letter and the ESA1 claim form and the ESA50 and UC50 WCA questionnaire forms – July 22nd 2019
Note: No other lawful basis exists, only GDPR compliant “opt-in” consent of a claimant. [1] And there are a number “consents” issues in these claimant signed and dated forms ‘Declaration’ sections. [2]
DWP forms are invalid
At present the DWP ESA claim forms and the ESA50 and UC50 WCA questionnaire forms are invalid as they do not comply with the GDPR & the Data Protection Act 2018 as they do not give claimants the ability to consent (“opt-in“) to the claimant signed ‘Declaration’ statement: “I agree to my doctor or any doctor treating me, being informed about the Secretary of State’s determination on limited capability for work, limited capability for work-related activity, or both”. With GPs being “informed” by use of the ESA65B letters.
Why is the DWP ESA1, ESA50 and UC50 “I agree” consent invalid?
Because the ICO has said the “DWP has not complied with its data protection obligations” [3] as:
- there is no genuine free choice over whether to opt in
- the consent is bundled up with other terms and conditions
- they did not tell claimants about their right to withdraw consent, and
- claimants cannot easily withdraw consent
https://ico.org.uk/for-organisations…
*A letter which includes ‘fit-for-work’ coercion and says ‘fit-notes’ should no longer be issued, ‘unless a patient condition gets worse, they develop a new disability or health condition or ask a GP for evidence for a reconsideration or appeal against the DWP decision’.
DWP guidance on consent
The DWP recently disclosed its internal guidance on consent and over a year ago it said it was “reviewing with stakeholders how consent is gathered to ensure compliance with the new [GDPR] requirements.”
“DWP currently asks claimants to agree that we can share the outcome of their Work Capability Assessment (WCA) with their GP at point of claim and again on return of the Capability for Work questionnaire and this practice will continue.”
FoI 2871: ‘Standard letter ESA65B and the GDPR and the Data Protection Act (2018)‘ – July 9th 2018 [emphasis added]
Note: Practice now confirmed by the ICO to be unlawful.
A key difference is how under the GDPR consent has far higher standards compared to the 1998 Data Protection Act, an example on the DWPs past opinion is:
“The claimant also consents to this* by completing the relevant declarations
when making a claim or completing the WCA questionnaire.” [emphasis added]
FoI 1973 reply: ‘ ‘Where a client “fails” the WCA – does the DWP tell GPs not to issue a medical certificate?‘ – July 19th 2011
*By sending the ESA65B letter to the claimants GP
This post and the one on GDPRs “opt-in” consent requirements confirm the above approach is no longer valid, according to the Information Commissioner (ICO).
GDPR’s high standards
This evidence and internal guidance further highlights DWP contempt for its Data Protection obligations and the “GDPR’s high standards”.
ICO has “explained”
Even though the ICO has “explained” to the DWP what it must now do to comply with the GDPR, it may take further information requests to know how and when it will respond.
Correspondence to the BMA, RCGP and the Work and Pensions Committee
Correspondence has been sent to the BMA and RCGP and the Work and Pensions Committee, forwarding them this ICO letter and the follow email mentioned above, asking them to support a call for the DWP to cease and desist sending ESA65B letters and rescind all past copies sent to GPs.
Z2K
ICO may never have forced the DWP to take this action without the Z2K ‘Scrap The Letters’ campaign. > @Z2K_trust > @ellaabraham > #ESA65B
Related
- YOU can prevent the DWP interfering in the patient/doctor’s relationship
- Jobcentre ‘secretly told dying man’s GP to stop giving him sick notes’
Video: “…he was sanctioned to death by the DWP” - DWP letter to GPs following ESA refusal (19 November 2010)
- Doctor Refusing to Provide Med Cert due to DWP Letter (15 December 2010)
Some background
Footnotes:
[1]
“Statement 2
“I agree to my doctor or any doctor treating me, being informed about the Secretary of State’s
determination on
– limited capability for work
– limited capability for work-related activity, or both”RFI2: Please direct me please direct me to primary or secondary legislation (the specific section or regulation please) that allows the Department to share this information as described should the claimant strike out this part of the Declaration section (i.e. the Department does not have the claimant’s explicit consent to share their SPD in the manner described). “
…In answer to your second question [RFI2], there is no statutory provision that
applies in these circumstances.” [emphasis added]
FOI reply 94: ‘ESA50 Form Declaration Section‘ – 7 February 2017 – Cited in ‘YOU can prevent the DWP interfering in the patient/doctor’s relationship‘
““How can benefit claimants found fit for or limited capability for work remove permission to inform their GP of the WCA outcome and how can they do so before the WCA? If the claimant wants to send a letter removing consent to inform GP of outcome, who should they write to?”
If a benefit claimant wishes to withdraw consent to inform a GP of the outcome of a Work Capability Assessment they need to write to the Benefit Centre that deals with their benefit claim. ”
FOI reply 236: ‘GP contact and WCA‘ – 15 February 2017 – Cited in ‘#DoNotConsent to a Doctor/GP being told your Work Capability Assessment decision… #StopTheLetter (ESA65B) Now‘
Data Protection Act 2018
(1) This Act makes provision about the processing of personal data.
(2) Most processing of personal data is subject to the GDPR.
http://www.legislation.gov.uk/ukpga/2018/12/section/1
The GDPR makes it a requirement that claimants “opt-in” consent to the ESA1, ESA50 and UC50 Statement: “I agree to my doctor or any doctor treating me, being informed* about the Secretary of State’s determination on limited capability for work, limited capability for work-related activity, or both…” [ESA50 Statement]
*[Doctors are “informed” by use of the DWP ESA65B ‘fit-notes’ letter]
ICO response to March 2019 complaint
The 1998 Data Protection Act (DPA) had far weaker standards of consent, compared to the 2018 DPA which enshrines the GDPR into UK law
[2] “Consent should be obvious and require
a positive action to opt in. Consent requests must be prominent, unbundled from other terms and conditions, concise and easy to understand, and user-friendly.”
https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/consent/
The ESA1, ESA50 and UC50 forms bundle multiple “terms and conditions“, in one claimant dated and signed ‘Declaration’ with an I “declare“, I “understand“, I “agree” (x 2) and I “also understand” statement. The I “agree” statements also contain multiple ways the DWP and others can obtain personal data from multiple sources and for multiple purposes, let alone sending a GP an ESA65B letter suggesting a claimant has agreed to ‘their doctor or any doctor treating them, being informed about the Secretary of State’s determination on limited capability for work, limited capability for work-related activity, or both…‘
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Frank Zola 
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