ICO forces DWP to review how it obtains consent to share claimants personal data

Following on from the ICO forcing the DWP to change it’s Work Capability Assessment forms and the ESA claim form, to ensure claimants consent (“opt-in”) to the 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”.

The DWP has also sent “guidance to DWP, and advised DWP to review and amend other forms currently being used by DWP where the same issue exists, to prevent future similar complaints about how DWP obtains consent.” (ICO complaint reply below)

ICO letter to Mr Zola - REDACTED VERSION - 09_07_2019_page1

 

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ICO forces DWP to require claimant consent (“opt-in”) before #ESA65B ‘fit-note’ letters can be sent to GPs

we have in fact contacted DWP about the issues you raised with us. We took the view that DWP has not complied with its data protection obligations, because its  ESA1, ESA50 and UC50 forms do not provide a way for claimants opt in to the 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…
*[Doctors are “informed” by use of the DWP ESA65B ‘fit-notes’ letter]
ICO response to March 2019 complaint (copy below)

ICO may never have forced the DWP to take this action without the Z2K ‘Scrap The Letters’ campaign. > @Z2K_trust > @ellaabraham > #ESA65B

More broadly the complaint response also suggests the ICO has required the DWP to review how it obtains consent [see footnote] to obtain and share (process) claimants personal data.

“We provided guidance to DWP, and advised DWP to review and amend other forms currently being used by DWP where the same issue exists, to prevent future similar complaints about how DWP obtains consent.” [emphasis added]
ICO response to March 2019 complaint (copy below)

New ICO complaint.

A follow up complaint has been sent to the ICO, suggesting they require the DWP to cease and desist sending any new ESA65B letters, as to date claimants have never ‘opted-in‘/consented to the ESA50/UC50 and ESA1 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…” as required by the Data Protection Act 2018/GDPR.
(This follow up came after a suggestion from Z2K)

Update: (10/7/19)

Correspondence has been sent to the BMA and RCGP and the Work and Pensions Committee, forwarding them the ICO letter and 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 has also created a spoof ESA65B letter, highlighting the letters real objectives.

Update: (16/7/19)

The DWP has released it’s internal guidance concerning claimant consent to obtain and share (process) their personal data, the disclosures also show how the DWP has failed to comply with its own Data Protection guidance for the ESA1, ESA50 and UC50 forms.

Related:

“But there is nothing on the ESA claim form and the ESA/UC work capability questionnaire that give a claimant a way not to agree/consent to the letter being sent, or explain how to withdraw consent at a later date, which are Data Protection Act 2018/GDPR requirements.”
MPs Committee to investigate claimant consent to send DWP #ESA65B letters to GPs? – #ScrapTheLetters @Z2K_trust‘ – April 27th 2019

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ICO complaint response of July 9th 2019, for March 22nd 2019 complaint.

Footnote

ICO: Guidance on consent (Guide to Data Protection – Guide to the General Data Protection Regulation (GDPR) – Lawful basis for processing)

“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 multipleterms 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…

cropped esa-50-capability-for-work-questionnaire

ESA1 claim form for Employment Support Allowance - esa1 pdf

 

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The Commission on Social Security UK Led by Experts by Experience, launched May 29th 2019

The commission was launched today, alongside its new website:

https://commissiononsocialsecurity.com

The social security (welfare benefits) system is failing.

But there is little agreement on how the system can be improved.

The Commission on Social Security led by Experts by Experience is a project set up to find out how the government could make the welfare benefits system better.

The The Co-chairs of the Commission are Ellen Clifford, from Inclusion London and Disabled People Against Cuts and Nick Phillips, from London Unemployed Strategies.
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DWP sends new #ESA65B ‘Fit-Note’ ESA appeals letter to BMA and RCGP for comment #ScrapTheLetters? #ESA50

Today the DWP has released details of the complaints it has received, from “external stakeholders”, on the misleading ESA65B ‘Fit Note’ ESA appeals letter. It also confirms that the BMA and RCGP have been sent a draft, on 9/4/19, of a new revised ESA65B letter “for comment”, with the “BMA to inform GPs of the need to provide fit notes if patient appeals etc. pending release of the new ESA65B” and the “BMA to communicate change to ESA65B and ESA50 to GPs”.

“BMA to inform GPs of the need to provide fit notes if patient appeals etc. pending release of the new ESA65B”
FOI reply – ‘ESA65B letter‘ – 07/5/19

[ STOP the ESA65B being sent to your GP ]

There is no indication what changes are going to be made the ESA50 ‘Capability for work questionnaire‘, but a complaint has been lodged with the Information Commissioner (ICO) that the ESA50 and the ESA claim form do not comply with the Data Protection Act 2018/GDPR requirement (see footnote) to ensure a claimant can positively consent (opt-in), or not consent, or withdraw consent later on to their GP/Dr being sent a letter (ESA65B) that informs them:

“about the Secretary of State’s
determination on– limited capability for work
– limited capability for work-related activity,
or– both”
(IE: The decision of a Work Capability Assessment that a claimant is ‘fit for work’)
Source: ESA50 or UC50 questionnaire and the ESA claim form

The Work and Pensions Committee has formally requested to be kept informed of the ICO complaint investigation.

Edit: Action note 77, dated 27/3/19,  of the disclosures indicates the ESA50 changes concern the “(cancer page)”.

Today’s disclosures also shows that the BMA and RCGP provided “feedback” on the misleading ESA65B as far back as March 2nd, 2016. But it is unclear if this and any subsequent feedback amended the DWP proposed ESA65B changes or what if any opposition to the changes the BMA and RCGP made, save for recently published opinions implying the DWP was lying about them either approving the revised ESA65B letter.

“The Cabinet Secretary first issued the requirement to revise the ESA65B letter in November 2014″
Employment and Support Allowance: Written question – 142517
Answered on: 16 May 2018

Extract from ESA65B complaints, starting March 2018, recorded by the DWP

“We have a copy of a letter, and it’s very strongly suggests GPs should not issue any more fit notes…We have concerns about telling GPs to stop handing out fit notes”

“There is a new version of letters being sent to GPs suggesting incorrectly that they do not need to give people fit notes when they are found fit for work. The effect is claimants (and the organisations supporting them) are having problems getting fit notes to support appeal rate ESA payments. This is creating yet another barrier to people getting the Employment and Support Allowance (ESA) they need if they want to dispute the decision…

This wording change to theESA65B is really unhelpful and is making it difficult for claimants that need a fit note to get ESA pending appeal. If a claimant’s GP does not provide them with a fit note during the appeal period they will need to claim UC where eligible which means they may then receive a much lower level of support even if the refusal of ESA is successful”

“We’ve started getting a number of reports from XX whose GPs have told them that DWP have “told them they are not allowed to issue fit notes to them”, even if they are appealing an ESA decision or their condition has worsened, which is not correct”

“Where the matter has arisen, some XX have written to the GPs to highlight this to them, and we’ve spoken to the BMA about whether there is some useful information XX could provide”

“Our attention has been drawn to the confusion around the new wording of Form ESA65Bwhich requests GPs not to give any more fit notes to a claimant who has been assessed as capable of doing some work.Neither this form or the related GP guidance document refer to the need to continue issuing fit notes to claimants who wish to take the decision to an appeal.”

“The heavily highlighted and stressed message of the current ESA65B is clearly incomplete and and seriously misleading to a busy GP who relies on the DWP for clear and complete guidance. Can you let me know when the DWP intends to issue clarification of this matter to GPs?”

“We have had an issue raised about the wording of the letter Jobcentre Plus sends to GPs headed ‘Help to support your patient to return to or start work’ which states that their patient has been assessed as capable of work so they do not need to provide any more fit notes.”

“What the letter does not point out is that (with some exceptions) ESA may still be paid if someone is appealing the decision in which case they should continue to send fit notes. This is clearly set out in a Parliamentary written answer when the Minister said ‘In order for someone to be paid ESA pending an appeal they need to provide the Department with fit notes in order to be treated as having Limited Capability for Work until the appeal is determined.’ https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2018-05-09/142519 However, there is no reference to this in the letter to GPs nor is it mentioned in the fit note guidance for GPs referred to in the ESA65B. Given the letter clearly says fit notes do not need to be provided it is unsurprising if GPs do not look through all the relevant materials to see if there are any exceptions to this. We therefore ask that a sentence is added to the letter to GPs on the lines of: Fit notes may still be required if patient is appealing the decision. This is referred to on page 9 of the guide on gov.uk- The benefits system: a short guide for GPs”

(Current ESA65B – past version)

Pending FOI

Related

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It was @DamianGreen who “authorised” the misleading #ESA65B ‘Fit-Note’, ESA appeals letter. #ScrapTheLetters

Evidence

“The Cabinet Secretary first issued the requirement to revise the ESA65B letter in November 2014″
Employment and Support Allowance: Written question – 142517
Answered on: 16 May 2018

Cabinet Secretary “in November 2014” was Jeremy Heywood @HeywoodFndation

“DWP’s Legal Service cleared the revised wording on 29 July 2016 and the then Secretary of State for Work and Pensions subsequently authorised the changes.”
Employment and Support Allowance: Written question – 155401
Answered on: 03 July 2018

The then Secretary of State for Work and Pensions was @DamianGreen
‘Generally voted against laws to promote equality and human rightswelfare’

Damian Green Official portrait of Damian Green crop 2.jpg 14 July 2016 11 June 2017

“The original internal [DWP] recommendation to change the ESA65B letter was in summer 2016.”
Employment and Support Allowance: Written question – 234145
Answered on: 22 March 2019

Edited 4/5/19: title and content changed based upon Written question – 155401

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@DWP has “destroyed” info on why it created misleading #ESA65B ‘Fit-Note’, ESA appeals letter. #ScrapTheLetters @Z2K_trust

FOI reply

“In response to your first request regarding the internal recommendation to change the ESA65B letter in summer 2016, following a search of our paper and electronic records, I have established that the information you requested has been destroyed in accordance with Departmental records management practices.

To answer your second request – please find in the attached Annex:

1. Copies of letters the Department has received from four Members of Parliament.

2. A copy of a letter received from the Royal College of General Practitioners (RCGP).

3. A table of comments received from external stakeholders with personal information redacted in line with data protection principles. ”
[unable to locate this disclosure]

https://www.whatdotheyknow.com/request/esa65b_letter#incoming-1356347 – 30/4/19

Pending FOI

Which Secretary of State “authorised” “changes” to “wording of the ESA65B letter” ?’
“Currently waiting for a response from Department for Work and Pensions, they should respond promptly and normally no later than 31 May 2019”

Background

“The Cabinet Secretary first issued the requirement to revise the ESA65B letter in November 2014″
Employment and Support Allowance: Written question – 142517 – Answered on: 16 May 2018

Note: Cabinet Secretary “in November 2014” was Jeremy Heywood @HeywoodFndation
Secretary of State for Work and Pensions “in November 2014”:

Iain Duncan Smith Official portrait of Mr Iain Duncan Smith crop 2.jpg 12 May 2010 18 March 2016

“The original internal [DWP] recommendation to change the ESA65B letter was in summer 2016.”
Employment and Support Allowance: Written question – 234145 – Answered on: 22 March 2019

Note: Secretary of State for Work and Pensions

Stephen Crabb
@SCrabbPembs
Official portrait of Stephen Crabb crop 2.jpg 19 March 2016 14 July 2016
Damian Green
@DamianGreen
Official portrait of Damian Green crop 2.jpg 14 July 2016 11 June 2017

Summer lasts from June to August

“Officials from this Department engaged with the Cabinet Office on the development of new wording of the ESA65B letter, but changes were authorised by the then Secretary of State for Work and Pensions, who has responsibility.”
Employment and Support Allowance: Written question – 146986 – Answered on: 06 June 2018

Disclosures

15 April 2019

30 April 2019

 

Follow up letter by @MarshadeCordova to @AmberRuddHR – 30/4/19

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Exposed: More DWP attacks and lies on GP ‘Fit -Note’ and ESA appeal rights – #ScrapTheLetters?

Tribunal appeals found in favour of the customer:
ESA at 74%
Ministry of Justice – ‘Tribunals and gender recognition certificate statistics quarterly: October to December 2018‘ – 14 March 2019

There is growing movement for the DWP to abolish the letters it sends to Doctors/GPs telling them not to issue ‘Fit-Notes’ when a Work Capability Assessment decides a patient is ‘Fit-For-Work’. The focus has been on the DWP ESA65B GP letter, with the Z2K Trust running a campaign for them to be scrapped “altogether“. Even though a GP should continue issuing ‘fit-notes’ when a claimant  is appealing against the ‘fit for work’ decision or has asked for a “reconsideration”.

But what is missed is the standard letters being sent to claimants, found  ‘Fit-For-Work’, can just be as misleading. The standard letter (UCD83) sent to Universal Credit claimants includes the sentence “You do not need to send us any more fit notes” and for ESA claimants the letter (ESA65) makes no reference to ‘Fit-Notes’ whatsoever and is therefore misleading by omission.

Therefore, the DWP is subjecting claimants to a pincer movement to deny them their rights as both the ESA65B GP letter and the the UCD83 and ESA65 claimant letters give no information about the need for ‘Fit-Notes’ to support an Appeal or Mandatory Reconsideration against the ‘Fit-For-Work’ decision. Therefore letters to claimants need to be revised so they do include details of when a Doctor/GP should continue issuing ‘Fit-Notes’, as stated in:

“GPs don’t have to provide fit notes where their patient has been found fit for work following a Work Capability Assessment (WCA) unless:

  • their patient’s condition gets worse
  • their patient develops a new disability or health condition
  • their patient asks the GP for evidence for a reconsideration* or appeal against a WCA decision” (emphasis added)

FOI reply: ‘Fit-for-Work ESA65B letter: Current and 2010 versions and claimant consent to send it to a Doctor/GP‘ – 5 April 2019 *“reconsideration” is referring to a ‘Mandatory Reconsideration‘.

(Current ESA65B – original version)

In short, why should it only be Doctors who get informed that they should continue to issue ‘Fit-Notes’ to support a ‘Fit-For-Work’ Appeal or Mandatory Reconsideration? Surely this information needs to also be included in the UCD83 and ESA65 claimant letters. Especially as a Doctor may not have the time, expertise or inclination to discuss an Appeal or Mandatory Reconsideration or may just refuse to continue issuing ‘Fit-Notes’ based upon what the ESA65B letter to them says:

Please do not give
[Title] [First name] [Surname]
any more fit notes relating to
[select] disability/
health condition for ESA purposes.”
ESA65B – pdf

The campaign focus on letters being sent to Doctors, is very important but there is also a need to investigate letters sent to claimants when both are denying ill and disabled peoples’ ‘Fit-Note’ and ESA appeal rights by design.

More evidence:

Doctors say DWP is lying about ‘Fit-Notes’, ESA appeals and the infamous #ESA65B letter

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