Category Archives: Freedom of Information

Reasons for councils to avoid large-scale outsourcing? – lessons learnt report

By Tony Collins

Somerset County Council’s Audit Committee has just published “Update on Lessons Learnt from the Experience of the South West One Contract”. The lessons could be read by some as a warning against any all-encompassing outsourcing deal between a council and a supplier, in this case IBM.

The carefully-worded report is written by Kevin Nacey, the county council’s Director of Finance and Performance. It updates a “lessons learnt” report the council published in February 2014.

The latest report concludes:

“… All parties have been working very hard to keep good relationships and to fix service issues as they arise. The sheer size and complexity of this contract has proven difficult to manage and future commissioning decisions will bear this in mind.”

All local authority large-scale outsourcing deals are complex and difficult to manage. So are councils that sign big outsourcing deals courting trouble? Should councils avoid such contracts whatever the supplier incentives?

Somerset County Council was a top performing council when it created a joint venture owned by IBM in 2007. The aim was to take the council “beyond excellence” in the words of the then Somerset chief executive Alan Jones. His councillors hoped that the new company, Southwest One, would attract much new business and so cut costs for each of the partners.

But even without attracting new business, IBM had difficulties managing the sometimes conflicting expectations and services for each of the initial three clients: the county council, Taunton Deane Borough Council and Avon and Somerset Police.

Former Somerset County Council IT specialist Dave Orr has written a well-informed series of articles on the Southwest One contract.

What’s interesting now is that Somerset County Council, under pressure from Orr and others, has investigated what has gone wrong and why, and is disseminating the lessons, after giving them much thought.

Originally Somerset was proud of its deal with two councils and a police force. Its auditors in 2007 praised the deal’s innovative approach. Now we learn from the latest Somerset report that the contract was “incredibly complicated”. The report says:

“One of the most significant lessons learnt related to the sheer size, breadth and complexity of the contract. Both the provider [IBM] and the Council would agree that the contract is incredibly complicated.

“A contract with over 3,000 pages was drawn up back in 2007 which was considered necessary at the time given the range of services and the partnership and contractual arrangements created.”

[But all big outsourcing contracts run to thousands of pages and are unlikely to be anything but incredibly complicated.]

More from the council’s latest lessons learnt report:

“What has become clear over time is that any such partnership depends upon having similar incentives …”

[Does any big outsourcing deal have similar incentives for supplier and client? Only, perhaps, in the press releases. In reality suppliers exist to make money and, in times of austerity, councils want to spend less.]

“Dissatisfaction can occur”

The county council’s report: “The well-documented financial difficulties faced by the provider [IBM] early into the contract life also affected its ability to meet client expectations. The net effect is that at times the provider and partner aims in service delivery do not always match and discord and dissatisfaction can occur.”

Client function too small

“The Client function monitoring a major contract needs to be adequately resourced. At the outset the size of the client unit was deemed commensurate with the tasks ahead … However, as performance issues became evident and legal and other contractual disputes escalated, the team had to cope with increasing workloads and increasing pressure from service managers and Council Members to address these issues. This is a difficult balancing act.

“You do not want to assemble a large client function that in part duplicates the management of the services being provided nor overstaff to the extent that there is insufficient work if contract performance is such that no issues are created.

“With hindsight, the initial team was too small to manage the contract when SAP and other performance issues were not resolved quickly enough. Sizing the function is tricky but we do now have an extremely knowledgeable and experienced client team.”

3,000-page contract of little use?

“Performance indicators need to be meaningful rather than simply what can be measured. Agreement between the provider and the SCC client of all the appropriate performance measures was a long and difficult exercise at the beginning of the contract.

“Early on in the first year of the contract, there were a large number of meetings held to agree how to record performance and what steps would be necessary should performance slip below targets. Internal audit advice was taken (and has been at least twice since under further reviews) on the quality and value of the performance indicator regime.

“It is regrettable and again with hindsight a learning point that too much attention was paid to these contractual mechanisms rather than ensuring the relationship between provider and SCC was positive. Perhaps the regime was too onerous for both sides to administer.”

[A 3,000 page contract proved of little value in holding the supplier to account on performance. So was there much value in the contract apart from making a lot of money for lawyers? Too tight a contract and it’s “too onerous for both sides to administer”. Too loose and there’s no point in the contract. Another reason for councils to avoid entering a big outsourcing deal?]

“Too ambitious for all parties”

The report says:

“Contract periods need to be different for different services as the pace of change is different. The range of services provided under the initial few years of the contract were quite extensive. On another related point the provider also had to manage different services for different clients. This level of complexity was perhaps too ambitious for all parties.

“Although there were many successful parts to the contract, it is inevitable that most will remember those that did not work so well. The contract period of 10 years is a long time for 9 different services to change at the same pace…”

Drawback of seconding staff

“The secondment model introduced as part of the contract arrangements had been used elsewhere in the country. Nevertheless, it was the first time that 3 separate organisations had seconded staff into one provider.

“In many ways the model worked as staff felt both loyalty to their “home” employer, keeping the public service ethos we all felt to be important, and to Southwest One as they merged staff into a centre of excellence model.

“The disadvantage was that Southwest One was hampered by the terms and conditions staff kept as they tried to find savings for their business model and to provide savings to the Council in recent years given the changing financial conditions we now operate under.”

Different clients on one main contract – a nightmare?

“Another aspect of this contract in terms of complexity is the nature of the partnering arrangement. It is not easy for all partners to have exactly the same view or stance on an issue. Southwest One had to manage competing priorities from its clients and the partners also had varying opinions on the level of performance provided.

“Remedy for such circumstances differed depending upon initial views of the scale of the performance issue and what each client required for its service.”

Quick audit work “stifled”

“It has been particularly challenging to achieve effective audit of the contract, both by internal and external auditors. Access for auditors has been a prime issue with clearance of those auditors often being slow as process involved all clients being satisfied that audit scope, coverage and findings were appropriate.

“The contract allowed for transparent audit access and there is no suggestion here that SWO did not welcome audit.

“Indeed, for the first few years of the contract there was a team within business controls in SWO that enabled and carried out their own audit work on behalf of IBM. It again proved to be the controls required by all partners and the complexity of access that stifled quick audit work to be performed.

“Increasingly, there was debate about capacity to support audit work within SWO and therefore, SWAP [South West Audit Partnership] suffered in terms of their ability to conduct audit work in good time. In addition,

“Police levels of security needed to be far higher than SCC and this complicated access for auditors.”

Arguments over confidentiality – FOI requests “incredibly difficult to answer”

“The most recent SWAP [South West Audit Partnership] audit of the contract client function found that there has been effective monitoring of SWO performance.

“The problem is that reporting of that performance has been hampered by arguments over commercial confidentiality and sensitivities about the validity of reporting.

“It is fair to say that the three clients do not always agree on the quality of service provided, which of course gives rise to SWO management challenging SCC’s robust approach if other clients do not agree when in our view service is deficient.

“The transparency surrounding contract performance has been a contentious issue given these difficulties, and especially at times of dispute and with court proceedings pending. Future contracts must make these issues clearer and give the authority the ability to follow the national agenda for transparency more explicitly and without fear of upsetting either partners or the provider.

“The Freedom of Information legislation is there to serve the transparency agenda but such requests have been incredibly difficult to answer because of need to ensure all parties are sighted on information made public.”

Confused data ownership

“A further issue is that of data ownership and responsibility. SCC must make available data if indeed it has that data. On a number of occasions SCC did not and SWO held data that contained references to other authorities.

“The shared service platform and the nature of service delivery occasionally made it costly to segregate data to respond to FoI and other requests. Secondees were also often torn between their allegiance to their ‘home’ employing authority and their commitment to SWO, which did cause some confusion regarding information ownership.

“In all contracts SCC must strive to ensure transparency is foremost in our thoughts and that clearance of data release is not subject to other parties’ views.”

ICT, SAP and splitting a one-vendor database – a host of issues

“Another lesson learnt from this contract relates to the use of ICT systems to be delivered and managed by the provider in any contract… Firstly, the introduction of SAP so early in the contract life and the system issues experienced meant that SWO performance became synonymous with SAP performance.

“There were many other benefits provided by SWO in the first few years of the contract related to other improvements in the network and associated applications but this was overshadowed by the SAP technology issue.

“Over time SAP has worked for SCC albeit there are still outstanding issues with its configuration and its flexibility to adjust to the Council’s changing needs.

“The creation of one vendor database in support of the shared service agenda is now with hindsight going to be a bigger issue for all clients as we approach the end of the contract.

“There is still insufficient knowledge transfer to secondees and this will leave a legacy issue for our authorities. Future contracts must clarify asset ownership, system maintenance and replacement infrastructure issues.”

Comment

Somerset County Council’s Audit Committee deserves recognition for the work it has put into the lessons learnt report.

It has produced the report under the pressure of years of intense outside scrutiny, by Dave Orr, and others.

Without such scrutiny Somerset could have ended up concealing contractual problems even from itself. We’ve seen in other parts of the country, where councils have failing outsourcing contracts, that the most enthusiastic councillors convince themselves that all is well.

They assume that negative local newspaper reports of problems on their major outsourcing contract are prompted by the profoundly disaffected, just as some councillors and officials in parts of the UK wrongly blamed the lifestyles of complainants when they alleged child abuse.

Mutual incentives?

The Somerset report says each side in an outsourcing relationship needs to be motivated by similar incentives. But can that ever happen? Councils exist to provide good public services as cheaply as possible. Suppliers exist to make as much money as possible.

There can only be similar incentives if a council is so inefficient that there’s enough spare cash to cover council savings and the supplier’s profits.

If there isn’t the spare cash, the council, in its enthusiasm to do something different by outsourcing, can simply fictionalise the figures for benefits and potential savings.

This creative (and legal) exercise is perfectly possible given the depth of the conjecture needed to project costs and savings over 6 years or more.

Part-time councillors who are considering a big outsourcing contract have the time only to glance at summary documents or the preferred supplier’s Powerpoint slides. They are unlikely to spot the assumptions that pervade the formalised legal language.

During such a pre-contract exercise, the most sceptical councillors are often excluded from internal scrutiny, and the disinterested ones who are admitted into the inner chamber can find their heads swimming in a supplier-inspired language that either swathes uncertainty in the business jargon of near certainty or obscures reality in opaque legalese.

How are these lay councillors to get at the truth? Do they have the time?

Big outsourcing deals between councils and suppliers are inherently flawed, as this Somerset report indicates. Too many such deals have ended badly for council taxpayers as Dexter Whitfield’s investigations have shown.

But still some councils sign huge outsourcing deals. Their leading officials and councillors say they took lessons from failed contracts around the country into account. But what does that mean? If a deal is inherently flawed, perhaps because of diverging incentives, it is inherently flawed.

The disaster that is Southwest One could be a priceless jewel in the public sector’s display case if it serves to deter councillors and officials signing further large-scale council outsourcing deals.

Thanks to Dave Orr for alerting me to the lessons learnt report.

Somerset report “Update on Lessons Learnt from the Experience of the South West One Contract”.

UK outsourcing expands despite high failure rates.

 

Jailed and bankrupt because of “unfit” Post Office IT? What now?

By Tony Collins

post office logoThe BBC’s “PM” programme returned to the topic last week of subpostmasters who were stripped of their post office contracts and bankrupted because of theft, fraud and false accounting. Some went to jail.

“Is it possible they were innocent and that a computer system was to blame instead?” asked Eddie Mair, the programme’s presenter.

The BBC has seen a leaked copy of an independent report the Post Office commissioned into its “Horizon” branch office accounting system. An interim version of the report by consultancy Second Sight was released last year.

The leaked report says the system was unfit for purpose in some branches, says to the BBC. When Post Office investigators checked out shortfalls they did not look for the root cause of the errors – and instead accused the sub-postmasters of theft or false accounting, says the BBC, quoting from the report.

£1bn Horizon system

More than 11,000 post offices use Fujitsu’s £1bn Horizon system for branch accounting and rarely have problems. At the close of each day, the system balances money coming in from customers and money going out, to banks, energy companies, for tax disc sales and for lottery tickets.

If the system showed there was a shortfall, subpostmasters had few options: make up the deficit themselves, sign off the accounts as correct, or refuse to sign off – which might have meant closing the post office (and upsetting customers) while a financial audit took place.

The BBC PM programme last week re-broadcast its interview in June 2012 with a gently-spoken Welshman, Noel Thomas, who worked for the Post Office for 42 years before he had problems with the Horizon branch accounting system at Gaerwen. When he went to balance the accounts the system kept telling him there was a deficit – a shortfall in the daily takings.

post-office-signPrison

After speaking to the Post Office helpline several times he believed the matter would be sorted out in time. He signed off the accounts – and the Post Office took him to court for false accounting. He pleaded guilty and went to prison; and he went bankrupt.

In his interview with Eddie Mair, Thomas came across as a man of guileless integrity.

“I had a very busy post office,” said Thomas. “I am not ashamed to tell you I had a very good income of between £20,000 and £30,000 a year. I worked very hard for it: I looked after my customers.”

Mair: What was the first sign of trouble?

“I did have trouble over about 12 months actually. The last six months it went worse. You just couldn’t balance. It was going in the end (into deficit) at the rate of £2,000-£3,000 a week.”

Mair: This wasn’t your own personal books – you weren’t filling in a ledger – this was the computer system?

“This was the computer system. In the end I was convicted on the basis that I false accounted for over £50,000.”

Mair: They thought you’d stolen it?

“Yes. But when it came to the court case they dropped the theft [charge] very very quickly and just went for false accounting.”

Mair: You went to jail?

“Yes… I was lucky. I only had eight days. Time went very very quickly.”

Mair: But I am guessing for you that was not really the problem, the passing of time. You’d been branded a criminal?

“Yes. That’s what got me you see.”

Mair: The Post Office still says it is confident about this computer system. It is still happy with it.

“It would say [that], wouldn’t it?”

Mair: As for you, are you confident you didn’t make a lot of mistakes?

“Yes. I can say I didn’t make mistakes. I can say with my hand on my heart I didn’t take the money.”

Mair: What effect has this had on you?

“A big effect, because I was declared bankrupt. The Post Office are paying my pension but they took my private pensions away.”

Mair: What would you like to happen?

“Not for me myself but for (other subpostmasters and mistresses). It has ruined their lives hasn’t it? If you pilfer off the Royal Mail you need to be punished –”

Mair: But Noel if you are correct – and obviously the Post Office has a different view of this – if you are right then you have been made bankrupt, you have lost almost everything -

“Yes.”

You have been to jail -

“Yes.”

Over a computer mistake -

“Yes.”

Mair: What do you want from them?

“That we can get justice for everybody.”

post officeCriminals or faulty systems?

Thomas had given up trying to prove his innocence when he received a phone call from retired senior probation officer Roch Garrard who said the same thing had happened to his local postmistress in Hampshire.

In time Thomas found that dozens of middle-aged, middle-class subpostmasters and mistresses who had never put a foot wrong were being branded criminals.

“It didn’t make sense to me so I started to contact some of them and said to them ‘this is what happened to our postmistress, what happened to you’ and the stories were all so similar that I thought there must be something wrong,” he said.

Now, more than 150 sub-postmasters say they were wrongly prosecuted, or made to repay money, because of the system. The Post Office remains defensive. Its public statements express little sympathy. It is, though, in secret talks with the subpostmasters over possible compensation. But can money ever put right injustices that have ruined lives?

New Second Sight report

BBC reporter Dan Johnson said the latest report explains exactly was going on with the Post Office computer system. “The thrust of this report is that it was faults in that computer system as well as communication problems, and issues around training that led to these mistakes. It wasn’t dishonesty,” said Johnson.

The report said training was not good enough for those without IT skills and power failures and communication issues made things worse. Helpline staff gave conflicting advice or said problems would sort themselves out.

Second Sight found in its research on Horizon that bugs were  not unknown. It said in its interim report that “some combinations of events can trigger situations where problems occur”.

A tearful Sarah Burgess Boyd, from Newcastle-upon-Tyne told the BBC she lost her life savings in repaying an incorrect shortfall. She said of the Post Office, “I just don’t know of another business that would conduct themselves in such a callous and inhumane manner.”

The Post Office said the leaking of the report was “unhelpful”. In a statement, the Post Office told the BBC:

“Although we will not comment on the contents of any confidential documents, after two years of investigation it remains the case that there is absolutely no evidence of any systemic issues with the computer system which is used by over 78,000 people across our 11,500 branches and which successfully processes over six million transactions every day.”

The Post Office is in mediation with some of the affected subpostmasters, in part because of campaigning for justice by MPs, particularly North East Hampshire MP James Arbuthnot.

Also leading the campaign is the Justice for Subpostmasters Alliance, which was set up to “raise awareness of the problems around the Post Office Horizon system which for many years Post Office Limited has denied exist”.

Despite the mediation, the relationship between the accused subpostmasters and the Post Office remains strained. Alan Bates, a former subpostmaster in Wales who founded the Justice for Subpostmasters Alliance, continues to submit FOI requests to the Post Office, the latest being August 2014. The Post Office tends to refuse his requests or gives him unsympathetic replies.

In one of his FOI appeals, Bates tells the Post Office that the concern is not about the millions of successful weekly and monthly financial reconciliations that take place but the “numerous unsuccessful reconciliations that take place that Post Office refuses to even consider may occur”. Post Office management “seems blind to such possibilities”.

He told BBC Wales in 2012:

“One of the big problems with Horizon is the inability to fully examine all the data you have put in the system. You were not allowed to interrogate it. They restricted the access. I refused to be held liable for a system that I and my staff were unable to access to check.”

Under the FOI Act, Bates asked the Post Office last month for the total amount in value and number of all “transaction correction” invoices and credit notes issued to post offices in the latest accounts period; and he asked in April 2014

“Has Post Office ever been made aware of faults within the software of their Horizon System that would have impacted in any way on the accuracy of the accounts of any post office?”

The Post Office did not say. Its reply was that the question was not specific enough.

Ministers have been unsympathetic to the accused subpostmasters –  although the campaign to clear the names of the accused has come mostly from Conservative MPs. Minister Jo Swinson told the House of Commons last year that the number of subpostmasters who’d complained about the Horizon system was “tiny, tiny”.

The National Federation of SubPostmasters has also been unsympathetic and has backed the Post Office. The Federation said: “We continue to have complete confidence in the Horizon system, which carries out hundreds of millions of transactions every week at 11,500 Post Office outlets across the country.

“The NFSP has seen no evidence to suggest that Horizon has been at fault and we believe it to be robust.”

Contract Law

Bhavisha Parekh, a case handler at Contact Law, was approached in 2009 by a sub-postmaster whose accounts had been audited that morning – and they’d found a loss of £7,000.

Parekh writes on the Contract Law website:

“The client had found this loss when doing her daily accounts a week earlier and asked the Post Office auditors to assist her and investigate the matter to locate the loss and rectify the accounts.

“Post Office accounts consist of cash, stamps, and postal orders as well as anything else they trade in; everything is given a financial value. The client’s loss was not of cash and all her transactions were showing to be completed correctly.

“However, upon the auditor’s confirmation of the loss she was charged with theft from the Post Office and given notice of being given a statutory demand for the £7,000.

“The client was in tears over the phone as she felt she had been wrongly charged; the client had run the Post Office for many years without fault and had become a pillar of the community.

“She felt victimised, as when trying to resolve this problem with the Post Office she had asked them to audit her branch and now she was being charged with theft.

“That day I gave the client details of a firm local to her (solicitors) to assist her with this matter. A few weeks later when calling the client to get feedback on the outcome of her case, she explained that she had had been investigated by the Post Office but they had not found anything to show she had taken the money.

“When auditing her branch the final accounts showed a loss; however, the auditors were unable to trace where this loss occurred. After further investigation and having a forensic accountant look into the matter, there were still no answers as to where this loss had occurred.

“This seemed pretty strange; the client in the meantime was told she could not work in the Post Office or even enter the building so she was left without an income and fear of being criminally prosecuted.

“However, after a month or so the Post Office wrote to her to state they had dropped the charges. She would however not be able to commence work as a sub-postmaster, and no explanation of the matter was given.

“Since speaking to this client I was approached by two more former sub-postmasters with the same case. However, they have not been as ‘lucky’ as my initial client – one was dismissed as a sub-postmaster and asked to repay this ‘lost’ amount, and the other was charged with theft and imprisoned for 18 months as well as ordered to pay a sum of £75,000.

“In all three cases the Post Office and their trained auditors have been unable to locate what this loss is; further they have not been able to trace any money into the postmasters’ accounts. Apart from there actually being a loss, there has been no evidence of any theft ever taking place.

“I have only spoken to three sub-postmasters; however this is happening at an increasing scale all over England. Computer experts are now stating that the ‘Horizon’ software the Postmasters use is flawed and so showing these losses.

“Potentially, due to this computer error, many sub-postmasters have lost their jobs, been imprisoned, and left traumatised by the Post Office’s actions.”

Comment

The Post Office deserves credit for investigating some of the complaints (after years of pressure from MPs) and it is said to have settled some of the less serious cases. But five years since the accumulation of problems came to light the convictions against subpostmasters remain. Computer Weekly highlighted the plight of subpostmasters in 2009.

Second Sight’s latest report will add to concern that lives were ruined because unexplained deficits on the Post Office’s Horizon system were not thoroughly investigated – and the root cause established – before the Post Office ticked the legal box to prosecute.

There is scope for systems to go wrong when there are multiple interfaces, occasional power failures and faults in networks and communications equipment. The Post Office’s Horizon system has multiple interfaces; and in any case no IT system is perfect. That Horizon works well for tens of thousands of subpostmasters is no guarantee it will work well for all.

Telling the family of someone struck by lightning that millions of people are not struck by lightning every year is extraordinarily insensitive. What’s the point of the Post Office’s continuing to insist that most subpostmasters have no problem with Horizon? Clearly there are no system-wide issues but nobody is saying there are – and why would those sent to prison, made bankrupt or deprived of their livelihoods care if IT issues were systemic or not? They say it happened to them.

Nobody in the general population would believe that 150 or more subpostmasters were dishonest.

Who would put the integrity of a computer system above the integrity of 150 subpostmasters?

The Post Office, as the prosecuting authority, could argue it is only doing its job in protecting its money and the investments of its shareholders. But in doing their jobs Post Office managers seem to be behaving more like machines than humans. They prosecuted for false accounting because they could.

They could, because sub-postmasters, when confronted by a deficit they didn’t understand, signed off accounts after being told by the IT helpdesk that the problems would probably clear in time. Strictly speaking, signing off accounts as correct when they are  known to be incorrect is false accounting. But was it something the Post Office should have prosecuted, given the mounting complaints about the accuracy of the system’s deficit figures?

Still the Post Office is refusing to answer subpostmaster’s questions. Its managers know they have the legal and contractual upper hand; and as owners of the system they possess the facts. What they do not have is the moral upper ground: they lost any claim to neutrality when they took subpostmasters to be dishonest before properly investigating the potential for shortcomings of the system.

It will be damaging to justice and the reputations of the subpostmasters if the Post Office continues to conform to the stereotype of a large organisation that, once it has denied liability for anything, refuses repeatedly to alter its position, whatever the facts.

As individuals, Post Office managers are probably understanding. As an institution the Post Office appears hostile to those whose lives have been ruined. It seems content to allow the cry for justice to stretch out for years, while it remains defensive and unsympathetic.

Shadow business minister Ian Murray asked in the House of Commons last year:

What processes will be put in place to compensate sub-postmasters and former sub-postmasters who have been disadvantaged, fined, lost their businesses, homes or even jailed, as a result of the problems with the Horizon system?

Wronged subpostmasters deserve far more in compensation than the sums originally in dispute. Is the Post Office institutionally capable of righting egregious wrongs?

Are disaffected subpostmasters having to sign gagging orders?

Second Sight interim report

Subpostmasters tell their story

Justice for Subpostmasters Alliance

 

DWP tries again to stop release of Universal Credit reports

By Tony Collins

The Department for Work and Pensions has requested another legal hearing in its attempt to stop four ageing reports on the Universal Credit programme being published.

The DWP’s formal application to the Upper Tribunal (below) shows that Whitehall officials and work and pensions  ministers, Iain Duncan Smith and Lord Freud,  are prepared to sink more public money into fighting a judge’s ruling in March 2014 that the DWP publish the four reports

It appears the DWP does not want the reports published on a point of principle: the department does not publish any reports on any of its major IT-based change programmes.

Another reason officials and ministers have for keeping the reports confidential is that they would establish what officials knew of Universal Credit programme’s serious problems in 2012 when departmental press releases were saying the scheme was on time and within budget.

The reports could show, without ambiguity, that the DWP misled Parliament in 2012 and 2013 by saying the UC programme was progressing successfully when officials knew this was not the case.

So far the the DWP’s lawyers have lost every stage of their appeals to stop disclosure of the reports. One judge noted the apparent contradiction between what’s in the hidden reports and optimistic press releases issued by the department about the UC programme.

The reports in question date back to 2011 and 2012. They are:

-  A Project Assessment Review of Universal Credit by the Cabinet Office’s Major Projects Authority. The Review gave a high-level strategic view of the state of UC, its problems, risks and how well or badly it was being managed.

-  A Risk Register of Universal Credit. It included a description of the risk, the possible impact should it occur, the probability of its occurring, a risk score, a traffic light [Red/Green Amber] status, a summary of the planned response if a risk materialises, and a summary of the risk mitigation.

- An Issues Register for Universal Credit. It contained a short list of problems, the dates when they were identified, the mitigating steps required and the dates for review and resolution.

- A High Level Milestone Schedule for Universal Credit. It is described in the tribunal’s ruling as a “graphic record of progress, measured in milestones, some completed, some missed and others targeted in the future”.

John Slater, who has 25 years experience in IT and programme and project management, requested three of the reports in 2012 under the FOI Act. Separately I requested the Project Assessment Review, also in 2012. The Information Commissioner ruled that the DWP release three of the four reports. He said the Risk Register could stay confidential.

The DWP appealed the ruling and the case came before the first-tier information tribunal earlier this year.  The DWP sent an external legal team to Leicester for the hearing – which the DWP lost.

The tribunal ruled that the DWP publish all four reports. Lawyers for the DWP had claimed that disclosure of the four reports would inhibit the candour and boldness of civil servants who contributed to them – the so-called chilling effect.

The DWP’s lawyers sought the first-tier tribunal’s leave to appeal the ruling, describing it as “perverse”. The  lawyers said the tribunal had wholly misunderstood what was meant by a “chilling effect”, how it was manifested and how its existence could be proved.

They claimed that the first-tier tribunal’s misunderstanding of the chilling effect and its perverse decision were “errors of law”. For the first-tier tribunal’s finding to go to appeal to the “upper tribunal”, the DWP would have needed to prove “errors in law” in the findings of the first-tier tribunal.

The judge in that case, David Farrer QC, found that there were no errors in law in his ruling and he refused the DWP leave to appeal. The DWP then asked the upper tribunal to overrule Farrer’s decision – and the DWP lost again.

The judge in the upper tribunal refused permission for the DWP to appeal.

Rather than simply publish the reports – and avoid further legal costs – the DWP has now asked its lawyers to submit another request for an appeal. This time the DWP has asked for an “oral hearing” so that its lawyers can argue for permission to appeal to the upper tribunal in person, rather than on paper.

The upper tribunal has yet to decide on the DWP’s request for an oral hearing.

As long as the DWP sustains its series of appeals it does not have to publish the four reports, although legal costs from the public purse continue to rise.

The DWP’s latest letter to the upper tribunal:

8 July 2014

Dear Sirs

Department For Work And Pensions v ICO

Application to the Upper Tribunal for permission to appeal

We write further to your letter dated 25 June 2014 enclosing Upper Tribunal Judge Wikeley’s refusal of the Secretary of State’s application for permission to appeal and above three appeals.

We apply in accordance with rules 22(4) and (5) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for the Department for Work and Pensions’ application for permission to appeal against the First-Tier Tribunal’s decision of 19 March 2014 (notified on 24 March 2014) in the above cases to be reconsidered at an oral hearing.

The Department for Work and Pensions contends that each of the three proposed grounds of appeal is arguable in law for the reasons set out in the grounds of appeal accompanying its application for permission to appeal, and applies for reconsideration before a judge at an oral hearing on that basis.

Yours faithfully …

Comment

The DWP is facing Parliamentary and NAO criticism over the poor state of several of its major programmes. So it is odd that its officials have the time, and can spare the public funds, to fight a long campaign to stop four old UC programme reports being published.

It shows that the DWP cares more about how it is perceived by the outside world than it cares for minimising the public money it spends on this FOI case.

It’s likely that publication of the four reports would slightly embarrass the department but that would soon be forgotten.  Once incurred the legal costs cannot be reclaimed.

The DWP’s claims of a “chilling effect” should the reports be disclosed are entirely understandable. No publicly funded body wants be scrutinised. Officials would rather keep all their internal affairs secret.  But that’s not the way it works in a democracy.

Upper Tribunal ruling Universal Credit appeal

My submission to FOI tribunal on universal credit

Judge [first-tier tribunal] refuses DWP leave to appeal ruling on Universal Credit reports – April 2014

 

 

Upper Tribunal refuses DWP leave to appeal ruling on Universal Credit reports

By Tony Collins

An upper tribunal judge this week refused consent for the Department of Work and Pensions to appeal a ruling that four reports on the Universal Credit programme be published.

It’s the third successive legal ruling to have gone against the DWP as its lawyers try to stop the reports being released.

The DWP is likely to request further consideration of its appeal. History suggests it will devote the necessary legal time and funding to stop the reports being published.

In March 2014, the first-tier information tribunal rejected the DWP’s claim that disclosure of the four reports would inhibit the candour and boldness of civil servants who contributed to them – the so-called chilling effect.

The DWP sought the first-tier tribunal’s leave to appeal the ruling, describing it as “perverse”. External lawyers for the DWP said the tribunal had wholly misunderstood what is meant by a “chilling effect”, how it is manifested and how its existence can be proved.

They claimed the misunderstanding and the perverse decision were “errors of law”. For the first-tier tribunal’s finding to go to appeal to the “upper tribunal”, the DWP would have needed to prove “errors in law” in the findings of the first-tier tribunal.

The judge in that case, David Farrer QC, found that there were no errors in law in his ruling and he refused the DWP leave to appeal. The DWP then asked the upper tribunal to overrule Farrer’s decision – and now the DWP has lost again.

The upper tribunal’s judge Nicholas Wikeley says in his ruling this week:

“This [chilling effect] is a well known concept, and I can see no support for the argument that the [first-tier] Tribunal misunderstood its meaning.

“The Tribunal was surely saying that whilst it heard Ms Cox’s claim that disclosure would have a chilling effect, neither she nor the Department provided any persuasive evidence to that effect.” [Sarah Cox is a senior DWP executive on the Universal Credit programme.]

“Indeed, the Tribunal noted, as it was entitled to, that Ms Cox did not suggest that frank discussion had been inhibited in any way by a third party’s revelation of the ‘Starting Gate Review’.”

In conclusion the judge says:

“I therefore refuse permission [for the DWP] to appeal to the Upper Tribunal.”

The DWP’s lawyers asked the upper tribunal for a stay, or suspension, of the first-tier tribunal’s ruling that the four reports be published. This the judge granted temporarily.  The lawyers also asked for a private hearing, which the judge did not decide on.

DWP too secretive?

John Slater, who has 25 years experience working in IT and programme and project management, requested three of the four reports in question under the FOI Act in 2012. He asked for the UC issues register, high-level milestone schedule and risk register. Also in 2012 I requested a UC project assessment review by the Cabinet Office’s Major Projects Authority.

The Information Commissioner ruled that the DWP should publish three of the reports but not the Risks Register.  In March 2014 the first-tier information tribunal ruled that all four reports should be published.

Excluding these four, the DWP has had 19 separate reports on the progress or otherwise of the Universal Credit programme and has not published any of them.

Work and Pensions minister Lord Freud, told the House of Lords, in a debate on Universal Credit this week:

“I hope we are as transparent as we can be.”

What happens now?

Slater says that as the DWP has been refused permission to appeal it will probably ask for an oral hearing before the upper tribunal. This would mean that the DWP would get a second chance to gets its point across directly in front of the Upper Tribunal rather than just on paper, as it has just tried, says Slater. There is no guarantee that the DWP would be granted an oral hearing.

Comment

If all was going well with the DWP’s largest projects its lawyers could argue, with some credibility, that the “safe space” civil servants need to produce reports on the progress or otherwise of major schemes is having a useful effect.

In fact the DWP has, with a small number of notable exceptions such as Pension Credit, presided over a series of major IT-based projects that have failed to meet expectations or business objectives, from  “Camelot” in the 1980s to “Operational Strategy” in the 1990s. Universal Credit is arguably the latest project disaster, to judge from the National Audit Office’s 2013 report on the scheme.

The”safe space” the DWP covets doesn’t  appear to work.  Perhaps it’s a lack of firm challenge, external scrutiny and transparency that are having a chilling effect on the department.

Upper Tribunal ruling Universal Credit appeal

My submission to FOI tribunal on universal credit

Judge [first-tier tribunal] refuses DWP leave to appeal ruling on Universal Credit reports – April 2014

 

 

 

CEO and CIO resign after troubled EHR go-live

By Tony Collins

At the foot of the Blue Ridge Mountains, Georgia, in America’s deep south, about 70 miles from Atlanta, is Athens .

It was named at the turn of the 19th century to associate its university with Aristotle and Plato’s academy in Greece. It is home to the Athens Regional Medical Centre, one of the USA’s top hospitals.

There on 4 May 2014 the Centre went live with what it described as the most meaningful and largest scale information technology system in its 95-year history – a Cerner EHR implementation.

Now the Centre’s CEO James Thaw and CIO Gretchen Tegethoff have resigned. The Centre’s implementation of the electronic health record system seems to have been no more or less successful than at UK hospitals.

The main difference is that more than a dozen doctors complained in a letter to Thaw and Tegethoff.  A doctor leaked their letter to the local paper.

“Medication errors”

The letter said the timescales to install the Cerner EHR system were too “aggressive” and there was a “lack of readiness” among the intended users. They called the system cumbersome.

The letter referred to “medication errors … orders being lost or overlooked … (emergency department) and patients leaving after long waits”. An inpatient wasn’t seen by a physician for five days.

“The Cerner implementation has driven some physicians to drop their active staff privileges at ARMC [Athens Regional Medical Centre],” said the letter. “This has placed an additional burden on the hospitalists, who are already overwhelmed. Other physicians are directing their patients to St. Mary’s (an entirely separate local hospital) for outpatient studies, (emergency room) care, admissions and surgical procedures. … Efforts to rebuild the relationships with patients and physicians (needs) to begin immediately.”

The boldness of the letter has won praise in parts of the wider American health IT community.

It was signed by the centre’s most senior medical representatives: Carolann Eisenhart, president of the medical staff; Joseph T. Johnson, vice president of the medical staff; David M. Sailers, surgery department chair; and, Robert D. Sinyard, medicine department chair.

A doctor who provided the letter to the Athens Banner-Herald refused a request to openly discuss the issues with the computer system and asked to remain anonymous at the urging of his colleagues.

Swift action

One report said that at a meeting of medical staff 200 doctors were “solid in their vote of no confidence in the present hospital administration.”

Last week Thaw wrote in an email to staff: “From the moment our physician leadership expressed concern about the Cerner I.T. conversion process on May 15, we took swift action and significant progress has been made toward resolving the issues raised … Providing outstanding patient care is first and foremost in our minds at Athens Regional, and we have dedicated staff throughout the hospital to make sure the system is functioning as smoothly as possible through this transition.”

UK implications?

The problems at the Athens centre raise questions about whether problematic Cerner installations in the NHS should have consequences for CEOs.  Health IT specialists say that, done well, EHR implementations can improve the chances of a successful recovery. Done badly an EHR implementation can harm patients and contribute to death.

The most recent installations of Cerner in the NHS, at Imperial College Healthcare NHS Trust and Croydon Health Services NHS Trust, follow the pattern of other Cerner EHR go-lives in the NHS where there have been hints of problems but the trusts are refusing to publish a picture of how patients are being affected.

What has gone wrong at Athens Regional?

IT staff, replying to the Banner-Herald’s article, have given informed views on what has gone wrong. It appears that the Athens Regional laid off about a third of the IT staff in February 2014, about three months before go-live.

Past project disasters have shown that organisations often need more, not fewer, IT staff, advisers and helpers, at the time of a major go-live.

A further problem is that there appears to have been little understanding or support among doctors for the changes they would need to make in their business practices to accommodate the new system.  Had the organisation done enough to persuade doctors and nurses of the benefits to them of changing their ways of working?

If clinicians do not support the need for change, they may focus unduly on what is wrong with the new system. An organisation that is inherently secretive and resentful of constructive criticism will further alienate doctors and nurses.

Doctors who fully support an EHR implementation may find ways around problems, without complaining.

One comment on the Banner-Herald website says:

“While I have moved on from Athens Regional, I still have many friends and colleagues that are trying to work through this mess. Here is some information that has been reported to me…

“Medications, labs and diagnostic exams are not getting done in a timely manner or even missed all together. Some of this could be training issues and some system.

“Already over worked clinical staff are having to work many extra hours to get all the information in the system. This obviously takes away from patient care.

“Senior leadership tried to implement the system in half the amount of time that is usually required to do such things, with half the staff needed to do it. Why?

“Despite an environment of fear and intimidation the clinical staff involved with the project warned senior administration that the system was not ready to implement and posed a safety risk.

“I have ex-colleagues that know staff and directors that are involved with the project. They have made a valiant effort to make things right. Apparently an 80 to even a 100 hour work week has been the norm of late.

“Some questions that I have: where does the community hospital board stand with all this? Were they asking the questions that need to be asked? Why would the software company agree to do such a tight timeline? Shouldn’t they have to answer some questions as well?”

“Hopefully, this newspaper will continue to investigate what has happened here and not cave to an institution that spends a lot of money on frequent giant full page ads.

“Please remember there are still good people (staff, managers and administrators) that work at ARMC and I am sure they care about the community they serve and will make sure they provide great patient care.”

“The last three weeks have been very challenging for our physicians, nurses, and staff,” said Athens Regional Foundation Vice President Tammy Gilland. “Parts of the system are working well while others are not. The medical staff leadership has been active in relaying their concerns to the administration and the administration has taken these concerns very seriously. Maintaining the highest quality of patient care has always been the guiding principle of Athens Regional Health System.”

Keeping quiet

NHS trusts go quiet about the effect on patients of EHR implementations despite calls by Robert Francis QC and health secretary Jeremy Hunt for openness when things go wrong.

Imperial College Healthcare NHS Trust, which comprises St Mary’s Paddington, Hammersmith Hospital, Charing Cross Hospital, Queen Charlotte’s and Chelsea Hospital, and Western Eye hospital in Marylebone Road, went live with Cerner- but its managers and CEO are refusing to say what effect the system is having on patients.

An FOI request by eHealth Insider elicited the fact that Imperial College Healthcare had 55 different consultants working on the Cerner Millennium project and 45 Trust staff. The internal budget for electronic patient record deployment was £14m.

Croydon Health Services NHS Trust, which comprises Croydon University Hospital (formerly Mayday) and the Purley War Memorial Hospital, went live with Cerner last year, also under BT’s direction.

The trust has been a little more forthcoming than Imperial about the administrative disruption, unforeseen extra  costs and effects on patients, but Croydon’s officials, like Imperial College Healthcare’s spokespeople,  refuse to give any specific answers to Campaign4Change’s questions on the Cerner implementation.

Comment

It was probably unfair of doctors at Athens Regional to judge the Cerner system so soon after go-live but their fierce reaction is a reminder that doctors exist to help patients, not spend time getting to grips with common-good IT systems.

Would an NHS CEO resign after a rebellion by UK doctors over a problematic EHR implementation? It’s highly unlikely – especially if trusts can stop news leaking out of the effects on patients. In the NHS that’s easy to do.

Athens Regional CEO resigns

A tragic outcome for Cerner Millennium implementation?

Athens Regional is addressing computer problems encountered by doctors

Athens Regional is addressing computer problems after patients put at risk

CEO forced out?

 

DWP – and Cabinet Office – hide new Universal Credit secrets

By Tony Collins

In 2009 Francis Maude promised, if the Conservatives came to power,  that his party would publish “Gateway” reviews on the progress or otherwise or big IT-based projects.

He was surprised when I told him that civil servants wouldn’t allow it, that they wouldn’t want Parliament and the media knowing how badly their big programmes were being managed. Maude said he couldn’t see a problem in publishing the reports.

When Maude and the Conservatives won power, the Cabinet Office promised in its forward plans to publish Gateway reviews but it never happened.

The Cabinet Office told me its forward plans were “draft” (although they were not marked “draft”) and the commitment to publishing Gateway reviews was no longer included. It didn’t say why.

Still Maude worked privately within government to persuade departmental ministers to at least publish the “traffic light” status of major projects – red, amber or green. Eventually this happened – sort of.

Senior civil servants and their ministers agreed to publish the traffic light status of major projects only if the disclosures were at least six months old by the time they were published.

Maude agreed – and last year the Major Projects Authority published its delayed 2013 annual report. It revealed the out-of-date traffic light status of big projects.

Today the 2014 Major Projects Authority annual report is published. Alongside publication, departments are publishing the traffic light status of major projects – except the Universal Credit programme.

Where the DWP should be publishing the red, amber or green designation of the UC programme the spreadsheet says “reset”.

Therefore the DWP is avoiding not only the publication of Universal Credit reports as part of a 2-year FOI legal battle, it has stopped publishing the traffic light status of the Universal Credit programme.

Secrecy over the state of the UC programme is deepening, which could be said to make a mockery of the Cabinet Office’s attempts to bring about open government.

It seems that the DWP is happy for MPs, journalists and the public to speculate on the state of the Universal Credit programme. But it is determined to deny its critics authoritative information on the state of the programme.

Universal Credit is looking to me rather like a programme disaster of the type seen during Labour’s administration. And the detail is being kept hidden – as it was under Labour.

The DWP argues that UC reports cannot be published because of the “chilling effect” on civil servants who contribute to the reports. In other words they will not be candid in their assessments if they know their comments will be published.

What’s remarkable about this claim is the assumption that the status quo works. The DWP assumes that publication of the UC reports – even if there is a demonstrable chilling effect – will have a bad effect on the UC programme. But how could things be worse than they are? The National Audit Office report “Universal Credit – early progress” showed that the programme was being poorly managed.

The absence of a chilling effect has not served the UC programme well. Will the non-publication of a traffic light status for UC serve the programme well?

It may be that more rigorous Parliamentary scrutiny – by well informed MPs – is essential for the UC programme’s welfare.

But for that to happen IDS and the DWP’s ministers and senior civil servants will need to be dragged kicking and screaming towards the door marked “open government”. Will it ever happen? I doubt it.

PS: It appears that the Cabinet Office and its Major Projects Authority have agreed with departments that the MPA’s Annual Report will be published today – a Friday before a Bank Holiday weekend . Is this to reduce the chances it will be noticed by the trade press and national media?  

Update:

Shortly after publishing the blog post above a DWP press officer gave me the following statement:

“Universal Credit is on track. The reset is not new but refers to the shift in the delivery plan and change in management back in early 2013.

“The reality is that Universal Credit is already making work pay as we roll it out in a careful and controlled way.

“It’s already operating in 10 areas and will start expanding to the rest of the North West in June. Jobseekers in other areas are already benefiting from some of its positive impacts through help from a work coach, more digital facilities in jobcentres, and a written agreement setting out what they will do to find work.”

The DWP says the “reset” rating reflects the fact that the Secretary of State decided to reset the programme in 2013, with a clear plan developed since then to deliver the programme.

Now this reset has taken place, future Major Projects Authority reports will give a traffic light status, says the DWP.

 

Was Churchill more open with MPs in 1940 than DWP is over Universal Credit?

By Tony Collins

As the DWP manoeuvres again to stop reports on the Universal Credit programme being published it’s worth asking: has the DWP got its 2-year legal battle to keep the reports secret out of perspective?

Work and Pensions minister Lord Freud personally signed off his department’s request to keep the UC reports secret; and his secretary of state Iain Duncan Smith seems untroubled by MPs’ criticisms that Parliament is not kept properly informed about the UC programme’s problems.

The lack of openness and transparency over problems with the UC programme is “not acceptable,” said the all-party Work and Pensions Committee in April.

The four reports would, if published, inform Parliament about how much senior civil servants knew about the problems with UC while ministers and the department  were assuring MPs the scheme was on time and to budget.

This isn’t the reason the DWP does not want the reports published: it has an unofficial rule not to publish any reports on the progress or otherwise of its big IT-based projects and programmes.

Not even Parliament is allowed sight of minutes of UC meetings, the updated UC business case, UC risk registers, issues registers, project assessment reviews or high-level milestone schedules.

In its arguments to the Upper Tribunal this week lawyers for the DWP argue in paragraph after paragraph that publication of the UC reports would have a “chilling effect” on senior civil servants.

But the DWP may not appreciate the extent to which its attempts to keep Parliament, the press and public in the dark trivialise the vigorous and noble attempts by some prime ministers in the last century to keep Parliament well informed on what was going well or not with major government plans.

Churchill stands out as a PM who was remarkably open, even during one of the darkest times in the history of Britain, in 1940, when the government had every reason to marginalise Parliament. It’s easy to believe Churchill was too busy to attend Parliament and that he had the best possible excuse for not keeping MPs informed: he didn’t want to forewarn Britain’s enemies.

In fact Parliamentary archives show that Churchill in 1940 was meticulous about keeping Parliament informed – about his concerns as well as as his reasons for optimism.

With London being bombed and a fleet of 1900 fully-armed ships and barges gathered at German-occupied ports ready to invade Britain, Churchill came to the House of Commons to account for government actions. He even answered a Parliamentary question in September 1940 on pensions.

On 30 July 1940 Churchill opened a public debate in the House of Commons on whether Parliament should go into secret session. France had just fallen and the government was preparing for what Churchill called the Battle of Britain. He had every reason to go into secret session. He allowed a free vote.

Churchill also rejected calls for automatic secret sessions of Parliament. There had to be a debate and free vote each time.

Compare Churchill’s determination to keep Parliament properly informed at a time when the freedom of every British citizen was in peril and the DWP’s repeated attempts to stop information reaching Parliament, the press and the public on what departmental reports were saying about the Universal Credit programme in 2012.

Churchill and other MPs, including Labour’s Josiah Wedgwood, argued that openness was needed because criticism of the government by an informed press and Parliament was an essential part of the democratic process. Criticism could be a stimulus to act.

But what we now have at the DWP are departmental civil servants and ministers who want information on the Universal Credit programme to be state-controlled, apart from the one-off reports of the National Audit Office and the Public Accounts Committee which the DWP cannot control.

Only the Work and Pensions Committee provides regular scrutiny of the UC programme – but its MPs complain of being kept in the dark.

Churchill in Parliament’s secret sessions had good reason for secrecy. His notes published after the war show that he spoke in a secret session of Parliament in 1940 on the need for British forces to “get through the next 3 months” then they will “get through the next 3 years”. He discussed the Allies’ military errors and German strengths and weaknesses.

Now we have the DWP marginalising Parliament - not publishing the contents of departmental reports on UC – because of the chilling effect on senior civil servants.

There can be little dispute that Churchill was more open in Britain’s darkest hour than the DWP is today on Universal Credit programme.  For even  when Parliament went into secret session in 1940, all MPs, including the government’s opponents, were included in the discussions. Only “strangers” – non-MPs – were excluded.

That’s a million miles from what’s happening at the DWP. All ordinary MPs are excluded from the DWP’s detailed discussions on the UC programme.  The DWP is shielding Parliament from knowing what is in the UC programme reports.

As I asked earlier: is the DWP’s fear of openness over UC reports out of perspective?

 

 

DWP tries anew for leave to appeal FOI ruling on Universal Credit reports

By Tony Collins

The DWP is continuing its protracted legal fight to stop publication of four reports on the Universal Credit programme.

The department this week asked the upper tribunal for leave to appeal a decision of the first-tier information tribunal that the four reports be published.  The first-tier tribunal had refused the DWP leave to appeal.

As expected, the DWP is doing everything possible within the FOI Act to stop the UC programme reports being published. This is despite MPs on the Work and Pensions Committee saying there is a “lack of transparency” on the Universal Credit programme.

The reports in question are more than two years old but they would show how much ministers knew about UC programme problems at a time when the DWP was issuing regular press releases claiming the scheme was on time and to budget.

By law the DWP has to deal with every FOI request individually but in practice the department has rejected every FOI request for reviews and assessments of its major IT-enabled projects and programmes including Universal Credit.

The four reports in question are:

- A project assessment review on the state of the UC programme in November 2011, as assessed by the Cabinet Office’s Major Projects Authority.

- A risk register of possible risks to the development or eventual operation of UC as perceived by those involved.

- An issues register of problems that have materialised, why and how they can be minimised or eliminated.

- A milestone schedule of progress and times by which activities should be completed.

In his request to the upper tribunal for leave to appeal the first-tier tribunal’s decision, the DWP’s lawyer  argues that the first-tier tribunal wholly misunderstood the nature of any “chilling effect” that publishing the reports would have on the frankness of civil servants contributing to them.

He said that the tribunal’s finding that disclosure of the reports would have no chilling effect was “perverse”, and that the tribunal failed to give due weight to the evidence of a senior civil servant Sarah Cox on the chilling effect.

He said that “many ex-ministers and others have spoken of the chilling effect of disclosure as an observable phenomenon within government” though he provided no evidence of this in his submission.

He added that the first-tier tribunal’s reasoning was “defective” in a number of respects. The tribunal had made a fundamental error of law, he said.

The tribunal’s “factual conclusion that disclosure of the disputed information would have no chilling effect whatsoever was one which no reasonable tribunal, properly directing itself as to the relevant legal principles, could have reached,” said the DWP’s lawyer.

Judge refuses DWP leave to appeal FOI ruling on Universal Credit reports

 

Why the DWP wants Universal Credit reports kept secret

By Tony Collins

Yesterday the Department for Work and Pensions, via Andrew Robertson, a lawyer in the Treasury Solicitor’s Department, issued the grounds for its appeal against an Information Tribunal ruling that four reports on Universal Credit be released.

The four reports in question are:

- A project assessment review on the state of the project in November 2011, as assessed by the Cabinet Office’s Major Projects Authority.

- A risk register of possible risks to the development or eventual operation of UC as perceived by those involved.

- An issues register of problems that have materialised, why and how they can be minimised or eliminated.

- A milestone schedule of progress and times by which activities should be completed.

The DWP keeps losing appeals to stop the reports being published– but public money being no object when it comes to justifying departmental secrecy, it keeps spending on appeals. The latest appeal is to the “Upper Tribunal”. A decision on whether the appeal can go to the Upper Tribunal will come shortly from the “First-tier” tribunal.

The DWP says its main grounds for appeal is that the Information tribunal “wholly misunderstood the nature and/or manifestation of any ‘chilling effect’. [The chilling effect suggests that public servants will not tell the whole truth in project reviews if they know the reports will be published. The counter argument is that it is the job and duty of public servants to tell the truth, which they are more likely to do if the reports are published and they could be held accountable if it transpires later they had not told the whole truth.]

The DWP said the Tribunal’s misunderstanding about the chilling effect “amounted to an error in law” and was “perverse”.

The DWP’s appeal document is here: Application for Permission to Appeal & Grounds of Appeal 16.04.14 (as fi…

Comment:

The DWP’s appeal document shows the ease with which its lawyers could credibly argue – with an entirely straight face – that day is night, and night is day, on the basis that daylight in one part of the world always signifies darkness in another part of the world.

The DWP’s lawyers could also credibly argue that black is white, and white is black, on the basis that colour is simply a perception based on the light reflected back to our eyes and that if an object can reflect back all the light we see it is white, and black will be perceived only superficially since it is necessary to doubt everything when assessing the world from a fresh perspective, clear of any preconceived notions.

It is in this Orwell-parodying vein that the DWP’s lawyers argue that four Universal Credit reports need to be kept secret. Below are 2 extracts from the DWP’s appeal document. Anyone who understands what either of these paragraphs means deserves a prominent place in the DWP legal team. Here’s a clue. Having read the paragraphs below three times I think they’re saying that it is difficult to prove whether a leaked document has had a chilling effect.

Says the DWP appeal:

“Any argument as to the ‘chilling effect’ of disclosure is necessarily speculative, because it makes assumptions about the future effect of an event that has not yet occurred (i.e. the future effect of disclosure of particular information). Any argument as to the ‘chilling effect’ of disclosure in the past of any ‘chilling effect’ is likely to be the assertion of persons whose experience in particular working environments has enabled them to assess and evaluate how candour and frankness may alter, or may have altered, in the light of premature disclosure of information…”

Here’s another excruciating extract from the DWP’s appeal document:

“The Tribunal’s assumption that it would be ‘quite easy to assemble’ a ‘before’ and ‘after’ documentary comparison itself exemplifies its erroneous understanding of how a ‘chilling effect’ can be proved. Far from being easy, it would in the majority of cases be impossible to demonstrate that a particular type of document had changed fundamentally as a result of disclosure. That is because the likely effect of disclosure will very probably not be a change in the form in which a document (such as a risk register) is produced. It will rather be a change in the substantive content of the register, as a result of a conscious or subconscious decrease in the candour of those contributing to it. But it will equally be impossible to show what those contributors might have said, had it not been for disclosure: because they will not, in fact, have said it.”

Jonathan Swift, in perhaps the best satirical book of all time, Gulliver’s Travels, described lawyers as a society of men “bred up from their youth in the art of proving by words multiplied for the purpose, that white is black, and black is white, according as they are paid”.

It’s not that the DWP’s lawyers lie. They don’t need to. This latest appeal is a legal nicety, a way of stringing things out, a display of conformance with the FOI game. Nothing will convince the DWP that it should publish the UC reports in question. Nothing will convince the DWP that it should publish any of its reports on any of its major IT-related projects or programmes.

If they need to, Iain Duncan Smith or Lord Freud, his minister, will simply sign a ministerial veto preventing publication of the UC reports under the FOI Act. If there is a legal challenge to the veto, as with the veto on the release of Prince Charles’ letters, IDS will be pleased to have the matter kicked into touch; and while the legalities stretch out over years the UC reports will continue to moulder in locked DWP cupboards.. Eventually they may be released – when they are so old nobody will care what they say. Or they will have disintegrated ( and no, the DWP doesn’t always keep its most secret reports electronically).

That’s what open government means to the DWP… precisely nothing.

Millions of pounds of secret DWP reports

Judge rules that key Universal Credit reports should be published

DWP throws money at keeping Universal Credit reports secret

Too much dishonesty and secrecy over Universal Credit project?

DWP criticised for “worrying” secrecy

DWP refused to release Universal Credit report to MPs

“Outrageous” secrecy at DWP (2005) 

MPs criticise secrecy in DWP IT probe (2004)

Judge rules that key Universal Credit reports should be published

By Tony Collins

A freedom of information tribunal has ruled that the Department for Work and Pensions should disclose four internal documents on the Universal Credit programme.

The documents give an insight into some of the risks, problems and challenges faced by DWP directors and teams working on UC.

They could also provide evidence on whether the DWP misled Parliament and the public in announcements and press releases issued between 2011 and late 2013.

The DWP and ministers, including the secretary of  state Iain Duncan Smith, declared repeatedly that the UC scheme was on time and on budget at a time when independent internal reports – which the DWP has refused to publish – were highly critical of elements of management of the programme.

Some detail from the internal reports was revealed by the National Audit Office in its Universal Credit: early progress in September 2013.

The FOI tribunal, under judge David Farrer QC, said in a ruling on Monday that in weighing the interest in disclosure of the reports “we attach great importance not only to the undisputed significance of the UC programme as a truly fundamental reform but to the criticism and controversy it was attracting by the time of FOI requests for the reports in March and April 2012″.

It added:

“We are struck by the sharp contrast [of independent criticisms of elements of the UC programme]  with the unfailing confidence and optimism of a series of press releases by the DWP or ministerial statements as to the progress of the Universal Credit programme during the relevant period.”

A measure of the importance of the tribunal hearing to the DWP was its choice of Sarah Cox to argue against disclosure.

Cox is now the DWP’s Director, Universal Credit, Programme Co-ordination.

She led business planning and programme management for the London Organising Committee of the Olympic and Paralympic Games.

Despite Cox’s arguments Judge Farrer’s tribunal decided that the DWP should publish:

- A Project Assessment Review of Universal Credit by the Cabinet Office’s Major Projects Authority. The Review gave a high-level strategic view of the state of UC, its problems, risks and how well or badly it was being managed.

- A Risk Register of Universal Credit. It included a description of the risk, the possible impact should it occur, the probability of its occurring, a risk score, a traffic light [Red/Green Amber] status, a summary of the planned response if a risk materialises, and a summary of the risk mitigation.

- An Issues Register for Universal Credit. It contained a short list of problems, the dates when they were identified, the mitigating steps required and the dates for review and resolution.

- A High Level Milestone Schedule for Universal Credit. It is described in the tribunal’s ruling as a “graphic record of progress, measured in milestones, some completed, some missed and others targeted in the future”.

Campaign for openness

Campaigners have tried unsuccessfully for decades to persuade Whitehall officials to publish their independent reports on the progress or otherwise of big IT-enabled projects and programmes.

So long as the reports remain confidential, ministers and officials may say what they like in public about the success of the programme without fear of authoritative contradiction.

This may be the case with the Universal Credit. The tribunal pointed out that media coverage of the problems with the scheme was at odds with what the DWP and ministers were saying.

The ruling said:

 “Where, in the context of a major reform, government announcements are so markedly at odds with current opinion in the relatively informed and serious media, there is a particularly strong public interest in up-to-date information as to the details of what is happening within the [Universal Credit] programme, so that the public may judge whether or not opposition and media criticism is well-founded.”

The tribunal quoted a DWP spokesperson in 2012 as refuting criticism from the shadow secretary of state. The spokesperson said:

Liam Byrne is quite simply wrong. Universal Credit is on track and on            budget. To suggest anything else is wrong.”

 Sarah Cox implied that the DWP might have regarded a programme as on schedule, even if milestones were not achieved on time, provided that punctual fulfillment of the whole project was still contemplated. In reply to this, the Tribunal said:

 “If that was, or indeed is, the departmental stance, then the public should have been made aware of it, because prompt completion following missed interim targets is not a common experience.”

DWP abuse of the FOI Act?

Under the FOI Act ministers and officials are supposed to regard each request on its own merits, and not have a blanket ban on, say, disclosure of all internal reports on the progress or otherwise of big IT-enabled change programmes.

The tribunal in this case questioned whether the DWP had even read closely the Project Assessment Review in question. The tribunal had such doubts because the DWP, some time after the tribunal’s hearing, found that it had mistakenly given the tribunal a draft of the Project Assessment Review instead of the final report.

The tribunal said:

“…the DWP discovered that the version of the Project Assessment Review supplied to the Tribunal was not the final version which had been requested. It was evidently a draft. How the mistake occurred is not entirely clear to us.

“ Whilst the differences related almost entirely to the format, it did raise questions as to how far the DWP had scrutinised the particular Project Assessment Review requested, as distinct from forming a generic judgement as to whether PARs should be disclosed.”

DWP’s case for non-disclosure

The DWP argued that disclosure would discourage candour, imagination [which is sometimes called creative or imaginative pessimism] and innovation – known together as the “chilling effect”.

It also said that release of the documents in question could divert key staff from their normal tasks to answering media stories based on a misconception, willful or not. These distractions would seriously impede progress and threaten scheduled fulfillment of the UC programme.

Disclosure could embarrass suppliers that participated in the programme, damage the DWP’s relationship with them, and cause certain risks to come closer to being realised. The DWP gave the tribunal further unpublished – closed – evidence about why it did not want the Project Assessment Review released.

My case for disclosure

In support of my FOI request – in 2012 – for the UC Project Assessment Review, I wrote papers to the tribunal giving public interest reasons for disclosure. Some of the points I made:

- the DWP made no acknowledgement of the serious problems faced by the UC programme until the National Audit Office published its report in September 2013: Universal Credit: early progress.

- Large government IT-enabled projects have too often lacked timely, independent scrutiny and challenge to improve performance. Publication of the November 2011 Project Assessment Review would have been a valuable insight into what was happening.

- The NAO report referred to the DWP’s fortress mentality” and a “good news culture” which underlined the public interest in early publication of the Project Assessment Review.

Part of John Slater’s case for disclosure

At the same time as dealing with my FOI request for the PAR, the tribunal dealt with FOI requests made by John Slater who asked for the UC Issues Register, Risk Register and High Level Milestone Schedule.

In his submission to the tribunal Slater said that ministerial statements and DWP press releases, which continued from 2011 to late 2013, to the effect that the Universal Credit Programme was on course and on schedule, demanded publication of the documents in question as a check on what the public was being told.

Information Commissioner’s case for disclosure

The Information Commissioner’s legal representative Robin Hopkins made the point that publishing the Project Assessment Review would have helped the public assess the effectiveness of the Cabinet Office’s Major Projects Authority as a monitor of the UC programme.

A chilling effect?

The tribunal found that there is no evidence to support the “chilling effect” –  the claim that civil servants will not be candid or imaginatively pessimistic in identifying problems and risks if they know their comments will be published.

If a chilling effect exists, said the tribunal, “then government departments have been in the best position over the last ten years to note, record and present the evidence to prove it.

“Presumably, a simple comparison of documents before and after disclosure demonstrating the change, would be quite easy to assemble and exhibit,” said the tribunal’s ruling.

In her evidence to the tribunal Ms Cox did not suggest that the revelation by a third party of the “Starting Gate Review” [which was published in full on Campaign4Change’s website] had inhibited frank discussion within the UC programme, the tribunal said.

The tribunal also pointed out that the public is entitled to expect that senior officials will be, when helping with internal reports, courageous, frank and independent in their advice and assessments of risk.

“We are not persuaded that disclosure would have the chilling effect in relation to the documents before us,” said the tribunal. It also found that the DWP would not need to divert key people on UC to answering media queries arising from publication of the reports. The DWP needed only to brief PR people.

On whether the Issues Register should be published the tribunal said:

“The problems outlined in the Issues Register are of a predictable kind and “unlikely to provoke any public shock, let alone hostility, perhaps not even significant media attention. On the other hand, the public may legitimately ask whether other problems might be expected to appear in the register.”

On the chilling effect of publishing the Risk Register the tribunal said that any failure of a civil servant to speak plainly about a risk and hence to conceal it from the UC team would be more damaging to UC than any blunt declaration that a certain risk could threaten the programme.

“We acknowledge that disclosure of the requested information may not be a painless process for the DWP,” said the tribunal. ““There may be some prejudice to the conduct of government of one or more of the kinds asserted by the DWP, though not, we believe, of the order that it claims.

“We have no doubt, however, that the public interest requires disclosure, given the nature of UC programme, its history and the other factors that we have reviewed,” said the Tribunal.

The DWP may appeal the ruling which could delay a final outcome by a year or more.

Comment

The freedom of information tribunal’s ruling is, in effect, independent corroboration that Parliament can sometimes be given a PR line rather than the unvarnished truth when it comes to big IT-based programmes.

Indeed it’s understandable why ministers and officials don’t want the reports in question published.  The reports could provide concrete evidence of the misleading of Parliament. They could refer to serious problems, inadequacies in plans and failures to reach milestones, at a time when the DWP’s ministers were making public announcements that all was well.

Those in power don’t always mind media speculation and criticism. What they fear is authoritative contradiction of their public statements and announcements. Which is what the reports could provide. So it’s highly likely the DWP will continue to withhold them, even though taxpayers will have to meet the rising legal costs of yet another DWP appeal.

One irony is that the DWP’s ministers, officials, managers, technologists and staff probably have little or no idea what’s in the reports the department is so anxious to keep confidential.  On one of my FOI requests it took the DWP several weeks to find the report I was seeking – after officials initially denied any knowledge of the report’s existence.

This is a department that would have us believe it needs a safe space for the effective conduct of public affairs. Perhaps the opposite is the case, and it will continue to conduct some of its public affairs ineffectively until it benefits from far more Parliamentary scrutiny, fewer safe spaces and much more openness.

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