Judge refuses DWP leave to appeal ruling on Universal Credit reports

By Tony Collins

An information tribunal judge has unexpectedly refused consent for the Department of Work and Pensions to appeal his ruling that four reports on the Universal Credit programme be published.

The ruling undermines the DWP’s claim that there would be “chilling effect” if the reports were published.

The judge’s decision, which is dated 25 April 2014, means the DWP will have to publish the reports under the FOI Act  – or it has 28 days to appeal the judge’s refusal to grant consent for an appeal.  The DWP is certain to appeal again. It has shown that money is no object when it comes to funding appeals to keep the four reports secret.

In 2012 John Slater, who has 25 years experience working in IT and programme and project management, had requested the UC Issues Register, Milestone Schedule and Risk Register. Also in 2012 I requested a UC project assessment review by the Cabinet Office’s Major Projects Authority.

Last month the “first-tier” information tribunal ruled that all four reports should be published. It rejected the DWP’s claim that disclosure would inhibit the candour and boldness of civil servants who contributed to the reports – the so-called chilling effect.

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

It 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.

Now Judge David Farrer QC says his tribunal has understood the chilling effect but found no evidence that it was relevant to the four reports in question. Indeed the judge implies that if the chilling effect existed there would be evidence of it.

“The so-called chilling effect implies Government departments and other public authorities have by now extensive experience of decisions requiring them to disclose information which they sought to withhold for the reasons advanced by DWP here,” says the judge in dismissing the DWP’s request for permission to appeal.

“If the chilling effect is a widespread and damaging result of the fear of disclosure, there is every reason for central government to investigate the matter, enabling a government department to present a case based on its research.

“Quite apart from that, those receiving reports, conducting discussions and reading advice might be expected to observe, over a period, any trend in changing style and content of their colleagues` written work, so as to be able to present examples and relate them to the perceived threat of disclosure.

“Obviously the form of document will remain the same but it is hard to believe that the experienced observer could not spot and demonstrate a general loss of trenchancy, of innovation or of boldness in the content over a period if that were indeed the effect of possible public exposure.

“Such changes would constitute ‘concrete and specific effects’, adopting DWP`s wording.”

Although the reports requested under the FOI Act are now old – they date back to 2011 – their publication could throw light on how much DWP ministers and civil servants knew about the many problems with Universal Credit IT at a time when the department was issuing unswervingly positive press releases about the UC programme.

Judge Farrer hinted that DWP ministers and civil servants could have misled the public about the real state of UC programme.

Having read the four reports in question, the judge said in his ruling that the Tribunal was “struck by the sharp contrast 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”.

At the information tribunal in January 2014 a senior civil servant Sarah Cox, on behalf of the DWP, spoke on the supposed effects of disclosure on the candour and boldness of reviewers.

But the Tribunal noted that a Starting Gate review of Universal Credit was published [in 2011] which the DWP had refused to release under FOI. The Information Tribunal noted that Ms Cox did not suggest that the revelation of this document had inhibited frank discussion within the Universal Credit programme.

The Tribunal said reports such as the risk register and project assessment review are important indicators of the state of a project. Their disclosure can give the public a chance to test whether ministers and civil servants are giving out correct information on the state of a project.

This week the judge says that the Tribunal “read and heard the evidence of Ms. Cox, considered the subject matter and the withheld material, took account of her experience, applied its own experience of these cases and its commonsense and, on this issue, found her testimony unpersuasive, as it was entitled to do.”

In conclusion the judge says the Tribunal “rejects the claim that its handling of the ‘chilling effect’ issue involved an error of law.”

Comment:

The DWP was claiming in 2012 that all was well with the UC programme when in reality they knew there wasn’t even an agreed project plan.

That is a good reason for the DWP to want to keep the reports secret – but the main reason its senior civil servants want to stop publication is tradition. The DWP does not publish any of its reports on the state of big IT-enabled projects and programmes.

It’s perhaps because the DWP has always buried itself under the covers of secrecy that it is so imperious – to the point of arrogance – in its handling of FOI requests and appeals. It acts like an institution that is not used to having outsiders, including the information tribunal and National Audit Office – peep into its affairs.

Perhaps this is why the NAO found that the UC programme was being managed so badly. When complex institutions operate in secrecy and without effective day to day scrutiny standards can continue to fall to a point when even the best leaders are powerless to intervene.

There may come a time – if that time hasn’t been reached already – when the DWP will be held together, and only remain credible in the eyes of the public and Parliament, because of the solid work of its major IT suppliers that have been there for decades, bolstered by a plethora of media announcements and ministerial assurances.

We are certainly getting the media announcements and ministerial statements, but without the publication of reports on UC’s progress, do the official pronouncements mean anything at all?

FOI ruling judge refuses DWP leave to appeal

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28 responses to “Judge refuses DWP leave to appeal ruling on Universal Credit reports

  1. Pingback: Upper Tribunal refuses DWP leave to appeal ruling on Universal Credit reports | UNITE@SOMERSET COUNTYCOUNCIL

  2. Pingback: The DWP refuses to release UC reports – again | Social Policy

  3. Pingback: Judge refuses DWP leave to appeal ruling on Universal Credit reports | Britain Isn't Eating

  4. Reblogged this on kittysjones and commented:
    This government has a track record of withholding crucial information from the public – we still await the release of the health and social care risk register, for example, despite the tribunal ruling. Amongst the four reports requested here , one is a risk register. The DWP have refused to release information about the rising number of deaths associated with the impact of the welfare reforms on sick and disabled people since 2011. Such a lack of accountability and transparency is the hallmark of authoritarianism.

    We know there is a huge and growing gap between Tory rhetoric and reality. In other words, the government are telling lies.

    Like

  5. beastrabban

    Reblogged this on Beastrabban’s Weblog and commented:
    This is important, as the DWP has refused to allow the four reports requested to be released on the grounds that to do so would have a ‘chilling effect’ and prevent civil servants from formulating ‘bold’ policies. In actual fact, as Tony Colllins points out in this his article, the real reason is tradition.
    There is a very long history of civil servants refusing to disclose reports to the public. Way back in the 1980s, the BBC made a documentary series about the way the official secrets act was misused to prevent the public knowing the real reasons behind official decisions. At the same time, there was another series, ‘No, Minister’, on the way the civil service blocked government action. I see absolutely no reason why the civil service and its decisions should not be scrutinised and their documents released for public examination, when those documents have such a profound effect on the lives and welfare of the public. I also believe that civil servants, who promote extreme and unpopular policies, should be subject to exactly the same level of responsibility as their ministerial superiors.
    For example, if a government implements a scheme that it is a manifest failure, resulting in massive unemployment or even death, then the minister responsible for the policy is held accountable and subject to public criticism and censure. As a result, he stands to lose his seat at an election, or at least his place in the cabinet come the next reshuffle. The civil servant responsible for urging the policy, however, goes on with an uninterrupted career. The privatisation of the railways is a good example of this. The confusion over the areas of responsibility resulted in the five companies involved in some of the most horrific rail crashes of the last decade of the 20th century passing the buck to each other, effectively denying justice and closure to the victims.
    It was a massively unpopular policy, and a majority of the population today would like the railways back in state ownership. Yet this disastrous policy was the brainchild of a particular civil servant infected with the free enterprise doctrines of von Hayek and so on. This civil servant should share some of the responsibility of his governmental superiors. We should have a system like that in the continent, where senior civil servants are explicitly connected with particular parties, and their place in the administration changes with the results of each election. Then we can have no more of this rubbish about ‘chilling effects’, which give massive unaccountable power to faceless mandarins enthusiastically promoting highly politicised policies.

    Like

    • You have a point. Senior civil servants make such an issue of their famed impartiality – but for what advantage? Some major departments have had their accounts qualified for years because of fraud and error; and the insights we get from the National Audit Office into how major departments are managed shows how dysfunctional some can be. In some cases it’s the hard work of lower and middle management holds things together, with the expensive support of major IT suppliers. I agree – the senior civil servants should change with the administration as in the US. Senior civil servants will bemoan the lack of continuity but that’s like the chilling effect: it assumes that things work well at the moment and that major change will be bad. Actually things don’t work well. Have they ever? Yes – when the work of central government was much greater than now and the civil service much smaller.

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  6. Reblogged this on vicmart009 and commented:
    WONDERFUL Result so far ! My thanks go to you & Mike for a milestone victory . However this UK Parliament are not finished with us yet. Sadly we in this emerald isle of majesty should not have to bring down the Crown but the courier’s in this crooked parliament for all of us to obtain justice & recognition under law. To be signed by HM Queen Elizabeth the Second.
    Before you say No to that suggestion ! I am a democratic republican , humanitarian, agnostic . I serve no masters , nor serve any existing church or war mongering exponent’s such as those in the professional killing organisations.
    I do believe that those born with disabilities should unite with those inflicted by their disabilities in order to fight against the common enemy of Ignorance , Prejudice and Greed .Not in the name of God or as a member of one of the 4,500 religious groups or sects upon this earth in 2014 . But as a human beings to say each & everyone of us that human life is special & unique. You only have a chance to live once upon this earth as a human being, don’t let others cramp your style or existence., You are Unique. Ensure that YOU select or modify your own path towards your own life’s journey. Hoping to meet one day !

    Like

  7. We can but hope…

    Like

  8. Reblogged this on Jay's Journal and commented:
    Here’s hoping…

    Like

  9. The Judge has demonstrated independence and wisdom.

    Here’s hoping that the Upper Tier Tribunal support his ruling at First Tier.

    Then let the light then shine into the dark corners of DWP programme management and the management of global players as suppliers.

    “The truth will set us free”

    Like

  10. The DWP lost all credibility years ago. Why should anyone be surprised at their reaction to this ruling?

    I am only surprised that the reports were written in the first place. The paranoid secrecy of the whole sordid tale is such that I would not have been at all surprised to learn that once the information detailing the department failings were gathered, they just cancelled the formal writing of any report, and destroyed the data.

    I certainly wouldn’t hold the IT suppliers responsible for the debacle: all too often the ‘customer’ (in this Case the DWP and its previous incarnations) has changed the goalposts on the providers, without providing them with a complete and comprehensive requirement that was fit for purpose in the first place, and without keeping a sensible eye on what this was costing them. And the department has been steered by politics rather than the needs of those it is there to serve.

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  11. What this judge will find is that the DWP are far cleverer then he and will, like I have always done, draw a blank on how the DWP operate or get any information that is sensitive out of them

    Like

  12. Reblogged this on Ramblings of a Fibro Fogged Mind and commented:
    Interesting turn of event’s re Universal Credit. Dxxx

    Like

  13. Ooh I hope this means the DWP are screwed.

    Like

  14. Reblogged this on sdbast.

    Like

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