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:
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
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 …
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.