By Tony Collins
A judge has ordered the Department for Work and Pensions to release three Universal Credit IT reports that ministers and their officials have spent public money trying to keep out of the public domain.
Judge Chris Ryan and his FOI tribunal panel went further: they concluded that had the reports in question been disclosed at the time they might have corrected misleading government statements about the robust state of the Universal Credit programme.
In their ruling this week the tribunal said that disclosure of the documents,
“might have corrected a false impression, derived from official government statements by revealing the very considerable difficulties that were beginning to develop around the time when the information requests were submitted.”
Two director-level officials at the Department for Work and Pensions had argued that civil servants needed a “safe space” in the reports in question to be candid in their assessments of risks and problems.
But the FOI tribunal, whose members have project management experience, concluded that it’s in the self interest of officials to be candid and professional about problems and risks rather than be associated with a failed project.
In addition, officials would not wish to be held partly responsible in a later review, such as one carried out by the National Audit Office, for having “failed to draw colleagues’ attention to problems with sufficient clarity to ensure that they were addressed effectively and in good time”.
Civil servants had an “awareness of the importance of candour in support of good decision-making and their professional obligation to assist that process”.
The tribunal said the three reports in question should have been disclosed at the time they were requested in 2012. It directed the DWP to disclose them.
If the DWP’s barrister can identify good reasons why the tribunal might have made an error, or errors, in law, he can appeal within 28 days, though a tribunal could reject his appeal . The DWP could then appeal this decision.
This cycle of appeals that has already happened once – or the DWP could now decide that it has spent enough public money on fighting the case and release the reports.
The reports are expected to throw light on the problems and risks of Universal Credit IT at a time when DWP’s officials, secretary of state Iain Duncan Smith and his ministers, were giving assurances that all was well with the programme.
An FOI tribunal ordered the reports to be released in 2014 but various DWP appeals led to a re-hearing of the case last month (22 February 2016) at Leicester Magistrates Court.
Now Judge Ryan and two other FOI tribunal panel members have ordered that the DWP release a risk register, issues register and Major Projects Authority project assessment review.
The risk register described risks, the possible impact should they occur, the probability of their occurring, a risk score, a traffic light status, a summary of the planned response if a risk materialised, and a summary of the risk mitigation.
The issues register included a list of problems, the dates they were identified, the mitigating steps required and the dates for review and resolution.
The project assessment review gave a high-level strategic view of the state of UC, its problems, risks and how well or badly it was being managed.
The DWP argued that routine disclosure of such reports could lead to sensationalist headlines that would have a “chilling effect”. Not wanting to give food to a hostile media, officials writing or contributing to such reports could make them anodyne.
But Judge Ryan said the DWP had “over-stated” its fears. The tribunal suggested that the DWP had not been entirely truthful about the Universal Credit programme.
“We do not accept the Department’s submission that the management of the Universal Credit Programme is already exposed to sufficient public scrutiny and that this dilutes the strength of the arguments in favour of disclosure. On the particular facts of this case it is clear that the true story about the troubles which the Programme team faced only came to light a long time after the event and then showed a markedly different picture than had been portrayed by government statements issued at the time.”
This difference between reality on the UC programme and government statements was a good reason in favour of the disclosure of the reports, said the judge.
The DWP’s witness Cath Hamp, a senior DWP official, went into closed session at the latest hearing to argue that her concerns about civil servant behaviour would be more clearly shown by reference to specific items in the withheld documents.
Her closed-session arguments related to the risk of fraud and hacking into the system, relations with commercial organisations, and relations with local government. The tribunal was not convinced by her arguments.
Neither was the panel convinced by the “chilling effect” arguments.
“The evidence on the likelihood of civil servants altering their behaviour in future with regard to their contributions to the preparation of a risk or issues register or to the conduct of a project review was, as Ms Hamp fairly conceded, speculative…”
FOI a benefit more than a “burden”?
The DWP argued that disclosures of the reports would have placed a burden on DWP’s Universal Credit programme executives. They would have been forced to divert their energies and time into correcting media reports about the seriousness of problems and risks. But the tribunal concluded,
“Nor do we accept that resources would be wasted in providing explanations. It is clear from the press releases that we have been shown that the Department has been adept at presenting its case to the public and that it clearly has the specialist staff to carry out that function.”
The tribunal suggested that FOI obligations, rather than cause harm as the DWP had suggested, would be a benefit. The FOI Act had “brought with it an obligation on government to explain itself to a greater extent than had previously been found necessary”.
The tribunal rejected the DWP’s argument that it faced a hostile media which made officials defensive.
“… the evidence before us suggests that, on this issue, the media has adopted a relatively balanced approach to information about the Programme that has come into its possession.”
The judge said that in any event it is a
“perfectly appropriate performance of the media’s role in a modern democracy for it to investigate and comment on the implementation of a major reform involving large sums of public money and a potentially crucial impact on the lives of some of the least fortunate members of society”.
He added: “We do not therefore accept the Department’s submissions on the likelihood of the public misunderstanding the disputed information, or being misled as to its significance by the media”
In its final paragraph the tribunal said,
“… we have concluded that the public interest in maintaining the exemption in respect of each of the withheld documents does not outweigh the public interest in disclosure and that they should therefore have been disclosed when requested. Our decision is unanimous.”
My thanks to IT projects professional John Slater who has been the main force behind the case in favour of disclosure of the reports.
He made the original request in 2012 for the reports to be published. I requested one of them. He went to the original First Tier Tribunal and to Leicester Magistrates Court last month to cross examine the DWP’s witness. The points he made were quoted by the tribunal in its submission.
It’s campaigners like John Slater (and Dave Orr) who have helped to make FOI legislation more effective than it would otherwise have been.
If the DWP continues to pour money into fighting the disclosure of the reports in question, it will confirm to some of us that, when it comes to its own interest, that is its interest as a bureaucracy, it may not be a fit authority to manage the spending of public money.
I hope it will release the reports now. It is time it started distinguishing between the public interest and its own.
Universal Credit FOI tribunal ruling – March 2016: 077 110316 Final Open Decision