Secretary of State for Work and Pensions v Information Commissioner [2025] UKFTT 512 (GRC)

[2025] UKFTT 00512 (GRC)Case Reference: EA/2024/0019
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 3 April 2025Date 19 May 2025
Information Rights
Heard by Cloud Video Platform
Before
JUDGE BUCKLEYMEMBER DR GASSTONMEMBER MS GRIMLEY EVANS
Between
SECRETARY OF STATE FOR WORK AND PENSIONSAppellantINFORMATION COMMISSIONERRespondentOwain James (Counsel) for AppellantDid not appear for RespondentDecision:1.The appeal is Dismissed.2.The Secretary of State for Work and Pensions must comply with the steps required by the Commissioner in his decision notice IC-242779-L8W8 dated 18 December 2023 within 35 calendar days of the date that this decision is sent to the parties by the Tribunal.REASONS

Introduction

[1]This is an appeal against the Commissioner’s decision notice IC-242779-L8W8 dated 18 December 2023 which held that the Department for Work and Pensions (DWP):a. was not entitled to rely on section 36 of the Freedom of Information Act 2000 (‘FOIA’)b. was entitled to rely on section 40(2) and 44(1)(a) to withhold some of the requested information.[2]The Secretary of State for Work and Pensions appeals against the decision under section 36. There is no appeal in relation to the decision under sections 40(2) and 44(1)(a).[3]On 4 November 2024 the DWP released most of the requested information but maintains its reliance on section 36 in relation to a small part of the information. The disputed information is contained in a closed annex to the DWP’s skeleton argument.[4]The requestor, Owen Stevens, is not a party to these proceedings, although he has submitted a witness statement.

Factual background

[5]The following written parliamentary question for the DWP was tabled by the Lord Bishop of Durham on 17 January 2022: To ask her Majesty’s Government what assessment they have made of the effect of introducing senior safeguarding leaders within the Department for Work and Pensions[6]Baroness Stedman Scott provided the following answer on 1 February 2022: Since 2020, the Department has appointed more than 30 Advanced Customer Support Senior Leaders (ACSSLs) across Great Britain; these roles were previously known as Senior Safeguarding Leaders. ACSSLs support internal teams with customers who have multiple needs. They are a critical link into external agencies’ escalation routes, enabling increased cross-agency case collaboration and more holistic support for customers. From a standing start in April 2020, ACSSLs now maintain around 750 relationships with external organisations and agencies that provide support to vulnerable claimants. As their role has been established and developed over the last 20 months, ACSSLs have built the capability and confidence of frontline teams - coaching them in using existing tools for the most complex cases and supporting them in applying new guidance. Through the ACSSLs, the Department has gained greater visibility with local partners - so we can work collaboratively for a customer when this is required. ACSSLs have also helped us gather data and insight into customers’ top areas of concern, helping us to deliver a better service for all claimants. During 2021 we continually assessed the effect of introducing this role, how areas of concern about customers are identified, and the effectiveness of internal Service Line escalation routes. Our findings so far demonstrate that ACSSLs are effective in supporting existing DWP Service Lines to assist customers most at risk of harm. It is also evident that clear Service Line escalation routes are needed to provide timely resolution for our most vulnerable customers, which in turn reduces the need for ACSSL intervention. Following this work, ACSSLs’ future focus will include their coaching & facilitator role, their work with external agencies, and strengthening the learning they return to the business in real time. [emphasis added by the tribunal][7]This appeal relates to a request for information about the ‘data and insight into customers’ top areas of concern’ that ACSSL’s have helped the DWP to gather.[8]The requestor, Owen Stevens is a welfare rights advisor employed by the Child Poverty Action Group. He has provided a useful witness statement with additional background material. The following is taken from that statement.[9]Concerns about the way in which DWP supports vulnerable and disabled claimants have been raised by a number of organisations:a. In 2019 the Prime Minister’s Implementation Unit found that adjustments and specialist support were vital because Universal Credit design “is inadequate for vulnerable groups”. And that “frontline staff were often unclear on the expectations of managing complex claims for vulnerable people”;b. In 2020 the National Audit Office found that it was highly unlikely that the 69 Internal Process Reviews (‘IPRs’)carried out by the Department represented the number of cases it could have investigated in the past six years, and that the Department had no way of tracking or monitoring the status of recommendations made in IPRs.c. In 2021 the charity Rethink Mental Illness released a report which found that “Benefit deaths and serious harm reported in the media or investigated internally by the DWP may be the tip of the iceberg, with gaps in the way that cases are identified. There is also evidence linking DWP processes to widespread mental health harm including death by suicide.” and that “The DWP’s current process for investigating cases of death or serious harm are not independent. They lack external oversight and it is unclear whether they have recommended, far less delivered, systemic policy or culture change within the DWP.”;d. CPAG research in 2022 found that, contrary to DWP guidance, staff do not systematically ask if claimants with a mental health problem require reasonable adjustments;.e. Since 2022, Equality and Human Rights Commission (‘EHRC’) have been seeking to reach an agreement with the DWP to improve the treatment of disabled claimants. The EHRC did not accept that actions by the DWP up to that point were sufficient to ensure that the Department meets its legal obligations to avoid discriminating against disabled claimants;f. In 2023 the Parliamentary and Health Service ombudsman stated, in written evidence to the Work and Pensions Select Committee that “we have good reason to doubt the ability of DWP and its contracted agencies to consistently recognise, respond to and take full account of the vulnerabilities of some benefits claimants”.[10]Mr Stevens states that DWP treatment of vulnerable benefit claimants has been a subject of increasing concern after a series of widely reported deaths 5 - most prominently, Errol Graham, Jodey Whiting , and Philippa Day, each of whom died after DWP had stopped one of their benefits.[11]Mr Stevens states that in the past few months two further Prevention of Future Deaths reports have been published relating to people who had been in receipt of Universal Credit.[12]ACSSLs were introduced by DWP in the wake of the death of Errol Graham becoming public, and following the publication of a report by the National Audit Office into information held by DWP on deaths by suicide of benefit claimants. ACSSLs were originally introduced in 2020 under the name ‘Senior Safeguarding Leaders’ but were subsequently renamed.[13]The DWP has provided the following explanation about ACSSLs and the information gathered from ACSSL activity. Central to the ACSSL role is the work they take forward with external partners and organisations, creating relationships to support citizens and providing the critical link into external agencies’ escalation routes and enabling cross-agency case collaboration. Since their introduction, the ACSSL role has developed with their support built into processes to ensure that vulnerable customers’ needs are considered, for example in relation to making large payments to customers. This is in addition to building the capability and confidence of frontline teams to understand the existing tools, support, and processes available to help support customers. Across 2021/22, ACSSLs supported on c.900 cases each month, received from both internal and external sources. The support customers may require can have arisen for numerous reasons, which can also be separate from the DWP services they use. Most important is that we identify customers where support is required and that customers receive the help and support they need. Additionally, ACSSLs do support DWP in gathering data and insight in relation to their work. They do this by recording the cases they help support, whilst undertaking their responsibilities. This allows: 1) ACSSLs to feed into their local meetings and discussions to provide an understanding of the activities they are taking forward to support customers in their geographic area, and 2) Central collation, from across the national ACSSL network, providing the ability to gather data on the national picture. … The data from ACSSL cases has helped evidence and provide the perspective of some of DWP’s most vulnerable customers for work taken forward across DWP. This includes work taken forward through DWP’s governance routes, including the Serious Case Panel.

Request

[14]On 2 February 2022 Owen Stevens made the following request: This written question states that the department has gathered ‘data and insight into customers’ top areas of concern: https://questions-statements.parliament.uk/written-questions/detail/2022-01-17/hl5430 Please provide these data and insights into customers’ top areas of concern. If a paper, briefing, or other documents has been written with the aim of explaining or summarising the data and insights then please provide this.[15]The DWP responded on 16 February 2022. It confirmed that it held information but withheld it under section 35(1)(a) FOIA. In a revised response dated 9 February 2023, the DWP provided some information, namely the numbers of the five most common concerns in cases that involved ACSSLs in January 2022 and also provided some context on the role of ACSSLs, how the information provided was collected and how it was used.[16]In a decision notice dated 20 March 2023 the Commissioner decided that the DWP had not fully considered all the information specified in the request. The Commissioner required the DWP to issue a fresh response to the request covering the background information that led to the five most common concerns and any information provided by ACSSLs to senior leadership teams and the Serious Case Panel (SCP).[17]The DWP provided a fresh response to the request on 24 April 2023. In Annex A to that response, the DWP disclosed a table containing national information for ACSSLs broken down by month and categories of concern for the year 2021/2022. The response also included links to details of the SCP meetings held on gov.uk, and also the information in the DWP Annual Reports and Accounts for 2021/22.[18]Mr Stevens requested an internal review, stating that the DWP held more information. In its internal review the DWP partially upheld the complaint and stated that it held further recorded information within the scope of the request relating to ‘insight’ but that it was withholding that information under section 36(2)(b) and (c). The DWP relied on an opinion dated 26 June 2023 of the Qualified Person, Viscount Younger of Leckie, the Parliamentary Under-Secretary of State for the DWP.[19]During the Commissioner’s investigation DWP confirmed that it was relying on sections 36(2)(b)(i) and (ii) and 36(2)(c). It relied in addition on section 40(2) and 44(1)(a).[20]Following the decision notice the DWP wrote to Mr Stevens on 4 November 2024 and disclosed more of the withheld information. The DWP continued to withhold some information under sections 36(2)(b)(ii) and 36(2)(c). That information is contained in a closed annex to the DWP’s skeleton argument.

Decision Notice

[21]In a decision notice dated 18 December 2023 the Commissioner’s reasoning in relation to section 36 was as follows.[22]The Commissioner accepted that Viscount Younger of Leckie was authorised to act as the qualified person. The Commissioner was satisfied that the fact that the opinion was obtained significantly after the request did not undermine the reasonableness of the opinion.[23]The Commissioner considered that, in relation to the process of giving advice and frank discussions, it was not unreasonable to conclude that there was a real and significant risk that officials would be less candid in future when offering similar information should they consider that this information could be disclosed. The Commissioner concluded that sections 36(2)(b)(i) and (ii) and 36(2)(c) were engaged.[24]In relation to the public interest balance, the Commissioner considered that some of the arguments advanced by DWP comprised “chilling effect” arguments. The Commissioner accepted that a safe space is needed for discussion and decision making by officials, particularly in handling complicated and sensitive matters such as those relating to welfare and safeguarding.[25]The Commissioner acknowledged that there is a public interest in allowing DWP the time and space to implement improvements from the discussions which the requested information informed.[26]However, the Commissioner considered that there is a stronger public interest in the timely understanding, and scrutiny of, the issues raised by the ACSSLs as concerns. The Commissioner notes that the minutes of the Serious Case Panel are published. However, the Commissioner considered that this does not provide the ability to understand and scrutinise the insight and issues raised by the ACSSL team which are DWP’s own considerations of where issues are found, improvements are needed, and recommendations for improvements. The Commissioner considered that there was greater understanding to be gained from the timely disclosure of information than retrospective scrutiny.[27]The Commissioner held that the withheld information provides insight and understanding of where DWP acknowledges that improvements are required and the recommendations also allow scrutiny of whether DWP has taken action to implement these or ensure that the issues do not keep occurring. It also provides insight into the quality of the information used to inform these discussions and improvements.[28]The Commissioner decided that the public interest in disclosure was further strengthened by the fact that these issues impact on some of the most vulnerable members of society. The Commissioner considered that the public was entitled to scrutinise the steps DWP is taking to improve its processes for these individuals at an early opportunity rather than waiting for the improvements to be fully implemented. The Commissioner considered that there was a strong public interest in understanding DWP’s approach to preventing future safeguarding issues.[29]The Commissioner did not accept DWP’s argument that this scrutiny would be based on incomplete, narrow or unbalanced data. The Commissioner’s noted that his established position is that incomplete information or the potential for misunderstanding is not an argument that, in itself, carries weight. The Commissioner considers that public authorities would have the opportunity to confirm that the information is incomplete, or put it into context, at the time of disclosure. The Commissioner stated that he would only accept this as having weight where the public authority has demonstrated that it would not be possible or reasonable to provide this. The Commissioner noted that DWP was able to provide such an explanation in its correspondence with the complainant regarding the data that was disclosed.[30]Whilst the Commissioner accepts that there was weight to the public interest arguments regarding allowing DWP the space to have free and frank discussions to develop and implement the improvements away from external interference, the Commissioner was not persuaded that this is sufficient to outweigh the strong public interest in disclosure of the information.[31]The Commissioner did not consider that significant weight should be attributed to the argument that the information was created with no intention to circulate beyond the intended audience. The Commissioner noted that FOIA has been in force since 2005 and public authorities and their officials are, by now, aware that information may be disclosed.[32]The Commissioner considered that officials should not be deterred from giving impartial and robust advice by the possibility of future disclosure. Having viewed the withheld information, the Commissioner was not persuaded that a generalised chilling effect on all future similar discussions would result from disclosure in this case.[33]The Commissioner also considered that it is possible that the threat of future disclosure could actually lead to better quality of advice.[34]The Commissioner was not persuaded that disclosure would be likely to cause officials to provide lower quality advice in future is a particularly compelling argument. As he noted above, civil servants and officials are required to provide quality advice and the Commissioner did not consider that disclosure would jeopardise this.[35]For the reasons set out above and in a confidential annex, the Commissioner considered that the balance of the public interest lay in disclosure of the information with the exception of the identified personal data which was exempt under section 40(2) and 44(1)(a).

Grounds of appeal

[36]The grounds of appeal are that the Decision Notice was wrong because the Commissioner struck the wrong balance when carrying out the public interest test.[37]In particular the DWP submitted that:a. The documents at the core of the appeal are dynamic and fluid and would provide prejudicial insight into how the DWP seeks to improve its service by making public matters which may be misused in order to ‘jump the queue’.b. There are very specific risks, especially around trigger works which could change user’s behaviour giving rise to real issues. There is a real risk of a ‘surge’ of unnecessary service requests. Publishing DWP’s ‘trigger words’ has no useful or positive bearing on the public interest. There is a real risk of vulnerable customers in genuine need being lost in the increase.c. The DWP is already subject to a significant amount of scrutiny.d. Disclosure is likely to stifle open discussion which is likely to lead to poorer decision making and service delivery.e. The DWP ought to be able to pursue its functions and policies and engage in important internal discussions and effectively make decisions, particularly where sensitive discussions are in issue and where the information relates to ‘live’ discussions.f. The systems are designed and managed to seek to provide the best service possible. If disclosure undermines the ability for internal discussions, creates avenues of abuse on the part of members of the public and leads to poorer decision making then the public interest favours maintaining the exemption.

The Commissioner’s response

[38]The Commissioner said that he had carefully considered the contents of the withheld information and the timing of the request, and relied upon the considerations set out in the Decision Notice.[39]The Commissioner maintained that there was significant value in the requested information being disclosed at the time of the request to enable the public to scrutinise the steps DWP was taking to improve its processes for some of the most vulnerable members of society at an early opportunity rather than waiting for improvements to be fully implemented.[40]The Commissioner reiterated that whilst there was weight to the public interest arguments regarding allowing DWP the space to have free and frank discussions to develop and implement the improvements away from external interference, the Commissioner remained of the view that in this case this was insufficient to outweigh the strong public interest in disclosure of the information. Furthermore the Commissioner was not persuaded that a generalised chilling effect on the future provision of advice or on future similar discussions would result from disclosure in this case. DWP officials should not be dissuaded from expressing their views as they are expected to be robust in this regard, and ought to expect the disclosure of information in the public interest, such as the withheld information.[41]Further the Commissioner said that it would be open to DWP to provide context alongside disclosure to negate concerns that any consequent scrutiny would be based upon incomplete, narrow or unbalanced data.[42]The Commissioner noted that although the minutes of the Serious Case Panel are published he remains of the view that this does not provide the ability to understand and scrutinise the insight and issues raised by the ACSSL team which are DWP’s own considerations of where issues are found, improvements are needed, and recommendations for improvements. Whilst the DWP may, generally be subject to a significant amount of scrutiny that does not impact on the analysis of whether this particular withheld information warrants disclosure and scrutiny in itself.[43]In relation to the balance of the public interest regarding section 36(2)(c) FOIA, the Commissioner relied upon his findings contained within the Confidential Annex attached to his Decision Notice.[44]The Commissioner argued that it will be apparent to the Tribunal when considering the withheld information the importance of the issues contained therein. The Commissioner said that he carefully considered the public interest arguments both in favour of disclosure and withholding the information. The Commissioner submitted that there is a substantial public interest in disclosure in this case for the reasons set out in his Decision Notice, and that proper weight was attributed to the arguments in favour of non-disclosure.

The law

[45]Section 36 provides in material part that: 36 Prejudice to effective conduct of public affairs(1) This section applies to— (a) information which is held by a government department … and is not exempt information by virtue of section 35, and …(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act… (b) would, or would be likely to, inhibit— (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation, or (c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.[46]It is for the tribunal to assess whether the qualified person’s (QP’s) opinion that any of the listed prejudices/inhibitions would or would be likely to occur is reasonable, but that opinion ought to be afforded a measure of respect: Information Commissioner v Malnick [2018] UKUT 72 (AAC), [2018] AACR 29 at paragraphs 28-29 and 47.[47]In relation to ‘chilling effect’ arguments, the tribunal is assisted by the following paragraphs from the Upper Tribunal decision in Davies v IC and The Cabinet Office [2019] UKUT 185 (AAC):
“25.There is a substantial body of case law which establishes that assertions of a “chilling effect” on provision of advice, exchange of views or effective conduct of public affairs are to be treated with some caution. In Department for Education and Skills v Information Commissioner and Evening Standard EA/2006/0006, the First-tier Tribunal commented at [75(vii)] as follows: “In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly-educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.” 26.Although not binding on us, this is an observation of obvious common sense with which we agree. A three judge panel of the Upper Tribunal expressed a similar view in DEFRA v Information Commissioner and Badger Trust [2014] UKUT 526 (AC) at [75], when concluding that it was not satisfied that disclosure would inhibit important discussions at a senior level: “75. We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it... “In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly-educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.” “75. We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it... 76. ...They and other organisations engage with, or must be assumed to have engaged with, public authorities in the full knowledge that Parliament has passed the FOIA and the Secretary of State has made the EIR. Participants in such boards cannot expect to be able to bend the rules.” 27. In Department of Health v Information Commissioner and Lewis [2015] UKUT 0159 (AAC), [2017] AACR 30 Charles J discussed the correct approach where a government department asserts that disclosure of information would have a “chilling” effect or be detrimental to the “safe space” within which policy formulation takes place, as to which he said: “27. ...The lack of a right guaranteeing non-disclosure of information ...means that that information is at risk of disclosure in the overall public interest ... As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that ... a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed... 28. ...any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest. 29. ... In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way: (i) this weakness, (ii) the public interest in there being disclosure of information at an appropriate time that shows that the robust exchanges relied on as being important to good decision making have taken place, and (iii) why persons whose views and participation in the relevant discussions would be discouraged from expressing them in promoting good decision making and administration and thereby ensuring that this is demonstrated both internally and when appropriate externally, is flawed.”. 28.Charles J discussed the correct approach to addressing the competing public interests in disclosure of information where section 35 of FOIA (information relating to formulation of government policy, etc) is engaged. Applying the decision in APPGER at [74] – [76] and [146] – [152], when assessing the competing public interests under FOIA the correct approach includes identifying the actual harm or prejudice which weighs against disclosure. This requires an appropriately detailed identification, proof, explanation and examination of the likely harm or prejudice. 29.Section 35 of FOIA, with which the Lewis case was concerned, does not contain the threshold provision of the qualified person’s opinion, but these observations by Charles J are concerned with the approach to deciding whether disclosure is likely to have a chilling effect and we consider that they are also relevant to the approach to an assessment by the qualified person of a likely chilling effect under section 36(2) and so to the question whether that opinion is a reasonable one. 30.Charles J said at [69] that the First-tier Tribunal’s decision should include matters such as identification of the relevant facts, and consideration of “the adequacy of the evidence base for the arguments founding expressions of opinion”
. He took into account (see [68]) that the assessment must have regard to the expertise of the relevant witnesses or authors of reports, much as the qualified person’s opinion is to be afforded a measure of respect given their seniority and the fact that they will be well placed to make the judgment under section 36(2) – as to which see Malnick at [29]. In our judgment Charles J’s approach in Lewis applies equally to an assessment of the reasonableness of the qualified person’s opinion as long as it is recognised that a) the qualified person is particularly well placed to make the assessment in question, and b) under section 36 the tribunal’s task is to decide whether that person’s opinion is substantively reasonable rather than to decide for itself whether the asserted prejudice is likely to occur. Mr Lockley agreed that the considerations identified by Charles J were relevant. We acknowledge that the application of this guidance will depend on the particular factual context and the particular factual context of the Lewis case, but that does not detract from the value of the approach identified there.”[48]Section 36 is not an absolute exemption.

The role of the tribunal

[49]The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

List of issues

[50]In the reasonable opinion of a qualified person would disclosure, or would disclosure be likely to:a. inhibit the free and frank provision of advice or the free and frank exchange of views for the purposes of deliberation,b. or otherwise prejudice the effective conduct of public affairs?[51]Does the public interest in maintaining the exemption outweigh the public interest in disclosure?

Evidence and gist of closed session

[52]The tribunal considered an open bundle, the original closed bundle and an updated closed bundle.[53]The open bundle included witness statements from Owen Stevens (the requestor) and Robert Currens, Advanced Customer Support (ACS) Deputy Director at the DWP. We heard oral evidence from Mr Currens in a closed session.[54]The tribunal raised the following with Mr. James about the closed bundle:a. that the documents now disclosed should be moved to into open evidenceb. that the instructions to the qualified person and their opinion should only be in the closed bundle if it was necessary to avoid defeating the purpose of the proceedings.[55]Mr. James agreed and he was asked to provide an open redacted version of (b) and confirmation of any other documents that were now open evidence.[56]We held a closed session. Mr James prepared the following gist of the closed session, which was approved by the tribunal, subject to a minor amendment agree by Mr. James: In attendance Judge Buckley (JB) Panel Member Dr Aimee Gasston (AG) Panel Member Ms Kate Grimley Evans (KGE) DWP Robert Currens (RC) Counsel Owain Rhys James (OJ) 1. OJ asked RC to go to page 227 of OPEN bundle – the witness statement of RC. RC confirmed his name, professional address that he had signed the statement, that he had read it recently and that it was true. 2. JB had a few questions regarding remaining withheld information. 3. RC confirmed he had the information which shows which disputed information that was still withheld. 4. JB noted the withheld information doesn’t identify text that DWP is concerned about and that JB’s understanding is that subsequent requests may ask for such text, and RC agreed. 5. JB asked could DWP not refuse to provide this if likely to lead to prejudice under s36? RC thought that this could be done though his understanding was that scope of current request was for full insight data. 6. RC confirmed an issue for the tribunal was the withheld data on page 25. 7. JB asked what benefit would be to a caller of using the disputed information, including in situations where that use was not genuine, and RC explained the DWP’s systems for identifying and providing support to customers. 8. JB referred to para 38 of the open skeleton argument which referred to “jumping the queue”. RC explained that there would be no jumping of a que but that the systems identified would be used to support customers. 9. JB referred to links in chat box - https://www.gov.uk/government/publications/additional-support-for-dwp-customers-bookletNoted this is dated March 2024 and asked was there an equivalent document before this? RC explained no, first time this was published. 10. JB referred to the following bullet points which set out support. Internal page 3, section 2:
“We provide additional support for customers at serious risk of harm, neglect, or abuse through our network of frontline operational colleagues and Advanced Customer Support Senior Leaders (ACSSLs). ACSSLs coach and mentor DWP colleagues across our services to support customers experiencing or at risk of vulnerability. ACSSLs supported over 12,000 customer cases in 2022-23. … We have an established Six Point Plan for DWP colleagues to follow when they identify a customer who may be at risk of harming themselves. This helps to ensure the customer is given the appropriate support and may involve notifying emergency services in the event where they are at immediate risk.”
Internal page 10, section 3:
“We use speech analytics software to transcribe and analyse calls providing useful insight including where a customer may be at risk of harm. We plan to further expand the capability to identify customers experiencing vulnerability within the new telephony system we are procuring.” 11. JB asked given that this document that the DWP put out in March 2024 says that they identify vulnerable claimants who are at risk of harm and give them additional support, does this not create the same risk? RC explained no as doesn’t identify the key words. 12. JB referred to oral evidence at end of OPEN index. RC had seen this before. JB went to q278 beginning “This is the point I am getting to.” “Elizabeth Fairburn…In addition and as a result of an action from the serious case panel, we are investing in our call listening service. We have some functionality live, but we depend on a big technology project to roll that out across the whole Department, which we expect to do next year. That will do exactly what you describe there. We will be able to pull out words that might identify a vulnerability for a customer.”
Q 287 “Preeta Ramachandran: The system, as Liz said earlier, has specific words for work coach team leaders to see. If someone writes a word in their journal that perhaps implies that they are in distress, it is flagged.” 13. JB asked what is RC concerned about in disputed information which is not mentioned here? RC noted not talking about the same system. Q278 talking about 100% coverage. New system is around 40% coverage. Q287 – not talking about the issues contained in the disputed information. 14. JB went to original CLOSED bundle, commissioner’s confidential annex, page 44 – bottom of page 45 link – RC not familiar with this as before his tenure. Q64 – Q65 referred to. JB wondered is there any additional prejudice which would be caused by release of information? Hearing adjourned 11:12 Hearing resumed 11:31, still in CLOSED 15. OJ submitted that RC gave evidence candidly, best to assist Tribunal, evidence is broader than strict basis appeal was put on. Though text of which DWP is specifically concerned not contained in the disputed information it is clear on the face of the disputed information what the DWP’s systems are and how a customer may trigger those systems. Similar to jigsaw identification. 16. OJ submitted that the information that was already in open was very broad and high level. Should not lead to disclosure of disputed information. 17. JB asked what specifically in withheld information which will cause harm? OJ submitted DWP’s concern is people will be aware of DWP’s systems and will tailor their response to abuse the same. 11:50 – adjournment 11:58 –hearing resumed 18. OJ confirmed that the details of cases referred to internal action taken because the DWP systems for responding to customer had not fully been deployed. OJ accepted that the shorthand “queue jump” phrase adopted in skeleton would be inaccurate.”

Oral submissions/skeleton arguments

[57]We heard oral submissions and read a skeleton argument from Mr James on behalf of the DWP.[58]Mr James submitted that Mr Currens’ role was specific to the delivery of advanced and additional support for the DWP’s most vulnerable customers. Weight should be placed on his views, as the individual who leads on how the DWP best supports vulnerable customers.[59]Mr James submitted that the evidence of Mr Currens was compelling and candid and gave a sound evidential basis to the grounds of appeal. He submitted that it made clear that the DWP has taken a detailed and considered approach and is not seeking blanket immunity from disclosure. He submitted that the statement by the requestor does not take the tribunal much further.[60]Mr James submitted that the harm caused by disclosure arises because of the particular nature and contents of the documents. He submitted that the call listening date for example would provide an obvious risk that customer behaviour would change in an attempt at abusing the system. He submitted that the use or abuse of key words would likely increase; there would be an expectation that use of key words would result in certain results. He submitted that is all highly damaging and there is no corresponding public interest in disclosure. He submitted that it is key that SSWP is able to discuss those matters freely and candidly.[61]Mr James said that the documents in question are dynamic and fluid, forming part of the DWP’s ongoing attempts at improving its services. It was argued in his skeleton argument that disclosure would provide prejudicial insight into how the DWP seeks to improve its service by making public matters which may be misused in order to ‘jump the queue’. In oral submissions Mr James accepted that the evidence did not support a submission that the information might be misused to ‘jump the queue’.[62]Mr James submitted that this is not a case where everything in the withheld material if read in isolation is capable of causing the prejudice concerned, but he argued that when read as a whole it first gives rise to the risk of identifying matters which are in and of themselves prejudicial and would mean that Mr Currens and his team and DWP officials would not be able to have open frank and candid conversations about performance, about developing new approaches and developing a new system. The DWP has a need to have properly thought out, properly developed and properly internally scrutinised approaches to their systems. He says as the system is rolled out to a greater number of calls there will be a more acute need for the types of briefings that the withheld information contains to take place in safe spaces.[63]Mr James submitted that there was a chilling effect of having to disclose all these matters even against a background that if there were a request for the key words themselves that could be refused. Mr James submitted that the chilling effect is broader and includes the internal training elements and the adequacy and appropriateness of the response elements. He submitted that if that were disclosed there is a real risk of the types of prejudice and outcomes that Mr Currens sets out in his witness evidence.[64]Mr James submitted that there is a clear difference between the public oral evidence that Mr Currens was taken to (document number 45 in the open bundle, and oral evidence to the Public Accounts Committee on 20 July 2022) and the very detailed operational and dynamic nature of the withheld information, which he said sat in a very different class and gave greater insights to those that may wish to abuse the system.[65]Mr James submitted that the concern is not about disclosing how the DWP deals with those with vulnerabilities but that in doing so, the ability to deal with those vulnerable customers will be undermined by the small number of people who wish to abuse the system.[66]Mr James was asked about Mr Currens’ evidence in closed to the effect that his concern was with the parts of the withheld material that referred specifically to key words. Mr James submitted that to Mr Currens’ credit he gave a very candid response, but he argued that was perhaps a slightly oversimplistic approach given the possibility of broader jigsaw identification and the broader chilling effect concerns identified in his witness statement. He submitted that the case was not just about identifying the key words, but that it went further in terms of enabling the DWP to develop those systems and approaches.[67]The Judge asked Mr James to explain what it was specifically about the content of the information that is still withheld, other than the risk of abuse of the system, that is prejudicial in terms of the chilling effect. Mr James submitted that it goes to how the DWP can assess its performance and following on from that how it can adopt changes and new processes to deal with any shortcomings.[68]Mr James further submitted that the processes to be adopted when there is a vulnerable customer mean that things take longer because additional steps and processes have to be gone through to ensure that the customer receives the support they require. In developing those processes it is not just the fact that there is a key word that is important, but the fact that there is a tailored approach and how that is critiqued and remedied and developed. He submitted that there is a chilling effect in the DWP critically reviewing its performance. Mr James was asked if the part that has been withheld specifically contains the critique of performance. His response was that the purpose of the documents as a whole is to enable to those conversations to happen, but the DWP have taken a view as to what can properly be disclosed without giving rise to the prejudicial outcomes they are concerned about, and the remaining withheld information would, the DWP says, give rise to difficulties with those frank and open conversations happening in the future.[69]In relation to the reasonableness of the qualified person’s opinion, Mr James submitted that the opinion reasonably and properly reflected the view in respect of the withheld information but was applied at that stage more broadly. He says that the opinion was not wrong at the time, but with the benefit of more time and reflection a view has been taken that those concerns do not apply as strongly to all of the information. He submitted that it was not unreasonable or wrong but was applied more broadly than the DWP now says it needs to be applied.[70]He submitted that scrutiny and accountability is possible without disclosure. Discussion and conclusions

Embedded documents

[71]The DWP had not provided the documents embedded in the withheld information/the information now released on the basis that they contained personal information. Mr James clarified that the only substantive information contained in those documents was personal data and on that basis we were satisfied that they did not fall within the scope of this appeal.

The relevant date

[72]Mr James agreed with the tribunal that the relevant date, for the purposes of assessing the application of section 36 and the public interest balance, was the date of the fresh response to the request i.e. 24 April 2023.

Was the qualified person’s opinion reasonable?

[73]The qualified person in this case is Viscount Younger of Leckie, Parliamentary Under-Secretary of State for Work and Pensions (in the Lords).[74]The tribunal’s task is decide if the opinion of the qualified person is substantively reasonable, rather than deciding for itself whether the asserted prejudice is likely to occur. When deciding whether the opinion is substantively reasonable, we note that the qualified person is particularly well-placed to make the assessment in question.[75]The considerations identified by Charles J are relevant to the question of the reasonableness of the qualified person’s opinion on the likely chilling effect of disclosure, including the adequacy of the evidence base for the arguments founding expressions of opinion and whether there is an appropriately detailed identification, proof, explanation and examination of the likely harm and prejudice.[76]The record of the qualified person’s opinion specifies that the subsections of section 36 being applied are sections 36(2)(b)(i), (ii) and (2)(c). The opinion then states:
“I, Viscount Younger of Leckie, Parliamentary Under-Secretary of State for the Department for Work and Pensions (in the Lords) have reviewed the attached submission and the proposed information to be withheld under Section 36 of the FOI Act. I agree with the arguments put forward in the attached submission and it is my opinion that if the information requested were disclosed, the prejudice / inhibitions specified in the sub section(s) of Section 36 would be engaged. I therefore approve the use of Section 36 of the FOI Act to exempt the withheld information.”
[77]At the time the opinion was given, the DWP was withholding the entirety of the following six documents:a. Advanced Customer Support, Insight and Delivery, June 2021 (p248 -251 open bundle)b. Customer Experience Advanced Customer Support Insight and Delivery Team (p252-264 open bundle)c. Advanced Customer Support – Data and Insight, 15 September 2021 (p266-273 open bundle)d. Advanced Customer Support, Insight and Delivery Team (p 277-278 open bundle)e. Safeguarding Insight and Delivery Team, Submission to SIRT, March 2021 (p281-282 open bundle)f. Advanced Customer Support, Insight and Delivery Team (p285-286 open bundle)[78]The submission to the qualified person described the information identified as falling within the scope of the request as containing:
‘a narrow, informal snapshot of information relating to issues and circumstances which may impact on the experience of some of our customers, as well as case-specific information. This is information captured purely from cases referred for ACSSL support, so it will be in relation to cases where we have identified additional support needs, and therefore not reflective of all customers within the relevant product line.’
[79]The submission set out the purpose of collecting the information, i.e. to provide evidence and insight in respect of cases requiring ACSSL support to be considered alongside other evidence, with the intention of stimulating discussion to understand the scale and impact of issues and circumstances identified. The submission stated that the DWP required time and space to delve deeper into the issues and formulate detailed comprehensive plans for improvement, including impacting possible changes and aligning with government policies and future strategic aims of the department. The submission stated that the disclosure of piecemeal, incomplete information in the way the requestor was seeking would or would be likely to inhibit free and frank advice and the exchange of views.[80]The submission also highlighted that part of the information related to the UC Journal data mining and Call Listening Alert Service. The submission stated that if the information was to enter the public domain, with subsequent requests for information on the words and phrases used, this could drive perverse behaviours with customers using key words to escalate their cases, taking attention away from those cases where additional customer support was needed which could likely prejudice the effective conduct of public affairs.[81]Under the heading ‘discussion of the harm release could create’ the submission states the data and insight in question relates to information that was put together without the intention to circulate wider than the immediate audience. It states that the data and insight were used to instigate a discussion between a senior group of internal stake holders in a safe and open environment and that the discussions are imperative in DWP’s ability to develop and improve processes and policies in DWP. The submission says that the disclosure of this information would not only inhibit colleagues’ willingness to fully engage in these types of discussions, but it would also restrain frank and candid exchanges, which are required to develop new ideas and progress existing projects. Furthermore, it states that some of the information in question, if presented in its present format, could have a negative reputational impact on DWP as it is not reflective of the broader customer group within each Service Line.[82]Somewhat confusingly the submission also includes submissions on balancing the public interest for and against release, and appears to at least suggest that this is also a question for the qualified person and that the public interest balance is one of the reasons why the qualified person should ‘authorise the use of section 36(2)(b) and (c) in this case and withhold the information’.[83]We have reached the view that the qualified person’s opinion is not reasonable for a number of reasons.[84]We are entitled to take the information published later into account where it sheds light on the position at the relevant date. The DWP did not submit that anything material had changed between June 2022 and the publication of the ‘Additional Support for DWP Customers’ or the date of the oral evidence hearing in March 2024, in terms of the risk of abuse. In our view, the publication of that information shows what the DWP was comfortable with placing in the public domain, which casts light on the reasonableness of the qualified person’s opinion at the relevant date.[85]We deal first with the part of the submission that asserts that release of information related to the UC Journal data mining and Call Listening Alert Service. We do not accept that it was reasonable to conclude that release of this information would or would be likely to ‘drive perverse behaviours with customers using key words to escalate their cases’.[86]First, it is clear from the submission and from the evidence of Mr Currens that this risk is premised on expected subsequent requests for information on the words and phrases used. As Mr James accepted, section 36 is concerned with the effects of release of the information in issue in this appeal, not with the effects of release of other information that has not yet been but might be requested, and which the DWP might have reason to refuse to disclose. Given the terms of the submission to the qualified person, in our view it is likely that the qualified person proceeded on the basis that it was legitimate to take account of the impact of release, in response to subsequent requests, of the specific words or phrases used.[87]We have taken into account Mr Currens’ opinion as to the risk of abuse when considering the reasonableness of the qualified person’s opinion. However, Mr Currens was, in our view, unable to satisfactorily explain what the perceived benefit to claimants would be in using the key words, nor was he able to satisfactorily explain why the withheld information added anything material to other information the DWP was content to release, other than that he felt it led to a risk of a further request for the key words. That was the basis on which he put the risk to the qualified person and it was clear to us that that it was the future release of the key words that was the basis for his concern about abuse being caused by the release of the withheld information. The value of his opinion was undermined by this and by the following points.[88]Although Mr James relied instead on the risk of ‘jigsaw identification’ of the key words, we do not accept that it was reasonable to conclude that there is any increased risk of customers correctly guessing the key words from the withheld information than there is of customers correctly guessing them from information that the DWP either had already placed in the public domain at the relevant date, or that the DWP has voluntarily placed in the public domain following the relevant date, including, for example, the document entitled ‘Additional Support for Customers’, the oral evidence referred to below and the DWP’s widely publicised ‘six point plan’. This is dealt with in more detail in our closed reasons.[89]Second, the qualified person was not made aware in the submission that at the relevant date (and at the date of the qualified person’s opinion) there was already information in the public domain that made it clear that particular words trigger a response and that there was a call listening service, currently in relation to 30% of calls, that was a safety net for the DWP and helped the DWP to understand where there might be customers with vulnerabilities that the DWP can support further.[90]Third, the DWP has subsequently, in March 2024, had no concern about making the public aware in the document entitled ‘Additional Support for DWP Customers’ that:a. Additional support was provided for customers at serious risk of harm, neglect or abuse.b. There is an established Six Point Plan for DWP colleagues to follow when they identify a customer who may be at risk of harming themselves.c. The DWP uses speech analytics software to transcribe and analyse calls providing useful insight including where a customer may be at risk of harm.[91]Fourth, the DWP subsequently had no concern about providing information about the call listening programme in the oral evidence hearing on 26 March 2024, including that fact that it would pull out words that might identify vulnerability for a customer and that there was already ‘some functionality live’. On the same occasion the DWP also stated publicly that the system has specific words for work coach team leaders to see, so that it someone writes a word in their journal that perhaps implies that they are in distress it is flagged.[92]Fifth, even if the withheld information does reveal something additional, then the lack of incentive for using the key words means, in our view, that it was not reasonable for the qualified person to view the possibility of abuse as more than remote. As Mr James accepted, the evidence did not support his assertion in his skeleton argument that using a key word would enable a claimant to ‘jump the queue’. There is nothing in the withheld information which would cause a claimant to form that view.[93]It was already public knowledge at the relevant time, that if a customer declares that they intend to harm or kill themselves, the widely publicised six point plan should be followed. This might include, in appropriate cases, alerting the emergency services. The fact that there was a call listening service covering 30% of calls which listened automatically for particular words that trigger a response, and that the call listening service helped the DWP to understand where there might be customers with vulnerability who the DWP could support further, was in the public domain at the relevant time. There is nothing in the withheld information which suggests any additional benefit in using one of the key words.[94]In our view, given the information available to claimants, there is no reason why a claimant who was not vulnerable would consider it a benefit to be provided with appropriate support tailored to a problem they do not have. It is not the case, and there is nothing to suggest to a claimant either in the withheld information or in any publicly available information, that using a key word would lead to a claimant’s application for benefits being ‘escalated’ or accelerated.[95]Given all the above, including the remote risk of abuse, the lack of additional information contained in the withheld information and the level of detail that the DWP has since been content to place in the public domain, we take that view that it was not reasonable to conclude that the release of the withheld information would or would be likely to lead to any attempted misuse of key words and certainly that it was not reasonable to conclude that the release of the withheld information would or would be likely to lead to such a level of attempted misuse that there would be likely to be an impact on the DWP’s resources or its ability to deal with vulnerable customers.[96]In addition to the concern about misuse/abuse of key words, the submission to the qualified person made a broader ‘chilling effect’ argument. The DWP no longer maintains that any chilling effect would be caused by release of the vast majority of the information that was originally withheld. That is not because of any material change in circumstances since the relevant date.[97]We find that the information that has now been released meets the description of the information included in the submission to the qualified person and set out in detail in the paragraphs above. Mr Currens, a witness with significant experience and expertise in this area, was unable to explain satisfactorily what prejudice, other than the risk of future requests being made for the key words, there might be from release of the withheld information.[98]Mr James, when asked about this, was also unable to explain satisfactorily why the remaining withheld information in particular led to any risk of a chilling effect. He said that that it goes to how the DWP can assess its performance and following on from that how it can adopt changes and new processes to deal with any shortcomings. He stated that in developing those processes it is not just the fact that there is a key word that is important, but the fact that there is a tailored approach and how that is critiqued and remedied and developed. He submitted that there is a chilling effect in the DWP critically reviewing its performance.[99]When Mr James was asked if the part that has been withheld specifically contains the critique of performance, his response was that the purpose of the documents as a whole is to enable to those conversations to happen, but the DWP have taken a view as to what can properly be disclosed without giving rise to the prejudicial outcomes they are concerned about, and the remaining withheld information would, the DWP says, give rise to difficulties with those frank and open conversations happening in the future.[100]In our view, the difficulties that Mr Currens and Mr James had in identifying why the withheld information, as opposed to the released information, would be likely to give rise to a chilling effect, were because in reality the DWP had retained this information because of concerns about the misuse of key words, not because of concerns about a chilling effect. That was clear from Mr Currens’ evidence as a whole and, in particular, when he stated that the DWP would be ‘comfortable’ with the redaction of the parts that referred specifically to the use of key words.[101]Neither Mr Currens nor Mr James drew our attention to any parts of the remaining withheld information that contained free and frank advice or frank and candid exchanges or strongly worded or unguarded critiques of the DWP’s performance.[102]In the light of the above, we do not accept that the justifications, as to any likely chilling effect, set out in the submission to the qualified person could reasonably be seen as engaging any of these exemptions in relation to this particular part of the information. Nor, having reviewed the information ourselves and had the benefit of informed evidence from Mr Currens, are we satisfied that there are any other grounds on which the qualified person could reasonably have formed the view that the exemptions could be engaged.[103]In our view the safe space/chilling effect argument does not address in a properly reasoned, balanced and objective way, with reference to the remaining withheld information, why persons whose views and participation in the relevant discussions would be discouraged from expressing them in promoting good decision making and administration and thereby ensuring that this is demonstrated both internally and when appropriate externally. We accept that those drafting the documents are not the most senior officials, but taking account of the specific content of the withheld information, we are not persuaded that it was reasonable to conclude that the officials involved would be inhibited by the prospect of disclosure.[104]We accept that the qualified person is particularly well-placed to make the assessment in question, but the qualified person did not have the benefit of submissions and evidence focussed on the remaining information, nor was he made aware of the information already in the public domain, nor did he know what the DWP would later feel comfortable in releasing into the public domain (which sheds light on the position at the time), nor did he hear the evidence of Mr Currens.

Alternative findings

[105]Even if we are wrong about section 36 FOIA not being engaged, in the alternative we are satisfied for the following reasons that the public interest in disclosing the information outweighed the public interest in maintaining the exemption.[106]In balancing the competing public interests, we must give appropriate weight and consideration to the opinion of the qualified person and appropriate weight and consideration to the evidence of Mr Currens, who has significant institutional expertise. For the reasons set out above in detail, the weight that we attach to their opinions is reduced.[107]Section 36 is primarily concerned with protecting the processes of advice and deliberation and ensuring that these are not inhibited, and in protecting the efficient conduct of public affairs. Any prejudice to those matters carries some weight in the public interest balance.[108]For the reasons set out above, is it is our view that the risk and likely severity of prejudice in terms of any chilling effect or any impact on the safe space is very low. For the reasons set out above, we also conclude that the risk and likely severity of any impact on the DWP’s ability to effectively conduct public affairs is very low.[109]In those circumstances, although the prejudice has weight, we find that it has only fairly limited weight in the public interest balance.[110]Conversely in our view there is a strong public interest in transparency and in the public being aware of the full picture provided in the withheld information along with the information that has now been released. We accept that the public interest in transparency in this particular area of the DWP’s work is high, because of the impact on vulnerable members of society and the background highlighted by the requestor in his witness statement.[111]For those reasons, we are satisfied that the public interest in disclosing the information outweighed the public interest in maintaining the exemption. Signed Date: Sophie Buckley 7 May 2025

Cited in 1 later judgment