Department for Work and Pensions v The Information Commissioner & Anor [2026] UKFTT 362 (GRC)

[2026] UKFTT 00362 (GRC)Case Reference: EA/2023/0542
First-tier Tribunal
(General Regulatory Chamber)
Date 16 March 2026
Information Rights
Decided without a hearing
Before
JUDGE BUCKLEYMEMBER PAUL TAYLORMEMBER EMMA YATES
Between
DEpartment For Work AnD PeNSIONSAppellantINFORMATION COMMISSIONERRespondentJOHN PRINGRespondentDecision:1.The appeal is Dismissed.2.The Department for Work and Pensions must comply with the steps required by the Commissioner in his decision notice IC-238825-P3L5 dated 20 November 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-238825-P3L5 dated 20 November 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 44(1) to withhold some of the requested information.[2]The Commissioner also found that the DWP had breached section 10(1) and 17(1) by failing to adequately respond within the statutory timeframe.[3]The DWP appeals against the decision under section 36. There is no appeal in relation to the decision under section 44(1) and the requestor accepts that the DWP is entitled to withhold personal information.

Factual background

[4]Unless otherwise indicated, the following background is based on the witness statement of Roger Burt, Head of Quality Assurance within the Customer Experience Directorate at the DWP.[5]According to the Gov.uk website, the DWP Serious Case Panel (SCP) “considers serious issues arising from cases and other insight that affect the DWP customer experience. The panel makes recommendations to address these issues to help reduce such cases in future”.[6]The SCP was set up in 2019 and meets quarterly to consider themes and issues that have arisen across the Department’s service lines, to agree changes and improvements. It does not investigate individual cases. The SCP is made up of the Department’s most senior leaders, including the Permanent Secretary and all Directors-General. It is chaired by a non-executive Director, includes the Independent Case Examiner, and the Department’s Chief Medical Advisor who joined the panel in 2023.[7]The DWP’s Internal Process Review (IPR) Team undertakes IPRs so the DWP can understand customers’ experiences and ensure that DWP’s people have followed the correct processes. Where this is not the case, the DWP seeks to understand why, to inform future learning activity to improve services.[8]IPRs do not investigate factors contributing to a customer’s death, but IPR’s are conducted when there is a suggestion that the DWP’s actions or omissions may have negatively contributed to the customer’s circumstances, and a customer has suffered serious harm, has died (including by suicide), or where there is reason to believe there has been an attempted suicide.[9]In 2022 individuals in the DWP’s Internal Process Review (IPRs) team highlighted that there was evidence suggesting that errors and process non-compliance issues featured often in the serious cases that they reviewed. They were concerned that a risk might exist in relation to systems being updated inaccurately when a change of address was required.[10]A paper was produced detailing the impact of errors on vulnerable customers with two key areas of concern being DWP’s failure to call customers back and delays or errors in respect of changes of address (the paper).[11]Mr Burt’s team were asked to consider the matter, and he commissioned the quality assurance contribution to the specific section regarding percentage errors in the paper.[12]The aim of the paper was to draw attention to the risk by highlighting the customer impact and potential scale of the issue with a view to getting the Serious Case Panel (SCP) to collectively agree that action needed to be taken to improve processes to prevent reoccurrence.[13]The paper contains ‘trigger words’ used by the Call Listening Alert Service (CLAS). CLAS is, effectively, a safety measure to identify UC journal messages and calls from customers across all DWP services where customers use certain words or phrases. CLAS is a team of people that retrospectively listens to a percentage of phone calls received by the department. These calls are identified by the trigger words. They see if the telephony agent has taken the right action in response to what the customer may have said and if they think the right action has not been taken and there is a risk of harm, they will escalate the case back for action.[14]The minutes of the DWP Serious Case Panel meeting on 12 October 2022 contain the following: “4. The impact of errors on vulnerable customers4.1 redacted, from the Serious Case Panel Team presented a paper detailing the impact of errors on vulnerable customers, with two key areas of concern being our failure to call customers back and delays or errors in respect of changes of address. As this theme had been channelled through the relevant governance forum (as outlined above) the senior leaders accountable for the improvement activity provided the Panel with verbal updates on agreed actions for discussion and endorsement.4.2 John Carter, from Service Planning and Delivery outlined the intended approach to improve our performance on call backs; by utilising existing Management Information and performance discussions, reviewing consistency of approach and service ambitions, and considering how our structures and process design may be improved. Having considered the impact of this issue in serious cases the Panel endorsed the planned improvements and stated a desire to work towards eliminating instances of not calling customers back within agreed timeframes.4.3 Redacted, from the Quality Assurance Team, provided further detail of the planned approach to deliver improvements in relation to change of address. The Panel heard tactical plans to focus leadership and assurance activity on improving performance against existing processes, as well as the outline of a strategic solution in development which will utilise digital capability to reduce the risk of error in this area.[15]The DWP Annual Report published on 6 July 2023 contains the following:
“Serious Case Panel The Serious Case Panel (the Panel) is chaired by a non-executive director and met quarterly throughout 2022-23. The Panel’s purpose is to consider issues and themes arising from serious cases and other insight and agree recommendations to address these. The Panel is currently overseeing the development, impacting and implementation of changes in alignment with the Department’s wider strategic aims including: … • Commissioning improvement activity in relation to our service when a vulnerable customer requires us to call them back to resolve an issue and on reducing errors when a vulnerable customer changes address.” • Commissioning improvement activity in relation to our service when a vulnerable customer requires us to call them back to resolve an issue and on reducing errors when a vulnerable customer changes address.”
[16]The tribunal has taken account of the factual background set out in the First-tier Tribunal decision SSWP v Information Commissioner [2025] UKFTT 00512 (GRC). A witness statement was provided to the First-tier Tribunal by the requestor in that case, Owen Stevens, a welfare rights advisor employed by the Child Poverty Action Group. The tribunal in that case took the following from his 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”. 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”.

Request

[17]On 6 March 2023 John Pring made the following request: Please treat this as a request for information under the Freedom of Information Act. At the 12 October 2022 meeting of the Serious Case Panel, the panel discussed ‘a paper detailing the impact of errors on vulnerable customers’: https://assets.publishing.service.gov.uk/government/uploads/system/up loads/attachment_data/file/1116800/dwp-serious-case-panel-minutes2022-10-12.pdf Please send me that paper.[18]On 4 April 2023 the DWP confirmed that it held the information but required further time to consider the public interest. It said that it considered that sections 35(1)(a), 36(2(b)(i) and 36(2)(b)(ii) applied.[19]On 21 April 2023 Viscount Younger of Leckie provided an opinion as a qualified person.[20]On 4 May 2023 the DWP withheld the information under section 36(2)(b)(ii). The DWP upheld its decision on internal review on 5 June 2023.

Decision Notice

[21]In a decision notice dated 20 November 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 did not consider that the fact that the opinion was obtained outside the statutory timeframe rendered the opinion unreasonable.[23]The Commissioner considered that the nature of the withheld information varied from fairly anodyne information to potential issues and concerns. The Commissioner considered that, in relation to the process of exchanging views for the purposes of deliberation, 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. He noted that the severity and extent of this was relevant not to the reasonableness of the opinion but in assessing the balance of the public interest. The Commissioner concluded that section 36(2)(b)(i) and (ii) were engaged.[24]In relation to the public interest balance, the Commissioner accepted that a safe space is needed for discussion and decision making by the Senior Case Panel, particularly as it handles complicated and sensitive matters such as those relating to welfare and safeguarding. The Commissioner accepted that there was a public interest in allowing DWP the time and space to implement the recommendations made in the paper.[25]The Commissioner considered that this was outweighed by the strong public interest in the timely understanding and scrutiny of the recommendations made to the Senior Case Panel. However, the Commissioner considered that the published minutes and the annual report published on 6 July 2023 did not provide the timely understanding and scrutiny of DWP’s own considerations of where improvements are needed or where policy was not followed. The Commissioner considered that there was greater understanding to be gained from the timely disclosure of information than retrospective scrutiny.[26]The Commissioner said that the paper provided insight and understanding of where DWP acknowledged that errors occur or improvements are required, which would allow scrutiny of whether DWP had taken action. Disclosure would also allow scrutiny of whether the actions taken were sufficient or timely enough.[27]He determined that there was a strong public interest in understanding DWP’s approach to preventing future errors and safeguarding issues.[28]The Commissioner did not attribute significant weight to that fact that the paper was created without any intention to circulate wider than the Serious Case Panel, because public authorities should be aware that information may be disclosed under FOIA.[29]The Commissioner did not accept DWP’s arguments that disclosure could have a negative reputational impact or provide an inaccurate picture because the DWP could provide the relevant context or explanations.[30]In relation to a ‘chilling effect’ the Commissioner noted that the paper contained candid analysis of where the DWP could make improvements, but this is not attributed to any individual. He was not persuaded that disclosure would cause officials to provide lower quality advice in future.[31]The Commissioner considered that there is a strong public interest in disclosing this advice and recommendations to allow scrutiny of the quality of the analysis put to the Serious Case Panel and whether the recommendations are accepted and implemented.[32]The Commissioner recognised that the information was five months old at the time of the request and said that relatively this was not a significant amount of time. He accepted that this increased the public interest in protecting the safe space. However, he did not consider it sufficient to outweigh the significant public interest in disclosure.[33]His conclusions on section 44, 10 and 17 FOIA are not the subject of this appeal.

Grounds of appeal

[34]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.[35]In particular the DWP submitted that:a. The documents are the product of a live and dynamic process of learning lessons, which inherently requires candid consideration of what can be done to improve. It is an iterative process. The prejudice is identified and identifiable.b. The DWP’s conclusions will be the subject of scrutiny because of publication elsewhere in any event, in particular in the annual report.c. The DWP is already subject to a significant amount of scrutiny.d. Timely disclosure of the documents provides nothing more than the DPW’s working progress and cannot be the basis of sound scrutiny because a concluded decision on how best to progress has yet to be taken.e. There is no particular need identified for timely understanding such that the public interest requires disclosure. The prejudice of a modest delay ought to carry little if any weight.f. The protection that the chilling effect and safe space arguments are intended to provide are undermined by the Commissioner’s conclusions. The reasons given for disclosure (that a greater understanding could be gained from timely disclosure than retrospective scrutiny) are the very reasons why the ICO guidance acknowledges the public interest in exempting such documents from scrutiny.g. The DWP ought to be able to engage in important internal discussion and to effectively make decisions, in particular when discussions about sensitive decisions are still live.

The Commissioner’s response

[36]The Commissioner relied upon his Decision Notice.[37]The Commissioner maintained that there was significant value in the requested information being disclosed at the time of the request, rather than waiting for an annual report and/or other information which would unlikely present the same information in the same manner and put the relevant meeting in context. He also noted that the withheld information was discussed at a Serious Case Panel discussion on 12 October 2022, and the request was submitted on 6 March 2023. He noted that nearly 5 months had already elapsed since the Panel had discussed the withheld information. Furthermore he said that 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.[38]The Commissioner submitted that it will be evident to the Tribunal when considering the withheld information the importance of the issues contained therein. He said that 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.

The response of John Pring

[39]Mr Pring sets out his belief that the DWP is resisting disclosure of information on this and other occasions because it does not want its failings published. He also sets out background information on the impact of errors on vulnerable claimants.[40]Mr Pring submits that sensitivity should not prevent disclosure, and gives the example of research in 2015 by Oxford and Liverpool Universities about a link between a DWP programme to reassess people on incapacity benefit and a large number of suicides. That research contained sensitive and distressing information but he says that it was hugely significant in convincing politicians and the public that there were serious problems with the DWP’s safeguarding approach. He submits that it is only by understanding the scale of the problems facing the DWP that people can push for the changes necessary to prevent further deaths.[41]Mr Pring argues that the Serious Case Panel paper details information of vital importance to the public and to the safety of recipients of benefits.[42]He refutes the assertion that this paper could cause additional negative reputational impact.[43]Mr Pring submits that releasing the paper would increase the chances that future decisions by DWP were safe and in the interests of disabled people and other claimants.

The law

[44]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.[45]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.[46]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.”[47]Section 36 is not an absolute exemption.

The role of the tribunal

[48]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

[49]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?[50]Does the public interest in maintaining the exemption outweigh the public interest in disclosure?

Evidence

[51]The tribunal considered an open bundle and a closed bundle.[52]The open bundle included a witness statement from Roger Burt, Head of Quality Assurance within the Customer Experience Directorate at the DWP. Discussion and conclusions

The relevant date

[53]The relevant date, for the purposes of assessing the application of section 36 and the public interest balance, is the date of the response to the request, which is 4 May 2023.

Findings of fact based on Mr Burt’s witness statement

[54]Mr Burt is currently Head of Quality Assurance (QA) within the Customer Experience Directorate at the DWP and has worked for the DWP or its predecessors since 1985.[55]The aim of the paper (the requested information) was to draw attention to a potential risk to vulnerable customers in relation to systems being updated inaccurately when a change of address is required, highlighting the customer impact and potential scale of the issue with a view to getting the SCP to collectively agree that action needed to be taken to improve processes to prevent reoccurrence.[56]DWP want to withhold disclosing the paper because of the figures on Slide 5 and Slide 10 and some words on Slide 9.[57]The paper was used to instigate a frank discussion between a senior group of internal stakeholders in a safe and open environment. This is particularly important in meetings like this where discussions can involve errors made in the operational areas and a need to balance competing priorities in the department’s digital work program.[58]The figures on slide 5 and 10 and the example of a serious case were produced by QA and were included to encourage a frank and open discussion. In relation to the figures, this was proxy data based on a worst-case scenario in regard to failing to action change of address requests.[59]QA only looks at cases where DWP has made a decision on entitlement to benefit when a new claim is made or change of circumstance notified. QA used a small, random sample size from new claims and a change of circumstances to work out the error percentage within these cases in relation to failing to enact change of address. All types of address errors are included and can occur because, for example, there is a typo or because DWP have been advised of a new address and not put it on the system.[60]The sample size relating to the Employment Support Allowance (ESA) benefit line, which had a caseload of 1,673,969, was 580 cases of which there were 66 cases identified that had an error in relation to change of address. This equated to 11.38% error rate. This illustrates the relatively low numbers used for sampling as the cases with a change of circumstances are an extremely small proportion of the benefit population as a whole and not representative of the full benefit population as the majority will not have any change of circumstances.[61]DWP analysts have advised that the figures are not ‘legitimate’ for the purpose of sharing beyond the intended audience. In the tables on Slide 5 and Slide 10, the benefit caseload figure is accurate and the percentage error rate is accurate in relation to the sample size. The potential volume of errors, however, is not accurate as it relates to the whole benefit population for that (ESA) benefit line. It would have been more accurate if the percentage error had been applied to the smaller number of cases where there has been a change in circumstances or a new claim.[62]That is why the heading in the right-hand box in Slide 5 and Slide 10 says volume of potential errors, it represents the worst case scenario i.e. if everyone in the caseload notified a change of address, we could expect this many to be wrong. It is not written on the slide but was verbalised on the day.[63]Mr Burt says that is where the risk with releasing this information as a document lies; without explanation it would be taken out of context. He says that in what they considered was a safe space to discuss the issue, and without any statistically valid data available to evidence it, they used a proxy to make the point, which it did.[64]He says that the sample was not designed to provide an estimate for the whole benefit population. He says that applying the proportion of incorrectly actioned change of addresses from the sample to the whole population will not provide robust estimates of the volume of potential errors since there is a large proportion of the benefit population that will not have had a change of address. He says that DWP would never publish this information because it is unreliable, and it would mislead the public.[65]In relation to the words on slide 9, Mr Burt says that if the CLAS trigger words were to enter the public domain, this could drive negative behaviours with customers using the key words to escalate their cases. He says that there is a real and significant risk to the most vulnerable customers, who are in genuine need, being lost in the increased number of customers using trigger words to gain priority.[66]The discussion at the SCP meeting was constructive, producing a range of actions and proposals, including strategies and technologies new to DWP, as well as suggestions for redesigning processes training materials, and addressing cultural or structural issues within DWP. Panel members with private sector experience compared practices, noting that callbacks may be treated as failure demand with quality control and coaching as enablers. The meeting considered how organisational design affects culture more broadly and reached some agreements on next steps including ongoing assurance measurement of the areas concerned with QA reviewing performance every six months.

Was the qualified person’s opinion reasonable?

[67]The qualified person in this case is Viscount Younger of Leckie, Parliamentary Under-Secretary of State for Work and Pensions (in the Lords).[68]The signed record of the qualified person’s opinion in the open bundle specifies that the subsection of section 36 being applied is section 36(2)(b)(i). There is a different version of the record of the qualified person’s opinion (originally included in the closed bundle). This version is also signed which includes all subsections of 36 in the box ‘sub-section of section 36 being applied’ under the statement ‘[drafter to delete as appropriate]’. It is not clear to us why there are two versions, but the DWP should ensure that the appropriate subsection is identified correctly and that this is done before the record is signed by the qualified person. Otherwise it is unclear which section the opinion relates to.[69]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.”
[70]The submission to the qualified person deals with section 36(b) as a whole, stating that ‘information is exempt under the terms of section 36(2)(b) of the FoI Act, if in the reasonable opinion of a qualified person (a Minister), disclosure would, or would be likely to, inhibit the free and frank provision of advice, or the free and frank exchange of views for the purpose of deliberation’.[71]Given that the attached submission clearly addresses sections 36(b)(i) and (ii), and only those sections, we are prepared to assume that the qualified person, having read the submission, gave his opinion in relation to sections 36(b)(i) and (ii), whatever the record of her opinion (in either version) says.[72]The tribunal’s task is to 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.[73]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.[74]The submissions described the information identified as falling within the scope of the request as containing:
‘a narrow, informal snapshot of information relating to some errors which may impact on the experience of some of our customers, as well as case-specific information. Furthermore, the extrapolated figures quoted in relation to error rates were approximate calculations and have not undergone the usual analytical rigour to be expected before making such information public. The purpose of the paper was to stimulate a discussion at the Serious Case Panel, leading to specific actions for improvement.’
[75]The submission said that the minutes of the meeting, published on gov.uk, give a broad overview of the areas the Department is focussing on and said that the intention is to publish further details, once improvements have been implemented, through the relevant year’s Annual Report and Accounts. The submission stated that in the meantime 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.[76]Under the heading ‘discussion of the harm release could create’ the submission states the paper in question relates to information, including error data, that was put together without the intention to circulate wider than the immediate audience (the SCP). It states that it was used to instigate a discussion between a senior group of internal stake holders in a safe and open environment and that the discussions were imperative in DWP’s ability to develop and improve processes and policies in DWP and the services offered to claimants. The submission says that the disclosure of the paper 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.[77]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) in this case and withhold the information’.[78]We accept that the qualified person is particularly well-placed to make the assessment in question and has seen the information itself. There is no need for the resulting prejudice to be of a particular severity or extent for the opinion to be reasonable. For those reasons, we have reached the view that the qualified person’s opinion is reasonable, although we have a number of concerns about the qualified person’s opinion which affect the weight that we place on that opinion in the public interest balance. These concerns are:a. The subsections relied on in the signed record of the opinion are either wider or narrower than those addressed in the submission (depending on which is the correct version). This creates uncertainty as to whether the qualified person had the subsections 36(2)(b) (i) and (ii) in mind.b. The submission contains detailed analysis of the public interest and asks the qualified person to authorise the use of section 36(2)(b) on that basis, which makes the basis of the opinion unclear.c. The arguments before the qualified person, set out in the submission, are almost entirely generic. To illustrate this, we note that they mirror almost word for word the submission made to the qualified person in relation to different information, produced for a different purpose, considered by the tribunal and extensively quoted from in EA/2024/0019.d. Of the two particular pieces of information focussed on by Mr Burt, only one, the figures, was briefly referred to in the submission to the qualified person, and the other, the trigger words, was not referred to at all.e. To the extent that the opinion was based on a broad assertion of a chilling effect, the submission does not address in a properly reasoned way (or at all) the matters identified by Charles J.f. To the extent that the qualified person’s opinion relied on the figures, it is undermined by the matters set out below.g. To the extent that the qualified person’s opinion relied on the trigger words it is undermined by the matters set out below.

Public interest

[79]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 Burt, who has significant institutional expertise. For the reasons set out above, the weight we attach to the opinion of the qualified person is reduced. We did not have the opportunity to hear oral evidence from Mr Burt or to ask any questions. His evidence, in particular as to the likely prejudice, was not subject to cross-examination. That reduces the weight of his evidence. We address below Mr Burt’s evidence on the specific pieces of information said to be likely to give rise to prejudice.[80]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 weight in the public interest balance.[81]In relation to the figures, it is clear from the withheld information that these figures are provided as part of a paper presented to the Serious Case Panel to illustrate an issue and to stimulate discussion. The figures are headed ‘volume of potential errors when scaled up’. The risk of misunderstanding can be mitigated by accompanying disclosure with an explanation along the lines of that set out in Mr Burt’s witness statement.[82]In our view there is a very low risk that an official charged with preparing a paper for discussion at the SCP would be deterred from providing the figures that best illustrated the issue or that he or she would be inhibited in the provision of free and frank advice or views by the fact that we had ordered disclosure in this case.This is reinforced by the fact that the DWP was content to include some of the figures in Mr Burt’s open witness statement.[83]In relation to the ‘trigger words’ we are not persuaded that there is any more than a minimal risk that a very small number of claimants who were not vulnerable would attempt to use the key words. We adopt and agree with the conclusions of the tribunal in SSWP v Information Commissioner[2025] UKFTT 00512 (GRC) on this point. 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 (in this appeal) or in any publicly available information that using a key word would lead to a claimant’s application for benefits being ‘escalated’ or accelerated.[84]The tribunal in that case had the benefit of oral evidence from Robert Currens, Advanced Customer Support (ACS) Deputy Director at the DWP. We note that the tribunal found that ‘Mr Currens was, in our view, unable to satisfactorily explain what the perceived benefit to claimants would be in using the key words’.[85]There is similarly no satisfactory explanation before us of the perceived benefit. We find that the risk that an official would, in future, be deterred from providing frank advice or free and frank views on the basis that these trigger words had been disclosed is very small.[86]Overall, 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 in relation to ongoing or live discussions is low. We accept that there is a need for a safe space. Free and frank discussions about the paper took place at the SCP meeting. They were constructive and produced a range of actions and proposals. There were some agreements on next steps including ongoing assurance measurement of the areas concerned with QA reviewing performance every six months. Having reviewed the content of the paper, and given that actions and proposals had already been produced, we are not persuaded that release of this briefing paper at the relevant date would have any significant negative impact on any ongoing discussions.[87]Given our findings above on the particular information highlighted by Mr Burt, and having read the remainder of the paper, we are not persuaded that there is any more than a minimal risk that disclosure of the paper would cause officials to alter their behaviour in future.[88]We give appropriate weight to the opinions of the qualified person and Mr Burt. However bearing in mind the limitations set out above and our assessment of the likely extent and severity of the prejudice, we find that the prejudice carries no more than moderate weight in the public interest balance.[89]In our view, there is an extremely strong public interest in the public being able to contribute to an informed debate and hold the DWP to account in its treatment of vulnerable claimants, and in scrutiny of the action being proposed or taken in that area. At the date of the response to the request, the DWP had already produced a range of actions and proposals and reached some agreement on next steps including the QA reviewing performance every six months. This paper will contribute to the public’s ability to scrutinise and hold the DWP to account in its actions from an informed position.[90]The public interest in disclosure of this particular paper is reduced to a small extent by the information that would later be published in the annual report, but, as is the nature of an annual report and therefore as would have been expected at the relevant time, the annual report contains a short high level reference to the issue which is of much more limited value in contributing to informed debate and the public’s ability to hold the DWP to account. The minutes of the meeting are similarly brief.[91]For those reasons, we are satisfied that the public interest in disclosing the information outweighs the public interest in maintaining the exemption and the appeal is dismissed. Signed Date: Sophie Buckley 6 March 2026