Department for Work and Pensions v IC and FZ GIA 2568 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 15 July 2014 |
| Neutral Citation | 2014 UKUT 334 AAC |
| Subject Matter | Information rights |
| Respondent | IC and FZ |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 2568 2013 |
| Appellant | Department for Work and Pensions v IC and FZ |
IN THE UPPER TRIBUNAL Appeal Nos. GIA/2560/2013
ADMINISTRATIVE APPEALS CHAMBER GIA/2568/2013 & GIA/2569/2013
Before: Upper Tribunal Judge Wikeley
Attendances:
For the Appellant: Mr Andrew Sharland
For the First Respondent: Mr Robin Hopkins
For the Second Respondent: No attendance or representation
DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeals.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 17 May 2013 (Appeal Nos. EA/2012/0207, EA/2012/0232 and EA/2012/0233) in relation to the Appellant’s appeals against the Respondent’s Decision Notices FS50438037, FS50438502 and FS50441818, does not involve any error on a point of law.
REASONS
Introduction
1. Governments of all political persuasions have for many years operated schemes designed to improve the job prospects of long-term unemployed people. In the past, claimants’ participation in such schemes was typically voluntary. Historically such welfare arrangements were managed and delivered “in-house” – so, for example, the former Department of Health and Social Security (DHSS) used to operate “re-establishment centres”, designed to inculcate the habit of regular employment in those claimants who had been out of work for a long time.
2. The modern welfare state is very different. The new buzzword is “conditionality”. Claimants may have to comply with various mandatory conditions, such as participation in work experience schemes and other arrangements, in order to continue receiving benefit. Critics and commentators alike refer to such schemes as “workfare”; I use that term by way of shorthand simply for convenience. The institutional architecture is also very different. The monolithic DHSS is no more. Instead, the Department for Work and Pensions (DWP, or here “the Department”) delivers such schemes through a market-based network of contractors, sub-contractors and “placement hosts” (i.e. charities and companies with whom unemployed people are placed for work experience). This obviously has the potential to raise difficult issues of accountability and transparency.
3. The present appeals concern requests made to the Department under the Freedom of Information Act 2000 (FOIA) to disclose the names of charities and private sector companies participating as placement hosts under certain workfare schemes. The Information Commissioner and the First-tier Tribunal (“the Tribunal”) both decided that the Department should disclose the names of the placement hosts in question. The Department now appeals to the Upper Tribunal against the Tribunal’s decision. I dismiss the Department’s three joined appeals for the following reasons. I start by setting out the background.
The original FOIA requests and the complaints to the Commissioner
4. In January 2012 the Department received three FOIA requests from Mr Kelly, Mr Naysmith and Mr Zola respectively. Each request sought the disclosure of the names of those organisations engaged in the delivery of certain workfare schemes in particular parts of the country. The schemes in question were Mandatory Work Activity and the Work Programme.
5. According to the gov.uk website, “Mandatory Work Activity (MWA) is intended to help claimants move closer to the labour market, enabling them to gain the discipline and habits of working life, such as: attending on time regularly; carrying out specific tasks; working under supervision while delivering a contribution to the community.” MWA is designed to assist Jobseeker’s Allowance (JSA) claimants who have been out of work for a long time and who would benefit from a short period of such activity. Placements last for 4 weeks at up to 30 hours a week and must be of benefit to the local community (and must not displace paid jobs), so they tend to be with charities or other not-for-profit organisations. Claimants are not paid for their work but continue to receive JSA, subject to the usual conditionality requirements, and so are at risk of sanctions for non-compliance.
6. The Work Programme (WP) is designed to assist long-term unemployed people, or those at risk of long-term joblessness. It is intended to provide such individuals with personalised work-focussed support. Referrals are for a two-year period, and at different stages the programme may include support, training and work experience. Most participants are JSA or Employment and Support Allowance (ESA) claimants and are required to engage with the WP, again with possible exposure to the sanctions regime. Both large private sector companies and smaller organisations are involved in the delivery of the Work Programme.
7. Until the requests in issue here, the Department had been releasing the names of placement hosts in response to FOIA requests. A pressure group, “Boycott Workfare”, had been established in 2010 and its website included a list of companies and other organisations involved in the delivery of workfare, complied (at least in part) from these FOIA responses. Campaigners engaged in what the Department described as “aggressive targeting”, using various tactics to encourage companies and charities either to withdraw from, or not to become involved in, schemes such as MWA and WP. In addition, in January and February 2012 the Guardian newspaper published a series of critical articles about workfare schemes.
8. In February 2012 the Department refused all three requests, taking the view that disclosure of the requested names would prejudice its commercial interests or the commercial interests of those delivering services on its behalf. It thus relied on the exemption in section 43(2) of FOIA.
9. All three requesters made complaints to the Information Commissioner. In the course of the investigation that followed, the Department obtained an opinion from a minister (the Rt Hon Christopher Grayling, then Minister for Employment) that disclosure of the names involved would prejudice, or be likely to prejudice, the effective conduct of public affairs. The Department accordingly also sought to rely on section 36(2)(c) of FOIA.
10. In August and October 2012 the Information Commissioner issued three virtually identical decision notices (FS50438037, FS50438502 and FS50441818). The Commissioner concluded in each case that (i) section 43(2) (commercial interests) was not engaged; and (ii) section 36(2)(c) (prejudice to effective conduct of public affairs) was engaged but the public interest balance favoured the disclosure of the information sought.
The joined appeals to the First-tier Tribunal
11. The Department appealed all three decision notices to the Tribunal, which sensibly joined the three appeals. For reasons that need not concern me, Mr Kelly and Mr Naysmith were not added as parties. Mr Zola was joined, but took no part in the hearing (nor indeed did he take any active part in the Upper Tribunal proceedings, but that is his prerogative). In reality, battle was joined at both tiers between the Department and the Information Commissioner.
12. In terms of the public interest balance, and as regards the qualified exemption under section 36(2)(c), the Department’s case was summarised thus (as it applied to the MWA disputed information):
“When all the relevant evidence is considered, it will be clear that the public interest in maintaining the exemption was very great indeed – put simply, disclosure of the information in relation to the MWA scheme would have been likely to have led to the collapse of the MWA scheme, with incalculable losses to the taxpayer and many thousands of persons in long-term unemployment who are supported by the scheme” (Department’s grounds of appeal to the Tribunal at paragraph [50]).
13. The Information Commissioner was distinctly unimpressed by this argument:
“The Commissioner respectfully finds it implausible that such a national catastrophe could arise from disclosure of the names of certain charities and private sector organisations that have chosen to participate in and benefit from major national employment schemes. The DWP’s case is essentially that these enormously important national schemes can only operate if the identities of the participating organisations are kept secret. The Commissioner is not persuaded. There may well be some prejudice to the operation of the scheme, but the Commissioner does not agree that these interests in maintaining the exemption at s.36(2) are as weighty as the DWP says they are” (Commissioner’s skeleton argument to the Tribunal, paragraph [57]).
14. At the Tribunal hearing on 3 May 2013 the Department presented documentary evidence which it had not produced before the Information Commissioner – survey responses, correspondence from contractors opposed to disclosure and material relating to three charities that were or had...
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