DPAC is looking for ESA claimants who have been found fit for work but were unable to get a fit note from their GPs and therefore to go back on the ESA assessment phase while they were appealing.
There could have been 2 reasons for this:
- In August 2017 the DWP changed the ESA65B letter [see footnote] that removed the section that told Doctors (GP) they can continue to issue a fit note when a claimant is appealing an ESA decision, so GPs had the impression that fit notes were not necessary any more for benefit purposes
- and also when the Data Protection Act 2018 (DPA) became law on May 23rd 2018 including the GDPR, the ESA1 claim form and ESA50 and UC50 forms were not amended by DWP to ensure they complied with these new Data Protection rules, which has a bearing on GPs being informed of WCA outcomes
[ Download: ESA65b Letter ]
Background of this request:
Several high profiles cases, reported on in the media[1] [2][3], have demonstrated the negative impact of GPs refusing to issue fit notes to claimants who need them to appeal a fit for work decision. The fit note is absolutely necessary for claimants to be entitled to claim ESA at the Assessment Phase rate while waiting for an appeal (these days, it can take one year or more before an appeal is heard). It had become more difficult because DWP amended the ESA65B letter sent to GPs about their patient found fit for work, and removed the relevant part pertaining to fit notes being needed in case their patient was appealing. Fortunately, thanks to the pressure of campaigners, the ESA65B letter has been amended back to its previous version.
But a second issue persists: Since the introduction of the DPA and GDPR in 2018, which imposes stricter requirements in terms of opt-in consent, the DWP has stopped complying with the Data Protection Act. This has been officially recognised by the Information Commissioner Office (ICO), which ruled that the DWP ‘has not complied with its data protection obligations, because its ESA1, ESA50 and UC50 forms do not provide a way for claimants opt in to the statement’. “I agree to my doctor or any doctor treating me, being informed about the Secretary of State’s determination on limited capability for work, limited capability for work-related activity, or both…” as required by the Data Protection Act 2018/GDPR.
What it means practically is that consent requires a positive opt-in, meaning no pre-ticked boxes, multiple terms and conditions with one signature or other method of default consent.
To give an example, see at the ESA50 form below (click on the picture) :
You have the space for only one signature if you agree with all the multiple terms and conditions and you are not given the opportunity to refuse any of the default options, in particular the “I agree” section about consent for GPs to be “informed” by the DWP about a fit for work decision, using the ESA65B letter. And contrary to the ICO guidance, the consent requests are not kept separate from other terms and conditions and the requirement that ESA claimants are given a choice to opt-in to this “I agree” statement.
In the above example, it means that if you don’t agree with sharing your WCA outcome with your GP, you need to take other steps, like crossing out the section or writing a separate letter to express your lack of opt-in consent. See DPAC’s article in footnote[4]. It is likely that many claimants did not do that and just signed the form.
The GDRP makes it easier and more explicit to refuse consent or withdraw it later. But although the DWP has been told by the ICO that their forms were not compliant with the GDRP, these forms have still not been amended, and we need claimants who suffered a prejudice because of that to make a complaint to the ICO.
Even if you have not suffered a prejudice or other detriment, you could also complain to the ICO as the DWP has not informed you of your new GDRP rights or that, because the way the ESA1, ESA50 and UC50 forms are designed you never know you could refuse for your GP to be “informed” of any WCA fit for work decision.
Footnote
Original
https://www.whatdotheyknow.com/request/79333/response/242864/attach/html/2/ESA%2065B.pdf.html
2017 version
Current
For further information:
https://www.z2k.org/latest/scrap-the-letters-campaign-where-we-are-now/ https://www.whatdotheyknow.com/request/lack_of_claimant_consent_to_send#incoming-1413128
Please specify in your reply ‘For the attention of Anita Bellows’
[1] https://metro.co.uk/2016/12/29/jobcentre-secretly-told-dying-mans-gp-to-stop-giving-him-sick-notes-6349168/
[2] Video https://metro.co.uk/2016/12/29/jobcentre-secretly-told-dying-mans-gp-to-stop-giving-him-sick-notes-6349168/
[3] https://www.google.com/search?q=esa65b&client=firefox-b-d&source=lnms&tbm=nws&sa=X&ved=0ahUKEwjiw72NiqvlAhUJesAKHTcTCx4Q_AUIFigA&biw=1366&bih=618
[4] https://dpac.uk.net/2018/04/you-can-prevent-the-dwp-interfering-in-the-patient-doctors-relationship/
