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Forum Home  →  Discussion  →  Universal credit administration  →  Thread

Reasons we need Implicit Consent or Signed Consent in Full Service

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Andrew Dutton
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Individual who was working falls ill, goes in to hospital unable to move about or speak much.  May just about be able to sign a form but completely unable to use a phone or a computer. No appointee as has not needed one before. Wages drop to SSP level and can’t pay rent in a FSUC area. No existing HB claim. How does this person claim UC without help?

I’m glad to say that DWP responded swiftly to my calls for help and offered to sort something out, but if they had applied their authorisation policy in its stated form they would have refused to respond to me at all. Or, presumably, to anyone else.

Second case - UC refusing to speak to me as claimant has not provided online authorisation - that is because she has no computer and no computer skills, and the local JC+ staff do it for her. Our service is also her rep for ESA and DLA.

It’s just nonsense. This policy benefits nobody.

 

Kelly @ NHHG
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UC claimant not paid any UC for 6 months due to discrepancy between his earnings and figures provided by HMRC (HMRC error resulted in claimant having same NINo as someone else with same name and DOB).  UC payments have now started and a backdate has been requested.  Claimant entered explicit consent in journal on 04/01/2018.  Called UC today 23/01/2018 to request an update on the backdate and clarify what is outstanding from claimant.  Claimant is able to manage his claim but needs assistance with backdate request.

Lesley at the Dundee office told me that she couldn’t discuss the case with me because the explicit authority had been submitted over 24 hours ago.  Lesley was unable to disclose the policy or guidance upon which this decision was based.  I explained that I understand that their internal circulars are not to be disclosed to the public, but those circulars are based on policy/guidance which should be publicly available. She repeated that it’s standard data protection.  Eventually agreed to request a call back to clarify the source of this new policy.

Am I doing something wrong?

Glenys
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I don’t think all internal circulars / guidance are unavailable to the public - we’ve been sent several when we’ve sent a Freedom of Information Request to see documents relating to some UC issues. Takes a while to get a response though.

We asked about this very issue on a FOI -

https://www.whatdotheyknow.com/request/explicit_consent_under_full_serv#incoming-1026265

and the DWP attached as an Annex to their response something they called ” the Universal Credit Consent &
Disclosure guidance. “- this included a section saying:
“How long does explicit consent last for?
Explicit consent is not indefinite. Once provided by the claimant, it only lasts until either:
the specific request for information is resolved or
the end of the Assessment Period after the one in which the consent was given
The consent expiry date must be entered in the claimants profile every time.
If the query remains unresolved at the consent expiry date, the date should be reviewed and
extended to the end of the next Assessment Period if necessary.
The claimant can withdraw their consent at any stage by either:
making an entry on the journal
face to face in a jobcentre
by phone “

EKS_COTTON
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Kelly @ NHHG - yet another example of how the ‘policy’ doesn’t work in practice. 

I called the Information Commissioners office to see where our complaint is - in a long queue of complaints against DWP I was told.

I am afraid the minister believes there are new data risks with UC (although we are still unclear after several letters as to exactly what) and he continues to maintain his position and have power over the situation.

 

[ Edited: 31 Jan 2018 at 06:03 pm by EKS_COTTON ]
dizzymare
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im pulling my hair out! two cases yesterday/today where clients put consent on journal. One operator wasn’t happy as it wasn’t in the right place and though she could see if, she ‘shouldnt really have looked there’! it also didn’t use the word explicit! so she wasn’t happy with that!

second case, client put consent on, but it wasn’t showing. I know she did this as I was with her at the time! I did a conference call but that apparently wasn’t acceptable as customer would have to give her ‘memorable information’ and I would hear it!

Every case that we deal with is taking so long, and there are so many barriers that my stress levels are going through the roof!

Kelly @ NHHG
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Another day, another call to Universal Credit.

Today the representative would not check whether explicit consent had been received unless or until I could confirm where the claimant was born (lucky guess) and the first film she had seen (FAIL). 

My client has had to cancel a number of appointments due to poor mental health, which is why I was calling without her present (which you can imagine, I am avoiding as much as possible).  It is causing me some frustration that I cannot progress on her benefits issues without interrupting her stressful “bad day” to ask her about her early cinematic experiences.

Do we need to fundamentally re-think the way we manage benefit cases?

We can’t store the answers to claimants’ security questions without potentially breaching our own confidentiality and data protection requirements.  So asking for those at the outset for reference throughout the long drawn out case (this one has taken over 6 months so far and still no sign of a response to our MR) is non-starter.

Do we need to start calling the tenant before we call the DWP every time?  Or conference them in every time? What if they don’t pick up? What if they call back later when I’m in the middle of an appointment or calling another claimant I need security details for? I’m struggling to see how we can effectively manage a case load with such stringent requirements?

Dan_Manville
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People might recall a call for evidence I sent round NAWRA and WMWRAG a couple of months ago. That has now crystallised into an inquiry into the lawfulness of explicit consent. We are evidence gathering for Public Law Project and we’re itching to get formal case studies. Could I tempt anyone to do me a case study of the problems you’re experiencing? If so please forward it to me dan.manvilleATwolverhampton.gov.uk

If anyone wishes to discuss how to contribute either speak to me or (subject to my checking of course) I can pass details on and you can discuss it with PLP directly.

 

dizzymare
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Kelly @ NHHG - 01 February 2018 02:29 PM

Another day, another call to Universal Credit.


Do we need to start calling the tenant before we call the DWP every time?  Or conference them in every time? What if they don’t pick up? What if they call back later when I’m in the middle of an appointment or calling another claimant I need security details for? I’m struggling to see how we can effectively manage a case load with such stringent requirements?

that didn’t work for me today. I was told that they couldn’t do it as I would hear the password! I have a meeting next week with my line manager to discuss how we are going to have to change our working practices as our current way of working is now broken ....

Dan_Manville
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SarahJBatty
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Another example of why implicit or written consent needed.

4 weeks ago I visited a man with UC queries.  We decided an MR was needed to challenge the calculation of his UC.  The man has severe mental and physical health problems, is unable to use the internet, great difficulty getting out to access public facilities and in any event had lost his username and password, because of his mental health.

We ran out of time to lodge MR over the phone, as by the time we tried to phone for a second time, we waited for 15 mins and the helpline was not answered and my time was up.  I had written consent but this was no use as MRs lodged by letter do not get looked at.

A JC visit is needed to reset username and password, but in the meantime, the man found his username and password.  We therefore arranged a new visit for today.  Severe weather here means I cant visit today, which means he’ll need to wait till next available appointment, meanwhile no MR requested ...

I know, I know ... there are alternatives - ie he could phone up himself and try to explain a complex legal issue, if I had the tech I could do a conference call, I could send a letter and then argue with them to accept his written consent, I can argue lateness

But its still annoying and time-wasting

Paul_Treloar_AgeUK
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New DWP guidance published on client consent. Haven’t had a chance to read it through yet.

Universal Credit consent and disclosure of information

Andrew Dutton
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I don’t like this -

‘[G]ive the name of the representative and the organisation, including the branch where applicable. If you cannot provide the name of the representative, you need to be as specific as possible, for example you should provide the representative’s job role or team name within the organisation.’

Name the organisation, yes, but NOT an individual – otherwise there will be problems of UC refusing to speak to an organisation when the named individual is not there/is sick/has left. Why would a client know ‘the representative’s job role or team name within the organisation’ if they don’t know the rep‘s actual name????

Or this -

‘Explicit consent does not last forever, it usually lasts until either the specific request is completed or the end of the Assessment Period, after the one in which the consent was given.’
This is far too restrictive, seeing as on average it is taking UC about a month to reply to queries from me, that is if they reply at all. And who defines when the ‘specific request is completed’?

EKS_COTTON
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Absolutely.

Does anyone know what brought about this publication?  And how it was published?  For instance - did it just appear on .gov.uk?

Also - has an UC escalation points document been produced does anyone know?

Paul_Treloar_AgeUK
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EKS_COTTON - 12 March 2018 03:17 PM

Absolutely.

Does anyone know what brought about this publication?  And how it was published?  For instance - did it just appear on .gov.uk?

Also - has an UC escalation points document been produced does anyone know?

At DWP OSEF last week, they said they’ve done this to try and clarify how the procedure should be working in practice, both for third parties but also for DWP staff handling calls. They also said that they’re open to feedback if we can supply examples of where the procedure isn’t working effectively and they will consider changes.

EKS_COTTON
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OK thanks Paul.

Seems like the issue is going round in circles.  They have been supplied with a letter outlining the issues and case studies (see further back in this post) from a group of advice workers.  Was this mentioned?

The case has already been made for a guidance and escalation points document and it was working well (still is) for legacy benefits.

Just seems like a waste of everyone’s time and resources.

Tom B (WRAMAS)
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Paul_Treloar_AgeUK - 05 March 2018 10:33 AM

New DWP guidance published on client consent. Haven’t had a chance to read it through yet.

Universal Credit consent and disclosure of information

3. When DWP can share your information without consent

There are circumstances when DWP can share your information without explicit consent. These are:

court orders
legal gateways
MPs engaging with Universal Credit full service on their constituent’s behalf
public interest

3.2 Legal gateways
There is law which allows your personal information to be shared with an organisation if they are acting in a welfare capacity.

For example, DWP can share a claimant’s information with a local authority (and its welfare rights representative) if they are helping the claimant with Personal Budgeting Support and Universal Support.”

Paul_Treloar_AgeUK
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tbidmead - 13 March 2018 09:30 AM

For example, DWP can share a claimant’s information with a local authority (and its welfare rights representative) if they are helping the claimant with Personal Budgeting Support and Universal Support.”

Gary Vaux from Hertfordshire picked them up on this, from memory it’s the caveat around needing to be involved in PSB and Universal Support that’s presents the problem if you’re an LA rights worker.

Also doesn’t help anyone not employed by a LA WRU.

GWRS adviser
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I can’t imagine there’ll be too many LA Welfare Rights Officers directly involved in PBS and universal support.  I suspect this has been inserted just so they can assert that welfs have not been affected by this change - we (and our clients) definitely have/will be hugely disadvantaged by the change.

Daphne
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It comes from section 131 of the Welfare Reform Act 2012 -

131.—(1) The Secretary of State, or a person providing services to the Secretary of State, may supply relevant information to a qualifying person for prescribed purposes relating to welfare services or council tax.

Paragraph 11 states -

(11) In this section “qualifying person” means–
(a) a local authority;
(b) a person authorised to exercise any function of such an authority relating to welfare services or council tax;
(c) a person providing services to a local authority relating to welfare services or council tax;
(d) an authority which administers housing benefit;
(e) a person authorised to exercise any function of such an authority relating to housing benefit;
(f) a person providing to such an authority services relating to housing benefit; or
(g) a person prescribed or of a description prescribed by the Secretary of State.

So there may be an argument that LA WROs should be able to use explicit consent…

GWRS adviser
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Interesting, thanks Daphne.  So what would be the appropriate route to ensure this interpretation is applied? And could (c) also be interpreted to cover advice services commissioned by an LA?

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Owen Stevens - 13 March 2018 10:45 AM

Interesting, thanks Daphne.  So what would be the appropriate route to ensure this interpretation is applied? And could (c) also be interpreted to cover advice services commissioned by an LA?

i think you need to be on the “appollo list”.

what that is or how or who can be on it is the bit i dont know.  i would just always be asked if i was on it when i called as a council wro.

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Owen Stevens - 13 March 2018 10:45 AM

Interesting, thanks Daphne.  So what would be the appropriate route to ensure this interpretation is applied? And could (c) also be interpreted to cover advice services commissioned by an LA?

I think there’s an argument there Owen - yes. We brought it up at stakeholder’s last week - I guess it may well need a legal challenge - I will get in contact with Public Law Project - https://www.rightsnet.org.uk/forums/viewthread/12427/ - to highlight it for them just on the offchance they aren’t already aware…

And Steven - i remember that confusion with the apollo list but this ‘a person exercising any function…relating to welfare services’ which I think WROs are.

dizzymare
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stevenmcavoy - 13 March 2018 10:57 AM
Owen Stevens - 13 March 2018 10:45 AM

Interesting, thanks Daphne.  So what would be the appropriate route to ensure this interpretation is applied? And could (c) also be interpreted to cover advice services commissioned by an LA?

i think you need to be on the “appollo list”.

what that is or how or who can be on it is the bit i dont know.  i would just always be asked if i was on it when i called as a council wro.

our team are on the appollo list (usually HB staff, our fairer charging WBOs and our line manager got us put on with the WBOs who do assessments for social care) Appollo list does not work in most cases (though I have 2 colleagues who have managed to speak to UC using this method on a couple of occasions, but I have had no success at all)

Peter Turville
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From UC Group Director to MP iro a particular case (the main issue was delayed payment of housing costs to social landlord under APA):

” ..... under the legislation governing Data Protection, we cannot disclose any information about a Universal Credit claim to a thiord party without the claimant providing explicit consent for us to do so.”

OK so nothing new there, but DWP still don’t explain the legal basis for their assertion that UC is different so that under the DPA it means implicit consent cannot apply under UC but can under legacy benefits.

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Peter Turville - 15 March 2018 11:17 AM

From UC Group Director to MP iro a particular case (the main issue was delayed payment of housing costs to social landlord under APA):

” ..... under the legislation governing Data Protection, we cannot disclose any information about a Universal Credit claim to a thiord party without the claimant providing explicit consent for us to do so.”

OK so nothing new there, but DWP still don’t explain the legal basis for their assertion that UC is different so that under the DPA it means implicit consent cannot apply under UC but can under legacy benefits.

DWP official at OSEF was asked if someone could attend a future meeting to explain exactly this point Peter, so maybe we might be enlightened….

Daphne
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Daphne - 13 March 2018 01:22 PM
Owen Stevens - 13 March 2018 10:45 AM

Interesting, thanks Daphne.  So what would be the appropriate route to ensure this interpretation is applied? And could (c) also be interpreted to cover advice services commissioned by an LA?

I think there’s an argument there Owen - yes. We brought it up at stakeholder’s last week - I guess it may well need a legal challenge - I will get in contact with Public Law Project - https://www.rightsnet.org.uk/forums/viewthread/12427/ - to highlight it for them just on the offchance they aren’t already aware…

Alison Pickup from PLP has come back with these thoughts -

I think the key is to consider the prescribed purposes for which s131(1) allows the DWP to share information with local authorities & others. The purposes are set out in The Social Security (Information-sharing in relation to Welfare Services etc.) Regulations 2012 (attached), specifically in Regulation 5. Interestingly, as well as information provided in connection with universal support, the relevant purposes include lots of things which a welfare rights service might be expected to provide advice on such as:

-      Decisions about DHPs

-      Homelessness functions under part 7 Housing Act 1996

-      “identifying, and providing appropriate types of advice, support and assistance to, persons in receipt of a relevant social security benefit who are or may be affected by” the benefit cap or the bedroom tax

-      Providing information to social landlords to help in deciding whether a UC claimant needs “advice, assistance or support in relation to managing their financial affairs” – the only information that can be provided to social landlords for this purpose is that set out at Reg 5(3A) namely the identity of the UC claimant, that they have a tenancy with the social landlord, the date on which they claimed or were awarded UC, the date of the next payment of UC< whether it’s the first payment, and the amount of the housing costs element. Interestingly, this isn’t limited to situations where an alternative payment arrangement is in place


The guidance seems to acknowledge that the DWP can provide information to local authorities under this “gateway” but I’d be interested to hear whether that is happening in practice.

shawn mach
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Some posts from the DWP’s Neil Couling on Twitter after issue raised by Stella Creasy MP:

SC: ... they’ve written to every MP telling them they have to now get ‘explicit’ consent from constituents to raise queries, when parliamentary protocol is clear if someone contacts us we can help them ... [Link to tweet]


NC: Universal Credit:Written statement - HCWS528 - UK Parliament. MPs do not need constituent’s explicit consent to raise issues. See this written statement from 2017. @stellacreasy does this help resolve your query? https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2017-03-13/HCWS528/ [Link to tweet]


SC: HI @NeilCouling your staff team are telling my office we do need this - and why are you excluding the @CitizensAdvice staff from this when will create further backlog of queries for us? Have you trained your staff not to ask MPs for explicit consent as not our experience? [Link to tweet]


NC: Managing risks of wrongful disclosure and protection of claimant data have to be paramount. We can work a system of implicit consent because we have links with MPs offices. The advice sector is too numerous and too dispersed across the country to make a similar approach viable [Link to tweet]


NC: Will follow up with local jobcentre and get this right. For advice sector these special arrangements for MPs can’t safely be operated. Risks of wrongful disclosure of personal data too great. Have written to sector to explain, happy to share that correspondence if desired. [Link to tweet]


NC: Here’s my letter to the advice sector about explicit consent. It ought not to be too onerous a requirement and protects claimants from criminals posing as advisers to harvest personal details @stellacreasy https://www.rightsnet.org.uk/pdfs/UCFS_Welfare_Advisers_20_Jan_2017_rightsnet_upload.pdf [Link to tweet]

 

ClairemHodgson
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he doesn’t get that none of that is of any assistance at all in the various circumstances that advisers have described on here.

Peter Turville
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NC: Managing risks of wrongful disclosure and protection of claimant data have to be paramount. We can work a system of implicit consent because we have links with MPs offices. The advice sector is too numerous and too dispersed across the country to make a similar approach viable [Link to tweet]

NC still hasn’t explained why implicit consent is not viable under UC but is under legacy and other benefits.

https://www.rightsnet.org.uk/forums/viewthread/12784/

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Peter Turville - 08 May 2018 01:33 PM

NC: Managing risks of wrongful disclosure and protection of claimant data have to be paramount. We can work a system of implicit consent because we have links with MPs offices. The advice sector is too numerous and too dispersed across the country to make a similar approach viable [Link to tweet]

NC still hasn’t explained why implicit consent is not viable under UC but is under legacy and other benefits.

https://www.rightsnet.org.uk/forums/viewthread/12784/

Quite - the justification he gives about protecting all the data that is on the online claim is nonsense. If you ring up the UC helpline and they speak to you that doesn’t magically give you access to the online claim - it is only the helpline operator who can see this. The only way that you would get access to the online claim is if the helpline operator gave you the login details - surely the DWP trust their staff not to do this?

Otherwise as has been pointed out over and over all of the information that is on the UC system that could be potentially disclosed is exactly the same as what was on the legacy system that was protected by implicit consent.

It’s so frustrating when the most generous view you can take is that the person in charge of UC simply does not know what he is talking about.