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Disclosure of personal information relating to appealant’s partner
A PO attended a DLA tribunal where the claimant had stated in the claim pack that she was unable to cook a meal, and her partner did this for her. The PO drew the tribunal’s attention to this statement and then told them that he had checked the DWP computer system and found that her partner was in receipt of the lower rate of the care component for the cooking test. The judge did not respond to this and advised the claimant’s partner who has at the tribunal not to comment. He immediately proceeded to grant the adjournment that I had requested at the beginning.
I am wondering if the PO breached data protection by disclosing information about another person’s benefit entitlement in this way? This information has been recorded in the record of proceedings and so will be seen by the next tribunal. I am concerned that this fact will certainly tarnish the credibility of the appealant’s partner, and by proxy also tarnish her credibility thus undermining her appeal.
I have dealt with the issue of the partner’s entitlement, but would appreciate any advice on the legalities of the DWP disclosing infomation in this way.
Many Thanks
Sara
asides from the disclosure its perfectly reasonable that two disabled people would need help from each other to be able to cook a meal.
asides from the disclosure its perfectly reasonable that two disabled people would need help from each other to be able to cook a meal.
I agree. You could easily have one person who, say, because of hand problems was physically unable to cook but knew how to do and another who because of a mental health ssue was unable to plan and sequence the preparation. One could do it under the guidance of the other.
I’m not sure that it’s disclosure of irrelevant information. That would be out of order. I’m not even sure if its personal information in the context described.
There are no rules on admissibility of evidence and presumably the disclosure is one of fact and not opinion.
It depends on the case and circumstances as pointed out above as it may be entirely proper.
Then again it may be entirely improper.
That would be for the tribunal to decide on this one.
It is entirely open to the DWP to look at the information held on other cases it administers (or, where relevant, HMRC). What may be relevant is the evidence that was given on his claim as to why he could not prepare and cook a main meal. It may be that there is an element of the “cooking test” that he could not do - such as peel and chop fresh vegetables, and he actually prepares the meal for his partner using frozen vegetables. Or he may have said that he could not prepare a meal and his partner (i.e. your appellant) made the meals for him. What is relevant is the evidence given in relation to both claims, not simply the fact that he was awarded the LRCC.The tribunal was right to adjourn, not least so that all the relevant evidence could be put before it. Both parties should have the opportunity to see and comment on the evidence used in both claims, in relation to the current appeal. The tribunal cannot, of course, decide to alter the partner’s DLA, but the DWP may well decide that it is appropriate to revise or supersede the partner’s award. There are a number of possibilities, but in my view, no value or legal argument to say that evidence relating to the partner cannot be relevant and taken into account
On the specific issue of the admissibility of “dodgily” obtained evidence, such evidence is still allowable before a Tribunal - even if another aspect of law has been broken such as the DPA. See, for example, CH/4970/2002 (paras 17+) and CH/4366/2006 (p5 & 9-11). Dorset H/care FT v MH [2009] UKUT 4 (AAC) (aka M3592/2008) may also be of interest in the wider context of what info an authority must / should disclose to a Tribunal (also see CH/32402007).
Thanks for all your replies, especially to Kevin D for the caselaw. In light of this then I guess the question is whether the DWP acted wrongfully towards the partner by disclosing personal information about him , rather than whether the tribunal acted correctly by listening to and recording it.
So the client says in the claim pack that she cannot cook a main meal. Surely the PO is not saying that they have just discovered that the partner gets LRC for the main meal test. Unlikely. More likely is the PO thinking he’ll be Perry Mason pulling out a trump card to win the day on the day. They must have known about this potential conflict of evidence for months and did not nothing about it.
One argument might have been to rely on the caselaw which holds that we can expect everything that should have been done on a claim by the DWP to in fact have been done (sorry, don’t have reference to hand). So that the fact the partner’s DLA had not been reviewed/superseded prior to client’s tribunal can be taken as confirmation that it is correctly awarded.
I suppose the question I’d be asking the DWP now re the partner’s entitlement is what are you going to do about it?
I agree with Kevin regarding the admissibility of his information as evidence. That is a separate matter.
However, as regards his rights, unless disclosure of his personal information is permitted by statute or court order then there is a common law duty of confidentiality to him unless overridden by a public interest defence which would be up to the DWP to demonstrate. His available remedy is to sue for damages. Whether he would succeed or not is a different matter.
See the information commissioners office website: http://www.ico.gov.uk/for_organisations/data_protection/the_guide/conditions_for_processing.aspx
One fair condition of processing information for Data Protection Act purposes is:
•The processing is necessary for administering justice, or for exercising statutory, governmental, or other public functions
Another condition is that the person consents to the processing. The terms of the two declarations in the DLA claim form are such that they couldn’t reasonably be interpreted as providing consent to info being used in another’s person claim/appeal. However, a data processor only has to satisfy one condition so the administering justice condition is the one they’d probably rely on here.
However, further advice states:
Being able to satisfy a condition for processing will not on its own guarantee that the processing is fair and lawful – fairness and legality must still be looked at separately.
Sorry I don’t have the time to look into DPA any further but the above site seems very informative.