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Reasons we need Implicit Consent or Signed Consent in Full Service

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Paul_Treloar_AgeUK
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Andyp5 Citizens Advice Bridport & District - 20 September 2018 01:45 PM

Attached letter from Esther McVey regarding consent.

The written equivalent of fingers in the ears and “la la la, I can’t hear you…...”...it’s almost childish in it’s tone….

Chrissum
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Err… hasn’t explicit consent always been “easy and instantaneous” over the phone or in person when accompanied by the adviser?

Andrew Dutton
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UC message from client’s journal -

‘Thank you for providing [authorisation] I wish to inform you that you will need to submit the above message every new assessment period. This is due to new regulations that came in in May 2018 to protect your data. If you can resumbit the above message on the 18th of each month, we will be able to keep this active’

I suspect that GDPR does not require this. It seems an excessive demand on the client - and UC will presumably close the entire matter (which is on several levels - an appeal, a complaint about incorrect advice, a request for info about LCW status etc)  if they don’t renew on the dot…..????

Whose interests are being protected here….....?

Mike Hughes
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I wholly agree. DWP approach to consent is backwards. They hold personal data and the claimant consents to the sharing of that data etc. The terms on which the data is to be shared do not, in my view, fall to the DWP to dictate. My consents continue to spell out that my clients are giving consent for the life of the issue or the claim. At some point we’re going to need to JR this and the sooner the better as far as I am concerned.

We now have scenarios where DWP response to suicide threats on online journals is to remind people that they won’t be monitored 24/7 and where explicit consent is effectively withdrawn by DWP where clients are clearly vulnerable.

Daphne
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Have received an email from Emma Cotton at Equity who has been pursuing this with the ICO - she says -

The ICO have finally been in contact with me today.  They are now contacting the DWP regarding the matter and seeking a response from them – specifically on why the working with representatives/escalation points documents cannot be used in UC and highlighting their concern that:

‘… data protection could be brought into disrepute if it appears to be being used by organisations as a barrier to unreasonably refuse customers the representation they require to defend their rights.’

Andrew Dutton
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http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/work-and-pensions-committee/universal-credit-rollout/oral/91853.html

Oral evidence to the Works and Pensions Committee:

See Q733 to Q740

Alok Sharma says that ‘a piece of work is going on’ to identify vulnerable claimants, and that ‘In certain cases we may well have to engage with stakeholders too when we do not know whether someone is vulnerable’
‘The question will be of working with stakeholders to come up with what to do. Do we eventually go together with the trusted stakeholder and knock on
someone’s door, to ensure that we can get them on to the system and they do not suddenly fall out of it?’

Steve McCabe MP asks: ‘Will a councillor be able to phone up the Department and say, “I know this person”? What about a social worker, an MP, or someone from Mind? What are you going to accept as “I know this person is vulnerable and they won’t be able to comply with your conventional processes”?

Alok Sharma responds - ‘That is exactly what we plan to work out during the test and learn phase. We are open to suggestions; we have started the dialogue. I have met Mind and various other people from these groups in the past couple of weeks, and that is precisely what we will try to establish: who is it? Who is the trusted party who can make a judgment, based on the interaction they have had with the individual, that somebody is vulnerable, and what that vulnerability may be?’

Mr Sharma hopes that progress will be made on this by ‘the first half of 2019’.

Now this sounds promising – but does this not require a complete reversal of the ‘explicit consent’ policy and the establishment of ‘trusted parties’ and a definition of who and what they are?

At the moment I feel like a very un-trusted party as in case after case DWP will not respond to me, or are delaying responses because of quibbles over explicit consent, or hiding behind very ‘broad’ interpretations of GDPR.

They are open to suggestions, so Mr Sharma says.

So let’s suggest.

My first suggestion is that DWP talks to social care providers as a matter of urgency.

My second is that a list of trusted stake holders should be established at once, for whom implicit consent applies, and that DWP stops blocking queries from advisers.

Vonny
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But while they are thinking about it, people who cannot manage the conventional processes cannot claim NOW!
https://www.disabilitynewsservice.com/autistic-woman-left-sick-and-broken-by-two-year-universal-credit-delay/

Mike Hughes
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One of my tasks for this week is to get a final version of the minutes of the GMWRAG meeting which took place earlier this month and which featured Neil Couling for several hours. One of the big positives which came out of the meeting was a clear statement about the intent behind explicit consent and what we ought to do if it doesn’t work as per that intent. This was one of three positives from a Q and A session. Please bear with me. I don’t want to say anything until I check my notes against those of the minute taker but it did feel very much a positive and if I’m right I’ll post it on here (plus a link to the minutes) as soon as I can.

CDV Adviser
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Andrew Dutton - 26 October 2018 10:50 AM

http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/work-and-pensions-committee/universal-credit-rollout/oral/91853.html

Oral evidence to the Works and Pensions Committee:

See Q733 to Q740

Alok Sharma responds - ‘That is exactly what we plan to work out during the test and learn phase.

They’ve been testing and learning for 5 years. How long does it take?

Owen_Stevens
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Good news:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/753714/draft-universal-credit-managed-migration-regulations-2018-report.pdf
Implicit Consent
5. We recommend that the concept of ‘implicit consent’ which applies in legacy benefits should be extended to Universal Credit, but with appropriate safeguards in place to ensure that personal data held by the Department are not compromised. This Committee would be willing to work with the Department and other interested parties
to identify what those safeguards should be. This work should be completed, and conclusions published, by the end of March 2019.

Agree to explore options in collaboration with the Social Security Advisory Committee
Because Universal Credit is delivered on a different platform to legacy benefits, and it replaces six major benefits, the approach taken to consent needs to be different. The amount of personal data available on Universal Credit is far greater than the individual legacy systems, meaning that any data breach has far reaching consequences for
claimants. We therefore need to balance consent against this risk.
Where consent is needed it can be quickly given in different ways. For example, claimants only need to put a note in their journal to give consent, this is a far simpler and more straightforward process than in legacy systems. Once consent is given, advisers will work with the claimant’s representatives.
A number of organisations have raised concerns as to whether the implicit consent rules are sufficiently flexible. We therefore, agree to explore options for improving the process of explicit consent in relation to Universal Credit in collaboration with the Social Security Advisory Committee to consider how current practices could be enhanced and to publish a report on our joint conclusions.

Andrew Dutton
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This sudden eagerness to please contrasts starkly with the immovable and unreasonable behaviour we have seen so far.


‘For example, claimants only need to put a note in their journal to give consent, this is a far simpler and more straightforward process than in legacy systems. Once consent is given, advisers will work with the claimant’s representatives.’

Twaddle. They demand a detailed, complicated and time-limited statement and once consent is given they strain every sinew to refuse to co-operate, and claim every request for information is a potential data breach.

Not to mention, of course, the claimants who cannot use online systems, who are forgotten again in the course of this bromide.

Mike Hughes
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I am happy to go on record and now say that at the recent GMWRAG meeting Neil Couling was very clear that consent was as they are now describing and that, as WR workers, we were being encouraged to “stick your elbows out” and complain. Even went as far as to say that any such complaint would be upheld. One of three statements made from which some positivity could be gleaned on the day.

Andyp5 Citizens Advice Bridport & District
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Mike Hughes - 06 November 2018 09:37 AM

I am happy to go on record and now say that at the recent GMWRAG meeting Neil Couling was very clear that consent was as they are now describing and that, as WR workers, we were being encouraged to “stick your elbows out” and complain. Even went as far as to say that any such complaint would be upheld. One of three statements made from which some positivity could be gleaned on the day.

Mike have you got any minutes from the GMWRAG meeting with Neil Couling you are able to share with people South of Fontmell Magna and beyond please e.g. Compton Abbas?

Mike Hughes
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Yes of course. Just going to do a benefits session for Henshaws and then immediately afterwards I’m starting to stitch 5 people’s notes into the official minutes. Once they’re done and uploaded to the site I’ll post here. Certainly lots of detail.

Andyp5 Citizens Advice Bridport & District
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Mike Hughes - 06 November 2018 12:38 PM

Yes of course. Just going to do a benefits session for Henshaws and then immediately afterwards I’m starting to stitch 5 people’s notes into the official minutes. Once they’re done and uploaded to the site I’ll post here. Certainly lots of detail.

Thanks Mike!

Keith S Adviser
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My second is that a list of trusted stake holders should be established at once, for whom implicit consent applies, and that DWP stops blocking queries from advisers.

Totally agree, this would potentially help everyone concerned, consent has always been such a sticking issue between representative organisations and DWP, also HMRC to a certain extent..

Andrew Dutton
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DWP still refusing to give information in case after case after case….

Daphne
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Response from Justin Tomlinson in the House of Commons yesterday to a suggestion that implicit consent be extended to universal credit urgently and before managed migration -

There is real merit in that point. From talking to stakeholders, particularly social housing companies and local authorities, I think that when we can find a way to connect up stakeholders, including the most vulnerable claimants in particular, it increases the chance of making the process as smooth as possible.

Andrew Dutton
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‘There is real merit in that point. From talking to stakeholders, particularly social housing companies and local authorities, I think that when we can find a way to connect up stakeholders, including the most vulnerable claimants in particular, it increases the chance of making the process as smooth as possible.’

[HOWLS]

Welcome as this may be, assuming Mr Tomlinson isn’t going off-script, this will be yet another instance of DWP insisting on a fixed approach and stubbornly refusing all reason and evidence for as long as it possibly can, only to reverse-ferret when the going gets tough.  A further sign that policy has simply not been thought through - properly or at all.

And if DWP is serious that to answer our requests for information would breach GDPR, how does it propose to solve that particular problem?

Mike Hughes
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Andyp5 Citizens Advice Bridport & District - 06 November 2018 02:10 PM
Mike Hughes - 06 November 2018 12:38 PM

Yes of course. Just going to do a benefits session for Henshaws and then immediately afterwards I’m starting to stitch 5 people’s notes into the official minutes. Once they’re done and uploaded to the site I’ll post here. Certainly lots of detail.

Thanks Mike!

Working again on the GMWRAG notes this Thursday/Friday. I am very clear that no-one is going off script here. This is very much the new script.

Ros
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Justin Tomlinson just told W&P Committee that he’s keen to introduce implicit consent asap and that it could be set up as part of initial interview with claimant….

Andrew Dutton
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This is great news, but pace Mike’s coming notes, I remain angry and frustrated.

1. WHY was the previous policy put in place? WHY? And why was it so rigidly enforced, even when the detriment to claimants was clear?
2. I want a post-mortem of the origins and effects of said policy.
3. If our requests for information were a breach of GDPR last week, what stops them being so this week?

Mike Hughes
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Andrew Dutton - 21 November 2018 11:14 AM

This is great news, but pace Mike’s coming notes, I remain angry and frustrated.

1. WHY was the previous policy put in place? WHY? And why was it so rigidly enforced, even when the detriment to claimants was clear?
2. I want a post-mortem of the origins and effects of said policy.
3. If our requests for information were a breach of GDPR last week, what stops them being so this week?

Maybe they’ve tested and learnt :)

“Steps back to avoid swinging punches”!!!

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Andrew Dutton - 20 November 2018 04:29 PM

And if DWP is serious that to answer our requests for information would breach GDPR, how does it propose to solve that particular problem?

by complying with GDPR - effectively, if a client says “i want my records” they have to hand over the records to the client.  they can’t not (well, not without yet another spat with the ICO)

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ClairemHodgson - 21 November 2018 11:58 AM

by complying with GDPR - effectively, if a client says “i want my records” they have to hand over the records to the client.  they can’t not (well, not without yet another spat with the ICO)

Does anyone know whether GDPR has the requirement to supply information in a manner specified by the person making the request?

Is there sope for someone to instruct DWP to give me a copy of their Personal Security Number?

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https://www.rightsnet.org.uk/welfare-rights/news/item/introduction-of-implicit-consent-is-a-bigbig-priority-says-justin-tomlinson

....And your homework for today is:

‘Compare and contrast this statement with the previous statements of Mr N Couling; attempt to reconcile them. Do not swear, but use of the phrase ‘reverse ferret’ is permissible.  List three other areas of UC policy where the DWP needs to reverse-ferret on previously rigidly-upheld policy or practice. You are likely to have a headache at the end of this exercise’.

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“Introduction”

Andrew Dutton
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Q215     Steve McCabe: One other thing I wanted to ask about was you will be aware one of the burdens that local authorities now say they have is that it is quite difficult for them to identify Universal Credit clients because they do not get access to that information. Are there any plans to share that data with local authorities?

Justin Tomlinson: This is an incredibly important point to raise. Obviously under the legacy system of housing benefit, local authorities, because they were administering the housing benefit, had advance notice and then the various support mechanisms could be there. A challenge within UC is that, because of GPDR rules, we cannot automatically data share. It is fair to say if I meet with housing associations, social landlords and various different groups their No. 1 ask is, “If we only had access to identify people, we have additional support that we can do”. I do not think anybody would disagree with that.

We need to get implicit consent. I would, as quickly as possible, like to put into place as part of the initial conversations with work coaches an offer to then put implicit consent in place. If a claimant does not want to that is perfectly their right, it is the whole point of the GPDR. However, I do think it is a real priority for us to do that so we can identify claimants—whether it is to do with the benefit cap or just anything, frankly, to do with UC—so support groups and partnership organisations can then offer their assistance, I cannot see any argument against that at all. In my wish list of things—I understand for the brains behind Universal Credit there are hundreds of requests of what should be the priority—my personal priority is working in that area. I was asked about this in oral questions on Monday and I said, “This is really, really important and it is a big ask of stakeholders”.

‘Q216     Steve McCabe: Presumably “implicit consent” simply means someone has to tick a box or put their signature on something.

Justin Tomlinson: Yes.

Steve McCabe: With all these complicated things with Universal Credit that would be an easy thing, wouldn’t it?

Justin Tomlinson: I would like to see that in the initial conversation and also, for example, in the specific point to the benefit cap. The claimant would be talked through the options in advance, talked through how they can access the health and work programme earlier and so on. Part of that should then be, “Can we then do that?” We all accept the principle that a work coach can help try to renegotiate your rental contract but for a lot of these people they will be with social landlords. They, by and large, have very good, very sympathetic and very supportive teams. I think this is really, really important, not just on the benefit cap but on the wider issues. It is a big, big priority.’

- Now there will surely be more detail to come, but this reads to me as if the Jobcentre will gate-keep the claimant’s giving of consent.  What about those who cannot get to see a work coach? What about the problems that pile up before the person has seen a Work Coach? This ain’t implicit consent as we have known it. By inference, DWP should accept signed authorisations once again, but what if they will accept nothing that is not filtered through the Work Coach??

 

 

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Andrew Dutton - 28 November 2018 08:16 AM

https://www.rightsnet.org.uk/welfare-rights/news/item/introduction-of-implicit-consent-is-a-bigbig-priority-says-justin-tomlinson

....And your homework for today is:

‘Compare and contrast this statement with the previous statements of Mr N Couling; attempt to reconcile them. Do not swear, but use of the phrase ‘reverse ferret’ is permissible.  List three other areas of UC policy where the DWP needs to reverse-ferret on previously rigidly-upheld policy or practice. You are likely to have a headache at the end of this exercise’.

and your essay question to hand in next week:

Explain why GDPR prevents DWP applying ‘implicit consent’ under UC but not ‘legacy benefits’. Illustrate you answer with examples of information that might be routinely requested by advisers under both the UC and ‘legacy benefits.

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Peter Turville - 28 November 2018 04:59 PM
Andrew Dutton - 28 November 2018 08:16 AM

https://www.rightsnet.org.uk/welfare-rights/news/item/introduction-of-implicit-consent-is-a-bigbig-priority-says-justin-tomlinson

....And your homework for today is:

‘Compare and contrast this statement with the previous statements of Mr N Couling; attempt to reconcile them. Do not swear, but use of the phrase ‘reverse ferret’ is permissible.  List three other areas of UC policy where the DWP needs to reverse-ferret on previously rigidly-upheld policy or practice. You are likely to have a headache at the end of this exercise’.

and your essay question to hand in next week:

Explain why GDPR prevents DWP applying ‘implicit consent’ under UC but not ‘legacy benefits’. Illustrate you answer with examples of information that might be routinely requested by advisers under both the UC and ‘legacy benefits.

Quite. The need for explicit consent for UC is, as far as I can tell, simply a policy decision rather than required by law. It long predates GDPR anyway. Having briefly read the DWP’s “Personal Information Charter” (as they call their privacy policy) – available at https://www.gov.uk/government/organisations/department-for-work-pensions/about/personal-information-charter – I cannot see anything in it that would stop them using implicit consent for UC.