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PIP appeal and cared for clients papers in the bundle
Hi all
I’m currently prepping a PIP appeal case, our client also claims CA for her adult son and is also his appointee. DWP have included the sons PIP2 claim form and his PA4 medical assessment in our clients PIP appeal papers. Has anyone come across this before as I wonder if its potentially breaching Data Protection? Any views on how to respond appreciated as my view is to ask TAS to remove them?
cheers
Natalie
Presumably DWP is arguing that the caring responsibilities undertaken by the claimant contradict her own stated needs and the papers relating to the her son demonstrate this?
yep that’s exactly what they are saying by referencing his PIP medical and then stating ” the tribunal may wish to explore this further” ..
yep that’s exactly what they are saying by referencing his PIP medical and then stating ” the tribunal may wish to explore this further” ..
We have a similar case (client is under the CMHT, gets CA for caring for partner he has severe mental health issues), in which they have have offered to include the PIP 2 if the ‘tribunal may wish to explore this further’. In the sub we wrote we note the DWP have not offered the medical evidence used in deciding partner’s PIP claim, along with the PIP 2.
The DWP like to trot out the old ‘you claim CA for looking after someone, so you can’t be that disabled yourself’ argument from time to time. On occasion, it can have some merit - if, for example, a person is claiming to have substantial physical disabilities yet is caring for someone who only has physical disabilities. But even then, they could be providing supervision, for example being ready to call an ambulance if a person has a fall.
The important thing to remember is that caring is not defined for CA, so it isn’t restricted to a specific type of care (for example, it can be needs other than those set out in PIP daily living activities or DLA care component). I would set out what the client does for her son, and (hopefully) explain how this is completely consistent with the level of disability you are arguing for your client.
I would say that the DWP sharing the information of the son is completely inappropriate, regardless of whether the appellant is the appointee. Despite the fact that she knows about the details of his claim, the Tribunal don’t, and even though she is the appointee it doesn’t mean that his right to privacy (from a Tribunal) is therefore somehow disregarded. I suppose you don’t want to be seen to trying to actively hide this info from the Tribunal because you think it undermines the case (although I’d hope a Tribunal wouldn’t see it this way), so perhaps seeing if the son is happy for the info to be shared would be a good way forward, and only asking for it to be removed if he is unhappy about it (if he has capacity - just because he can’t manage his finances doesn’t mean he can’t make a decision about this). But I would suggest a complaint to the DWP about them sharing it without consent anyway, because they shouldn’t have done it.
I would put in a request/submission asking for a copy of what the son was told about how his data could be shared to start with and for that to be put into evidence. A judge’s direction may assist there too.
After that my focus would be on the DWP submission. “... the tribunal may wish to explore this further” is disingenuous. Is the decision under appeal based upon the fact that the claimant cares or is it not? If there is nothing in the sub then the sons PIP 2 presumably wasn’t used in determining the matter under appeal. Why then is it appearing? That seems to me to be DWP wanting to have their cake and eat it.
“IF claimant x turns out to be entitled when we said not then here’s another argument. We’ve not looked at it but you might want to!”
At that point I’d be asking for directions including perhaps the papers being withdrawn; the offending documents being removed and the appeal being given to a panel who have not had sight of the PIP 2.
There are risks associated with asking for directions for it to be removed. You risk drawing more prominence to the issue than it deserves (plenty of Tribunals are going to be happy enough not going down this particular “rabbit hole” if left to their own devices). You also risk the situation where it is removed from the papers, but then that leaves the Tribunal wondering “why was it removed?” There might be an argument that you are better off tackling it head-on.
As to data protection, it may well be that this is a data breach (not really my area). Certainly, the DWP will regularly argue that data protection is an argument for not providing third party information which would help claimants. But the fact that the information may have ended up in the Tribunal’s hands unlawfully isn’t necessarily to say it should be excluded.
And of course, if you do get it excluded - the Tribunal will still be able to ask your client about what they do in terms of care at the hearing,
(I have seen cases where the DWP has directed that third party info be included in the bundle - there’s a provision somewhere which says that if information is provided pursuant to a court order then it’s not a data breach).
I agree with Mike that “The Tribunal may wish to explore this further” is a disingenuous and somewhat spineless submission. If they want to make an actual argument based on the contents of the documents, that’s one thing but just throwing it in there and leaving it to the Tribunal to sort out is very poor form.
Tricky one. Not sure there is a “one size fits all” answer.
To be clear, I would never ordinarily ask for documents to be removed from appeal papers as the modern approach is very much that evidence is included and weighted. In this instance I would ask for a specific direction
1) removal of the documents absent their being raised as part of the decision makers rationale.
2) crucially, that the revised bundle is given to a different panel to that to whom they will have already been sent.
Asking for 1 without 2 is not a road I’d go down as it would clearly give the matter more prominence as you say Elliot. A new tribunal however should have no clue that the documents have been removed as, after all, the sub wouldn’t mention the issue.
Absolutely agree that there’s no one size fits all though. I have recently pursued one as per the above. The papers were removed on direction albeit after some toing and froing but the consequence of that was that DWP suddenly stepped in and made an offer. As ever, said offer fell short of what was appropriate in terms of award length but the client was happy enough to accept.
Thanks everyone you’ve given me a lot to think about in terms of what’s best in this case!
cheers
Natalie
I would put in a request/submission asking for a copy of what the son was told about how his data could be shared to start with and for that to be put into evidence. A judge’s direction may assist there too.
After that my focus would be on the DWP submission. “... the tribunal may wish to explore this further” is disingenuous. Is the decision under appeal based upon the fact that the claimant cares or is it not? If there is nothing in the sub then the sons PIP 2 presumably wasn’t used in determining the matter under appeal. Why then is it appearing? That seems to me to be DWP wanting to have their cake and eat it.
“IF claimant x turns out to be entitled when we said not then here’s another argument. We’ve not looked at it but you might want to!”
At that point I’d be asking for directions including perhaps the papers being withdrawn; the offending documents being removed and the appeal being given to a panel who have not had sight of the PIP 2.
reading this post got me thinking further.
Where does the DWP have permission to go and trawl through some other claimant’s records, when dealing with an application for PIP by someone else?
clearly if we were talking a means tested benefit where living together issues were relevant, you could see why they would etc and i should think there is some authority about that
but for PIP? SURELY the son should have been asked permission.
the DWP are wholly useless about data protection - usually far too restrictive and destructive! - but i don’t see how they would have authority for this.
I’d be tempted to approach it separately from the appeal.
You could contact the DWP DPO and see what they have to say about it? https://www.gov.uk/government/organisations/department-for-work-pensions/about/personal-information-charter#dpo
Hi all
I’m currently prepping a PIP appeal case, our client also claims CA for her adult son and is also his appointee. DWP have included the sons PIP2 claim form and his PA4 medical assessment in our clients PIP appeal papers. Has anyone come across this before as I wonder if its potentially breaching Data Protection? Any views on how to respond appreciated as my view is to ask TAS to remove them?
cheers
Natalie
It does potentially breach data protection but there are exemptions and the one for “Information required to be disclosed by law or in connection with legal proceedings” applies here. More details are at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/
Hi all
I’m currently prepping a PIP appeal case, our client also claims CA for her adult son and is also his appointee. DWP have included the sons PIP2 claim form and his PA4 medical assessment in our clients PIP appeal papers. Has anyone come across this before as I wonder if its potentially breaching Data Protection? Any views on how to respond appreciated as my view is to ask TAS to remove them?
cheers
Natalie
It does potentially breach data protection but there are exemptions and the one for “Information required to be disclosed by law or in connection with legal proceedings” applies here. More details are at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/
Surely if it was “required” it would have been happening long before now?
I have a general response to the dwp innuendo in the submission re the appellant being a carer that usually sees tribunals blank the issue. id imagine most here will have similar versions.
this though I think is a step beyond that again and needs challenged for all sorts of reasons.
id be in favour of going down the direction route to get it removed and sent to a new panel that hadn’t seen it.
this is pretty appalling stuff from the dwp and creates all sorts of issues.
It does potentially breach data protection but there are exemptions and the one for “Information required to be disclosed by law or in connection with legal proceedings” applies here. More details are at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/
yes BUT this is normally where someone is trying to get their own records/data about themselves.
here, we are talking about someone getting SOMEONE ELSE’S data without a by your leave from that someone else.
there are of course a load of reported cases about data processing (all pre GDPR) but none, i don’t think, on this particular point
I have to think about these things quite a bit - we have a standard form clients sign telling them what info we are going to get about THAT INDIVIDUAL and who we are going to be giving it to. IF I wanted to get info about ANOTHER INDIVIDUAL - for instance, a family member, this can be relevant to a case (for instance, a dependency case where i need to show life expectancy for a future widow, perhaps a living meso case) - i have to ask THAT OTHER INDIVIDUAL for permission to get that info/data. That is so even though that info is needed for litigation purposes (my client’s court case) (and in any event, no data holder is going to give me the other individual’s data without the other individual’s written permission).
Here, the DWP have a claim by one individual for PIP, which has to be decided on THAT INDIVIDUAL’S disabilities etc.
They clearly want to argue that the individual isn’t as disabled as s/he says because of the care provided to ANOTHER INDIVIDUAL. to show that, they need evidence of what care is provided to the other individual (NOT what care that other individual actually needs, which may be a wholly different and larger thing!), and to relate that to the claimant’s disabilities.
they should ask that other individual for permission if they want that other individual’s data as evidence.
What you could do is write to the ICO and ask them what their view is in this situation. I should be amazed if they said anything other than that the non-party has to give permission.
You could also turn it about. you act for your client, you want to know what the son’s care needs are, you ask for the son’s papers, DWP say no way Jose. you get the son to sign the appropriate form, and they have to say yes - but then you have son’s permission.
As others have suggested, I suspect that the son has better standing for a complaint here than does the mother. Do you also act for the son?
Mother would need to have consented in her PIP1 that:
I understand that the Department for Work and Pensions may use the information which it has now or may get in the future to decide whether I am entitled to
- the benefit I am claiming
- any other benefit I have claimed
- any other benefit I may claim or be awarded in the future.
On one reading of it, the broad wording of this clause is apparently not limited to information about the claimant only, she purportedly acknowledges that the Department can use absolutely any info “which it has now or may get in the future”. This might make it difficult for her to later complain that they used someone else’s information to argue her appeal?
However, the son may have more cause for a complaint. (Incidentally, was his name redacted in the papers?) He might well have signed the standard person-being-cared-for declaration on mother’s CA claim which says “I understand that you will look at details of my claim for [PIP] as part of their claim for Carer’s Allowance”, but that doesn’t explicitly let DWP use his PIP claim form for other purposes, such as his carer’s disability or sickness benefit claims. And I don’t see where her being his appointee changes that.