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26 November, 2021 Open access

Information Commissioner’s Office upholds complaint about DWP’s failure to provide information on universal credit uplift and decision not to extend it to legacy benefits

Finding that public interest favours disclosure, the Commissioner orders Department to provide information within 35 days

The Information Commissioner's Office (ICO) has upheld a complaint about the DWP's failure to provide information on the Covid-19-related universal credit uplift - that was announced by Chancellor Rishi Sunak on 20 March 2020 - and the decision not to extend it to legacy benefits.

In a decision dated 17 November 2021, the ICO finds that, although the exemptions at section 35(1)(a) and section 42(1) of the Freedom of Information Act 2000 - relating to the formulation of government policy and legal professional privilege - are engaged, the public interest favours disclosing the requested information.

In relation to the formulation of public policy, the decision states that -

'Having taken into account the arguments put forward by both parties the Commissioner has considered the balance of the public interest in this case. She accepts that a significant weight should be attributed to the need for a safe space for government discussion on policy decisions relating to uplifting benefits, taken at a time of crisis in the pandemic. Nevertheless the policy was formulated and announced by the Chancellor before the request for information was submitted. The Commissioner considers that there is a very significant and weighty public interest in understanding why the decisions announced were taken. Members of the public are directly impacted by the policy and those not directly affected are nevertheless entitled to be properly informed as to the equality implications of policy questions which are likely to shape British society.' (paragraph 40)

Turning to the issue of legal professional privilege - relating to the DWP's refusal to disclose any legal advice on whether the decision not to extend the uplift to legacy benefits could be discriminatory - the decision states that -

'In reaching her conclusion, the Commissioner has considered the number of people affected by the decision and the fact that the majority of those affected are entitled to disability benefits and may be financially dependent upon these benefits in the face of increased costs due to the pandemic. She also notes the active debate around the decisions made and the representations made by various bodies including the Social Security Advisory Committee and the Work and Pensions Committee in relation to this, which increases the case for transparency around the decision making process.

Consequently, although the Commissioner has attributed appropriate weight to the in-built public interest in non-disclosure in legally privileged advice, she nevertheless considers that, in this specific case, there is a weightier public interest in allowing the public to examine the information linked to this request which was based on the legal advice given to DWP.' (paragraphs 76 and 77)

As a result of these conclusions, the ICO orders the DWP to provide the complainant with copies of any internal guidance or discussion regarding the universal credit increase and the decision not to extend it to legacy benefits within 35 days of the date of the decision.

The ICO's decision in case IC-47958-R8L1 is available from ico.org.uk