Medical Examination and Letters to Various Organisations

Complaint date: 14 August 2011

The phrase in the advert "you could make the difference that gives someone on incapacity benefit a brighter future" is not honest in that in respect of the recruitment of a GMC registered doctor there is an implicit understanding that the skills of the doctor will be deployed in helping to deliver "a brighter future".

I have uploaded a General Medical Council document www.gmc-uk.org/static/documents/content/Mallios.pdf in which is stated "The GMC initially relied upon both paragraphs 2(a) and 65 of Good Medical Practice. Late in the hearing, the GMC invited the Committee to focus on paragraph 65 since there was doubt as to whether you were providing "clinical care" in the circumstances of this case. The report was provided for the purposes of the DWP and was not produced in the course of providing conventional "clinical care" for Mrs A. The Committee does not consider that paragraph 2(a) of Good Medical Practice is applicable in this case. It is of the view that, on the facts of this case, you were not providing clinical care to Mrs A."

A doctor who attending a recruitment meeting wrote "The message from the recruitment evening was quite clear. We were told: "You are not in a typical caring role. This isn't about diagnosing." And: "We don't call them patients ... We call them claimants."

I suggest the GMC and the Atos recruitment evening provide strong evidence that Atos is not recruiting for the purpose suggested by the phrase "a brighter future" and thus the advert is not honest.

"...Edward Cooper is mistaken that the principle of making the care of your patients does not apply to doctors when they are assessing benefits claimants on behalf of ATOS...

"The first duty of all doctors is 'to make the care of your patient your first concern'. But that is not the only duty doctors must observe. Being open and honest and acting with integrity is also an essential part of medical professionalism...

Dishonesty in writing reports cannot be justified by reference to the first duty of doctors. Further advice on disclosing information for employment, insurance and similar purposes can be found here: www.gmc-uk.org/Confidentiality_disclosing_info_insurance_2009.pdf_27493823.pdf"

    From:     ComplaintsReception@ASA.Org.uk
    Date:     Mon 15/08/11 09:58 
  
    Subject:  Advertising Standards Authority - Complaint Acknowledgement
    

Thank you for submitting your complaint to the Advertising Standards Authority. We will assess your complaint and reply in full as soon as possible.

For information on our procedures and the action we can take on complaints please see our leaflet Your complaint. What happens now? (http://www.asa.org.uk/Complaints/~/media/Files/ASA/Misc/ ASA_Your_Complaint_What_happens_now_mar2011.ashx).

    Should you need to contact us regarding your complaint please quote A11-168732

    The Advertising Standards Authority Ltd, Registered Number 0733214.
    The Advertising Standards Authority (Broadcast) Ltd, Registered Number 5130991.
    The Committee of Advertising Practice, an unincorporated association
    The Broadcast Committee of Advertising Practice Ltd, Registered Number 5126412

    Registered Office: Mid City Place, 71 High Holborn, London, WC1V 6QT
    

Advertising Standards Authority Please Quote: ...

Dear Mr B... 1 September 2011

YOUR COMPLAINT: ATOS ORIGIN IT SERVICES UK LTD

Thank you for your recent complaint regarding the above advertisement. I'm sorry to hear it has caused you concern.

We assess the content of ads and can act if they are, among other things, likely to cause significant harm, to mislead or to provoke serious or widespread offence. Looking at the point you raise, however, I'm afraid we will not be taking further action under our Code. Let me explain in more detail why.

We consider readers would understand that the claim referred to the impact of the assessments made, rather than suggesting that the doctor would personally be assisting the claimant in achieving a "brighter future". The ad states that the role involves carrying out medical assessments and we consider it unlikely that readers would assume that the position was a clinical care role. Overall, we consider it unlikely that the ad would mislead readers to their detriment for the reason you suggest.

I am sorry if you are disappointed but thank you nonetheless for taking the time to contact us. Further information about the ASA and the work we do is available on our website, www.asa.org.uk.

Yours sincerely

...
Complaints Executive
Tel: ...
Email: ...@asa.org.uk
    

Complaint date: 30 November 2011

I would like to complain about the false claims made in the Atos Healthcare website regarding the number of referrals, the number of face-to-face assessments and the grossly false claim about the number of healthcare professionals available.

The website includes the following three paragraphs (images uploaded):

"Atos Healthcare provides independent medical advice to the Department for Work and Pensions (DWP). We conduct disability assessments for people claiming a range of disability benefits including Employment Support Allowance, Incapacity Benefit, Disability Living Allowance and Industrial Injuries Disablement Benefit."

"Each year Atos Healthcare process over 1.2 million referrals for medical advice completing over 800,000 face-to-face medical assessments within our nationwide network of over 140 medical examination centres."

"All our 1700+ healthcare professionals are fully trained to undertake disability assessments. Doctors are registered with the General Medical Council, nurses with the Nursing and Midwifery Council and physiotherapists with the Health Professions Council. All healthcare professionals are approved by the Chief Medical Adviser of the DWP."

If you refer to the DWP statistics (esa_wca_25102011_tables.xls), Table 1 states 1,502,200 referrals / assessments were carried out between October 2008 and February 2011.

In response to a DWP Freedom of Information request made 3 June 2008, the DWP wrote "In March 2008, Atos Healthcare employed 347.8 full time equivalent Healthcare Professionals (this includes doctors and nurses) and 841 sessional Healthcare Professionals (doctors only)."

In response to a DWP Freedom of Information request made 12 August 2011, the DWP wrote "... as of 31 August 2011 Atos Healthcare has 847.24 (full time equivalent) Healthcare Professionals (HCP) undertaking medical assessments."

In summary the facts, as reported to the DWP by Atos Healthcare, are that the number of HCPs was 348 in March 2008 and 848 in August 2011. These numbers are far less than the claimed 1700+ and so are false, a gross distortion and without substance.

I believe Atos Healthcare use these false figures in other advertising material including advertisements, flyers, recruitment material, training material etc.

By misleading potential customers into their capabilities and the assets that they can deploy Atos Healthcare may gain additional customers to the detriment of other honest companies who are truthful of the resources that they can deploy. Atos Healthcare pulled out of a ten year contract for NHS services in Tower Hamlets London after three years for it is believed quality issues.

    From:     ComplaintsReception@ASA.Org.uk
    Date:     Mon 1/12/11 12:49 
  
    Subject:  Advertising Standards Authority - Complaint Acknowledgement
    

Thank you for submitting your complaint to the Advertising Standards Authority. We will assess your complaint and reply in full as soon as possible.

For information on our procedures and the action we can take on complaints please see our leaflet Your complaint. What happens now? (http://www.asa.org.uk/Complaints/~/media/Files/ASA/Misc/ ASA_Your_Complaint_What_happens_now_mar2011.ashx).

    Should you need to contact us regarding your complaint please quote A11-180372

    The Advertising Standards Authority Ltd, Registered Number 0733214.
    The Advertising Standards Authority (Broadcast) Ltd, Registered Number 5130991.
    The Committee of Advertising Practice, an unincorporated association
    The Broadcast Committee of Advertising Practice Ltd, Registered Number 5126412

    Registered Office: Mid City Place, 71 High Holborn, London, WC1V 6QT
    

    From:     ...@ASA.Org.uk
    Date:     21 December 2011 12:36
  
    Subject: Case Ref: A11-180372
     

Dear Mr B...

Further to my below email, we need to clarify a few issues in regards to your complaint.

Referring to your complaint form, you stated that under your FoI requests to DWP you found that the number of full time equivalent (FTE) Healthcare Professionals (HCPs) employed by Atos was 347.8 in March 2008 and 848 in August 2011. However, for the March 2008 figures there was an additional 841 sessional HCPs. In your complaint form, you do not seem to have included the sessional HCPs for 2011 as the total would appear to require both FTE HCPs and sessional HCPs. Could you please clarify whether you agree with us on this point? Furthermore, could you please refer us to your original source of information.

We would be grateful if you could respond by 22/12/2011. If we do not hear from you by this date, then we shall assume that you no longer intend to pursue with your complaint and shall close the matter

Thank you for your co-operation on the matter.

Kind Regards

    From:     ...@ASA.Org.uk
    Date:     21 December 2011 13:20
  
    Subject: Case Ref: A11-180372
     

Dear ...

Thank you for considering my complaint.

The DWP and Atos when reporting to Parliament only ever report Full Time Equivalents (FTE). Companies in financial reporting and in general when reporting human resources available to be deployed always report FTE. I have expert and in depth knowledge of recruitment, personnel and payroll applications and so can confirm that if numbers of employees are stated then FTE can be assumed unless explicitly stated that the numbers are for full time and part time employees. If Atos now claim that the figure of 1700+ is a combination of full time and part time employees, without explicitly stated this clarification, Atos is misrepresenting the human resources that they can deploy. Further assume that each of the 1700 only work one hour per week or alternatively assume each works thirty hours per week, the 1700+ claim is meant to be read as Atos being able to deploy 1700+ full time employees. This is false. Atos should amend the claim to be FTE at a particular date or even better full time FTE and part time FTE at a particular date.

To the best of my knowledge Atos has never provided the 1700+ figure to their customer the DWP and this figure has never been passed to the Select Committee for Work and Pensions or provided to Parliament. The 1700+ figure cannot be substantiated and differs so widely from the figures supplied to Parliament. Please note as part of Contract between the DWP and Atos, the way Atos reports on employee numbers are defined.

In my view the 1700+ claim is false, cannot be substantiated and thus the ASA should request that the website be changed to report the truth.

I look forward to hearing from you.

Highest regards

    From:     ...@ASA.Org.uk
    Date:     22 December 2011 10:36
  
    Subject: Case Ref: A11-180372
     

Dear Mr B...

Thank you for your below response, which we will now review along with your complaint.

We will be in touch shortly.

Kind Regards

    From:     ...@ASA.Org.uk
    Date:     28 December 2011 11:02
  
    Subject: Case Ref: A11-180372
     

Dear Mr B...

We propose to pass your complaint to our Investigations section regarding the claims in the marketing about 1.2 million annual referrals, 800,000 face-to-face assessments and 1700+ healthcare professionals. However, can you confirm that, since you campaign about this subject via your website whywaitforever.com, we have your permission to name whywaitforever.com as the complainant in any published adjudication? Public complainants are not usually named but we do require complainants who have a competitive or campaigning interest to be named. I also need you to confirm that there are no legal actions relating to the subject of your complaint. If you can get back to me by Friday 30 December, or earlier if possible, that would be very helpful.

Regards,

... Complaints Manager

    From:     ...@ASA.Org.uk
    Date:     28 December 2011 15:00
  
    Subject: Case Ref: A11-180372
     

Dear ...

Thank you for your action on this matter.

I am happy to give you permission to name "whywaitforever.com" as the complainant.

I have not regarded WhyWaitForever as having a campaigning interest but purely as a website which publishes facts supported by evidence, my case, Hansard etc, that others, Ministers, Select Committee Members, MPs etc, may use to ensure Statutes, Rules, Regulations and Contracts are complied with. I regard the website as collating relevant information. It is true many campaigning interests do cite and/or copy parts of my website to further their aims. I believe "whywaitforever.com" does not put forward a view on how the Law should be changed though suggestions are made as to how the current implementation of the Law could be improved. In my view there should be no need to lobby or campaign to ensure that the existing Law should be complied with. To paraphrase the Government, openness, transparency and debate are the route to progress.

I confirm that there are no legal actions relating to the subject of my complaint.

I hope the above allows you to proceed. Please let me know if you need further information. Thank you.

Yours sincerely

    From:     ...@ASA.Org.uk
    Date:     28 December 2011 15:14
  
    Subject: RE: Your Complaint ASA Ref: A11-180372 Atos IT Services UK Ltd t/a Atos Healthcare
     

Many thanks Mr B.... As you can appreciate, these are formalities and if we acknowledge at the outset that you have a particular interest in/ knowledge of this matter it helps to avoid any complications down the line. I will pass your case to Investigations and an Investigations Executive will contact you in due course.

Thanks again for getting back to me so quickly.

Regards,

Ref: A11-180372/NM/lb        14 February 2012
                             By post
Dear Mr B...

YOUR COMPLAINT

Thank you for confirming that you do not contemplate legal action in this matter and that you are happy to be named in any published report. We have considered your complaint and we will take it up with the advertisers.

We intend to deal with your complaint under our formal investigations procedure, which means that we will ask Atos IT Services UK Ltd to comment on the complaint and send evidence to support the claims. We will then draft a recommendation and refer your complaint to the ASA Council for adjudication. You will have an opportunity to comment on the recommendation before it is considered by the Council. Once the Council has made a decision, the adjudication will be published on our website.

If Atos IT Services UK Ltd respond to your complaint by offering to change the advertising in a way that resolves your concerns, we may close the case without referring it to Council or publishing an adjudication. This has the advantage of resolving your complaint more quickly. However we resolve your complaint, we will let you know the outcome.

You should have already received a copy of our leaflet "Your complaint. What happens now?" which explains our complaints procedure and what action we may take. If you would like another copy please let us know, or download the leaflet from our website www.asa.org.uk/Complaints.aspx.

Yours sincerely

...
Investigations Executive
...@asa.org.uk
020 .... ....

50 years
Legal, decent, honest and truthful
     

Ref:A11-180372/NM/ld         1 March 2012
                             By post

Dear Mr B...

Your complaint

The attached report is now ready to be sent to the ASA Council. We have based it on the information we have at the moment. If you want to send us more, please do so now.

As you can see from the attached we are recommending your complaint is upheld.

The report is a draft recommendation and the decision and wording will rest entirely with the Council, who may see things differently.

Please ensure you have made all the points that you want to make. We shall consider written comments on the factual accuracy of the draft if we receive them by 8 March Atos Healthcare will also receive a copy of the draft recommendation today.

If we change the draft recommendation materially as a result of comments we receive, we shall tell you. If no material changes are needed, the draft recommendation will be forwarded to the Council for consideration.

We shall write to you again to tell you the Council's decision and the publication date for the final report. Please treat the draft recommendation as confidential until the final report is published.

Yours sincerely

..., Investigations Executive, ...@asa.org.uk

Ref:A11-180372/NM/ld         22 March 2012
                             By post

Dear Mr B...

Your complaint

The ASA Council has now adjudicated on your complaint and agreed with our recommendation that the ad breached the Code.

The attached report will be published on the ASA website, www.asa.org.uk, on Wednesday 4 April and we ask you to treat it as confidential until then. It will be made available to journalists, under embargo, from the Monday before publication. Atos IT Services UK will also receive a copy of the adjudication today.

Thank you for bringing the matter to our attention.

Yours sincerely

..., Investigations Executive, ...@asa.org.uk

ASA Adjudication on Atos IT Services UK Ltd

 
Atos IT Services UK Ltd t/a Atos Healthcare   Date:                 4 April 2012 
                                              Media:                Internet (on own site) 
                                              Sector:               Business 
                                              Number of complaints: 1 
                                              Complaint Ref:        A11-180372 

Background

Summary of Council Decision:

Two issues were investigated and both were Upheld.

Ad

Claims on www.atoshealthcare.com, visited on 30 November 2011, described Atos Healthcare's services. Text stated "... Each year Atos Healthcare process over 1.2 million referrals for medical advice completing over 800,000 face-to-face medical assessments within our nationwide network of over 140 medical examination centres ... All our 1700+ healthcare professionals are fully trained to undertake disability assessments. Doctors are registered with the General Medical Council, nurses with the Nursing and Midwifery Council and physiotherapists with the Health Professions Council. All healthcare professionals are approved by the Chief Medical Adviser of the DWP ...".

Issue

www.whywaitforever.com challenged whether the claims:

1. "Each year Atos Healthcare process over 1.2 million referrals for medical advice completing over 800,000 face-to-face medical assessments"; and

2. "our 1700+ healthcare professionals"

were misleading and could be substantiated.

CAP Code (Edition 12)

• rule 1.7 - Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code

• rule 3.1 - Marketing communications must not materially mislead or be likely to do so

• rule 3.11 - Marketing communications must not mislead consumers by exaggerating the capability or performance of a product

• rule 3.7 - Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.

Response

Atos IT Services UK Ltd t/a Atos Healthcare (Atos) did not respond to the ASA's enquiries.

Assessment

Upheld

The ASA was concerned by Atos' lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and told them to do so in future.

We noted that Atos had not provided evidence to show that each year it processed over 1.2 million referrals for medical advice and completed over 800,000 face-to-face medical assessments, or that it had over 1700 healthcare professionals. We therefore considered that the claims had not been substantiated and concluded the ad was misleading.

The ad breached CAP Code (Edition 12) rules 1.7 (Unreasonable delay), 3.1 (Misleading advertising) and 3.7 (Substantiation).

Action

The ad must not appear again in its current form. We referred the matter to the CAP Compliance team (www.cap.org.uk).

To: Caroline Crouch - Atos PR Manager, UK

Dear Ms Crouch,

Re: Atos Healthcare pulls out of NHS contract

I am concerned at the implications of the report that appeared in the Guardian on the 12 April 2011 (see www.guardian.co.uk/society/2011/apr/12/nhs-privatisation-future-policy).

I may have missed the Atos press release on the matter though I have looked in vain on various Atos websites. Please can you provide me with the view of Atos on this matter. I apologise for the delay in my request as I am seriously ill and the matter has only recently been brought to my attention.

I look forward to hearing from you. Thank you.

Yours sincerely

Lord Patton of Barnes
Chairman of the BBC Trust
Director, BBC Trust
180 Great Portland Street 
London W1W 5QZ 

Dear Lord Patton of Barnes, Chairman of the BBC Trust,

Ref: Censorship of Unum and Atos "negative" news items

I would like to complain that the BBC Trustees are failing in their oversight of the BBC in that, to an independent observer, partial reporting to the benefit of large companies is widespread. Recent events have high lighted that a few senior individuals in many layered hierarchical organisations such as the BBC can have a disproportionate effect on operational decisions. The key question is how many senior individuals are able to censor the information as outlined below. The next obvious question is what contact did these individuals have with the companies mentioned below. As a numerate engineer I estimate the probability of the deletions listed happening by chance is negligible. Clearly if the deletions were requested by the COI or placed under a DA-Notice, I have to accept Government censorship. Is it in the public interest to censor failures in the companies that the Government places multi-million contracts with? Is the BBC a tool of Government censorship? I would be interested in the Trustee's opinions on these questions.

I would like to be assured that there are sufficient independent accounting and audit procedures in place to prevent undue influence by large companies on editorial decisions. I believe the Trustees of the BBC do not influence editorial decisions. I have worked at the Press Association. As a result, I understand the pressures placed on media channels that accept advertising from large companies results in a natural avoidance of being seen to be critical about these large companies. "Never bite the hand that feeds". I am also familiar with the PR technique of "swamping" the media channel with many anecdotal positive stories to counter a detailed heavily researched factual negative story is a well known and widespread technique. The BBC should be immune to such pressure and been seen at all times to be impartial.

I would like you to review recent editorial decisions in respect of Unum (previous names include Unum Provident Insurance" and in respect of Atos Origin (Atos) their predecessor companies and their subsidaries.

In November 2001, there was a Labour conference near Oxford on 'Malingering and Illness Deception'. It was attended by Malcolm Wicks, the then Parliamentary Under Secretary of State for Work, and Mansel Aylward, his Chief Medical Officer at the Department of Work and Pensions (DWP). Unum (previously UnumProvident) was the driving force and was represented by John LoCascio. The work of this 2001 Labour conference resulted in the UK Welfare Reform Act. Unum helped to draw up the rules and regulations. UnumProvident Centre provides funding for Psychosocial and Disability Research based at Cardiff University. The Director of the Centre is Professor Mansel Aylward. This information is not available on the BBC website.

Unum and Atos were engaged by the DWP to work as part of the Technical Working Group which set the implementation details of the Employment Support Allowance which was the substantive part of the Welfare Reform Act 2007. The DWP document "Transformation of the Personal Capability Assessment" dated September 2006 "Annex C - working group and consultative group members" lists as members Sue Goodby and Dr Peter Dewis from Unum and Dr Angela Graham from Atos. It is believed and this has not been denied that the discredited Unum approach used in the US was replicated in the UK. The DWP have recently removed this document from their website.

On the 6 November 2007 the BBC News (Hew Edwards, anchor and Mark Daly, presenter) exposed Unum US practices. I quote from the transcript "...She was awarded $7.5million in damages but allegations of racketeering persisted. Then, in 2005, insurance commissioner John Garamendi declared: "UnumProvident is an outlaw company. It is a company that for years has operated in an illegal fashion." In a unique settlement signed by all 50 States, it was fined $23million USD, ordered to reopen 300,000 denied claims at a cost of half a billion dollars...". The BBC has recently removed this transcript from the BBC website.

BBC Scotland produced a film in May 2010 "Who is Cheating Who". I quote from this film "...Mr Danny Alexander MP found that in practice his constituents were denied allowances unfairly. He had evidence of gross unfairness. He stated that of those who appealed, 40% had their decisions reversed. He believed this high level suggested that there is something fundamentally wrong in the way that ESA has been implemented. Lots of people feel they have been rushed through the assessment and the report had not taking into account the details supplied by the patients...". This film has recently been removed from the BBC Scotland website. I leave the Trustees to search for Unum and Atos on the BBC News websites to judge for themselves.

Unum and Atos have been influencing website hosts to close down critical websites without contacting the website owners to request that the objectionable item be removed. The Carer Watch website which was set up by carers for carers is one example. The Atos withdrawal after three years of a ten year contract for Tower Hamlet GP services and other examples of Atos failures are not available on the BBC website. Judge for yourselves how important are the failures of Atos to the UK economy and society; Dec 2009 Cancer patients threatened, Apr 2009 De Beers sues Atos for millions, Nov 2008 Loss of confidential data, Apr 2007 Patients recalled for scans, Nov 2006 Clinic faces second investigation May 2006 Errors block benefits et al. However the sponsorship by Atos of the London 2012 Olympics is prominent on the BBC. The fact that during the 2009-2010 financial year the DWP paid Atos Origin £150,798,435 (I believe far above budget estimates) is not reported let alone multi-million pound payments paid by other Government departments. Maybe this "Alice in Wonderland" world is difficult to report since the sponsorship is a cost Atos pass on to the Government. Maybe the BBC can investigate why the Government allow Atos to claim to be a sponsor of the London 2012 Olympics when the Government bears so much of the cost.

Unum and Atos are believed to be carrying out a large PR and marketing campaign as they wish to sell Disability Insurance. They are continously recruiting. Their staff retention figures are unknown. Disability insurance covers a lifetime. If Unum and Atos claim to have long and successful track records, given the above this is patently false. If Unum claims to have changed, then it has no track record with their recently amended procedures.

The BBC is charged to be open, honest and impartial. The BBC Trustees exist to ensure that this is the case. I think the above provides strong evidence that the BBC, for reasons unknown, have been and are partial in their reporting of Unum and Atos. I look to the BBC Trustees to investigate, to find the editors who removed the stories and to publish the reasons for suppressing the above and other critical articles. In the opinion of many the above brings the BBC News organisation into disrepute and thus brings the whole of the BBC into disrepute.

I look forward to hearing from you. Thank you.

Yours sincerely

To:      foi@bbc.co.uk
Date:    4 November 2011
Subject: Unum internal documents

Dear Sir,

I am interested in accessing the Unum internal documents that were referred to in a BBC news item broadcast on 6 November 2007. Huw Edwards was the anchor and Mark Daly the presenter. Extracts from the news article are as follows:

Huw Edwards, anchor: A multinational insurance company accused of racketeering and cheating thousands of Americans out of welfare benefits, is giving advice to the British government on welfare reform. A BBC investigation has found that executives from Unum have held meetings with senior Whitehall officials to discuss changes to the benefit system. Mark Daly has this exclusive report:

....

Mark Daly, presenter: The BBC has discovered internal documents revealing that Unum believes it is driving Government policy. The Department for Work and Pensions refused to comment on Unum's past. ...

I would like published on the BBC FOI web site copies of these "internal documents revealing that Unum believes it is driving Government policy". I believe their publication is in the wider public interest in the light of current legislation being considered by Parliament.

I look forward to hearing from you. Thank you.

From:    FOI Enquiries (FOIEnquiries@bbc.co.uk)
Date:    28 November 2011 10:19
Subject: RFI20111353 - your request for information

Dear Mr B...,
 
I refer to your request for information dated 4th November and now enclose our response. 
Kind regards

..., Advisor - Information Policy & Compliance 

BBC Freedom of Information 
Room 2252, BBC White City, 201 Wood Lane, London W12 7TS 
web:   www.bbc.co.uk/foi 
Email: foi@bbc.co.uk 
Tel:   020 8008 2882 

Date: 28th November 2011

Dear Mr B...,

Freedom of Information request – RFI 20111353

Thank you for your request to the BBC of 4th November 2011, seeking the following information under the Freedom of Information Act 2000 (the Act):

I am interested in accessing the Unum internal documents that were referred to in a BBC news item broadcast on 6 November 2007. Huw Edwards was the anchor and Mark Daly the presenter. Extracts from the news article are as follows:

Hew Edwards, anchor: A multinational insurance company accused of racketeering and cheating thousands of Americans out of welfare benefits, is giving advice to the British government on welfare reform. A BBC investigation has found that executives from Unum have held meetings with senior Whitehall officials to discuss changes to the benefit system. Mark Daly has this exclusive report:

....

Mark Daly, presenter: The BBC has discovered internal documents revealing that Unum believes it is driving Government policy. The Department for Work and Pensions refused to comment on Unum's past. ...

I would like published on the BBC FOI web site copies of these "internal documents revealing that Unum believes it is driving Government policy". I believe their publication is in the wider public interest in the light of current legislation being considered by Parliament.

The information you have requested is excluded from the Act because it is held for the purposes of "journalism, art or literature." The BBC is therefore not obliged to provide this information to you and will not be doing so on this occasion. Part VI of Schedule 1 to the Act provides that information held by the BBC and the other public service broadcasters is only covered by the Act if it is held for "purposes other than those of journalism, art or literature". The BBC is not required to supply information held for the purposes of creating the BBC's output or information that supports and is closely associated with these creative activities. 1

You may not be aware that one of the main policy drivers behind the limited application of the Act to public service broadcasters was to protect freedom of expression and the rights of the media under Article 10 European Convention on Human Rights ("ECHR"). The BBC, as a media organisation, is under a duty to impart information and ideas on all matters of public interest and the importance of this function has been recognised by the European Court of Human Rights. Maintaining our editorial independence is a crucial factor in enabling the media to fulfil this function.

That said, the BBC makes a huge range of information available about our programmes and content on bbc.co.uk. We also proactively publish information covered by the Act on our publication scheme and regularly handle requests for information under the Act.

Appeal Rights

The BBC does not offer an internal review when the information requested is not covered by the Act. If you disagree with our decision you can appeal to the Information Commissioner. Contact details are: Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF telephone 01625 545 700. http://www.ico.gov.uk

Please note that should the Information Commissioner's Office decide that the Act does cover this information, exemptions under the Act might then apply.

Yours sincerely,

Stephanie Harris, Head of Accountability, BBC News

1. For more information about how the Act applies to the BBC please see the enclosure which follows this letter. Please note that this guidance is not intended to be a comprehensive legal interpretation of how the Act applies to the BBC.

Freedom of Information

From January 2005 the Freedom of Information (FOI) Act 2000 gives a general right of access to all types of recorded information held by public authorities. The Act also sets out exemptions from that right and places a number of obligations on public authorities. The term "public authority" is defined in the Act; it includes all public bodies and government departments in the UK. The BBC, Channel 4, S4C and MG Alba are the only broadcasting organisations covered by the Act. Application to the BBC The BBC has a long tradition of making information available and accessible. It seeks to be open and accountable and already provides the public with a great deal of information about its activities. BBC Audience Services operates 24 hours a day, seven days a week handling telephone and written comments and queries, and the BBC's website bbc.co.uk provides an extensive online information resource.

It is important to bear this in mind when considering the Freedom of Information Act and how it applies to the BBC. The Act does not apply to the BBC in the way it does to most public authorities in one significant respect. It recognises the different position of the BBC (as well as Channel 4 and S4C) by saying that it covers information "held for purposes other than those of journalism, art or literature". This means the Act does not apply to information held for the purposes of creating the BBC's output (TV, radio, online etc), or information that supports and is closely associated with these creative activities.

A great deal of information within this category is currently available from the BBC and will continue to be so. If this is the type of information you are looking for, you can check whether it is available on the BBC's website bbc.co.uk or contact BBC Audience Services.

The Act does apply to all of the other information we hold about the management and running of the BBC.

The BBC

The BBC's aim is to enrich people's lives with great programmes and services that inform, educate and entertain. It broadcasts radio and television programmes on analogue and digital services in the UK. It delivers interactive services across the web, television and mobile devices. The BBC's online service is one of Europe's most widely visited content sites. Around the world, international multimedia broadcaster BBC World Service delivers a wide range of language and regional services on radio, TV, online and via wireless handheld devices, together with BBC World News, the commercially-funded international news and information television channel.

The BBC's remit as a public service broadcaster is defined in the BBC Charter and Agreement. It is the responsibility of the BBC Trust (the sovereign body within the BBC) to ensure that the organisation delivers against this remit by setting key objectives, approving strategy and policy, and monitoring and assessing performance. The Trustees also safeguard the BBC's independence and ensure the Corporation is accountable to its audiences and to Parliament.

Day-to-day operations are run by the Director-General and his senior management team, the Executive Board. All BBC output in the UK is funded by an annual Licence Fee. This is determined and regularly reviewed by Parliament. Each year, the BBC publishes an Annual Report & Accounts, and reports to Parliament on how it has delivered against its public service remit.

I have made a Freedom of Information request (RFI 2011135) for the BBC to provide copies of the Unum internal documents that were referred to in a BBC news item broadcast 6 November 2007. This has been refused as the BBC state that the request is excluded from the Act because it is held for the purposes of "journalism, art or literature." I would like the Information Commissioner's Office to overturn this refusal on the following grounds:

1. Journalism is the practice of investigation and reporting of events, issues and trends to a broad audience in a timely fashion. The key word is timely. The documents requested were created before November 2007, are possibly important historical documents and thus are not covered by the "journalism" exclusion.

2. The BBC stated in the article that Unum, accused of racketeering and cheating, held meetings with senior Whitehall officials to discuss changes to the benefits system. The requested documents revealed "that Unum believes it is driving Government policy".

2.1 Clearly if these documents listed meetings and payments to senior Whitehall officials, then the publication of these documents are in the public interest and even may result in a Parliamentary Inquiry or even a Police investigation.

2.2 Prof Mansel Aylward, the Chief Medical Officer of the DWP, was closely associated with Unum and after leaving the DWP was appointed Director of the Unum Provident Research facility at Cardiff University.

2.3 A previous Chair of the Parliamentary Select Committee on Work and Pensions, Lord Kirkwood of Kirkhope, is listed in the House of Lords Register of Interests (2002) as the Chairman of the Unum Customer Advisory Panel for which he received payment from Unum and additional payments for other work for Unum.

3. My concern was heightened following the removal from the BBC websites of news articles critical of Unum coincident with the launch of a major marketing campaign by Unum to sell private disability health insurance through employers and, it is widely believed, coincident with the launch of a major PR campaign by Unum to discredit the disability provisions provided by the state. I wrote a letter dated 26 August 2011 to the BBC Trustees asking them to investigate why these articles, some very recent, were removed. I have not yet received a reply.

3.1 The BBC as a large employer would be an obvious target for Unum. My research suggests that the Unum offering is without merit for an employee but there may be advantages to an employer. Unum promote a "non-medical model" for medical condition assessments.

I suggest that the BBC provides copies of these documents to the ICO. The ICO could consult and decide if the documents can be released or decide on what grounds they should be kept secret. I am not requesting the ICO to consider the merits or otherwise of Unum and Unum insurance products. I am asking the ICO to agree or otherwise with the BBC decision to keep these documents secret and not subject to public scrutiny.

Finally I suggest that if the ICO agrees with the BBC that these historical documents should be kept secret, this would set a poor precedent. To take an extreme case a Government department might issue a press release and decline to release supporting documents as they are covered by the "journalism" exclusion. It seems sensible for the ICO to set a time limit, perhaps three years during which the "journalism" exclusion can be valid. I further suggest this would be a good compromise between the Government's desire for openness and transparency and the freedom of a Government funded organisation such as the BBC to claim "journalism" exclusion.

I look forward to hearing from you.

From:    casework@ico.gsi.gov.uk
Date:    13 December 2011 08:51

Subject: [Ref. FS50426943][Ref. FS50426943] 

Dear Mr B...

Case Reference Number FS50426943

Your information request to British Broadcasting Corporation ("BBC")

Thank you for your correspondence of 5 December 2011 in which you make a complaint about BBC's decision not to release the information you requested.

Your case has been allocated to one of our case resolution teams who will contact you as soon as possible to explain how your complaint will be progressed.

The Information Commissioner's Office is an independent public body set up to promote public access to official information. We will rule on eligible complaints from people who are unhappy with the way public authorities have handled requests for information under the Freedom of Information Act 2000.

If you need to contact us about any aspect of your complaint please contact our Freedom of Information Helpline on 0303 123 1113, being sure to quote the reference number at the top of this letter.

Yours sincerely,

Sent on behalf of ... Group Manager, Complaints Resolution, Information Commissioner's Office

From:    ...@ico.gsi.gov.uk
Date:    20 January 2012 13:55

Subject: [Ref. FS50426943] 

20 January 2012

Case Reference Number FS50426943

Dear Mr B...,

Your FOIA complaint against the BBC

I am writing from the Information Commissioner's Office about the complaint that you have made about how the above public authority handled your request for information dated 04 November 2011.

This letter has a single purpose, to explain my preliminary verdict in this case and why I have come to this verdict.

In order to achieve this purpose, it will have four parts. The first part will explain some key principles of the legislation. The second will provide an appraisal of the correspondence. I will then explain my preliminary verdict and why I have come to that verdict. I will then present action points and timescales to enable your case to proceed in a manner that you choose.

(1) Some key principles about the operation of the Act

I believe that there are two key points that should be made at this point in my investigation. They are:

1. The Commissioner can only consider the operation of the Act

The Commissioner only has the power to consider the operation of the Act. The Commissioner appreciates that you have concerns regarding Unum internal documents that were referred to in a BBC news report but the Commissioner is unable to compel the public authority to provide information outside its obligations under the Act.

2. The BBC is only a public authority under the Act in respect to some of the information that it holds

The BBC is an unusual public authority because Parliament decided that it should not be required to provide information that was held for the purposes of 'art, journalism or literature'. The Commissioner has had considerable litigation about what this means with the BBC over the years that the legislation has been in force. In summary, if the information is held in the process of creating journalism, art or literature then it falls outside the Act. This is the key issue in this case and I will discuss the relevant authorities later.

(2) Summary of the correspondence

On 04 November 2011 you requested information in the following terms:

"I would like [...] copies of these 'internal documents revealing that

Unum believes it is driving Government policy'."

On 28 November 2011 the BBC issued a response. The BBC explained that it did not believe that the information was embraced by the Act because it was held for the purposes of 'art, journalism or literature'.

(3) My preliminary verdict in this case

I can confirm that my preliminary verdict is that the BBC was correct that the information was excluded from the Act.

I want to use this opportunity to explain why I believe this is so.

The BBC is only covered by the Act if the information that has been requested is held for "purposes other than those of journalism, art or literature". The information that falls within the purposes of journalism, art and literature is derogated; this is because the BBC has no obligations to consider it under the Act.

This provision has created considerable litigation between the Commissioner and the BBC. As a result, the High Court and the Court of Appeal have explained their view about when the derogation will apply and their decisions are binding on the Commissioner.

The High Court considered the scope of the derogation in the cases of the BBC v Steven Sugar and the Information Commissioner [EW2349] and the BBC v the Information Commissioner [EW2348]. In both decisions Mr Justice Irwin stated:

"My conclusion is that the words in the Schedule mean the BBC has no obligation to disclose information which they hold to any significant extent for the purposes of journalism, art or literature, whether or not the information is also held for other purposes. The words do not mean that the information is disclosable if it is held for purposes distinct from journalism, art or literature, whilst it is also held to any significant extent for those purposes. If the information is held for mixed purposes, including to any significant extent the purposes listed in the Schedule or one of them, then the information is not disclosable." (para 65 EA2349 and para 73 EW2348).

This issue was appealed to the Court of Appeal in the case Sugar v British Broadcasting Corporation and another [2010] EWCA Civ 715. The Court of Appeal rejected the appeal. The leading judgment was made by Lord Neuberger of Abbotsbury MR who stated that:

"On this issue, again I am in agreement with Irwin J. In my view, the BBC's interpretation is to be preferred: once it is established that the information sought is held by the BBC for the purposes of journalism, it is effectively exempt from production under FOIA, even if the information is also held by the BBC for other purposes." (para 44)

... provided there is a genuine journalistic purpose for which the information is held, it should not be subject to FOIA." (para 46)

The Commissioner interprets the phrase "to any significant extent", when taken in the context of the judgments as a whole, to mean that where the requested information is held to a more than trivial (or insignificant) extent for journalistic, artistic or literary purposes the BBC will not be obliged to comply with Parts I to V of the Act.

This is the case even if the information is also held for other purposes.

Thus, provided there is a relationship between the information and one of the purposes listed in Schedule 1, then the information is derogated. The information relevant to the request need not be journalistic, artistic or literary material itself.

All the BBC must evidence is that the information is being used in order to create output, in performing one of the activities covered by journalism, art or literature. If it is, then the information falls outside the scope of the legislation.

The Court of Appeal has also helpfully accepted a definition of what constitutes journalism that was introduced in the Information Tribunal. This definition was worded as follows:

"107. The first is the collecting or gathering, writing and verifying of materials for publication.

108. The second is editorial. This involves the exercise of judgement on issues such as:

• the selection, prioritisation and timing of matters for broadcast or publication,

• the analysis of, and review of individual programmes,

• the provision of context and background to such programmes.

109. The third element is the maintenance and enhancement of the standards and quality of journalism (particularly with respect to accuracy, balance and completeness). This may involve the training and development of individual journalists, the mentoring of less experienced journalists by more experienced colleagues, professional supervision and guidance, and reviews of the standards and quality of particular areas of programme making."

In essence, in this case, one is considering information concerning a news report by Mr Daly on 06 November 2007 that involved the citation of internal Unum documents.

I find this information relates to the Tribunal's first definition of journalism. The Commissioner accepts that it is well within the remit for BBC journalists to hold documents collected as part of the legitimate information gathering process. To collect material for publication or broadcast will more-often-than-not require journalists to obtain and scrutinise communication otherwise not privy to the view of those 'outside' an organisation. Journalists are under no obligation with reference to the FOIA to release their sources, materials or data.

The Commissioner considers the second element of journalism within the definition above - the editorial process – to be relevant in this instance also. The documents held by a journalist for the purposes of reporting will be used by editors to assist in the selection and prioritisation of news items where appropriate. This is because editors will view the intelligence gathered by a reporter in order to assess its weight in the news agenda. The documents in his case will also be used by editors in order to undertake the review of news output. This may, for example, include the analysis of a news item by an editor after publication or broadcast.

This leads the Commissioner to also find that the requested information is held for purposes that fall within the third paragraph of the definition of journalism. In this instance these documents may be used in future or for a similar or related news item and so can be described as being held by the BBC for the purposes of journalism. These records contribute towards the maintenance and enhancement of standards and quality where editors review the accuracy, balance and completeness of news items subsequent to publication or broadcast.

The BBC explained in their response that the derogation protects freedom of expression and the rights of the media under the European Convention on Human Rights (ECHR). In this case I find that the disclosure of the Unum documents held by Mr Daly, or any of his tangible news intelligence for that matter, would impinge his journalistic independence. This is because editorial decisions could be influenced or compromised if journalists were to hand over their sources and data collected for the purpose of news dissemination. Furthermore, contacts must feel free and uninhibited to contact members of the press to partake in free and frank discussion and to disclose tangible intelligence to news organisations. Disclosure might prevent this from happening in the future. This is not exclusive to the work of Mr Daly. The editorial process must be freely conducted – from start to finish - within the BBC in order to comply with Article 10 of ECHR.

It is necessary to consider whether information was still held genuinely for the purposes of the derogation on 04 November 2011. It is not material whether the information is also held for other purposes too, providing that it is held genuinely for the purposes of 'art, journalism or literature'.

The Information Tribunal has also explained that the status of information should be judged against the following three criteria:

• The purpose for which the information was created;

• The relationship between the information and the programmes content which covers all types of output that the BBC produces; and

• The users of the information.

The Commissioner has carefully considered the arguments of both sides to consider the status of the information.

On this occasion I find that the documents held by Mr Daly were intrinsic to the content of a news item, are relevant to the content of future news items and are held as part of the news review process, and so, after considering all the circumstances in this case the Commissioner is satisfied that the BBC genuinely holds the information for the purposes of the derogation.

In view of the above, my preliminary view is that the information that you have requested falls outside the Act. The BBC has no obligations in relation to timeliness because it is not a public authority in respect to information that falls within the derogation.

The law does not permit me in this circumstance to consider public interest arguments that might favour the disclosure of the documents held.

I want to confirm that I am perfectly happy to draft a Decision Notice in this case, however, it is very likely to follow the lines of this initial verdict.

(4) Actions required

Please take one of the following options, as soon as possible, and in ten working days in any event, so by 03 February 2011:

1. It may be the case that you are prepared to reluctantly withdraw this complaint at this point given the information above. This does not mean that you are satisfied with the situation, but that you understand that any Decision Notice you will receive will be highly likely to uphold the position of the BBC. You would not then be able to appeal this case to the First Tier Tribunal (Information Rights).

2. The alternative is that you want to proceed to a Decision Notice. I am happy to draft this notice, but as explained above it is highly likely to uphold the position of the BBC. Unfortunately due to our internal approval procedure it is likely to take some time for an appropriate Decision Notice to be issued and I did not want to keep you waiting any longer than necessary. You would be entitled to appeal the Decision Notice to the First Tier Tribunal (Information Rights) should you want to. I would appreciate if you choose this option to provide your arguments about why you disagree with the preliminary verdict that is outlined above.

If I do not hear from you by then, I will proceed on the basis that you have chosen option one and that you are prepared to withdraw this case.

If you want to discuss this case further, you are welcome to telephone me directly on 01... ... ... or you can reply to this email leaving the subject line unchanged (so that [Ref. FS50426943] remains). I am more than happy to speak with you and perhaps go over this verdict with you.

I appreciate that the content of this letter is likely to be disappointing to you - especially in light of the context of your complaint. However, I would like to make clear that the journalism derogation does not apply to other public authorities where the information might be held.

I believe it is right to make the situation as clear as possible from the outset.

I hope that - despite the verdict offered to you in this letter - I have been clear and helpful.

Yours sincerely,

... Case Officer, Information Commissioner's Office

To:    ...@ico.gsi.gov.uk
Date:    23 January 2012 13:55

Subject: [Ref. FS50426943] 

Dear ...,

I would like to complement the ICO on the exemplary way that my complaint has been handled by all concerned.

I appreciate the detailed explanation of your preliminary verdict and previous efforts by the ICO to clarify through legal precedents the scope of FOI in respect of the BBC. I apologise for failing to fully research the legal judgements prior to refering my complaint to the ICO.

I may have mistakenly taken the BBC to be an indirect department of Government and thus have assumed that BBC "journalism" is an extension of the COI (formerly GNN) and as such produces "news" whose veracity is on a par with most of the world state funded news media channels. I assume the COI is subject to FOI requests and thus I assumed that some of the journalism the BBC does undertake is guided by the COI and so it could be argued that in these cases it is not journalism in the sense that is protected under ECHR. I believe news releases published by COI are not covered by ECHR. I felt it was reasonable to argue that the suppression of the Unum documents by the BBC is because the BBC has been instructed by the COI so to do and thus is not covered by ECHR.

Notwithstanding the above and given the legal rulings quoted I accept neither the ICO nor I are in a position to state for certain whether BBC journalism, whether independent or guided by the COI, is covered under ECHR. I can see that I need to suspend judgement and reluctantly accept that if the BBC claims the suppression of the Unum documents is for journalistic reasons it would be very difficult to prove otherwise. Even FOI requests to the COI are unlikely to provide supporting evidence. I have personal experience (from working in a major press agency) that the COI prefers to instruct through unrecorded phone calls or "off-the-record" face to face meetings.

Given your arguments that I accept in full, I would like to withdraw my complaint. You have been very helpful. This matter is now closed.

Please forward my appreciation to all concerned. Thank you.

Yours sincerely

Understanding your experiences of applying for benefits

We are currently looking at ways to improve customers' experiences of sickness-related benefits, and hope you will heIp us in shaping policies on this important issue. We understand that you have recently made an application for a sickness-related benefit. It does not matter if you have not yet gone through the whole process, or have already withdrawn your application. We are still interested in hearing about your views.

We have commissioned Ipsos MORI and the Institute for Employment Studies (IES) to carry out this study on our behalf. Both organisations are completely independent of the Government and political parties.

In the next few weeks, an interviewer from Ipsos MORI will be calling you or visiting you at the above address Unfortunately, they can not arrange specific dates or times for interviews, but don't worry if you are not home when the interviewer calls or arrives. He or she will try again at another time.

All Ipsos MORI interviewers wear identification badges with their photo. Please only allow people who carry this official identification into your home. You may have a family member, friend or carer present during the interview if you wish.

Everything you tell Ipsos MORI will of course be treated in complete confidence - no personal views or information will be passed to anyone outside the research team without your prior approval. More importantly, nothing you say will affect any current or future dealings you may have with the Department for Work and Pensions, Jobcentre Plus, or any other Government departments. Importantly, the information you provide will not affect the benefits you receive, either now or in the future.

I do hope that you feel able to take part in this survey. However, if you need assistance to help you take part, or feel that you do not want to be interviewed, please call J... from Ipsos MORI on the freephone number 0808 ... ... or email her at J... at ipsos.com. By giving us the reference number on this letter during the call or in the email, you will help us deal with your queries as quickly as possible.

We look forward to speaking to you.

Regarding your letter dated 20 November 2009 which I received on 25 November 2009.

... I am never at home to pollsters, hawkers or other such callers. I am even more disinclined now that I am terminally ill and of less than robust constitution.

Notwithstanding, if there is additional information that Ipsos MORI requires, I will respond to questions submitted in writing, providing, of course, that the symptoms of my terminal primary brain tumour allows me to. I have periods of weakness and extreme tiredness so how quickly I can respond is not certain.

I would appreciate a reply that you have received this letter...

... I hope you are independent, honest etc. Frankly my experience of the DWP and Atos Healthcare suggests that you are another shill.

Feel free to publish this as part of the report. I am not concerned about complete confidence...publish away. I am dying what more harm can you guys do to me. In time injustice will be overcome. Maybe a future Nurmberg Doctors type trial will hang the abusers of the dying, the sick, the disabled and their carers. ...

Thank you for contacting me. I am very sorry that you have had such a terrible experience, and I will remove your name from our contact list and ensure that none of our interviewers disturb you at your home.

I would like to clarify that Ipsos MORI is entirely independent of government - we were commissioned by DWP to conduct the survey but otherwise we are not connected with the Department. We do not have personal information about your condition or your medical or benefit records. We also have no connection with Atos Healthcare.

Thank you for replying. I have updated my web page with extracts of our correspondence. The sections that refer to the survey are located subsequent to .... http://www.whywaitforever.com/dwpatosletters.html#DWP20091125F If you feel I have made a factual error please let me know. If you would like me to publish a further comment from you or Ipsos MORI, I will consider and try and oblige.

I think you can demonstrate your independence if you confirm that you will both include me in the survey and you agree to publish in an explanatory note to the report the above web page address annotating this note as a particular (maybe atypical) response.

We would like to interview you for this research. I apologise if I misinterpreted your first e-mail. Once the survey is completed, we will merge all the responses given. The report will quote the percentage of people answering each question. It will not be identifying which individual said what and we will not be able to link the content to any websites.

If you are happy to be interviewed then one of our interviewers will visit you in the next few weeks and ask you some questions about your medical condition, work history and experience with ESA. Alternatively, if you do not wish to be interviewed, then please let me know and I will ensure that you are not called.

If you have any further queries, please do not hesitate to contact me.

Thank you for replying. I am happy to take part in the survey on the condition that the survey questions are submitted to me in writing in an email. I will respond in writing within 2 days of receipt by email. I presume you are not willing to do this and that you prefer to keep your questions secret and so not allow any independent evaluation which may conclude that there is built in bias in the way you have constructed the survey. I leave it to you to include me on my terms or to exclude me.

As my old Maths Professor at Imperial College, who taught me stats and probability, used to say, never trust any survey where notes are not published along with the survey that describes the mathematical algorithms used in first creating representative unbiased sampling data, sources of bias and how they are handled, inclusions and exclusions. There was a lot more most of which I have forgotten.

I look forward to reading the results of your survey including the associated notes. Impress me. Prove to me that in truth you are independent. It would be even better if you can get a Maths professor from Imperial, or LSE or other Russell Group University to verify that your survey conforms to current best practice and so is unbiased, honest, independent etc, I will eat umble pie. Yes I would owe you and would be delighted to give you the maximum positive publicity that I am able.

Numerately Yours

Thank you for your letter dated 25 November 2009, which I received on 27 November 2009. I have passed your comments on to Ipsos MORI , who are carrying out research on the Employment and Support Allowance on our behalf.

The survey is being conducted by trained interviewers using computer aided personal interviewing (CAPI) machines. This approach is being adopted for all interviews to ensure consistency in how we collect the data, and was chosen because it is the most inclusive approach. This means that we are unable to send you the questions and have you respond in writing. I will, however, make sure that you are not contacted by our interviewers in relation to this research.

£300 million of disability benefits paid 'without checks'

Hundreds of millions of pounds are being paid in disability benefits to people without a face-to-face assessment of their needs, figures have revealed.

By James Kirkup, Deputy Political Editor 6:00AM GMT 11 Nov 2011

More than 30,000 people were given additional benefits on the basis of nothing more than filling in an application form.

Figures from the Department for Work and Pensions (DWP) showed that 94 per cent of new Disability Living Allowance (DLA) claims last year were approved without a face-to-face assessment of their needs by officials.

Those benefits were worth £300 million, the department said. Ministers argued that the figures justified Government plans to scrap the DLA and replace it with a tougher system based on compulsory medical examinations.

The number of people claiming the allowance has grown from 1.1 million in 1992 when it was introduced to 3.2 million today. Critics say lax checks have allowed many undeserving people to claim the benefit.

Around 210,000 new claims for DLA are approved every year, according to the department. A new analysis of last year's claims by the DWP has highlighted how few of those approvals were made on the basis of a personal meeting with benefits staff.

Some 16 per cent of the claims were approved solely on the basis of a claim form with no supporting evidence. Those claims were worth an average of £58.80 a week and cost taxpayers £30 million.

Another 42 per cent of claims - around 88,000 - were approved on the basis of a GP's report. Averaging £79 a week, they cost £150 million.

And 36 per cent of successful claims went through because of evidence including telephone conversations with claimants and information from social workers and therapists.

The DLA costs £12.3 billion a year and curbing that bill is a major objective of the Coalition's welfare reform agenda.

Iain Duncan Smith, the Work and Pensions Secretary, said the figures made the case for reform. "At the moment, hundreds of millions of pounds are paid out in disability benefits to people who have simply filled out a form," he said.

From 2013, the Coalition wants to scrap the DLA and introduce a Personal Independence Payment, with an "objective assessment" and regular reviews of need.

Disability campaigners say those assessments will be unfair and will lead to some people losing money they need.

However, Mr Duncan Smith said: "The face-to-face assessment will give people the chance to meet with a healthcare professional and discuss their condition, rather than trying to self-assess."

To:      dtletters@telegraph.co.uk
Subject: Disability Benefits paid "without checks" by James Kirkup published 11 November 2011
Date:    11 November 2011 15:46

Dear Sir,

Re: £300 million of disability benefits paid 'without checks'
    by James Kirkup 11 November 2011
    http://www.telegraph.co.uk/news/politics/8882513/
       300-million-of-disability-benefits-paid-without-checks.html

I suggest the first sentence containing the words "nothing more" is grossly misleading and/or sloppy journalism. People can receive benefits by filling in an application form if and only if, after having been processed in compliance with the Contract between the DWP and Atos, they are eligible.

I am sure Mr Kirkup is familiar with the Contract and in particular the lists of medical conditions that mean a face to face assessment is unnecessary. In these cases Atos is required to contact the patient's GP and/or Consultants who have access to the patient's full medical history. There are five categories of medical conditions; only one, "invite", obliges the patient to attend a face to face assessment. It seems very unlikely that a patient in the "invite" category would apply and be eligible for DLA.

That 95 per cent of new, and I stress new, DLA claims were approved without a face-to-face assessment suggests that the new patients who are eligible are receiving DLA and the DWP and Atos are in compliance with the Contract. It appears that the rebukes made by Parliamentary Inquiry after Inquiry are at long last having an effect.

Mr Kirkup seems confused. The current system is based on compulsory medical examinations. The expert medical opinion who drew up the categories realised that, for many serious medical conditions such as terminal illness, a patient should not be forced to travel long distances. It follows that a patient does not need to be present if the diagnosis has been carried out by a medical competent authority. The Contract is clear that only the "invite" category can be assessed without reference to the patient's medical history.

I am concerned at the numeracy of Mr Kirkup. It is a failing that is seen too often in Government and in the media. Assuming 3.2 million claim DLA currently. Assuming the categories of medical conditions are unchanged. Assuming only those serious patients with non "invite" medical conditions were eligible and are still eligible as the medical conditions are unchanged. It follows that 94 per cent of the 3.2 million will continue to receive DLA (PIP in the proposed changes).

Clearly the Government can take a difficult political decision to say that they are ignoring expert medical opinion and denying DLA to additional categories. On this Remembrance Day should a Veteran who have lost two limbs be denied DLA and one who has lost three be eligible. Maybe the terminally ill or bedridden should be denied. The Government has said the most needy will not lose out if the proposed changes are implemented. This suggests the Government is reluctant to ignore medical opinion.

Mr Kirkup should be aware of the DWP estimate for fraud. This is tiny and far less than 6 per cent. The Government or the DWP have never stated "lax checks have allowed many undeserving people to claim the benefit". Mr Kirkup should perhaps investigate the influence of private healthcare insurance companies and report on the major campaigns that they are currently running.

I look forward to the Telegraph publishing this letter and publishing a news article that reflects the statements of the Works and Pension Committee not the marketing hype of private US healthcare insurance companies. As these companies have stated in annual report after annual report the UK is ripe for exploitation. For example Atos generates the highest margin from the DWP.

I recommend today's article in Private Eye on Unum.

Feel free to edit if you care to publish. I would rather keep my personal details secret. ...

I look forward to your acknowledgement of this letter and if Mr Kirkup has time a response. Thank you.

Yours faithfully

The complaint sent 14 November 2011 to the PCC using the PCC web form. The Daily Telegraph email address was included.

Complaint:

The Parliament's Work and Pensions Committee has investigated repeated pejorative references to the disabled by media channels. The Government, the DWP, academics and charitable organisations agree that there is a tiny level of fraud which in turn is far less than that of administrative errors. The article is misleading and grossly distorts the true position to the detriment of the disabled. The article does not state who the "critics" are but gives their voice preference over the Government et al. The article is partial. The Committee has repeatedly requested the Government to consider what action it can take against those who seek to victimise those least able to defend themselves such as the disabled from unwarranted attack by the press. The Committee has made it clear that due to a political decision the assessments tests are being changed to favour those most in need. It follows that some who previously were eligible might not continue to be so. Thus benefits paid in the past and those paid following the new tests comply with the rules and regulations pertaining at the time. I have uploaded a copy of my letter to the Daily Telegraph. This paper has not published it, has not published a correction to the article and does not allow comment to be made about the article.

Finally I would like to remind the PCC that the Committee has repeatedly reminded the press of recent tragic cases where disabled individuals are hounded and mistreated by their neighbours who have been misinformed by pejorative references in the press.

Clauses:

Clause 1 Accuracy (i) misleading and distortive. 
Clause 1 Accuracy (iii) fails to distinquish between comment, conjecture and fact. 
Clause 12 (i) pejorative reference to the disabled.
    

The Editor wishes to acknowledge your e-mail with thanks.

If you have sent it as plain text, we will have received it. If however, it was sent as an attachment, please send it again in the main body of the email.

This address is for letters submitted for publication only. All other queries, complaints and comments should be e-mailed to: telegrapheditorial@telegraph.co.uk

For all other enquiries, please email: telegraphenquiries@telegraph.co.uk

From:    ..., PCC 
Sent:    1 December 2011 11:44
Subject: Complaint 115258    
    
Dear Mr B...,

Please find below/attached the email that was sent to you on 22 November.

Kind regards,

...

From:    ..., PCC 
Sent:    22 November 2011 16:30
Subject: Complaint 115258

Dear Mr B...

I write further to my email of 17 November.

The Commission has now received a response to your complaint from the Daily Telegraph newspaper, a copy of which is attached.

As you will see, the newspaper's position is that the information in the article is based on material provided by the DWP and it has explained how the reported figures were arrived at. It argues that the piece accurately reports the facts as provided by the government and does not contain any comment or conjecture, other than that which is clearly attributed to specific individuals, such as Iain Duncan-Smith. No breach of Clause 1 is accepted and, as – in the newspaper's view – the article does not discriminate against an individual, no breach of Clause 12 is accepted either.

Before a decision can be made as to how this matter might be taken forward, I should be grateful to receive any further comments you may wish to make. In particular – given that the Commission's primary aim is the resolution of all substantive complaints wherever possible – do please let me know any suggestions you have which would help to resolve this matter to your satisfaction.

I should be pleased to receive your response within seven days, or sooner, if convenient.

Yours sincerely,
..., Complaints Officer

Press Complaints Commission
Halton House, 20/23 Holborn, London EC1N 2JD
Tel: 020 7831 0022
Website: www.pcc.org.uk

The PCC is an independent body which administers the system of self-regulation for the press. We do this primarily by dealing with complaints, framed within the terms of the Editors' Code of Practice about the editorial content of newspapers and magazines (and their websites). We keep industry standards high by training journalists and editors, and work pro-actively behind the scenes to prevent harassment and media intrusion. We can also provide pre-publication advice to journalists and the public.

Follow us on Twitter: www.twitter.com/ukpcc

Press Complaints Commission

Ref: 115258

Mr B...

                 "30Om benefits paid without health checks"/
         "£300 million of disability benefits paid 'without checks'"
             The Daily Telegraph/telegraph.co.uk, 11 November 20ll

                               Telegraph response

The complainant complains that this article concerning figures about how Disability Living Allowance claims are processed is misleading and "distortive" under Clause 1 (Accuracy) of the Editors' Code of Practice and makes pejorative reference to disabled people under Clause 12 (Discrimination).

The complainant claims that the report "grossly distorts" the true position about fraudulent claims for the benefit to the detriment of disabled people; fails to state who the "critics" are but gives their voice "preference over the Government et al"; and that the article is "partial".

The Telegraph rejects these suggestions, as set out below:

CLAUSE 1 (ACCURACY)

(1) Factual accuracy

The article does not mislead; nor does it distort the material on which it was based. It accurately reports statistics compiled and published by the Department of Work and Pensions (DWP), describing the various ways in which new claims for Disability Living Allowance (DLA) were approved during 2010.

The full document can be found here.

http://statistics.dwp.gov.uk/asd/asd1/ahoc_analysis/2011/dla_evidence_award_values_nov11.pdf

The document was prepared and issued by the Department for Work and Pensions. It was written by a named civil service official. When handling statistics, civil servants are bound by a number of rules enforcing objectivity, not least the Civil Service Code. Under the Statistics and Registration Service Act 2007, such data are also overseen by the independent UK Statistics Authority.

For the sake of completeness, we would add that the figures in the document are "Management information" collected by the Pension, Disability and Carers Service (PDCS). They are not Official Statistics verified by the Office for National Statistics. That is why the article makes clear they are the work of the DWP.

The document contains proportions, not numbers, for various types of new claims for DLA in 2010.

It also sets out the sums paid out to each group. As Table 1 shows, awards made on four grounds, none of which involve a personal meeting with a dedicated assessor, amounted to £310 million in 2010.

As such, the article's introduction ("Hundreds of millions of pounds are being paid in disability benefits to people without a face-to-face assessment of their needs, figures have revealed.") is an accurate description of the data published by the DWP.

DWP spokespeople added orally that typically, around 210,000 new clȧims are approved annually, a trend visible in the statistics set out elsewhere by the DWP.

That number of 210,000, stated in the article and attributed to the department, is the origin of the various other figures that appear.

For example, the figure of "more than 30,000" is a reference to the 16 per cent of new claims in 2010 that were approved solely on the basis of the claim form (the precise figure is 33,600). The other figures for claims are derived in a similar way, and clearly explained in the text.

The complainant suggests our writer was "confused" about the current system of assessment and approval, and challenges as "grossly misleading and/or sloppy journalism" the following sentence:

"More than 30,000 people were given additional benefits on the basis of nothing more than filling in an application form."

The Telegraph rejects this allegation. The DWP research document says:

"To apply for DLA, individuals complete a claim form which requests detailed information about the impact of their impairment or health condition on their ability to manage their care themselves and/or get around.

When a new claim decision is made for DLA, the PDCS Decision Maker will consider whether he/she can make their decision based on the claim form alone."

The statistics show that 16 per cent of 2010 claims approved were approved only on the basis of that claim form. The DWP's own description for this category of claimants is "DLA Award Made Using Claim Form Only"

The complainant singles out the phrase "nothing more". That phrase is accurate.

The other figures for DLA (total claims, total annual cost) were found in written parliamentary answers in Hansard and other DWP publications.

(2) Allegation that the article fails to distinguish between comment conjecture and fact

There is no conjecture or comment by our writer in the story. As set out above, it accurately reports a series of figures published by the DWP, and reports the comments the minister, Iain Duncan Smith, made about those figures.

The complainant argues that "benefits paid in the past and those following the new tests comply with the rules and regulations pertaining at the time". By reporting Government figures and the comment of the minister, the complainant appears to be suggesting that the article implies that disabled people are guilty of fraud on a significant scale. Applying reasonable rules of interpretation it is the Telegraph's submission that such an interpretation is simply not supportable.

The article clearly attributes the figures in question to a Government department. It cannot be reasonably argued that a news organisation is not entitled to rely on data presented by Government departments or that reporting that data constitutes endorsement of political arguments made by ministers.

The article also reports the comments of Mr Duncan Smith, whose policy on the future structure of disability benefit does not favour self-assessment by means of filling out a form. The Telegraph did not adopt Mr Duncan Smith's views in this news report, nor would it - such views as the Telegraph wishes to express on this topic would be found in the comment or leader sections of the newspaper. The complainant may not agree will Mr Duncan Smith's disapproval of form-only approvals, but that does not disentitle the Telegraph from reporting the minister's views.

The article reports and balances the position of those who support the Government's current policy on DLA - ie (as stated in the article) to replace DLA with a Personal Independence Payment and a system of "objective assessment" and regular reviews or need - with that of those who oppose it. It does not pass comment on the merits of those positions.

The examples are here:

"Critics say lax checks have allowed many undeserving people to claim the benefit."

And

"Disability campaigners say those assessments will be unfair and will lead to some people losing money they need."

Both of those positions have indeed been widely expressed by politicians, campaigners and other interested parties of various sorts. The article does not include comments from named individuals apart from the minister simply for reasons of space: the article is 405 words long, precluding additional comments. For that reason, the two viewpoints are clearly attributed to generic entities - "critics" and "campaigners". There is no suggestion that the author or the newspaper endorses either view.

The article is written in clear and factual language: there is no adornment and there are no unnecessary adjectives. There is no attempt to draw conclusions or pass judgements.

CLAUSE 12 (DISCRIMINATION)

As is clear from its wording, and as the Press Complaints Commission has confirmed on many occasions, this clause does not cover generalised comments about Groups or categories of people.

The Telegraph nonetheless wishes to underline its view that the article was not discriminatory towards disabled people. As set out above, the article was based on Government figures; it also reported the positions of the minister and or supporters and opponents of the Govemment's aim to change how disablement benefit is administered. The Telegraph therefore rejects any suggestion that the tenor of the article was pejorative towards disabled people.

November 22, 2011

Date:    01 December 2011 17:26
Subject: Re: Complaint 115258

Dear ...,

I apologise again for accidentally deleting your email. Please offer my apologies to the Daily Telegraph.

My comments are as follows. I would appreciate it if the Daily Telegraph would be given the opportunity to reply once again.

------------

First I would like to thank the Daily Telegraph for providing a comprehensive response to my complaint. I am aware of the DWP document that is referred to. This document, as with all DWP documents, needs to be read in the context of the complete published body of documents and statistics.

Regarding Clause 1 (Accuracy)

I would like to provide additional comments to support my complaint.

In the DWP document "DLA Award Values and Evidence Use for New Claims in 2010" the Background section states "The decision about whether to award benefit is not made on the basis of an individual's costs, but on the severity of their care and mobility needs.". The Background section qualifies statements in the rest of the document.

"Hundreds of millions of pounds are being paid in disability benefits to people without a face-to-face assessment of their needs because the severity of their care and mobility needs have been confirmed beforehand" is a true reflection of the document. If the "because" sub-clause, that I have added, is omitted, a false impression is given.

The Daily Telegraph knows that the DWP and DWP Tribunals do not have and do not claim to have medical expertise. The DWP does not undertake medical assessments. This is contracted to Atos. Atos provides advice to the DWP.

If you refer to the DWP statistics (esa_wca_25102011_tables.xls), Table 1 states 1,502,200 referrals were made between October 2008 and February 2011. Table 2 states 929,500 assessments were carried out. You are aware that there are five categories of medical conditions only one of which requires a face to face assessment. For the other four categories, the patient's GP needs to be contacted.

You may ask, as I have done, why the DWP pays Atos to push paper in these four categories. Surely it is more cost effective for the DWP to contact the GP directly in these four categories especially as Atos adds no medically significant information. Thus Table 1 minus Table 2 means 572,700 "unnecessary" referrals were made to Atos. The DWP paid Atos £80.6 million for the year March 2008 to February 2009. The DWP (top-100-commercial-suppliers.pdf) paid Atos £150,798,435 for the year 2009/2010. The original budget was £80 million a year. This must be the bigger story.

These statistics, and others, are produced quarterly. You will also be aware of the glaring omissions. The medical categories are not included. The number of repeat attempts each claimant makes after dropping out. It is great PR to state the drop out rate but since Atos use a non-medical model for assessment and have no access to a patient's medical history the figures are misleading. This must be the bigger story.

Thus the DLA 94 percent eligible rate without the need for a face to face assessment is true because each and every claimant has had, a priori, their severity of their care and mobility needs confirmed.

If I said "critics say that since Atos uses a non-medical model to assess medical conditions a claimant who drops out only needs at most two more attempt before being found eligible for benefits" would the Daily Telegraph publish this.

Feel free to confirm my understanding of the issues with the DWP and especially the Work and Pensions Committee. I accept that many do not have the level of numeracy to understand the statistics. I suggest it is sloppy journalism to publish selective quotes which wholly change the meaning if the context is not included.

Regarding Clause 12 (Discrimination)

I would like to provide additional comments to support my complaint.

I accept that the Daily Telegraph has the right to publish that "Critics say lax checks have allowed many undeserving people to claim the benefit." But it appears to me to be discriminatory by the Daily Telegraph if the article does not make it clear that these "critics" do not include the Government, the Opposition Parties, the Independent Inquiries, the DWP, the Work and Pensions Select Committee, Academia and the Disabled organisations. Further the word "many" is not supported by any evidence and thus the Daily Telegraph is allowing a falsehood to be published without challenge. If "many" were replaced by a "tiny minority", this is supported by the evidence.

Further the Daily Telegraph, if it were to be factually accurate, should state "Critics say lax checks have allowed many deserving people to be denied the benefit." If the Daily Telegraph researched a little deeper it may find that, as "many" have suggested, that these critics are mainly connected to private healthcare insurance companies, such as Unum (who buys advertising on the Daily Telegraph), and whose business objective is to sell private disability insurance by discrediting the welfare state.

"Disability campaigners say those assessments will be unfair and will lead to some people losing money they need." I agree this is a widely expressed view though it is not a view I fully support. That assessments have been unfair, as in my case, does not mean that future assessments will be unfair.

-------------------

To resolve this matter I suggest the Daily Telegraph produces a widely scoping article reviewing the difficulties in dealing with the documents and statistics produced by the DWP. They could refer, in the new article, to the article I complained of and explain the various views that can be taken of the same content. Recent Governments have claimed to have objectives to improve openness, transparency and debate which in turn allows improvements to be made. The current Government has said that the medical assessment process will not be changed but political decisions will be made to deny benefits to some who previously were eligible. The claimant's medical condition has not changed. Since the rate of fraud is so tiny (far far less than administrative errors) it is false to suggest anything other than politicians have decided that those with particular medical conditions are no longer eligible. Critics say "a veteran missing three limbs will be eligible and one missing two will be denied is not fair". It may not be fair but if it is the Law then the Law needs to be changed through lawful means. There are many wonderful judges who have considered fairness and the Law. I would not presume.

Thank you for your assistance.

Highest regards

From:    ..., PCC 
Sent:    9 December 2011 11:52
Subject: Complaint 115258    
    
Dear Mr B...,

I write further to your email of 1 December.

The Commission has received the attached further response from the Daily Telegraph newspaper.

As you will see, the newspaper has acknowledged your arguments and interpretation of the piece but maintains that the article does not represent a breach of the Code as there was no significant inaccuracies contained within it.

Regrettably, it appears that your complaint cannot be resolved at this stage. My suggestion is that we put the matter to the Commission for its formal consideration under the terms of the Editors' Code. Before we proceed in this way, I should be grateful to receive any final comment you may wish to make in light of the newspaper's most recent correspondence.

I look forward to hearing from you, hopefully within the next seven days.

Kind regards,

...
Subject: FW: 115258 - Mr B...

From: Patricia Wynn-Davies [mailto:patricla.wynn-davies@telegraph.co.uk]
Sent: 08 December 2011 12:31
To:   ..., PCC
Subject: 115258 - Mr B...

Dear ...

Thank you for passing on Mr B...'s comprehensive comments on our response.

We acknowledge the points he is seeking to raise concerning {as he sees them) the flaws in the Government's approach to changes to the DlA system and his view that there is a "bigger story" that he would like to see investigated.

However, none of the points Mr B... raises can reasonably lead to the conclusion that our story was significantly inaccurate within the meaning and scope of Clause 1 (Accuracy). This was a short political story (written by our Deputy Political Editor) based on information put out by the Department of Work and Pensions, incorporating the view of the lead minister, Iain Duncan Smith, but also including a flavour of opposing positions regarding the proposed changes. As stated in our original response, there was no room in this story for the kind of detailed opinions Mr B... would have liked to see also included. There was no conflation of fact and comment and no "sloppy" publication of "selective quotes which wholly change the meaning if the context is not included", as suggested by Mr B.... The fact is that Mr Duncan Smith aims to change the way DLA is administed. The newspaper is entitled to report this.

Taking the totality of Mr B...'s comments, it appears that he believes that Mr Duncan Smith's attitude towards the current and proposed DLA systems are misconceived and mistaken. This seems to be borne out by his statement that "it is false to suggest anything other than politicians have decided that those with particular medical conditions are no longer eligible". While the views of Mr Duncan Smith and the Government (mistaken or otherwise) cannot be laid at the door of the Telegraph, it was for this reason that we added the comment: "Disability campaigners say those assessments will be unfair and will lead to some people losing money they need." This gave balance to the article. The actual effects of the Government's plans remain, of course, to be seen.

In retrospect it is regrettable that Mr B... did not post his views on our online Comment facility, which is designed to accommodate the airing of opinions - sometimes strongly held opinions, as is the case here - on topics of public interest. Unfortunately the Comment facility of this story is now closed.

We await an initial view from the commission.

Yours sincerely

Patricia Wynn Davies, Legal Department
Direct line 020 7931 2818

telegraphmediagroup
111 Buckingham Palace Road, London SW1V 0DT

Date:    10 December 2011 09:58
Subject: Re: Complaint 115258

Dear ...,

Thank you for your action in this matter. I appreciate the further response from the Daily Telegraph. I would like to put the matter including my additional comments below to the Commission for its formal consideration under the terms of the Editors' Code.

The main point is that the Daily Telegraph claims to be accurately reporting the DWP document. The document clearly states in the background section at the start, "The decision about whether to award benefit is not made on the basis of an individual's costs, but on the severity of their care and mobility needs.". Thus the second heading of "Hundreds of millions of pounds are being paid in disability benefits to people without a face-to-face assessment of their needs" is misleading in that it implies that no prior assessment of the claimant's care and mobility needs has been made. This inaccuracy is repeated throughout the document. A link to the actual document is not published and so it is unlikely that the reader would know that the severity of the claimants' care and mobility needs have previously been verified. The journalist read the document but nevertheless reported it inaccurately, partially and in a way that is pejorative to the disabled. The Daily Telegraph states that this is a political article. Nevertheless I feel this article should be held to the same standard of accuracy as other articles claiming to report facts.

The second point of concern is the statement reported to have been made by Iain Duncan Smith. Such statements may indeed have been made off the record by the Secretary of State and senior DWP officials and if this is the case that the statements were off the record should have been made clear. The statements are contrary to the repeated assurances made by the Secretary of State and DWP officials on the record to the Work and Pensions Committee with the latest being around three months ago to consider what action can be taken against printed falsehoods similar to "hundreds of millions of pounds are paid out in disability benefits to people who have simply filled out a form,". Some people have claimed that the Secretary of State continues to act dishonourably in this matter. I have no evidence of this but it appears the Daily Telegraph claims to have this evidence and as such should submit the evidence to the Work and Pensions Committee for consideration. Remember the Secretary of State is responsible for the DWP. It is not credible that he would allow others to think that his own incompetence or neglect allows benefits to be given to people who have simply filled in a form; a Nero fiddling while Rome burnt if you will. If the Secretary of State did say this and the senior political reporter did not understand the political consequences of such an admission it perhaps says much about the competence of the senior political reporter and the Daily Telegraph Editor.

The third point is I feel it is unjustified to label me as a disability campaigner and further to denigrate me by saying I subscribe to particular views. My sole interest is the truth and the verifiable truth.

Finally the Daily Telegraph claims that it allowed comments to be made regarding this article. I have checked today and no comments are published. The inaccurate article is still published as follows:

www.telegraph.co.uk/news/politics/8882513/300-million-of-disability-benefits-paid-without-checks.html

If the Commission rules in my favour, I suggest a note of the ruling should be inserted at the start of the on-line article in addition to the standard remedial actions following a ruling.

Thank you

Hansard reports for 21 March 2011.

http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110321/text/110321w0004.htm

Mr Byrne: To ask the Secretary of State for Work and Pensions with reference to his Department's impact assessment on reform of disability living allowance, what estimate he has made of the proportion of the disability living allowance budget which was spent on claims which were fraudulent in the latest period for which figures are available. [46392]

Chris Grayling: The estimated level of fraud in disability living allowance for the period October 2008 to September 2009 is 0.5% (£60 million). The estimate is based on a national benefit review of disability living allowance which was carried out in 2004-05.

The latest estimates of fraud and error in the benefits system can be found at:

http://research.dwp.gov.uk/asd/asd2/fem/fem_oct08_sep09.pdf

The article states "Critics say lax checks have allowed many undeserving people to claim the benefit." This is published without the qualification that the true figure of DLA fraud is estimated as 0.5% as reported by Chris Grayling. I contend that the Daily Telegraph has a duty to its readers to deny publicity to such ignorant "critics". I further contend the Daily Telegraph should check the facts before publishing such gross inaccuracies.

From:    ..., PCC 
Sent:    20 January 2012 15:56
Subject: Complaint 115258    
    
Dear Mr B...,

Further to our previous correspondence, the Commission has now made its assessment of your complaint under the Editors' Code of Practice.

The Commission members have asked me to thank you for giving them the opportunity to consider the points you raise. However, their decision is that there has been no breach of the Code in this case. A full explanation of the Commission's decision is below.

If you are dissatisfied with the way in which your complaint has been handled - as opposed to the Commission's decision itself - you should write within one month to the Independent Reviewer, whose details can be found in our How to Complain leaflet or on the PCC website at the following link:

http://www.pcc.org.uk/about/whoswho/independentreview.html

Thank you for taking this matter up with us.

Yours sincerely

                                 Commissions decision in the case of
                                    Mr B... v The Daily Telegraph

The complainant considered that the article's report of a Department for Work and Pensions (DWP) paper about new Disability Living Allowance (DLA) claims in 2010 was misleading and grossly distorted. Furthermore, he considered the article was discriminatory.

The Commission made clear that the presentation and selection of material for publication was a matter for the discretion of individual editors, provided that such editorial decisions did not engage the terms of the Editors' Code. It was not for the Commission to comment on the newspaper's choice of material for publication, but rather it had to consider whether the article breached any of the terms of the Editors' Code of Practice. As such, it could not comment further on the newspaper's decision not to publish the complainant's letter.

The Commission turned first to consider the complaint under Clause 1 (Accuracy) of the Code. Under the terms of Clause 1 (i) the newspaper had a duty to take care not to publish inaccurate, misleading or distorted information. While the Commission acknowledged the complainant's position it made clear that the newspaper was entitled to report the conclusions of the DWP paper. It noted that the overarching complaint was that the report was misleading as to the reasons why (in certain circumstances) no formal face-to-face assessment of a new claimant was necessary.

The Commission acknowledged the complainant's concerns over the headline's reference to "£300 million of disability benefits being paid "without checks". However, it noted that the sub-headline clarified that "without checks" referred to the fact that the benefit could be paid without the need for a face-to-face assessment. The Commission accepted that in the absence of the sub-headline it would have had difficulty with the reference; however, it was satisfied that in this instance, the headline taken as a whole was not significantly misleading.

The complainant also considered that the sub-headline was misleading in terms of the assessment process from DLA claims. While there were four categories of DLA claims that did not require face-to-face assessment, these claims were only considered once they had been processed in compliance with the contract between the DWP and Atos. The DWP paper stated that the benefit awarded to a claimant was assessed on "the severity of their care and mobility needs", yet the sub-headline implied that there was no prior assessment, as such it was misleading. While the Commission acknowledged the complainant's position, it noted that the sub-headline did not refer to whether a claim had been previously processed, but rather reported that hundreds of millions of pounds were being paid in disability benefits without a face-to-face consultation. This was an accurate description of the information contained within the DWP's document. As such the Commission did not establish a breach of the Code.

The complainant raised concerns over the statement "More than 30,000 people were given additional benefits on the basis of nothing more than filling out an application form". He considered that the reference to "nothing more than filling out an application form" was inaccurate. However, the Commission noted that Table 1 and 2 of the DWP paper had described one of the four categories of DLA payment as "Claim Form Only". It accepted that the newspaper could have provided more information on the procedure for processing applicants before they became eligible to receive the benefit. However, it was satisfied that the article's statement was not significantly misleading as to the information revealed in the DWP document. The Commission then considered whether the use of the figure 30,000 was inaccurate or misleading. While the DWP document only referred to percentages of new DLA claims (Table 2 revealed that the 'claim form only' category made up 16 per cent of the new DLA claims in 2010), the article had revealed that there were an estimated 210,000 new DLA claims per year. This figure had clearly been attributed to a DWP spokesperson. As such, the article's use of the figure 30,000 was not an inaccurate or misleading representation of the DWP's findings; it had simply presented the DWP's findings as a number as opposed to a percentage. The article's further references to the other categories of new DLA claims as numbers (as opposed to percentages) had been calculated on the same basis. As such, the Commission was satisfied that the newspaper had taken sufficient care not to publish inaccurate, misleading or distorted information.

The Commission acknowledged that the complainant considered that the newspaper had given undue preference to the "critics" of the system. However, it made clear that the newspaper was entitled to take a partisan position on a topic, provided it clearly distinguished between comment, conjecture and fact. In this instance, the newspaper had reported both the views of critics and of campaigners. Furthermore, the views expressed had been clearly distinguished from fact. The complainant raised concerns over the sentence "Critics say lax checks have allowed many undeserving people to claim the benefit". However, the Commission could not agree that this implied that the system was fraudulent. It was satisfied that readers in general would understand the term "undeserving" was a reference to the fact that many claims were paid without a face-to-face assessment. While it understood that the complainant did not agree with the use of the term, this did not render it a breach of the Code. Furthermore, it was not the case that the newspaper's failure to include further DWP figures on fraud levels made the article inaccurate, misleading or distorted.

The Commission then turned to the complaint under Clause 12 (Discrimination) of the Code. Under the terms of Clause 12 (i), newspapers must avoid prejudicial or pejorative reference to an individual's race, colour, religion, gender, sexual orientation or to any physical or mental illness or disability. However, the clause does not cover references to groups or categories of people. In this instance, the article did not make reference to the physical or mental illness or disability of a particular individual but rather reported on a recent DWP document into the new DLA benefits claimed in 2010. As such, given the absence of a reference to a specific individual's physical or mental illness or disability the terms of Clause 12 (i) had not been engaged. The Commission did not establish that Clause 12 (i) of the Code had been breached.

Reference No. 115258

Date:    23 January 2012 12:25
Subject: Re: Complaint 115258

Dear ...,

PCC reference: 115258

I would like to complement the PCC on the exemplary way that my complaint has been handled by all concerned.

Regarding the adjudication of the PCC, it seems to me that my complaint has been not upheld due to what in the opinion of the PCC a reasonable person would understand as "significant" and due to the fact that Editors appear to be free to make partial and unsubstantiated comment, to publish as comment phrases out of context and as comment seem able to be "willfully blind".

Nevertheless the PCC, having considered many complaints, is in a far better position than I to come to a conclusion as to what is reasonable and the constraints on Editors. I appreciate providing me with the detailed arguments that allowed the PCC to reach their decision.

I defer to the opinion of the PCC and accept in full the adjudication of the PCC in respect of my complaint. This matter is now closed.

Please forward my appreciation to all concerned. Thank you.

Yours sincerely

To:      Vice-Chancellor, Cardiff University (vco@cardiff.ac.uk)

CC:      Professor Aylward (AylwardM@cardiff.ac.uk),
         Professor Fothergill (cresr@shu.ac.uk),
         Professor Sainsbury (roy.sainsbury@york.ac.uk)     

Date:    27 November 2011

Subject: Reputation of Cardiff University

Dear Vice-Chancellor,

I am concerned that the academic credibility and reputation of Cardiff University is in danger of being undermined by being associated with the disability assessment work of Professor Mansel Aylward, Director of the Centre for Psychosocial and Disability Research (formerly the Unum Centre for Psychosocial and Disability Research).

Prof Aylward is widely credited, while Chief Medical Officer of the Department of Work and Pensions, of introducing and implementing the Unum approach to disability assessment. Unum, in their 6 May 2006 submission to Parliament, stated "we have a non-medical, enabling model of rehabilitation".

The evidence seems overwhelming that a "non-medical" model to address a medical condition is flawed. This approach has been followed in the US and the UK for over ten years. Unum (as UnumProvident) was fined millions in all US states for running "disability denial factories". In the UK, the vast number of cases appealed and conceded by the DWP before tribunal and the vast number of cases lost by the DWP at tribunal, is strong evidence that a "non-medical" approach, in practice without access to a patient's medical history, is seriously flawed.

It may be helpful to consider the recent submissions to Parliament's Work and Pensions Committee of Professor Steve Fothergill of the Sheffield Hallam University and Professor Roy Sainsbury of the University of York and others. The debate is now outside the realm of academia. It would benefit Prof Aylward and Cardiff University to vigorously defend their academic principles and integrity in the forum of this Committee and elsewhere. If the "non-model" argument is valid and can be proved to be so then it must be worthy to be defended. I suggest a "head in the sand" approach is a poor option for Prof Aylward and Cardiff University to take. A Royal Society lecture given by Prof Aylward would do much to progress this matter.

If it was suggested that a "non-peer reviewed" model of accreditation of academic papers or a "non-legal" model for legislation should be followed, then I am sure you would agree that such a model would be very hard to justify as having validity.

Over the years there have been notorious examples of companies guiding academic research in favour of a business model that resulted in profits for the company concerned and which discredited both the researcher and the institution that accredited the flawed and partial research. Company guided and funded research is acceptable per se iff the underlying premise is made clear, that the research is first to prove or disprove the premise and then research should be undertaken into the consequences both if the premise is true and if the premise is false.

I have anecdotal personal experience of company influence on research when working at a senior position in a major company. Electricity companies leak oil from transformers and HV oil filled cables into the water table. It took a long time to scour academia worldwide to find a researcher that said such oil in drinking water is not harmful. I do not know whether that researcher was given funding to extend his research. I do know his research received the publicity it would not have received otherwise. His research supported the correct claim that "there is academic dispute as to whether the leaked oil is harmful". To this day electricity companies report each year on how many thousands of litres of oil they use each year to top up their transformers and cables. In my day most leaked into the water table. I do not know if this is still the case.

I have not seen evidence that Prof Aylward has challenged the "non-model" premise with sufficient rigour. In the overview of the research, as described on the website, it is not made clear that research assumes that a "non-medical" model is regarded as the most valid one and research is not undertaken on other potentially more valid models.

Consider how history will regard this work. Iff the research is subject to academic rigour then the research organisation will not be treated with little regard. Within living memory, consider the number of academic papers that took as a premise "tobacco is good for health". Much research was funded by tobacco companies. Consider further if a "non-medical" model for tobacco related medical conditions was the prime model. A "medical" model has provided extensive evidence for causality links.

I defend the right to complete academic freedom. Openness, transparency and debate lead to progress and improvement. I have no objection to any researcher re-opening topics, such as the "non-medical" model in addressing medical conditions (even those that have been disregarded previously as false), iff the premise is open to challenge and rigour. Academic research would make slow progress if shackled by an initial premise that is not open to challenge.

To quote a statement on the Cardiff University website: "Research at Cardiff pushes back the frontiers of knowledge and understanding and is applied to produce real benefits, locally and worldwide." To many, disability assessment research based on a "non-medical" model, as advocated by Prof Aylward, sets back the clock to the time when "non-medical" models were used in respect of many conditions that are now recognised as treatable medical conditions.

Consider the "Scopes Trial" and the reputations of the parties involved. If there was a similar trial today considering the merits of the "non-medical" models for medical conditions, which side would Cardiff University support. Is this the side that would encourage increased third party funding for research at Cardiff University. I note that Cardiff University has distanced itself from Unum. It would help if Prof Aylward reviews the current evidence and produces a revised research paper that is open to peer review and challenge.

I look forward to hearing from you and/or Professor Aylward. I have no problem with my assertions being challenged. I would be delighted if you are able to provide evidence to the academic community that I am in error and which explains the over ten years experience of failures of the approach ("not fit for purpose") in the US and the UK.

Thank you.

Yours faithfully

Cardiff University, Main Building, Park Place, Cardiff CF10 3AT

Vice-Chancellor Dr David Grant CBE FREng FIEE

3 January 2012

Dear Mr B...

Thank you for your email of 27 November 2011 to the Vice-Chancellor and for your interest in the views of Professor Sir Mansel Aylward, Director of the Centre for Psychosocial & Disability Research at Cardiff University. Dr Grant has asked me to respond on his behalf.

Professor Sir Mansel has published his extensive peer-reviewed research on his area of expertise through a wide range of respected academic journals, presented to conferences, and commented in the media on relevant issues. It is widely accepted that academic research such as Professor Sir Mansel's is open to legitimate academic challenge and the process for this is held in high regard. It is therefore not appropriate for me to comment on your individual claims.

The University provides a platform for the views of its academics which are formed on the basis of in-depth study and understanding of their subject. The University respects academics' differing positions.

Yours sincerely

Mr Rhys Thomas, Head of the Vice-Chancellor's Office