Reference: FS50618046

Freedom of Information Act 2000 (FOIA) Decision notice Date:

21 September 2016

Public Authority: Address:

Department for Work and Pensions Caxton House Tothill Street London SW1H 9NA

Decision (including any steps ordered) 1.

The complainant requested the names of scientists used by the UK government to review data for policies. He also requested a specific piece of evidence referred to in a specific piece of correspondence from the Department for Work and Pensions (DWP).

2.

The Commissioner’s decision is that on the balance of probabilities the DWP does not hold the requested information. No steps are required.

Request and response 3.

On 17 December 2015, the complainant wrote to the DWP and requested information in the following terms: “1. Please identify the Scientist(s) used by Government departments to interpret the peer reviewed science data which forms the basis of Government policies. 2. Please provide references to, or copies of, the evidence mentioned in the third paragraph of your letter dated 25th November 2015 to Mr Cairns [Mr Alun Cairns MP Vale of Glamorgan].”

4.

The DWP responded on 15 January 2016. It stated that it did not hold relevant information for item 1 of the request, and stated that it could not comply with item 2 of the request within the appropriate limit established under section 12 of FOIA.

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5.

The DWP issued its internal review on 22 February 2016. Based on the specific concerns raised by the complainant in requesting an internal review, the scope for item 2 of the request was narrowed to “evidence used on introduction of the CAR [Control of Asbestos Regulations] 2012 in relation to risks to health from chrysotile cement”. The DWP stated that this information was not held.

Scope of the case 6.

The Commissioner did ask for submissions on the DWP’s refusal of item 2 of the request under section 12, as the complainant had indicated that he wanted the focus to be on the original wording of the request. The DWP confirmed that it had mistakenly applied section 12, and instead it denied holding any relevant information.

7.

In light of the above the Commissioner considers the scope of the case to be whether the DWP holds information relevant to the complainant’s request.

Reasons for decision 8.

Section 1 of FOIA states that: “(1) Any person making a request for information to a public authority is entitled – (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.”

9.

In cases where there is some dispute between the amount of information located by a public authority and the amount of information that a complainant believes might be held, the Commissioner – in accordance with a number of First-Tier Tribunal decisions – applies the civil standard of the balance of probabilities.

10. In his correspondence with the Commissioner the complainant made it clear that the purpose of his request was to establish “how did the 1996 peer reviewed and published Government science on white asbestos and its products that clearly showed it was no more of a risk to health than many other common materials in the built environment suddenly become the killer of 4500 workers per annum”. 2

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11. The Commissioner acknowledges the purpose of the complainant’s request, but her decision must relate to the request as submitted by the complainant. Item 1 of the request - Scientist(s) used by government departments to interpret the peer reviewed science data which forms the basis of government policies 12. The Commissioner wishes to make it clear at this stage that for the purposes of FOIA the DWP is an individual public authority. As such, it is only responsible for its own records, and not those of other public authorities within government. Whilst it might hold information which was created by another government department, it would not be required to determine whether any relevant information is held by other government departments, since these are separate public authorities in their own right. 13. The DWP confirmed to the Commissioner that the complainant had been in correspondence regarding the Diffuse Mesothelioma Payment Scheme, which the DWP has the policy responsibility for.1 This scheme came about as a result of the Mesothelioma Act 2014 (TMA).2 14. The DWP stated that it had not carried out any of the scientific research that led to the introduction of TMA, nor did it have scientists to peer review the scientific data that provided the justification for its introduction. The DWP stated that as the policy holder it was responsible for the implementation of TMA after it had been passed by Parliament. However, DWP was adamant that it has “never been nor are actively responsible for the scientific evidence that does (or does not) relate to the cause/s of diffuse mesothelioma.” 15. The DWP is a department that is responsible for welfare, pensions and child maintenance policy; not conducting peer reviews of data that might form the basis of government policies. It follows that the DWP does not have responsibility for the medical research that helps form the basis of government policies. 16. The DWP confirmed that Public Health England (PHE) would be a more appropriate public authority to consult. The complainant stated to the

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https://www.gov.uk/government/statistics/diffuse-mesothelioma-payment-schemestatistics 2

http://www.legislation.gov.uk/ukpga/2014/1/pdfs/ukpga_20140001_en.pdf

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Commissioner that he had done so and not received the information he wanted. The Commissioner cannot comment on PHE’s response, but she can say that it does not mean that DWP is likely to hold relevant information. Should PHE have erroneously denied holding relevant information it would not fall to the DWP to make amends for information it does not hold, and PHE’s denial does not provide evidence that DWP has recorded information about who conducts peer reviews of scientific data. 17. The Commissioner looked through information available online in relation to government scientific research groups – such as the Committee on Carcinogenicity of Chemicals in Food, Consumer Products3 – and asked the DWP to confirm whether it held responsibility for this group and others that can be found on the gov.uk website. The DWP confirmed that it was not responsible for this group or anything similar, and that it was not responsible for the information that was held in relation to the group that was available online. 18. Based on the arguments from the complainant and the DWP the Commissioner is satisfied on the balance of probabilities that it is unlikely that DWP holds relevant information. The requested information does not relate to its functions; and whilst it might have policy responsibility for legislation that has come about as a result of peer reviews of scientific data, it is clear that the DWP itself does not carry out this work. Item 2 – evidence mentioned in the third paragraph of DWP letter dated 25th November 2015 to Mr Cairns MP 19. Mr Cairns MP wrote to the DWP on behalf of the complainant to pass on his concerns regarding TMA. In response to this, the then Minister for Disabled People – Justin Tomlinson MP – wrote to Mr Cairns MP and stated that “Ministers make policy decisions …based on advice informed by the available scientific evidence.” Mr Tomlinson MP then went on to list organisations that have published information about the “toxicology, epidemiology and health effects of asbestos”: 

Committee on Carcinogenicity of Chemicals in Food, Consumer Products and the Environment



PHE

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https://www.gov.uk/government/groups/committee-on-carcinogenicity-ofchemicals-in-food-consumer-products-and-the-environment-coc 4

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

Industrial Injuries Advisory Council

20. The Commissioner notes that for the purposes of FOIA the DWP is not responsible for the records of any of the named organisation. Whilst the parent body for the Industrial Injuries Advisory Council is the DWP, the Council is listed as an independent public authority within Schedule 1 to FOIA, and so is a public authority for the purposes of the legislation.4 Therefore the information published by the Council and other bodies would be their own responsibility, and not that of DWP. 21. For the same reasoning as detailed for item 1, the Commissioner does not consider it likely that the DWP holds the requested information relevant to item 2. The research referred to was produced by other public authorities, and the Commissioner is satisfied that the DWP – as the department responsible for welfare, pensions and child maintenance policy – would not retain copies of scientific evidence that led to the creation of TMA.

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Listed under part VI – http://www.legislation.gov.uk/ukpga/2000/36/schedule/1

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Reference: FS50618046

Right of appeal 22. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from: First-tier Tribunal (Information Rights) GRC & GRP Tribunals, PO Box 9300, LEICESTER, LE1 8DJ Tel: 0300 123 4504 Fax: 0870 739 5836 Email: [email protected] Website: http://www.justice.gov.uk/tribunals/general-regulatorychamber 23. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website. 24. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.

Signed ……………………………………………… Sarah O’Cathain Senior Case Officer Information Commissioner’s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF

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