- With a Full'/Digital service claim the DWP will only speak to representatives where explicit consent is provided - unlike with a 'Live'/Gateway service claim where implicit consent can be accepted.*
- So for a 'Full'/Digital service claim, written or verbal consent from the claimant for a particular named representative is needed before the DWP will disclose any information to that person.
- The DWP should not automatically refuse to speak to a representative if the claimant is not with them - they should first check to see if explicit consent has been given.
- The normal security questions that the DWP would ask the claimant do not apply to a representative with explicit consent- ie they are not taking the place of the claimant.
- Explicit consent does not last for an indefinite period and is not enduring, it is in relation to a particular issue. So a fresh request for explicit consent will be needed for each issue the claimant needs assistance with their claim
- If accepted, the representative can be given information about the progress of a claim, or details of how it was calculated, or why a decision was made, but not any information that they should be able to find out by asking the claimant.
* Please note that on the 14th March 2017, the DWP's Secretary of State, Damian Green, confirmed that MPs would be able to use implicit consent when contacting Universal Credit (surely leading to more referrals to MPs offices) - his statement can be found here
What is 'Explicit Consent'?
'Explicit Consent' is where a claimant has expressly given their consent to a particular named representative to act on their behalf with regards to a particular issue.
How does a UC claimant give explicit consent?
A UC claimant can give 'explicit consent' in one of three ways:
- Telephone consent - and if the claimant is in a different location to the adviser, or is in a rural area and can't keep re-visiting areas for support, a three way call can be set up.
- Online consent - via their online journal.
- In person in a Jobcentre.
NOTE: The DWP have confirmed that paper letters of consent cannot be used:
"Universal credit is designed to be primarily an online service. As we no longer have a ‘paper claim’ we have no way of verifying that written consent is actually from that claimant. As such, consent can be given through a claimants account, over the phone or in person. In addition we want, wherever possible, third party representatives to help claimants to self serve and understand what is happening with the claim themselves." (Jenny Ellis, DWP, 02.02.17)
What if the DWP refuse to accept that a Full service claimant can give explicit consent?
If the DWP are allowed to refuse to accept explicit consent - they can do this where they believe the consent was given under duress, or where the information being requested is not in line with the information needed to assist the claimant with the issue the consent was given for.
However, they should not just refuse to accept explicit consent - or say it doesn't exist, or that the claimant's signature is needed, or it's got 'lost' in the vast number of messages on the claimant's journal.
If the DWP refuse to accept explicit consent then ask to speak to a supervisor and quote from the letter
Neil Couling, Director General of the Universal Credit Program sent to 'The Welfare Advice Sector' on 20th January 2017, in which he confirmed that 'explicit consent' can be used for Full service UC claimants - as they should be allowed to 'invite' third parties to support them.
Why is 'implicit consent' not accepted for a Digital UC claim?
The DWP have consistently suggested that this is mainly to do with 'data risks'
as confirmed by Neil Couling on the 1st February 2017
, who advised that 'it is not safe to take an implied consent approach''
due to data protection issues.
What about requests for written / recorded information?
These will need to be made in writing and will require a written authority from the claimant. DWP guidance states:
for copies of information should be made in writing. If a representative
provides a written customer authority for us to disclose information from our
records, how we deal with it depends on the information requested. The
principle of consent depends on the customer being sufficiently informed as to
what information they are allowing to be disclosed.
- if the
request is non-specific, for example requesting “all information” held in
respect of a customer or a customer’s claim, then the request must be passed to
the Data Protection Officer and treated as a Subject Access Request. A
request to disclose “all information” cannot be considered informed because a
customer cannot reasonably be expected to know everything that we hold on them.
- if the
request is specific, for example requesting details of benefit paid, copies of
medical evidence, other evidence upon which decisions have been based in
connection with a current benefit claim from an individual or previous claims
that have direct relevance, then copies may be provided to the representative