- 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 (potentially 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)
NOTE: Although DWP tend to insist that authorisation is not sufficient - ie the claimant still has to either be with the representative or on a 3 way phone call - this is not what was said in Neil Couling's letter - see below - some users have quoted this letter where it is impossible to have a face to face visit or 3 way phone call.
It is hoped that the planned “Landlord Portal” (due to start trials summer 2017) may provide a way to obtain some information without these barriers - but we understand that any sharing of data with landlords will be limited strictly to housing issues.
What if the DWP refuse to accept that a Full service claimant can give explicit consent?
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 for which the consent was given.
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 that 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.
Please see Standard Letter UC G2
- the contents of which must be copied out into the claimant's journal. And you can use our form G1
which asks the claimant to sign that they have agreed to you acting on their behalf / writing on their journal etc - this should be kept on your files. NOTE - never ask a claimant to give you their UC account login. They can log in themselves and show you their account or even ask you to write a letter onto their journal - but use G1 to be on the safe side.
What if the DWP say that the explicit consent has expired
- eg because it was given more than 3 hours ago, or because you have "used it up" by having already spoke once to the DWP about this person and this matter*?
These are things that have actually been said to representatives. We have not found anything in regulations or guidance to support them and have submitted a FOI to the DWP to ask if there is anything written anywhere about it. Meanwhile if this happens ask to speak to a supervisor - and let us know!
To try to prevent the second problem, if you think you may need to get back to the DWP on the same issue it might be wise to request, at the first call, that a note be put on the claimant's journal that the matter has not yet been resolved and that you will be calling back.
*Note that fresh consent must be given for any new problem.
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