Russell Fortt successfully appeals an ICO decision in the Information Rights Tribunal (EA-2022-0240; [2023] UKFTT 350 (GRC))

19 April 2023

Russell Fortt acted for the Department for Work and Pensions in an appeal against the decision of the ICO that DWP could not rely on the prejudice to commercial interest exemption contained in s.43(2) FOIA to withhold information about contractual deductions applied to its contractors.

The case concerned an FOIA request for copies of the minutes of monthly performance meetings between DWP and its two contractors who administered the medical assessment procedures for claimants of a welfare benefit known as Personal Independence Payments ('PIP').  The DWP provided the minutes to the requester which included the assessment of performance against contractual service levels but redacted the associated financial deduction applied to the contractors for their underperformance (known as 'Service Credits') on the grounds that it prejudiced the commercial interests of both the DWP and its contractors, not least because that information could be deployed by potential bidders when the contracts were re-tendered.

The requester referred the matter to the ICO which concluded that the Service Credits constituted a financial interest relevant to the administration of welfare benefits and not a commercial interest following the decision of the Court of Appeal in DWP v ICO 7 Zola [2016] EWCA Civ 758.

The DWP successfully appealed that conclusion on the basis that the judgement in Zola did not create a wider principle precluding a financial interest relevant to the administration of a welfare scheme from also constituting a commercial interest.



Russell Fortt

Call 1999


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