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Drugs case may force DWP to reveal incapacity secrets or lose appeals

6 December 2006
The DWP may be forced to choose between losing appeals or finally disclosing the secret software used to assess incapacity for work if a drugs company court challenge in a separate case is successful.

Benefits and Work has produced standard documents for use by claimants and representatives wishing to pursue this line of appeal in advance of the case.

Although the two issues are not connected, the facts of the case being pursued by the drugs companies are so similar to those relating to the LiMA software used in the Personal Capability Assessment that a victory for the drugs companies would open the door to claimants mounting legal challenges against DWP decisions that they are capable of work.

Cost effectiveness
The two companies, Eisai and Pfizer, are challenging the way that NICE reached a decision to withdraw approval for the companies' drugs for people with mild Alzheimer's disease, even though they are known to have a beneficial effect. Withdrawal of the drugs has caused enormous anger and dismay amongst people with Alzheimer's disease and their carers. The decision was based on an analysis of the cost effectiveness of the drugs, arrived at using software developed by Southampton University. The software looks at how much the drugs cost and how much they improve the quality of a patients life.

However, whilst NICE have allowed the companies to see all the data which was fed into the software, they refuse to allow the companies to see a fully working version of the software in order to allow them to understand how it reached the conclusion that the drugs fail the cost effectiveness test.

Commercial confidentiality
NICE claims that there is a confidentiality clause in their contract with Southampton University which prevents them from disclosing how the software works. Attempts by the drugs companies to get copies via the Freedom of Information Act have failed, leading to them now taking the first steps towards a judicial review of the decision. The companies claim that the failure to disclose a "fully transparent working version of the calculations used in the cost effectiveness model for independent evaluation and comment" means that the decision is procedurally unfair and should be thrown down by the courts.

The problems faced by Eisai and Pfizer are exactly those faced by Benefits and Work when attempting to get access via the Freedom of Information Act to the LiMA software developed by Atos Origin to assess claimants incapacity for work. We argued that it was a breach of natural justice to deny claimants the right to see how a decision had been reached in their case. The DWP, however, refused to provide a copy of the software on the grounds that it was covered by a commercial confidentiality agreement in the contract between Atos Origin and the DWP.

But, should the Eisai and Pfizer challenge to Nice succeed, then the legal rug may well have been pulled from beneath the feet of the DWP. It will be open to Benefits and Work to make a fresh application under the Freedom of Information Act and, if refused, take the matter to the Information Commissioner armed with a legal ruling supporting the principles we are arguing.

Equally, individual claimants will be free to ask for a copy of the software to be disclosed if they are challenging a decision that they are capable of work. If a tribunal finds against the claimant on the grounds that they prefer the evidence of the Atos Origin Medical Services doctor, but without insisting that the claimant be given access to the software, then there will be grounds for an appeal to the Social Security Commissioners on the basis of a breach of the rules of natural justice.

Standard letters
We'll keep members informed of the progress and outcome of the Eisai and Pfizer challenge. Meanwhile, if anyone wants to have a go now, in advance of any judicial review by the drugs companies, we've produced a standard letter that you can send to the DWP asking for a copy of the software and a standard paragraph that can be included in, or added onto, any appeal against a decision that you are incapable of work.

Please note: this is an untested argument and one possible outcome is that your hearing may be postponed or adjourned in order to allow the DWP to consult with Atos Origin Medical services and prepare a detailed response. You should only consider using these texts where you have support from a welfare rights worker.

The letters can be downloaded from the members area.