DWP’s fake psych ‘test’ breaks EU AND British consent law?

It’s been a big day. My articles on the fake psychometric ‘test’ that the Department of Work and Pensions (DWP) is forcing unemployed people to take on pain of losing their benefits were picked up by the Guardian’s Shiv Malik, and subsequently by the Huffington Post’s Felicity Morse. As a result of Shiv Malik’s article, the Guardian asked me to write a brief piece for its ‘Comment is free’ section – my first ever piece of mainstream journalism.

Malik’s article was the most-read of the day in the newspaper’s ‘Society’ section. Clearly the unethical actions by the DWP have struck a chord in people – and rightly so. It’s been great to see such a spotlight shone on such a fundamental issue as the way in which the government is cynically manipulating – and nakedly threatening – disadvantaged people.

However, it appears that the government’s behaviour in this instance is not only unethical but also illegal.

The fake ‘test’ was initially launched as a ‘randomised control trial‘ in Loughton, Essex and – according to the government – such a roaring success there that it was rolled out all across Essex and also in Teesside (my home area).

A Cabinet Office blog about the ‘success’ of its trial lists 3 key parts of the experiment. Step 3 is described as follows:

3. Building psychological resilience and wellbeing for those who are still claiming after 8 weeks through ‘expressive writing’ and strengths identification.

The blog goes on:

Following these results, we are about to launch a much bigger trial across all of Essex, alongside even larger trials in the North East.

Note, because it’s very important, that the government is here recognising – repeatedly – that the ‘tests’ form part of a ‘randomised control trial‘. In other words, the test itself is not the point – what is being trialled here is the supposed effect of going through it on the subjects of the trials – the unemployed people being made to participate.

EU ‘informed consent’

This is critical because it essentially forms the government’s admission that it has behaved entirely illegally.

Directive 2001/20/EC of European law defines the ‘informed consent’ that must be expressly given before anyone can participate in any kind of clinical trial. It defines that consent very clearly:

Informed Consent is the decision, which must be written, dated and signed, to take part in a clinical trial, taken freely after being duly informed of its nature, significance, implications and risks and appropriately documented, by any person capable of giving consent or, where the person is not capable of giving consent, by his or her legal representative; if the person concerned is unable to write, oral consent in the presence of at least one witness may be given in exceptional cases, as provided for in national legislation.

As the NHS’ National Research Ethics Service document “Active Informed Consent” notes, this EU directive has been enacted in UK law:

The requirements are set out in Schedule 1 to the Medicines for Human Use (Clinical Trials) Regulations 2004 (S.I.2004:1031) as amended by S.I.2006:1928, S.I.2006:2984 and S.I.2008:941. The Regulations transpose the provisions of the European Clinical Trials Directive (EC2001/20) into UK law.

You may be thinking, ‘So what? These regulations refer to clinical, medicinal trials.’ You’d think so, but you’d be wrong.

As a document on clinical ethics by CORDIS, the EU’s Community Research and Development Information Service, points out:

The principle of “informed and free decision” remains valid for any other kind of research.

Data Protection

Another issue is the handling of data and the obtaining of informed consent on what data is to be gathered and how it is to be handled. The University of Southampton’s Sociology department published a paper addressing this issue. It notes:

In terms of legal frameworks, Article 8 of The Human Rights Act 1998 and the Data Protection Act 1998 have relevance to consent in relation to all research (see Montgomery, 2003). The Human Rights Act protects the right to respect for private and family life and thus supports the need for consent to participate in research (Masson, 2004). In relation to the Data Protection Act (DPA), specific issues relating to consent concern the disclosure to researchers of data or information about potential participants, the need to ensure consent to individual’s data except in very specific circumstances, the use to which data is put (i.e., that this should be limited to that for which consent has been sought) and the storage of data (see, Masson, 2004; for a detailed discussion of these issues within a health context see Montgomery, 2003).

Clearly, no consent has been sought from those instructed to complete this test for their participation in the first place, nor for how the data is handled. It is emailed in plain format to a case-handler and clearly stored somewhere for the Behavioural Insight Team’s measurement of the results of the trial and for who knows what other purposes – all without any consent being given, or even sought.

It appears that the case is as ‘open and shut’ as any could be on the data protection aspects of the DWP’s behaviour, and that there’s a strong argument at least that it also breaches EU and UK law on informed consent for participation in trials:

  • The Cabinet Office’s own publication states clearly that having jobseekers complete the ‘strengths test’ is a trial to see what effect it would have on employment – the very definition of a trial.
  • EU and UK law on ‘informed consent’ states that consent to participate in trials must be given freely and only “after being duly informed of its nature, significance, implications and risks“. Not only that, but this consent must be given in writing unless the participant is unable to write.
  • Data protection law also mandates that consent must be obtained for any collection or use of an individual’s private information.
  • Neither the jobseekers in Loughton, nor in the rest of Essex, nor in Teesside, were either asked for or gave consent, written or otherwise, to be ‘guinea pigs’ in this trial.
  • At no point was it explained to them that they were participating in a trial, nor were the “nature, significance, implications and risks” of the trial explained to them.
  • Not only did they not consent, but they were coerced into participating by the threat of having their benefits removed – the very opposite of any definition of consent.

It seems beyond question – and supported straight from the “horse’s mouth” of the Cabinet Office, although undoubtedly unintentionally – that the DWP and therefore the government have been acting in clear, direct contravention of UK data protection laws and probably UK/EU ‘informed consent’ laws by imposing this trial on unknowing, vulnerable benefit claimants.

In other words, illegally.

This government has behaved like a bunch of crooks since it took office. But now it appears not only to be literally breaking the law, but also boasting about it.

This is a government that appears to have as much contempt for the law as it has for those it considers unworthy, as demonstrated its decision to rush through unprecedented ‘retrospective’ law to avoid having to pay back money it sanctioned unfairly after it lost a landmark ‘workfare’ case – and now by its decision to make unwitting, unwilling ‘lab rats’ of unemployed people.

Anyone whose benefits have been sanctioned – or for that matter who has suffered distress – because of this unlawful and unethical behaviour by the DWP should be seeking immediate legal redress. Oh, except that the government is removing legal aid..

60 responses to “DWP’s fake psych ‘test’ breaks EU AND British consent law?

  1. If it wasn’t for the ‘red tape’ we get from the EU the Tories would have
    a field day in exploitation and persecution of the employed and unemployed.That’s why many of them want to leave the EU and the
    Tory press is continually lampooning the EU.They like the freedom to
    exploit people.ELTS

  2. Well done Steve for exposing the illegal and despicable ways this Government is eradicating any trace of decency in the way it deals with the 99% of us.
    Way beyond belief – Far beyond parody.
    The Guardian has another follow on article today. See:-
    ‘Nudge unit’ to become profit-making
    Government’s behavioural insight team, which tries to change voters’ behaviour without legislation, to be spun off as mutual
    Its such a great success evidently that its going to be mutualised so it can continue its deceit and coercion unfettered by its closeness to the Cabinet office. Presumably this will enable the current scrotes running the show will be able to pay themselves whatever they please through the auspices of right wing manipulative bankers, G4S, Atos, A4E, Serco, Circle, PwC, KPMG, Deloitte, Accenture, Capita, McKinsey, and the rest of them. Much the same bunch that fund Reform of which Paul Nolan was pontificating in yesterdays Guardian that the NHS budget should be cut to force it to change its bad ways. Presumably ignoring the fact of ever increasing demand, £20 billion of savings, the largest and most radical and the most incompetent reorganisation in its history and that really is saying something.!
    I hope that you were very well paid for your Guardian piece. You certainly deserve to be. Hope you can persuade them to run another piece by you on the NHS or a series preferably, which would fund your very important work.
    This Nation needs investigative journalists of your ilk to expose the degradation of the British people under this out of touch bunch of very dangerous psychopaths.
    Keep up the good work. Your Country Needs You!!

    • Thank you very much mate! Yes, I’d seen the mutualisation article – and am as concerned as you.

      I only got a flat fee for this one – but then again I’d have done it for nothing to get the word out. Apparently Shiv Malik’s article was the most read on the whole site yesterday with some 150k reads, and the Huff Post and Morning Star have picked it up too, so the word’s definitely out!

      I’ve sent this latest post to the Guardian’s comment editor – we’ll see whether they decide to do anything with it!

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  4. Did they have the approval of a research ethics committee for their trial? Did they to through any of the regulatory processes before conducting their trial?

    If not, why not?

    What evidence was the basis of this trial?

    What did they plan to do with the data? Did they intend for peer-reviewed publication? Did they have a falsifiable hypothesis, or even a set of valid end points by which to judge the success or failure of the trial?

    There’s a fair few more questions that need to be asked about this outrageous nonsense.

      • The issue of what they planned to do with the data could indicate an infringement of the data protection act. When you collect data, you need to have good reason to do so and a defined use for that data.

        The rest of my post is more in line with good clinical practice and eu directive on research trials.

        Informed consent is probably the big infringement though and you’ve already picked up on that.

        Also, fantastic article, thanks for investigating the dwp!

      • Thanks mate. As well as a good reason and a defined use, you also need consent for that – I’ve added a section about it to the article. I appreciate everyone’s help and input with all this!

  5. Reblogged this on Vox Political and commented:
    Another excellent piece of journalism uncovering the illegality (under UK and EU law) of the DWP’s fake psychometric test. My guess is that whoever devised this particular piece of torture for jobseekers was relying on the probability that nobody would be aware of the EU law, or have the ability to look it up.

    One thing that does concern me – especially considering the coverage in the Guardian and HuffPost, is the low number of shares on the social media, especially Facebook. Please help make sure this message gets out by sharing it as widely as possible yourself.

  6. The Nudge nudge winkwink department is the first being made in to a mutual to provide government services.

  7. Congratulations on your work – I have been sharing it far and wide since you first covered the story.

    My brother is a psychologist & has decided to contact the British Psychological Society to ask them to make an official complaint with regards to this bogus test. He feels it could undermine the work of psychologists by causing people to lose trust in the profession. I will keep you posted🙂


  8. Really well-done saw the article and was thrilled. I did the test myself it’s an outrageous piece of Orwellian manipulation. The whole nudge thing owes a lot to eugenicism I think – implies there’s a sub- class of really stupid people? A kind of CBT for the masses! Anyway well done. Michelle de Larrabeiti

  9. You still get legal aid for the fees in small claims court…… it’s quite easy to use the small claims court and well if you have been sanctioned illegally, sure you can make a claim to the SCC to get your money back….. oh and it will cost the government a fortune if the try to defend these cases…….

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    • That bit (about getting rid of the ECHR) struck me too as too big a coincidence; that, and the withdrawal of legal aid, at the same time as the welfare ‘reforms’? Hmmm… Thanks to articles like this many more people will join the fight against this government and its attempted systematic crushing of those in most need of support.

      • There is a precedent for this. When the Dutch government began its attack on the ill and disabled in earnest, it considered unilaterally breaking treaties it had with the International Labour Organisation (ILO). These guaranteed compensation. I don’t know what happened in detail, but in 2007 the old disability law (WAO) was abolished and replaced by a far less generous and far more stringent one (WIA). The treaties might well have become inapplucable to the new law.

  11. What would we do without you Steve? A real inspiration! Fantastic piece, valuable investigation as usual, and great comments too. Moral high ground backed up by the law – formidable! Those crooks should be very afraid…

      • Yes. And it was a pleasure to have supplied some of the background info. It is painful to me, born in the USA but an immigrant to two
        welfare states-Holland and Sweden-to stand by feeling powerless while seeing many of my ideals destroyed by international greed. The wrecking is most blatantly vicious in the UK, most likely thanks to sharp class divisions.

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  14. As regards psychological interventions, there is also an ethical issue for research which involves any element of deception (which this fake psychometric test clearly does). Check out the BPS, for eg.

    Also, I wonder what Ben Goldacre makes of this – he’s the chap that’s been trumpeting evidence-based policy-making (fine) and (mis)using the pharmaceutical notion of the RCT in social policy research (which he obv. doesn’t know much about). He even helped write this paper for the Behavioural Insight Team:

  15. Steve,

    I’ve looked at this trial in some detail and have a number of serious concerns about it, mainly to do with the lack of an ethics procedure, and the extremely slapdash way this seems to have been implemented. However, some of your points are factually incorrect:

    1. There’s no data protection issue, because it appears that the data was never collected or stored in any way, it was simply relayed back to the participant. (That’s how the Guardian journo managed to game the system). On this count in particular, they are clean.

    2. I don’t also agree with your assessment that informed consent was needed (though there must and should have been an ethics procedure) because, in that instance, even subtle changes to communications could be deemed a trial (e.g. A/B letter wordings). There’s a clear difference between a clinical setting and a marketing/organisational process issue that this falls into. I accept this is fuzzy though, this is the point of an independent ethics committee who are able to judge on this matter.

    3. It’s also very clear that participation in this trial was meant to be optional, with no consequences for failing to complete it (as per data collection above). So I don’t think the coercion point holds.

    But, an ethical procedure and, in particular, a clear and justifiable working hypothesis for the intervention was clearly lacking. Keep up the good work!

    • How do you work out that it was meant to be optional? I’ve put the letter on line in which it says ‘Failure to comply may mean loss of benefits’.

      Also, on the issue of data capture I’m told by those who know about such stuff that the code is set up so that a copy of the information is almost certainly stored somewhere. Moreover, sending out such information in an unprotected email represents a data handling issue in itselt that must breach the data protection act.

      • Steve, you need to post the full letter and look into the guidance/intent on this. I agree it’s extremely poorly worded (and this, in itself, is cause for concern) – this looks to me to be a communication issue (albeit a serious one) rather than an intent to deny benefits (which is far graver, I agree).

        Data protection – “the code is set up so that a copy of the information is almost certainly stored somewhere”. Did you download the strengths.php file when you found the open site listing? This contains the actual source code (rather than a hypothesised implementation) and you could verify this. The Data Protection Act covers only a very specific range of situations and given the lack of storage and especially the lack of personal information, the Act does not apply here (specifically there’s no storage, no personal data, nor means of identification, which are pre-requisites for the Act – I’ve professionally had to get myself up to speed on the Act, though I’m certainly no lawyer!).

        “sending out such information in an unprotected email represents a data handling issue in itselt that must breach the data protection act.” It’s extremely sloppy, but it’s not against the Act for reasons above. There’s a big difference here.

      • I did upload the full letter in one of the earlier, linked articles. Didn’t want to clutter this one by repeating the same. I know nothing about reading code, unfortunately, so I’m dependent on people who know what they’re talking about, who told me that it was set up that way.

        The test is still online, so if you know how to tell and they haven’t changed it yet, you could have a look?

      • Sorry, final point from me. I’m not trying to defend this, rather I’m concerned that non-issues (e.g. the legal points) don’t cloud the main problems as I see it, which are:

        Lack of ethics procedure.
        Lack of clear scientific basis for including this test (which is an ethical question).
        Lack of scientific rigour in the implementation (this also seems to be lacking academic oversight).

        By all means test policy out – as a scientist I fully support this! – but a slapdash and cavalier approach to policy trials helps no-one (and can harm some people). The ultimate goal of this trial is laudable – work out how to reduce unemployment and to do so in a cost effective way – but the way in which it has been designed and implemented is terribly poor.

      • Steve – can you send me the strengths.php file or a link to it? Happy to take a look. Cheers!

      • No, I need the source file, that link is what results from the file when processed by the web server to produce the html page that you see in your web browser. If you did a mass copy of the website when you found it open, then you should have this. (Of course, if not, then not!)

        I’ve already done the test and there’s nothing in there that gives rise to a Data Protection issue (because there’s no identifiable data) and the strengths.php source code would confirm the lack of storage of data.

      • You enter your email, though, so that ties the input to an individual. I’m sorry, I don’t know about accessing the source code – but I did copy the webpage to Freezepage if that’s any use.

      • Yes, but there’s no server-side storage of that data (look at the javascript at the top of the html that gets generated – it’s clear, if you understand some computer programming, that the script is not reliant on server-side data), nor e.g. any cookies or anything like that, it’s a one-click processing of the embedded answers (i.e. there’s only a tie if there’s something to tie it to), which isn’t covered by the Data Protection Act.

        Maybe this is something for an FoI request?

      • It might well be – but I’m probably ill-equipped to do it, as I have no idea about javascript etc. I don’t understand any computer programming, so it’s not clear to me!🙂

    • Interesting and well thought through analysis, EXCEPT
      you assume the answers in the questionnaire is the data for to RCT. However, it is obvious that the data & the response are in fact the claimants details, and their benefits, and the subsequent actions of the claimant in relation to this. (I am a retired scientist, with a good knowledge of RCT and experimental design). Hence the central points of Steve’s article remain true. Hence the fact that the same person was used for part 2 of this despicable “research”. I see the justifiable hypothesis is that if you can push very specific buttons – in this case hitting someone with actions they are guaranteed to fail at – how much more quickly can you make them “sanction” themselves?? Dirty tricks, disgusting use of behavioural “science”. But don’t worry, they’ve already got the red-tops to make their demonization and discrimination of the disabled appear normal to the masses. This is evidenced in the Guardian reply sections where is does appear some people think this deception is “OK” for people on benefits. (Then they came for you….)

      Thank you Steve, and keep on with your essential work.

      • A fair point, though this is surely falls into the informed consent/ethics side of things; Data Protection, as regards the routine personal data normally collected in Jobcentres, must be covered by the Department of Work and Pensions who must have the appropriate processes in place.

        Again, this falls into the ethical fuzz… government data (and commercial data, for that matter, e.g. store-cards, credit-card transactions, energy bills) are routinely used for internal statistical analysis; the question is the degree of explicit consent that must be given for this outside of a clinical setting. I suppose my view on this particular case is that there was not an intent to deny benefits (which would be serious: denying a right to something), rather to assist the job-seeking process (adding value, where there was none assumed). Again, this is for an ethics committee to decide.

      • I beg to differ. If Nightingale is right, data protection is a secondary issue, resulting from a first: data gathering, not only without informed consent, but by lying. The person taking the test is being *intentionally* led to believe that the ‘test’ is aimed at personality-improvement. If that’s false then there’s an active ‘intention to deceive,’ (as we philosophers say, for clarity), i.e. a lie. I’d call that unethical. So we have data gathering by unethical means. As despicable as Nightingale states, although some will differ.

  16. I think I may just have discovered a ‘nudge’ on the ‘new improved’ ESA50 form for the Work Capabliity Assessment that ATOS and the DWP send out to disabled claimants.

    I am filling in my ESA50 now and noticed that most of the questions have a tick-box for “It varies”.

    This looks very much like a ‘nudge’ to TRAP people into feeling they must be ‘honest’ and say their ability varies, when, according to Lord Fraud and a note on the new ESA50 itself, if their ability is NOT RELIABLE or REPEATABLE, it counts as being UNABLE to do it.

    Surely every WCA assessment where someone has been denied ESA or sentenced to Work Related Activity for ticking the ‘it varies’ box is provably wrong.

    The ‘it varies’ option seems to have no meaning if the form is assessed using its own and Fraud’s stated criteria. The only reason that this appears there seems be as a nudgy, weasly, manipulative deception perpetrated against the sick and vulnerable.

    • … bearing in mind there is a precedent for govt manipulation of forms in one of the White Papers that was on the test site (nudging Drivers Licence applicants to be organ doners).

      So it would be hard for manipulation of ESA claimants to be denied when the cat’s kidney, heart and lungs are already out of the bag.


    “Informed consent” is an interesting expression.

    I’m wondering if “informed consent” is also needed when an unemployed person is sent to the Work Programme, or the Mandatory Work Activity Scheme, or indeed the forthcoming Community Action Programme.

    And what about the new “Claimant Commitment” under Universal Credit? That is a contract between a claimant and the Government, but as I understand it, a contract which does not have the informed consent of both parties is called an “adhesion contract”, which is invalid in the eyes of the law.

    Perhaps you can comment on “adhesion contracts” in relation to various Government workfare schemes etc.

    • I read up on adhesion contracts. Apparently they’re not invalid per se, but if they’re ridiculously one-sided judges will usually set them aside. Could anything be more one-sided than a government department forcing an unemployed person to sign in order to get even meagre financial support?

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  19. I’ve been wondering myself re Small Claims Court action. If for example one could take action against Capita plc as opposed to their purported local council H/b organisations. I’d have a go at representing myself – will uk uncut etc be able to help others / dispense advice.
    Another forum here that reassures me that we’re not totally sc****d in this country (yet). Thanks

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