Case Reference: FT/EA/2025/0219
Information Rights
In-person hearing at Field House, London EC4
Before
JUDGE A. MARKS CBE
MEMBER M. SAUNDERS
MEMBER S. WOLF
Between
MR LOTZ
Appellant
and
THE INFORMATION COMMISSIONER (1)
and
THE DEPARTMENT FOR WORK AND PENSIONS (2)
Respondents
Representation:
For the Appellant: Represented himself
For the First Respondent: Unrepresented and not in attendance
For the Second Respondent: Unrepresented and not in attendance
Decision: The appeal is allowed: a substitute Decision Notice is set out below.
SUBSTITUTE DECISION NOTICE
The Department for Work and Pensions
Central Freedom of Information Team
12 Tothill Street
London SW1H 9NA
email: freedom-of-information-request@dwp.gov.uk
Re. ICO Decision Notice IC-348501-M6M3 dated 23 May 2025
The Tribunal finds that, in light of new evidence provided since the above Decision Notice was issued, the Department for Work and Pensions ("DWP") holds information of the description specified in the Appellant's request.
However, the Tribunal concludes that section 12 of the Freedom of Information Act ("FOIA") applies because DWP estimates, and the Tribunal accepts, that the cost of complying with the request would exceed the appropriate limit set out in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.
Consequently, DWP is not obliged to comply with the request for information under section 1(1) FOIA nor to take any further steps.
Signed: Date: 6 July 2026
Judge A. Marks CBE
(First-tier Tribunal Judge)
REASONS
Introduction
This is an appeal under section 57 of the Freedom of Information Act 2000 ("FOIA") against a Decision Notice ("DN") issued by the Information Commissioner ("Commissioner") on 23 May 2025 (reference IC-348501-M6M3).
The DN held that the Department for Work and Pensions ("DWP") does not hold any information other than that already provided to the Appellant ("BL"). DWP was not required to take any steps.
The appeal hearing took place in person on 20 April 2026. BL attended and represented himself. Neither the Commissioner nor DWP attended or was represented.
At BL's request, the Tribunal adjourned the hearing, issued further case management directions and once those directions had been complied with, resumed the hearing on the papers with BL's explicit consent and the other parties' presumed consent.
The Tribunal is satisfied that it is appropriate to determine the appeal on the papers pursuant to Rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.
Background
BL's request for information to DWP relates to the mechanism and criteria used to determine the order and timing of Universal Credit "managed" migration notices.
Universal Credit ("UC") replaces a range of legacy social security benefits. Claimants who have not migrated naturally or voluntarily were required to do so under a process referred to as "managed migration", for which DWP was responsible. Managed migration was completed in December 2025.
The Request for Information
On 14 October 2024 BL emailed DWP as follows:
"I note that UniversalCredit/UC migration (from legacy-benefits to UC) is not done for all claims/claimants (that are on legacy-benefits) on the same day.
Under the FOI Act, can you please provide me with the mechanism/formula by which the SSWP (Secretary of State for Work and Pensions) identifies + decides who they issue a UniversalCredit/UC migration notice to, + when?
What are the exact criteria? + who decides on these? Or is it just random?"
DWP's Response and Internal Review
On 23 October 2024 DWP responded, confirming that it held information falling within the scope of the request but relied on section 21 FOIA (information reasonably accessible by other means) and provided BL with a link to information in the public domain.
On 24 October 2024, BL requested an internal review, disputing that the requested information could be found via the link provided.
On 19 November 2024 DWP told BL the outcome of its review: it upheld its reliance on section 21 FOIA and provided further links to published Government and Parliamentary material concerning UC managed migration.
The Commissioner’s Investigation and Decision Notice
On 4 December 2024 BL complained to the Commissioner about DWP's handling of his request.
BL complained that the provided information referred to timeframes by which groups of claimants would be contacted rather than the specific mechanism or formula which determined the order in which individuals would be, or were, contacted.
The Commissioner agreed section 21 FOIA was not engaged, and invited DWP to reconsider its response.
On 21 March 2025, DWP wrote to BL, having approached His Majesty's Revenue and Customs (HMRC) and colleagues within DWP, with further information obtained from HMRC on the processes used to select claimants for managed migration, including distinctions between tax credit claimants and legacy benefit claimants.
In correspondence with the Commissioner, BL expressed dissatisfaction with DWP's response, believing the further information to be misleading/incorrect.
The Commissioner responded that FOIA gives the right of access to information as it is held regardless of whether it is correct. The Commissioner explained he has no jurisdiction to determine whether the information is true.
As a result of further correspondence with BL, the Commissioner included in his investigation whether DWP had disclosed all information falling within the scope of the request but, for the reason explained above, not the accuracy of that information.
By his DN, the Commissioner concluded that, on the balance of probabilities, DWP did not hold any further recorded information within the scope of the request and did not require DWP to take any steps.
Summary of the Appellant’s Submissions
BL submits:
it took from 14 October 2024 to 21 March 2025 to receive even partial information from DWP but the Commissioner did not criticise DWP's delay;
it is improbable that, in relation to legacy-benefits, DWP does not hold further recorded information explaining the actual mechanism, formula/algorithm for selecting and allocating a specific benefit-termination date to each claimant (or allocating individual claimants to specific dates to receive migration notices);
DWP does hold further information on:
how they selected the dates for individual claimants;
the criteria used in the selection process;
who is involved in the process;
how the "UC data file which is produced by Data & Analytics" is compiled;
if some or all of the above information is held:
by another public authority, DWP should let BL know;
by a private contractor or sub-contractor on DWP's behalf, it is effectively "held" for the purposes of FOIA by DWP;
DWP's explanations to date are insufficient or incomplete;
the Commissioner placed excessive weight on unverified assertions by DWP as to information not held.
Summary of the Respondents’ Submissions dated 14 July 2025
By his Response dated 14 July 2025, the Commissioner maintains that:
the DN is correct in law and fact;
the issue for determination is whether recorded information is held, not whether further information ought to exist;
BL has provided no evidence to support his assertions that DWP holds further information;
in previous decisions (Footnote: 1) the Tribunal has accepted that it is rarely possible to say with certainty that a public authority did not in fact hold requested information somewhere in its records but, provided a search had been undertaken which was sufficiently rigorous yet the information had still not come to light, it was to be regarded on the balance of probabilities as not held for the purposes of FOIA;
in this case, DWP's searches were 'sufficiently rigorous', going beyond its FOIA obligations by seeking details from HMRC to assist BL;
in another case (Footnote: 2), the Tribunal agreed that the Commissioner was entitled to accept at face value the response of a public authority where there was no evidence of an attempt to mislead the Commissioner, or of a motive to withhold information actually in its possession;
as BL has been unable to back with evidence his belief that DWP holds more information, the Commissioner remains satisfied that on the balance of probabilities, DWP does not hold the requested information; and
if the Tribunal wishes in this case to obtain information as to whether the requested information is held by another person on behalf of DWP, it may permit or require DWP to provide submissions accordingly since DWP will be best placed to answer questions on this issue.
DWP submits that:
it has provided the recorded information it holds;
indeed, DWP went beyond its FOIA duties by seeking information from HMRC to provide fuller answers to BL's request; and
FOIA does not impose any obligation to create new information: DWP has provided the recorded information it holds that comes closest to responding to BL's questions.
Evidence
The Tribunal was provided with an Open Bundle of 208 pages (including indexes) which included the DN, BL's grounds of appeal, the Commissioner’s response, DWP's response, correspondence exchanged during the Commissioner's investigation, and relevant published material.
At the oral hearing of the case on 20 April 2026, as indicated in paragraph 3, only BL attended. He invited the Tribunal to probe DWP further, given the inherent implausibility of its position. In the interests of clarifying the facts of the matter for the purposes of making its decision, the Tribunal therefore issued further Case Management Directions on 21 April 2026 ("CMDs"). These required DWP to reply to a series of questions by 20 May 2026, and gave the Commissioner and BL opportunity to respond to those replies by 17 June 2026.
In summary, the CMDs asked whether any recorded information exists in any form about:
the computer coding/algorithm/guidelines/instructions used by DWP's Data and Analytics team to create the data file/list of claimants in scope to move to UC;
the creators of such coding/algorithm etc;
the brief given to such creators about the outcomes sought;
the criteria/sequencing for the weekly selection of claimants for such list; and
the originators of such criteria/sequencing.
The CMDs also required DWP to state (to the extent the above information does exist) whether it is held by DWP, a private body on its behalf or another public body.
The oral hearing was adjourned on the explicit basis proffered by BL that the matter would be decided on the papers after responses had been received to the CMDs.
Once the parties had duly responded to the CMDs as directed, the Tribunal met on 1 July 2026 to consider these responses (along with bundle of materials previously provided) in order to make its decision.
The Law
Section 1(1) FOIA:general right of access to information held by public authorities
Section 1 FOIA provides a general right for a person to be informed by a public authority whether it holds the recorded information requested and, if so, to have it communicated to that person, subject to exemptions.
Section 12 FOIA: exemption where cost of compliance exceeds appropriate limit
Section 12(1) FOIA allows a public authority to refuse to comply with a request where the authority estimates that the cost of compliance would exceed 'the appropriate limit'.
Under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 ("the Fee Regulations"), Regulation 3 states that the appropriate limit for central government is £600.
The Fee Regulations set out at Regulation 4(4) that the cost of time which an authority expects to spend dealing with a request must be estimated on the basis of £25 per hour. Thus, the maximum time estimate without exceeding the appropriate limit is 24 hours.
Sections 57 and 58 FOIA: The role of the Tribunal
Section 57 FOIA entitles either the requester or the relevant public authority to appeal to this Tribunal against the Commissioner’s decision notice.
Under section 58 FOIA, if the Tribunal considers that the decision notice was either wrong in law or, to the extent that the notice involved an exercise of discretion by the Commissioner he ought to have exercised it differently, the Tribunal shall either allow the appeal (or substitute the decision notice) or dismiss the appeal.
The Tribunal can also review any finding of fact on which the decision notice was based.
Discussion
Findings of fact
The Tribunal first considered the relevant facts of this case. Based on all the evidence provided - including that provided in response to the CMDs - the Tribunal made the following findings of fact on the balance of probabilities:
the CMDs to some degree extended the scope of the original request;
DWP nevertheless provided a detailed response to the CMDs;
BL commented on DWP's response to the CMDs; the Commissioner chose not to do so;
recorded information is held by DWP in some form within each of the categories of information listed in the CMDs (summarised in paragraph 25 above);
three distinct DWP teams hold such information:
the Data Enablement Team - which is responsible for the code that produces the list of claimants in scope for 'Move to UC';
the 'Move to UC' Programme Team - which is responsible for defining the criteria for selection, deferral (e.g. because the claimant is close to State Pension age) and exclusion; and
the Working Age Services Dependent Systems Team - which is responsible for the secure transfer of data in and out of the UC system;
each team holds numerous potentially relevant documents across several different internal systems;
to produce its response to the CMDs, the three DWP teams liaised to identify information that might fall in scope, and where would need to be searched to locate the information: this process took 4 hours;
DWP uses a work management tool ("JIRA") to track the development, changes and delivery of digital products: each task generates a 'ticket' which JIRA uses to manage the activity for each task;
there are more than 100 tickets linked to the information requested by the CMDs: it took 14 hours to establish this;
DWP initially located three specific documents deemed most likely sources of the information requested by the CMDs: the locating of latest versions and review of these documents took 4.5 hours;
information extraction and collation to inform responses to the CMDs took 4 hours;
identifying and extracting the Data Enablement code, including transforming it into a usable format and complying with security requirements is estimated to take 70 additional hours; and
BL does not accept that the tasks identified by DWP in its response are necessary nor that its time estimate is realistic rather than inflated.
Is there an error of law in the Commissioner’s Decision Notice?
Having made its findings of fact, the Tribunal considered whether the DN was in accordance with the law.
Relevant principles
Drawing on relevant law and ICO guidance, the Tribunal reminds itself that:
the authority is required to undertake reasonable and proportionate searches in locations where recorded information falling within the scope of the request would be expected to be held, but it is not required to achieve absolute certainty.
the right under FOIA is to information held, not to information that is complete, comprehensive or accurate, and that the authority is not required to create new information in order to respond to a request.
the question whether a public authority 'holds' information for the purposes of section 1 FOIA is a question of fact, to be determined on the balance of probabilities and not by reference to what the authority ought to hold.
while information may be treated as held where it can be extracted or compiled from existing records through straightforward processes, that is not so where producing the information sought would require the exercise of evaluative judgement going beyond mere extraction or calculation.
the authority should carry out appropriate searches of relevant systems and consult staff whose roles would make them likely custodians of such information.
if there is no business or legal requirement to create or retain the specific information sought, there is no obligation on the authority to do so for the purposes of responding to a FOIA request.
Applying the above principles to this case
The Tribunal found that:
BL agreed that a fair exposition of what he was seeking by his request was embodied in the CMDs;
in response to the CMDs, DWP has undertaken further searches which are at least, if not more than, reasonable and proportionate;
DWP has also consulted staff to identify the information owned by their respective teams;
those teams have liaised to identify possible locations of information that may fall in scope;
the information in this case is not held in one place or one file nor in one document or even several documents or files but instead in "systems" held by three different DWP teams;
it would not be a straightforward process to extract or compile the requested information from existing records;
however, contrary to the Commissioner's finding in the DN, DWP did hold further information within the scope of the request beyond that which it had already provided to BL;
nevertheless, DWP is under no obligation under FOIA to create information nor to provide it in any particular form;
given the nature of the held material, and the processes required to extract from it information within scope of the request, the cost of time DWP has already spent on searches is almost at, or even beyond, the limit set by the Fee Regulations;
given the further hours and therefore cost that DWP would need to incur to identify and extract the mechanism/formula/code sought by the request - even if such hours were only a fraction of those estimated by DWP - the total cost incurred would exceed the Fee Regulations limit; and
consequently, the exemption in section 12 FOIA applies.
Outcome
The Tribunal finds that - based on additional evidence provided by DWP since the date of the DN - further information in scope of the request is held by DWP.
The Tribunal therefore disagrees with the Commissioner's finding that DWP holds no further information beyond that already provided to BL.
However, the Tribunal also finds that the further information DWP holds:
cannot straightforwardly be extracted and compiled from recorded information which DWP holds; and
does not exist in useable format so it would have to be created, thereby exceeding DWP's obligations under FOIA; and
is not capable of disclosure without exceeding the cost limit set out in the Fee Regulations.
The Commissioner erred in law in not considering possible application of the exemption in section 12 FOIA.
The appeal is allowed and a substitute decision notice issued as set out at the start of this decision.
However, due to the Tribunal's conclusion that the section 12 FOIA exemption applies in this case, no further action is required of DWP.
Signed: Date: 6 July 2026
Judge A. Marks CBE
(First-tier Tribunal Judge)