[2025] EWHC 2664 (TCC)

Involve now accepts that damages would not be an adequate remedy for DWP if the suspension was (in the event wrongly) maintained. Rather, it disputes the extent or importance of that inadequacy, submitting that DWP’s case here is overstated.

Since the extent of any inadequacy may be relevant on the question of the balance of convenience (see below) I need to say something about it. The matters set out below are relied upon by DWP.

First, the Existing Solution does not allow for the recording of any video conference. It appears that recording is a functionality that exists within AA but it is not being provided under the Existing Contract. Each side blames the other in that regard, but the fact is that as matters stand there is no recording facility. This is important because there are certain cases where recording of any video interview is mandatory. That being so, in those cases, DWP cannot presently use the Facilities at all. Other means of communication have to be employed. That said, such cases represent only three particular lines of DWP’s business, all dealing with fraud, which, according to Mr Pasqualino, would only represent about 3% of the total utilisation of AA.

DWP sees it as a priority to roll out recording and transcription services across all of its business lines and this roll-out will be delayed, for so long as the award of the New Contract is itself delayed. In March 2025, the Government published its Green Paper entitled Pathways to Work: reforming Benefits and Support to Get Britain Working (“the Green Paper”). This referred to an intention to move to an opt-out footing for audio recording of Health Assessments as recommended by the Work and Pensions Committee’s report dated 14 April 2023. While it appears that the Green Paper did not specify an implementation date for the role-out of recording, I think it is reasonable for DWP to see it as a priority especially as the relevant Minister has directed DWP to proceed with it. The longer the delay, the more DWP may be open to criticism for not adopting it.

Secondly, DWP says that there is presently a disbenefit in respect of any request in relation to the operation of AA, whether a change request or reporting a problem, because such a request has to be “ticketed” for action by Involve rather, rather than being capable of resolution by the DWP itself. Mr Edwards states in JE1 at paragraph 36 that this introduces the risk of an operational incident causing service disruption and possible disruption to the benefit claims process, especially where there are multiple video-conferencing solutions. The New Solution will bring control in-house, so that DWP can itself rapidly respond to operational incidents. This clear improvement will be delayed if the award of the New Contract is delayed.

Third, I agree that there will be a benefit under the New Solution in that it can be customised for different lines of business, all being controlled within DWP. This should allow the solution to be used by a greater variety of business lines and customers, more efficiently and at lesser cost. See paragraph 37 of JE1.

Fourth, the New Solution will follow GOV.UK styles and will be accessed from within GOV.UK which will engender recognition and trust on the part of customers. See paragraph 39 of JE1.

A further feature of the New Solution concerns security. At paragraph 40 of JE1, Mr Edwards says that one of the key security benefits is the hosting of the New Solution in subscriptions controlled and managed by DWP which will allow for end-to-end internal monitoring and security controlled by it, rather than relying on third-party security measures as happens at the moment. There will also be oversight by the Cyber and Domains Protection Team which monitors public sector domains to keep them safe. The security advantage will apply to recording, transfer and storage of recordings as well. On the face of it, these are significant benefits which cannot be enjoyed while the implementation of the New Solution is delayed.

As to this, Mr Pasqualino makes the point at paragraph 30 of his WS that the ITT for the New Solution did not refer to where it would be hosted, nor did it include a requirement for it to allow posting on subscriptions controlled and managed by DWP. So this is not a guaranteed benefit. I follow that, but it is not suggested that if the subscriptions referred to by Mr Edwards are implemented within the New Solution, this would not then be a significant benefit.

The loss of all the above benefits caused by a delay in the award of any New Contract is something which, in my view, cannot be compensated for in damages. It falls within the second part of the observations made by Eyre J in Medequip, cited at paragraph 36 above.

A further and separate point made by DWP is that such uncompensateable losses will be significantly increased if, as a result of the suspension and the inability to award the New Contract, there is then a period during which DWP cannot provide any video-conferencing facilities at all. This would arise if the Existing Contract were to expire without immediately being replaced by the New Contract. Of course, that is correct, but it all depends on whether this is likely to happen in the period leading to trial. In my view, it will not, for the reasons given below in relation to balance of convenience.

Accordingly, damages would not be an adequate remedy for DWP here although I accept that it is not as if the position would be catastrophic for it, if it had to maintain the present video-conferencing service under the Existing Contract as opposed to moving now to the New Contract. After all, the Existing Solution was used in 373,000 Health Assessments between August 2021 and July 2025 according to Mr Pasqualino at paragraph 22.5 of his WS.