Data controllers’ compliance with Section 10 notices: the ICO now assess.

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Sep 202016
 

I’ve written previously about the Information Commissioner’s assessment of organisations’ compliance with S10 notices. S10 is a mechanism by which a data subject can force a data controller to stop processing his/her personal data, or stop it from processing in a certain way, where such processing is causing substantial, unwarranted damage or distress.

Previously the ICO has always insisted that they can only assess organisations’ technical compliance with S10(3), i.e. whether the organisation has responded to the notice and whether such response was within the 21 day timescale. The ICO would not consider whether the organisation had broken the law by failing to comply with a valid notice.

The ICO have now changed their policy. The attached Lines to Take document now states:

an individual may make a request for an assessment under s.42 of the DPA where:

  • A data controller has not responded to a notice at all.
  • A data controller has not responded within the 21 day timeframe.
  • A data controller has not provided its reasons for refusing to comply with a notice.
  • A data controller has failed to comply with the data subjects request to cease processing.

That last point is new!

This draft Casework Advice Note goes into more detail.

Section 10(4) refers to the power of the court to order compliance with a section 10 notice.
The Commissioner is still able to make a s42 assessment on processing that may be in breach of the sixth principle (complying with a section 10 notice).

Failure to comply with a justified notice or failure to respond to a valid section 10 notice is a breach of the sixth principle.
The Commissioner can make an assessment of whether processing has been or is being carried out in compliance with the provisions of the DPA – in this case a breach of the sixth principle arising from a failure to comply with a data subject’s section 10 rights.

We can make an assessment of:

  • any non-compliant processing causing unwarranted damage or distress which means that the notice is justified; and/or
  • the data controller’s compliance with the procedural obligations under 10(3) to:
    • respond within 21 days of receiving the objection;
    • explain whether it intends to comply with the objection; and,
    • if it does not intend to comply with the objection in some way, give reasons for the decision.

You CAN also:

  • carry out a s42 assessment on whether the data controller has complied with its obligations under s10(1)

They’ve put “CAN” into Bold for the following reason (also in the draft Casework Advice Note):

Problems with the previous line on ASK knowledge base
The previous line said that:

‘the only situation where the ICO can get involved with a request made under section 10 is where the organisation hasn’t provided any response within 21 days, we cannot assist with any matters relating to compliance with the request….’

This line may have arisen as a result of our preferences or priorities in terms of the types of complaints we take on as an office where there is a technical limitation on our legal powers, or iit may be that we decided for operational reasons that we would not make assessments on a data controller’s compliance with their section 10(1) obligations.
Just because s10 refers to the powers of the court to order compliance with a section 10 notice does not preclude the Commissioner from making an assessment on processing that is in breach of principle 6.
Other sections of the DPA that relate to principle 6 refer to the order making powers of the court. For example, section 7(9) allows the court to order compliance with a SAR, but wouldn’t prevent the Commissioner from making her own assessment on whether or not a data controller should comply with a section 7 request.

It would seem that I have forced the ICO to reconsider their approach. Their internal dialogue on my complaint is entertaining. I particularly like the implied criticism:

In the present case, rather than referring his complaint about Sky’s processing to the Commissioner for an assessment, the data subject has tried to sort out the matter himself by issuing a section 10(1) notice.

How irresponsible of me 😀

Jul 272016
 

My valued friend and co-campaigner told me about his disgusting experience at the hands of Southern Rail staff. I have reblogged the below from the excellent Transport for All website.

I very much hope Southern Rail – and other rail providers – take it seriously. Their response to it doesn’t inspire confidence though; they clearly hadn’t even read it…


A very unpleasant experience for a wheelchair user at Clapham Junction

Blog by TfA member Chris. This blog and its content reflect the views of the author only.

Clapham Junction is a busy and important transport hub in South London, and I’m pleased to say that it has step-free access to all platforms, and wheelchair ramps on every platform.

But lifts and ramps are not enough to make a station disabled-friendly. The attitude and behaviour of the station staff matter hugely.

Last weekend I had an extremely unpleasant experience at Clapham Junction Station. It was not my first experience of rudeness and unhelpfulness from Southern Railway staff at this station, but it was certainly the worst.

I’m a wheelchair user. I arrived at platform 15 on Saturday afternoon, and asked a member of staff on the platform for assistance with a ramp to board a train.

His response to my request was curt and unfriendly: “Next train“, with a jab of the finger in the direction of the track, and with that he disappeared.

In itself this small moment of rudeness was not surprising, it’s what I have got used to at Clapham Junction when I interact with Southern Railway staff. But then things got much worse.

The train pulled in and I positioned myself by the door with the wheelchair logo, as I wanted to be placed in the wheelchair space on the train.

The member of staff I had spoken to didn’t come with a ramp. I couldn’t see him until everyone had boarded, and then I saw that he was at the back of the train with the ramp. I waved to him. He refused to move. I pointed to the doors with the wheelchair logo. He shouted that I had to board at the back of the train (where there was no wheelchair space). Some of his colleagues told me that I had to get on at the back. I said no, I wished to travel in the wheelchair space. The man with the ramp did not budge, and kept gesturing me to come towards him.

I did not want to travel in a part of the train without a wheelchair space because I do not consider this a safe or comfortable way to travel, so we reached an impasse. The man with the ramp let the train go, without me onboard.

He then came over and addressed me angrily, and with a staggering level of rudeness, telling me I should have boarded exactly where he wanted me to. I told him that I had wanted to be placed in the wheelchair space, as that was the only safe place for me to travel.

He was not displaying a name badge. I asked him three times for his name. Three times he refused, and then he walked away briskly, refusing to communicate with me any further.

He then placed the ramp flat down on the platform, near the platform edge, for several minutes, perpendicular to the track, in such a way that customers could easily trip over it, and possibly even fall onto the tracks.

After this I encountered a second member of staff. He too was extremely rude to me when I explained that his colleague had refused to allow me to board the train where the wheelchair space was. He told me that I was obliged to board the train exactly where the platform staff had decided.

He also make this extraordinary statement: “If you don’t know the rules, you shouldn’t come here“. This statement was too bizarre and silly to argue with, but it was also an act of intolerable rudeness.

This second member of staff also refused to give his name, and was not showing a name-badge.

Later they put me onto a train, in the wheelchair space as I had requested at first, and I was able to make my journey at last.

Disabled people should be able to travel with the same ease, flexibility, safety and comfort as everyone else. But I find again and again that I come up against unhelpfulness, rudeness, ignorance and inflexibility when I want to travel on Southern Railway train services. I do not believe that this company takes its responsibility to its disabled customers at all seriously.

A great deal needs to change before train services are truly accessible, and before wheelchair users can use them without stress, distress and annoyance. Transport for All continues to campaign for full accessibility across all of London’s transport networks. Please join us if you would like to support our campaigns – you can find out here how to become a member.


Reblogged from the Transport for All website.

The ICO’s acquiescence to controllers’ demand for excess information and cheques for SARs

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Jul 222016
 

After Sky’s employee bumped my package up on the illegitimate claim that my “partner” had answered the phone and agreed to it, I applied for a copy of that phone call, by making a Subject Access Request (SAR) under the Data Protection Act. (Sky have since acknowledged the employee made it up, presumably to earn extra commission, the toad.)

I sent my SAR by email of 8th May to [email protected] I gave:

  • my name,
  • my postal address,
  • my home telephone number,
  • my mother’s maiden name,
  • my Sky password,
  • my Sky account number,
  • details of my Sky package,
  • my monthly Sky direct debit amount, and
  • the last four digits of my bank account number from which the direct debit is paid.

I identified the information I was requesting: notes and recordings of four phone calls between Sky and by me. I gave details of:

  • the phone number rung,
  • the number rung from,
  • the specific times of the calls (to the minute), and
  • the duration of the calls.

I confirmed I’d submitted a SAR in several different phone calls with Sky. They were satisfied they were talking to me. They’d gone through security questions, discussed details of my complaint and account, and changed my Sky package.

Sky didn’t comply with my SAR:

  1. They took weeks to issue a (blank) SAR form.
  2. They insisted I filled in their form, then (after I objected) they insisted that I provide all the information requested in the form, even if I didn’t use the form itself. (including irrelevant info, such as whether I previously used BeThere as an ISP)
  3. They insisted on further proof of ID (passport, driving license, utility bill or bank statement).
  4. They insisted I paid the £10 SAR fee by cheque, and refused to accept payment by direct debit or debit card.

All of which is contrary to ICO guidance:

1. it is not acceptable for you to delay responding to a subject access request unless you reasonably require more information to help you find the data in question. … you should not ignore a request simply because you need more information from the person who made it. You should not delay in asking for this

2. Can I require individuals to use a specially designed form when making subject access requests?No. … Any request in writing must be considered as a valid request, whatever the format.

3. you can ask for enough information to judge whether the person making the request is the individual to whom the personal data relates… The key point is that you must be reasonable about what you ask for. You should not request lots more information if the identity of the person making the request is obvious to you. This is particularly the case, for example, when you have an ongoing relationship with the individual.

For example, if a request is made by means of an email account through which you have recently corresponded with the requester, you may feel it is safe to assume that the SAR has been made by the requester. (Subject Access Request Code of Practice))

4. The right of subject access is a basic, fundamental right. This means that it must be sufficiently easy for a data subject to make payment to a data controller in order to exercise that right. Although there may be some cash-only businesses that do not have the facility to process card payments, we believe that the vast majority of organisations do have this facility. Where this is the case, the controller should accept card payments for subject access in order to facilitate the applicant’s request. We would consider it obstructive for the controller to refuse card payments for subject access where it makes and receives card payments for other purposes. The same is true of bank transfers and other payment systems.

On 21 March, I asked the ICO to assess Sky’s compliance with my SAR.

Carolan Hunter, Case Officer at the ICO, responded on 12th May:

“Although we appreciate that you provided Sky with information relating to your account, Sky are still entitled to ask you to provide further identification in order for them to deal with your subject access request.” (…even though I had given loads of ID, Sky were satisfied they were corresponding with me, and I had given enough information to identify the data I required)

“A data controller can express a preference as to the payment method it would accept and the data subject should normally comply with this preference where it is reasonable to do so.” (… which is directly at odds with their guidance as stated above)

“the method you wished to pay is unclear and we have no evidence which suggests Sky refused that option.” (…even though I had supplied a transcript of the telephone call which shows that I had specifically asked to pay by direct debit and that Sky flat refused, saying “all payments for Subject Access Request fees must be by cheque”)

I complained about the case officer’s response, with detailed argument and quotes from their guidance.

Geraldine Childs, Team Manager at the ICO, responded on 22nd June:

1. “I agree with your Case Officer that Sky is not obliged to comply with your SAR until you have provided the further identification and fee requested.”

2. “I understand you also believe that the information requested in the form is not necessary and Sky does not reasonably need it. However, Sky made it clear to you in their letter of 1 April that you do not need to complete the form if you feel it is unnecessary to do so.” (ignoring that Sky had insisted on all the information the form asked for, even if I didn’t physically use the form – as I had pointed out to the ICO)

3. “You have advised that Sky were satisfied of your identity enough to discuss your account; however this is not necessarily the same identification required to disclose information in response to a SAR. While I appreciate you consider you have provided sufficient identification; it is for Sky to determine the identification they require.” (i.e. the ICO refuse to consider whether the ID requested is reasonable and in line with the Code of Practice when conducting a S42 assessment of a data controller’s response to a SAR)

4. “The DPA does not oblige Sky to accept or refuse any particular method of payment. As a result, it is not within our remit to order an organisation to accept payment in a certain format.” “The information your Case Officer provided in her email of 12 May regarding this matter is in line with the advice received from our policy department.” (I fail to see how, given the policy department said it should be “sufficiently easy” to make payments and that refusal to accept payment by direct debit or card is “obstructive”)

Conclusion

I think it’s clear that the ICO have resiled from their stated position on data controllers’ obligations to accept SARs. They talk the talk in the Code of Practice etc., but they don’t walk the walk when conducting S42 assessments. They therefore let data subjects down – and they certainly let me down.

The ICO’s complaints procedure is only one stage. There’s no further internal review; they say if I remain dissatisfied, my only avenue is the Parliamentary and Health Service Ombudsman.

I would rather there was some alternative mechanism. I think my concerns above show a fundamental failure in practice at the ICO that should be addressed.

Does anybody have any suggestions about how I can inject some clue?

Jul 212016
 

In March, I had a problem with my Sky box: it kept resetting to London region, even though I live in Yorkshire.

After I phoned them to sort this, I got an email thanking me for signing up to Sky Movies, Sport and Sky Go Extra. I hadn’t done any such thing; the Sky operator had done so without discussing it with me. (They have since admitted this.) So, given my hearing difficulties and vulnerability to such, I submitted a Section 10 notice requiring them to stop processing my phone number.

Sky had never heard of S10 and didn’t comply, so I asked the ICO to intervene. But the ICO told me that they are not obliged to assess organisations’ compliance with S10.

Various well-informed information governance people on Twitter advised me otherwise:

I submitted a complaint

… to which they have just responded (only took them 4+ months.)

I think their response says that they must assess an organisation’s compliance with S10(1).

However, in light of the detail provided by you, I agree that you may not have been correctly advised in relation to the rights and obligations set out in s.10 and s. 42 of the DPA.

Where an individual has issued a notice under s. 10 (1), this does not negate the Commissioner’s obligation to make an assessment in response to an individual’s subsequent request for an assessment of a data controllers processing of personal data and whether such processing is likely or unlikely to be in compliance with the provisions of the DPA.

In addition, an individual may request an assessment under s. 42 (1) of the DPA as to whether any processing by a data controller for its obligation in complying with a s.10 (1) notice was likely or unlikely to be in compliance with the provisions of the DPA.

In relation to a ‘justified s.10’’ notice, the data controller must consider the specified reasons asserted by the data subject and how the processing is likely to cause substantial damage or substantial distress to the data subject [or another] and whether sure damage or distress is or would be warranted. To the extent that such notice is justified, the data controller should comply with the notice to such an extent. In circumstances where an individual believes that a data controller has failed to comply with a justified notice, the data subject may request an assessment under s.42 of the DPA.

Conclusion
As set out above, the Commissioner may make an assessment under s.42 of the DPA where:

  • the processing, in connection with a service provided to a data subject, is likely or unlikely to comply with the obligations set out in the seventh principle of the DPA.
  • the processing relates to whether a s.10 (1) notice is likely or unlikely to comply with a data controllers obligations under s. 10 (3) of the DPA, and
  • the processing, relating to the data controllers obligations to comply with a notice, is likely or unlikely to be in accordance with the primary obligations under s.10 (3) of DPA.

The Commission’s response isn’t particularly clear, however, and isn’t helped by proofing errors.. Read the full email if interested..

The Commission’s complaints procedure is one stage, and I don’t think this would warrant the PHSO’s time, so I’d be very grateful indeed to anybody who can shed some light on this!


ADDENDUM

I’ve since come across another email the ICO sent to me on 13th June:

Please note we can only look into a concern about Section 10 if an organisation has not responded to a request within 21 calendar days. We cannot make a decision on whether the organisation should comply with the request or not.

An organisation must respond to a valid request within 21 days to explain whether they are going to comply in full, part or not at all. If an organisation refuses to comply with a request an individual can apply to court for them to determine whether the request is justified. If the court decides it is, they can then order the organisation to comply.

Surely that’s at odds with their response above? I’ve therefore submitted a new complaint to the ICO:

You incorrectly told me that when making a Section 42 assessment, you are not able to consider whether an organisation should have complied with a Section 10 request.

In your email to me of 13th June (attached 1.html), Case Officer Carolan Hunter said:
Please note we can only look into a concern about Section 10 if an organisation has not responded to a request within 21 calendar days. We cannot make a decision on whether the organisation should comply with the request or not.

Yet in your email to me of 21st July (attached 2.html), Team Manager Traci Shirley said:
an individual may request an assessment under s. 42 (1) of the DPA as to whether any processing by a data controller for its obligation in complying with a s.10 (1) notice was likely or unlikely to be in compliance with the provisions of the DPA.
In relation to a ‘justified s.10’ notice, the data controller must consider the specified reasons asserted by the data subject and how the processing is likely to cause substantial damage or substantial distress to the data subject [or another] and whether sure damage or distress is or would be warranted. To the extent that such notice is justified, the data controller should comply with the notice to such an extent. In circumstances where an individual believes that a data controller has failed to comply with a justified notice, the data subject may request an assessment under s.42 of the DPA.

Your case officer, Carolan Hunter, therefore gave me incorrect information.

It is my concern that your case officers are being advised that when assessing a data controller’s compliance with the DPA following a S42 request, they should not consider a data controller’s compliance or otherwise with the requirements of S10(1). That is a big failure and frankly not good enough.

It took 4 months for them to respond to the last complaint on this matter, so don’t hold your breath.

Accessible Single Deck Buses

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Jul 152016
 

On the way home from the Yorkshire Show on Tuesday, this happened:

To cut a long story short, I caught a single deck bus that had no wheelchair ramp or wheelchair space.

I thought that was illegal because all single deck buses must be accessible as of 1st January 2016. This is set out in S175 of the Equality Act 2010 as explained by Regulation 3(2) of the Public Service Vehicle Accessibility Regulations 2000. However there’s an interesting exemption; Regulation 4(f) states that a vehicle need not comply provided it is:

a vehicle in respect of which twenty years have elapsed since the date of its first use on a road and which is not used to provide a local service or a scheduled service for more than 20 days in any calendar year.

This could create the silly anomaly that if the bus was (say) 19 years and 6 months old, it would be illegal to use it between 1st January 2016 and its 20th birthday, after which it could be used on up to 20 days per year. But as the bus was 20 years and 3 months old, this isn’t the case.

The bus operator told me that they had to put this bus on due to a bus breaking down and others being stuck in traffic. It’s not in regular use on their bus routes. So as long as the bus is used for 20 days or less each year, it is legal for the bus company to use it – even though it isn’t wheelchair accessible.

The question is: what counts as use?

The bus operator’s website says it is used “on schools. Hansard tells me whether a school bus is subject to the accessibility regulations depends on whether the vehicle is “operated for hire and reward“, which is defined by “whether any passengers are carried as separate fares (which includes payment for the right to travel as part of a larger payment)“, and indeed “On a bus provided by the local authority or bus operator, provided that a fare is paid, even if only by some of the students when others are entitled to free transport, the vehicle would be a PSV.” It is not a Public Service Vehicle, and thus not subject to the accessibility regulations, “provided that the passengers made no contribution to the cost of travel and no contribution was made on their behalf“.

The bus operator has a list of its bus services on its website. It runs school buses for two authoritiesMetro (West Yorkshire) and North Yorkshire.

  • All Metro school buses charge per pupil (unless family financial circumstances mean the pupil is entitled to free transport.)
  • Some North Yorkshire school buses take both permits and fares.
  • But some North Yorkshire school buses are permit only.

One may consider that “permit only” school buses paid for by North Yorkshire County Council aren’t “for hire or reward” because no “passengers are carried as separate fares“. However North Yorkshire County Council has a scheme by which pupils can buy travel permits if they aren’t entitled to assistance with transport costs. Further,

In some cases assistance may be provided for ineligible children if there are spare seats available on existing school buses however, parents will be expected to pay a contribution towards costs.

It’s therefore clear that there are likely to be passengers for whom a contribution to the cost of their individual travel has been made on every service run by the bus firm, including all school bus services. If the company had already used the bus I caught for any of these services on at least 20 days this year, then both the company and whichever manager chose to use it for my journey have committed a crime and can be prosecuted. Each could be held liable for a fine up to £2,500.00 and incur a criminal record.

All of which obscure technical red tape pussy-foots round the core underlying issues. I have been lambasted on Twitter by the bus operator (who told me last January that all their buses are accessible but have now deleted all relevant tweets and blocked me) and two apparatchiks who claim I’m being unreasonable and am legally incorrect.

Yet:

  • it’s perfectly reasonable to expect bus services to be acceptable
  • it is morally reprehensible to run inaccessible services
  • the bus operator bought this inaccessible bus in December 2014
  • the Disability Discrimination Act, which announced the forthcoming accessibility requirement, was made in 1995
  • the Public Service Vehicle Accessibility Regulations, which set the dates and details of compliance, was made in 2000.

I’ve therefore complained to the Police, the Traffic Commissioners, North Yorkshire County Council and to West Yorkshire Metro.

When’s the Supreme Court judgment due?

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Jun 302016
 

UPDATE 30th November:

The Supreme Court suddenly have a very urgent, very hot political potato landed on the doorstep. The Brexit high court judgment has been referred for urgent consideration by the Supreme Court, who will put all of their current 11 justices on the case. This may well delay other Supreme Court business, including the Firstbus judgment.

If we aren’t notified of the imminent release of the judgment by Thursday 15th December, it won’t be out before Christmas.

A lot of people have been asking me via Twitter etc. when we can expect the judgment in FirstGroup PLC vs Paulley, about: 

The reasonable adjustments which a bus company is required to make to accommodate disabled wheelchair users.

The simple answer is: we don’t know.

My understanding is that the Supreme Court aim to get judgments out within 12 sitting weeks of the hearing. NB: the Court has a summer recess which doesn’t count, also this is only an aim and some judgments do take longer. 

In our case there were 7 justices rather than the usual 5 so there is extra coordination required to write the judgment(s), also it is a case that has generated considerable public interest. Both are factors which may mean that the judgment could take longer.
We hope the judgment may be out in the Autumn, hopefully before Christmas, but ultimately we don’t know

Judgments are released at 9.45am on Wednesdays when the court is sitting. The full text is put online and there’s a summary read out in court, also this is videod and may be watched live on the Supreme Court website, or after the session the recording is available on both the Supreme Court website and YouTube.

We are given notice of the judgment imminent release of the judgment one week in advance. The judgment is released to legal representatives 6 days beforehand.

The Supreme Court list their forthcoming judgments on the Thursday, 6 days before they’re about to be handed down.

Whilst legal reps will know the content 10 days in advance, I’m not allowed to know any of the contents until the day before it’s released, and all of us are prevented from revealing anything about it at all until it is formally handed down, on pain of contempt of Court.

The Supreme Court produce a weekly list (when they’re sitting) of which judgments are still awaiting and how long each one has been since the hearing. They appear on their blog, in the same article where the coming week’s cases are listed. Here’s the one for 31 October 2016 – note that 13 cases have been waiting for a judgment for longer than Firstbus (longest: a year) and there are 9 cases that have been waiting for a shorter time, though judgments aren’t released in strict order.

I’m very grateful for the support and interest in this case, and am anxiously awaiting the judgment!

Jun 092016
 

There’s a lot of interest in the court case being heard in the Supreme Court next Wednesday, 15th June 2016FirstGroup Plc (Respondent) v Paulley (Appellant), on “the reasonable adjustments which a bus company is required to make to accommodate disabled wheelchair users.” The number of wheelchair users supporting this case is humbling. It creates practical problems for the Court due to the number of wheelchair users who would very much like to be there.

The Court have been exceptionally helpful in working out how many wheelchair users they can accommodate. They’ve removed benches to make as many wheelchair spaces as possible, so the limiting factor is how many people they can evacuated in an emergency via their two lifts. They can take 14 wheelchair users: 8 in the court room and 6 in another room with live video link. (This is more than in any other court that I’m aware of, and for that matter most other public buildings.)

The Court have worked with the legal team to work out the least unfair way of allocating these limited spaces. (We’re in a classical dilemma: we have to attempt to choose the least worst “solution” as no solution is acceptable. There will always be more wheelchair users wanting to attend than can actually be accommodated.)

I’d like to sit in the court room if possible 🙂 so that leaves another seven wheelchair spaces in the courtroom. The legal team and I wanted to make sure that wheelchair users who have had a particular, personal impact through supporting our case and/or me (through its very long 4½ years history!) can be present, so after much agonising and soul-searching we have decided to allocate those seven spaces to specific, named people.

I very much don’t want to give the impression that we are selecting “the great and the good” or in any way dissing disabled people’s amazing support for the case (and for me). It has overwhelmed me, and moved me to tears, that so many disabled people have shown such incredible support for this case. We’re not intending on creating a “hierarchy” or saying that some are more important than others; it’s not our intention at all. This is just a practical measure, partly for my support on the day (I shall be extremely nervous!), and to deal with the fact that there are limited wheelchair spaces. So I very much hope wheelchair users wanting to attend aren’t too upset or disappointed that these spaces are reserved.

There remain the other six spaces in the separate room with a live video link. In an unprecedented move (after discussion with my legal team), the Supreme Court have decided to run a ballot. This is partly at my suggestion, as otherwise there would be a “first come first served” approach, where the first six wheelchair users in the queue would be allocated the spaces. I didn’t think that would be fair, as many disabled people are limited by realities of care provision and accessible transport as to how early they can get to the court. Also I don’t want disabled people to have to wait outside in whatever weather at horrendous o’clock in the morning (particularly as there would still be a chance that they still wouldn’t get in.)

Details of the ballot are on the Supreme Court website. People wishing to attend should email or phone the Court to give their name and contact details, by 5pm on Monday (13th June 2016). Then at 5pm on Monday, the Court will draw names out of a hat and will contact those that have been successful. Wheelchair users who have not been contacted will not be able to sit in the Court.

The phone number to register is 020 7960 1500 (or as people using text relay will know, 18001 020 7960 1500 for minicom / NGT users) and the email address is [email protected]. Please tell them that you wish to register your name for the ballot for the Firstbus case wheelchair spaces.

Those not able to attend in person will be able to watch and listen to the Court proceedings live on the Supreme Court website. The video footage will also be available to watch on their website from Thursday, 16th June.

Access details

The Supreme Court website has some access details, but I visited the Supreme Court myself on Tuesday to have a recce.

The hearing is in the biggest court room, Room 1. I understand that it can accommodate 80 non-wheelchair users, on top of the 8 wheelchair spaces. The wheelchair spaces are at the back (except for me, as I will sit with “my” lawyers at the front.) I tested the loop system with the staff; it is a very good loop system. It is a little quieter right at the back (which is obviously not great for wheelchair users with hearing impairments). I raised this with the staff, and they are attempting to move the equipment so that the back has better coverage. The lighting in the room is good.

The alternative room with the live video feed has moveable chairs, so you can rearrange them if necessary. When I was there the television didn’t have an audio loop on it; but the staff are working on putting one in before the hearing. As far as we are aware, there will not be BSL interpretation or live speech to text reporting.

There is level access at the front door, but then a wheelchair lift or a short flight of stairs. Visitors will be searched before being allowed into the building. Both the Courtroom and the alternative room are accessible by lift. There are two lifts (one operable by anybody, the other only by staff with the relevant key card.) Each lift can accommodate one wheelchair user at a time, plus perhaps two or three non-wheelchair users.

There are three wheelchair-accessible toilets. These seem to be Part M compatible. The space next to the pan is clear and the emergency red cords hang down to the floor. They are on the ground floor, the second floor (where our courtroom is) and the lower ground floor (where the cafe is.) There are also regular toilets on the second floor and the lower ground floor. There isn’t a Changing Places toilet and there is no hoist.

There is a café which serves limited snacks and hot and cold drinks, and souvenirs etc. This has moveable seating and good lighting.

NB: the above are my amateur observations and I am not an access surveyor. For more detailed information, I recommend you contact the Supreme Court.

I’m very excited! and hope all goes well.

May 292016
 

Back in July 2014, whilst on a day trip to Whitby, I ate at the Angel Wetherspoons’ pub. I sent this tweet.

Wetherspoons responded by pulling the CCTV of our meal and interviewing the waitress. They indicated that the portion size was within one standard deviation of the mean of their standard so they were content with the size of the portion. They accounted for my disapproval with the observation that I had been eating for precisely 2 minutes and 17 seconds when I took the photo, and stated that the waitress had testified that I had not indicated any displeasure to her at the time of the meal.

I was impressed with this commitment to customer satisfaction, so when I attended The Corryvreckan (Wetherspoons’ pub in Oban) whilst on holiday last week, I decided to support their analysis with the provision of data from another sample. This is therefore a comparative study of the size of Wetherspoons’ Steak and Kidney pudding meal.

meal diameter The diameter of the meal is approximately 18cm, on a patterned plate of approximately 25cm. The surface area of a plate of diameter d is approximately (πd2)/4, or in this case 490cm2. Of that, approximately 250cm2 was obscured by food or by the gravy pot, that being an occlusion of approximately 51% of the plate. This appears to be roughly equivalent to that of Whitby in 2014; though I note that the practice of providing a gravy boat may give the impression of more food than previously.
 The chips appear to be distributed on the plate in a pseudo-random distribution. The average depth of food on the plate is therefore difficult to estimate, but is perhaps a mean of 1 or 2 centimetres from the deepest point.  chup thickness
 pie diameter 2  The pudding varies in diameter between 7cm at its “base” (the top in this picture) to 10cm at its “top” (the bottom in this picture.) The pudding is approximately 6cm in height. Using the reasonable approximation of a cylinder of diameter 8.5cm, its volume can therefore be approximated using the formula volume=(πd2h)/4=340cm3. The density of cooked ground beef is approximately 1.03gcm-3, essentially indistinguishable from the density of distilled water at standard temperature and pressure (1gcm-3), so I estimate the mass of the pudding is approximately 340g. Comparative research of other single portion steak and kidney pies reveals that this is within an order of magnitude of expectation.
 pie height  pie diameter
 There were precisely 30 chips, varying in length between 2cm and 12cm, with a median length of perhaps 8cm. There was therefore approximately 2.4m of chip on the plate.  chip length
 chip thickness  The average thickness of each chip was 0.64mm. Given the presence of some outliers with tapered ends, I am estimating the total volume of the chips on the plate as being 240cm x 0.6cm x 0.6cm or 86.4cm3. Fried potatoes have a density of 449Kg/m3, or approximately 0.5gcm-3, so I estimate the total mass of chips to be approximately 43g.

Research indicates that the average portion of cooked chips is 200g, and that a few chips either way can make large cost differences. I frankly suspect some scrimping here.

 There were 169 peas. They averaged 0.45cm in diameter. The volume of a sphere of diameter d is (πd3)/6, so each pea measured approximately 0.047cm3. The total peaage was therefore approximately 8cm3.

The NHS states that the “five a day” portions of veg can include “three heaped tablespoons of cooked vegetables”. A heaped tablespoon is 30cm3. This is therefore about a third of a portion of peas on that plate.

The density of cooked peas is 0.68gcm-3. The mass of peas was therefore approximately 5.5g.

 peas
 pie level  The gravy boat is a new addition since 2014. The depth of the gravy is approximately 3.5cm.

The average individual portion of gravy is approximately 50cm3.  For the gravy boat to hold that amount, it would have to have a surface area of perhaps 14cm2. I estimate that the surface area of this gravy portion exceeds this and therefore we are on the up.

But not all the gravy got eaten, as I was not furnished with a spoon.

 The total mass of the pudding, the peas and the chips was therefore approximately 390g.

The average eating rate varies substantially by individual, food type and circumstances but is approximately 100g per minute. This meal would therefore take the average person approximately 4 minutes to eat.

Of course, because I was being sarcastic and pissing about with a camera and a ruler, it took me substantially longer.

 tally
  drinkheight  My blackcurrant and soda was approximately 11cm in height and the glass was approximately 5.5cm in diameter. Its volume = (πd2h)/4 = 260ml, or just less than half an imperial pint.
 But, of course, some of that was taken up by ice cubes. There were 5, with an average size of 1.5cm. The total volume of ice was therefore 5 x 1.5 x 1.5 x 1.5 = approximately 17ml.

In approximately half of cases, restaurant ice has over 1,000 colliform bacteria per cube (i.e. faecal bacteria) and is thus more contaminated than toilet water.

On average, there was therefore probably 2,500 poo-based bacteria in the ice cubes in that glass.

 ice cube size
 receipt length  The receipt varied from 19cm in length to 20.5cm, at a width of 8cm. The total surface area of the receipt was therefore 164cm2. At an assumed weight of 58gm-2, the paper weighed approximately 9mg – or approximately a billionth of the mass of this European oak tree.

Conclusion

I hope that this comparative study of the dimensional composition of my meal is to the exacting standards of Wetherspoons and contributes to their body of statistical analysis of their meal – and I look forward to their prompt analysis as to whether their Oban staff complied with Wetherspoons’ evil corporate penny-pinching control-freak bollocks.

Leonard Cheshire’s bonfire of user empowerment

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Apr 272016
 

Governance failures

charities02-opinionI’ve already noted all is not well at Leonard Cheshire Disability (LCD): the Chief Executive and the Head of HR left at no notice. (LCD’s PR team told a Third Sector magazine journalist that Pelham would stay on until replaced, but now LCD refute having said any such thing.) Now the Interim Chief Executive has announced that she’s leaving LCD too as soon as LCD appoints a new CEO (anticipated in September / October.)

We now know why this is happening: LCD have a £750,000 hole in their budget for the year. (They primarily blame the National “Living” Wage for this; though we know that they did precious little to prepare for the increased wage bill – and what they did claim to do was proven to be a lie.) The new Chair of the Trustees has conducted exit interviews of senior staff, whom have been very forthright about Clare Pelham. It is widely acknowledged that Clare was only motivated by the wish to become “Lady Pelham”. LCD have lost industry confidence due to pervasive doubts about their governance – a large consultancy decided not to bid for a contract valued at £200,000 per year due to their significant concerns about LCD’s management competence.

The senior directors aren’t any loss; but the other staff LCD’s making redundant most definitely are – both in the homes they are closing and elsewhere.

In earlier years, LCD had a reasonably successful “Service User Support Team” (SUST). These disabled employees worked as facilitators and mentors throughout the UK, tasked with empowering service users to achieve greater independence. This had some moderate success. As one (charming) resident in a LCD care home put it:

Every time I see a cabbage it reminds me that I could still have been in the cabbage patch myself, if I hadn’t been persuaded that there was a life for me outside.

Leonard Cheshire obviously couldn’t let a moderately successful user empowerment project stay unmolested, so they attempted to shut it down. There was an outcry, so in the end LCD just got rid of most of the employees, leaving a vestigial staff of 14 isolated disabled people dotted round the country, in the renamed “Customer Support Team” (CST). Each part-time staff member was charged with single-handedly empowering hundreds of care home residents and domiciliary care service users across their (massive) patch. Despite being manifestly overstretched and under resourced, they made a genuine difference to disabled people’s lives, because these workers genuinely cared about the rights of Leonard Cheshire’s service users.

Disabled user empowerment workers made redundant

"And when we want your opinion, we'll tell you what it is!" - "Federation of Charities for the Disabled"Leonard Cheshire are annihilating them. LCD has cut the Customer Support Team budget from £450,000 to £0,000 overnight. LCD is starting a sham “consultation” on 9th May (a bit like their sham “consultation” on the closure of Honresfeld home) but as there is no money, it is pretty clear that LCD will make all CST staff redundant. (Some have already announced their redundancy.)

The reason LCD gave for this budget cut is that its trustees took so long to consider the team’s future (over 5 months) that its budget for 2016/17 was still undecided come April 1st. That would be bad enough if it was genuine; however I note that £450,000 p.a. is a significant saving towards the £750,000 deficit, and I suspect this is the real reason. Meanwhile the “consultation” can’t start until 9th May because Mark Elliott (Leonard Cheshire’s non-disabled Director of Development) is on a multi-week holiday in South Africa. (Good of him to check everything was A-OK with his team before swanning off [not] – perhaps he should bugger off permanently like Clare Pelham [CEO] and Vicki Hemming [HR director.])

Leonard Cheshire hasn’t told its own service users about this. Senior staff are discouraging the CST from telling us, which puts the employees in an invidious position – do they risk their references by telling service users their empowerment service is being given the boot? The CST’s dedicated team of disabled people already have to cope with being told at three weeks notice that there’s no budget for their wages, forcing them to seek employment elsewhere with great urgency (and we know disabled people experience many barriers when seeking employment, even at the best of times.) In the meantime, LCD are refusing to answer any questions about the situation (from anybody, including from the CST) until the “consultation” process starts.

The Customer Action Network, a user-led organisation attempting to provide representation of LCD service users despite continual interference and undermining by LCD, wants to start a petition to save the CST – but is being asked to delay this until the CST are under formal review. I’m glad to say the Network sent it out anyway – the petition is here.

That’s how LCD are treating the dedicated, hard-working and caring disabled people who (until now) did their best to empower LCD service users despite inadequate resources and lack of support. (i.e. those whom actually attempted the user empowerment for which LCD claims credit.)

Where their priorities really lie…

LCD have four directors who each earn between £100,000 and £150,000 per year, between them earning the equivalent of the Customer Support Team’s  entire budget. The Customer Support Team are the only posts in the charity ring-fenced for disabled people. They’re the only posts specifically aimed at empowering service users.

I think LCD’s treatment of the CST and of Honresfeld residents and staff proves that LCD’s claim to be focussed on disabled people’s rights is as hollow as so many people have said for years.

(With thanks to the excellent Crippen / Dave Lupton Cartoons for both cartoons on this page, licensed under a Creative Commons Attribution-Non-Commercial-No Derivative Works 2.0 UK: England & Wales License.)

Apr 142016
 

Leonard Cheshire announced on 11th March that their CEO Clare Pelham was resigning.

A spokeswoman for the charity said Pelham, who has no immediate role to move to, would stay in post until her successor was appointed and had no set date for leaving.

“Acting” Chief Executive

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Leonard Cheshire’s website was updated on the afternoon of 11th April. There is now an “acting Chief Executive” – former Director of Services, Rosemarie Pardington.

So what happened to Clare Pelham’s promise to “stay in post until her successor was appointed“? There’s been no announcement by Leonard Cheshire, or by Clare Pelham (on Twitter or in the Huff; she doesn’t seem to have a Linked In profile.) As I previously noted, there’s no way that a career politician like Clare would have left voluntarily without another job lined up. Now she’s left / been given the kick without even working her notice.

Given LCD’s typical silence, we are left guessing WHY she’s gone. I note that they have form for CEOs botching things and leaving at no notice, and Goodness knows there are enough reasons for getting rid of the odious, duplicitous, disempowering, disablist, cripple-kicking Clare Pelham, but it’s unlikely this is why (after all, LCD rarely let reason cloud their judgement.)

HR director also buggered off

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I think we may draw some inference from the fact that their People Director, Vicky Hemming, has ALSO gone –  without waiting for a replacement, leaving Patricia Williamson as interim People Director (whose 7+ previous positions strongly suggest adherence to the Seagull school of management.)

We may remember that former people director Vicky Hemming had lied. She claimed that Leonard Cheshire Disability had written to all local authorities asking for increases in fees so that LCD could pay their carers the Living Wage, but that was proven irrefutably untrue.

Where’s the money?

Rumour is that our Clare and Vicky have left Leonard Cheshire in severe financial difficulties. They failed to prepare for the increased National Minimum Wage (which Osborne disingenuously refers to as the “National Living Wage“.) This has resulted in rapid closure of LCD homes with an “uncaring disregard for the wellbeing of residents” (to quote Rochdale Council and Rochdale Clinical Commissioning Group – and I now hear that other LCD homes are closing.)

It has also caused operating difficulties throughout the charity, because whilst carers‘ wages have increased, senior carers‘ wages haven’t for years and are now pretty much equal to carers‘. This has led many seniors to wonder why they should take on the extra responsibility of administering medication and running shifts, when they aren’t paid. It has also led to LCD returning to their favourite tactic of evicting residents who dare to raise concerns.

Cheers!

There’s undoubtedly much more to this story than meets the eye, but LCD are about as open as the Gestapo (albeit about as competent as Herr Flick) so unless and until some kind soul leaks again to Third Sector, one can only speculate. (and hope against experience that this won’t affect service users.)

Still, we have little enough reason to celebrate these days, and I think that dumping Clare Pelham and Vicky Hemming can only be a good thing – so Cheers! (And potential new employers of either – Caveat emptor!)

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