Doug Paulley's blog

disability, data protection, activism and other such

The cost of orange peel

Posted on by Doug Paulley

Our responsible citizen, Luke Gutteridge, was walking somewhere in Broxbourne council’s jurisdiction one day when he accidentally dropped a 10p sized piece of orange peel without noticing. A council enforcement officer spotted him and pointed out he’d dropped it. Mr Gutteridge immediately apologised and picked it up. That’s where this story would have stopped, but it didn’t.

The enforcement officer issued a £75 fine for littering. Mr Gutteridge refused to accept the fine (understandably) and challenged it through the Magistrate’s Court. He was successful: the Council lost because the Magistrates considered that whilst he may have dropped a piece of litter, he hadn’t abandoned it.

The question is how much the authority’s farcical behaviour cost the taxpayer in this time of strict austerity. I put in a Freedom of Information Request to find out precisely that.

The Council initially told me that there were no costs because it was all done by their in-house legal team. I requested an internal review, because I know that all legal teams quantify their costs to claim off the other side if they win the case. The Council then told me that it had cost them £1,700 in lawyers time and £100 for the enforcement officer to attend Court.

I thought I’d bottomed the costs, but an article in the local paper, the Hertfordshire Mercury, has revealed that even that figure is incorrect. “It has now emerged the case cost taxpayers £2,057.” The Mercury quotes the Council’s response to my FOI request, leaving the reader with the very legitimate question as to why the Council gave me a lower figure.

Even this is lower than the actual cost, mind you, because as Mr Gutteridge won his case, the Council will be liable for his legal costs too.

One hopes that when the Auditor comes to examine the Council’s accounts, that the Council are somewhat more straightforward and honest than they appear to have been when complying with their legal obligation to provide accurate information in response to my FOI request.

Leonard Cheshire Disability’s CEO Clare Pelham on poverty

Posted on by Doug Paulley

Clare Pelham had this to say in Leonard Cheshire’s annual accounts 2014-2015:

Disabled people are more likely to be living in poverty and less likely to have savings than most. The pressures on social care funding available to councils in this country have increased and this has affected many disabled people.

She ought to know about poverty; after all, she’s only paid between £140,000 and £150,000 per year. She is one of 25 staff earning more than £60,000 – none of whom are directly engaged in the core activity of providing personal care and support to disabled people. Indeed, the number of staff in the charity earning £100,000 or more actually increased this year. To put that in context, MPs’ salaries are £67,060.

The report also lists the following risk and mitigation: (my emphasis)

Rising wages costs and our ambition to pay all staff at least the Living Wage could impact the financial sustainability of some or all of the Charity’s operations
  1. Annual increases in our fees requested from commissioners to offset the cost of wage increases and to support our efforts to work towards paying the Living Wage.
  2. Annual budget and business planning cycle.

 

This is perhaps progress, because even though Clare Pelham had this to say in September last year:

At the very least we should celebrate care as a wonderful career choice with great training; and nothing less than a living-wage should be acceptable.

the charity continues to pay its carers less than the living wage. They claim it’s because commissioners don’t pay them enough:

Commissioners are working under increasing financial pressure, so in many cases achieving living wage rates is not possible immediately

Yet until I kicked off about this in January, they’d not asked any commissioners to pay more so they could pay carers the living wage – and even now they’ve only recently written to a small proportion of commissioners to start the conversation. (At least I’ve forced them to go through the motions.)

In fact, the company reduced their spending on staff wages by over £2,000,000 in financial year 2014-2015 compared to 2013-2014, despite receiving an increased income of over £1,000,000 from fees paid by councils, part of their £7,500,000 overall increase in income. (£6,000,000 of the increased income is sat in their bank accounts – Goodness knows where the rest is.)  Check their annual reports and accounts (PDF file) – hold your nose to get past the odious self-congratulatory bollocks in the first half of the report; their figures for income are on p64, staff costs on p91, and the salaries of their most senior employees on p92.

One wonders if the reflection in their annual report may indeed by correct. It’s my view that they don’t give a stuff about their low wages to carers; they are only interested in appearing to give a stuff about their carers’ pay, and they don’t view the living wage as something to aspire to but as a threat to their business model.

Mechanisms for payment of £10 SAR fee

Posted on by Doug Paulley

There’s a paucity of guidance on what mechanisms organisations must offer when charging the £10.00 SAR fee. It bugs me when an organisation accepts payments for other services via card payments and/or bank transfer, but insist on cheques for subject access requests.

The only related guidance I can find is the ICO’s DPA LTT on payment mechanisms for SAR fees, which says that an organisation must act as if the fee has been paid if it’s been sent in a commonly acceptable form, so for example if the organisation tries to insist on payment by card but the requester posts a cheque, they must still process the SAR even if they don’t cash the cheque. The difference is that receiving the cheque doesn’t require any co-operation from the organisation, it’s essentially passive. To pay the fee by card the organisation would have to operate their card machine etc.

So I’ve sent the ICO the following email, but if anybody happens to know of other guidance please do let me know!

Please can you tell me what payment methods an organisation should offer for payment of the £10 SAR fee?

Please can you provide any guidance on this subject? I can only find this DPA LTT which addresses a subtly different question.

In specific, can an organisation insist on SAR fees being paid by cheque, even if they accept payment by card and bank transfer for other elements of their business? I hate cheques; they can go missing in the post, they take time to clear, it’s a pain for me to get to the pillar box in my wheelchair, and they’re very out of date. Is there best practice or statutory or other guidance that says that a company must accept payment by other mechanisms where these are already in use in other areas of their business?

Could I just transfer £10.00 into their account via bank transfer and present them with a printout proving I’ve done this as a fait accompli?

ADDENDUM 11th September

Correspondence with the ICO has provided some elucidation. It has taken a little while, though…

ICO to me: 28th August 2015:
An organisation is able to specify a preference with how they receive the fee. Ultimately as long as they allow the individual a method of payment, then this is likely to be acceptable.
For example, there may be reasons why an organisation are unable to accept payment for SARs via card. This may be because card payments have to show that you are paying for goods etc, and that their systems may put constraints in place that would not allow them to take SAR payments.
I therefore suggest that you contact the organisation and ask them the reasons why they cannot accept payment via card and if there is any other alternative to paying by cheque.
However, there are unlikely to be issues as long as they allow you to make a request and provide some way for you to make a payment.

Me to ICO: 28th August 2015:
Your DPA LTT says that an organisation must act as if they have successfully received payment when proffered, even if it isn’t done so using their preferred payment mechanism. The difference is, I guess, that when paying by card the organisation has to actively participate in the transaction, instead of passively receiving a cheque or cash. Is that the difference between your reply and the LTT?
In my specific case, my SAR was to (X company). They give bank details for (X purpose). I transferred £10.00 into that account and emailed them the transfer details, explaining that it was the SAR fee. Could you please confirm if based on your LTT I have paid them the fee and they are now under obligation to supply the info?

ICO to Me: 2nd September 2015:
As previously mentioned an organisation can specify how they would like to receive a payment for a SAR. As long as they offer you a method that allows you to pay then they are unlikely to be doing anything wrong.
As you have paid the fee via bank transfer, in to an account for (X purpose), and you wish to know whether they are obliged to accept this payment.
Essentially, if they do not accept payment for subject access via this account, and have offered you an alternative way of paying, then there are not going to be obliged to accept the payment. This is because they may not have the facilities to transfer the payment in to the correct place. These constraints may mean that they are unable to process your fee.
We would therefore advise that you contact (X company) and ask them if the payment has been received. If they are unable to process the fee this way then we would consider that you would need to pay the fee via the methods that they offer and it would not be a valid SAR until this happens.

Me to ICO: 2nd September 2015:
Thanks for your opinion on this. As I understand it your response is that (X company) don’t have to consider my bank transfer into an account that they probably don’t use for SAR fees as valid. “As long as they offer you a method that allows you to pay then they are unlikely to be doing anything wrong.”
The reason I am querying is that the Information Commissioner’s Office’s DPA “Line To Take” document “SAR fee – acceptable payment types” says this:

  • Background
    If a data subject provides the correct fee in a format which is legally recognised in the UK to denote payment eg cash, cheque or postal order etc. and assuming that they have correctly provided all the other elements of a subject access request eg adequate identification etc, the moment the data controller has received the request (section 7(2)), its obligations under section 7 begin.
  • Line to take
    A data controller does not have to accept the payment, but the obligation begins nonetheless – acceptance is not a condition of receiving. A data controller is well within its rights to state a preference for a particular format of payment, but it cannot demand it.

So your guidance says that if I turn up in person at their offices with a £10 note to pay my SAR fee, then (X company) are judged to have been offered payment and must process my SAR, even though they say they only accept cheques for such payment.
I guess I’m asking where the line is drawn between when a payment of a SAR fee is deemed as having been properly offered, thus putting them under the obligation to respond. What’s the difference between me turning up at their office with a £10 note, and me electronically transferring £10 into their bank account? They’re both mechanisms that they don’t offer or want people to use, but certainly in the latter case (physically bringing £10 cash) your guidance says they have to act as if they’d been paid the fee.
I guess I’m asking for a line. Turning up at the office with a tenner = fee considered paid (even though they want people to pay by cheque). Offering to pay by credit or debit card, given that this is “a format which is legally recognised in the UK to denote payment” = fee not considered paid? Direct transfer into bank account = fee not considered paid?
Where’s the line?

ICO to me: 11 September 2015:
I have sought further advice on this and our view would be as follows –
If a payment is made via a non-preferred method, in this instance by bank transfer, then as long as you have provided or offered the payment in legal tender, they would need to comply with your request.
The only difference to this would be if you were trying to pay via a method that they have no means of accessing. For example, if you wished to pay via PayPal and they didn’t actually have a PayPal account, they would not be expected to create one.
Therefore, if you have made the bank transfer in to one of (X company’s) bank accounts, even though this would not be their preferred method of payment, they would need to deal with your request as you have provided them with a valid fee.
I hope this clarifies the matter and I must apologise that the advice may have been contradictory.

Me to ICO: 11 September 2015:
Thank you, this is interesting and useful.
I wonder if I could ask the ICO to define the line even more clearly. You’ve established that transferring £10 into their bank account means they have to comply with my SAR; but that is essentially a passive act on their behalf. I am wondering if they should have to co-operate in other mechanisms.
They accept payment (for X purpose, unrelated to SARs) by debit and credit cards. As they use this mechanism, would they have to accept payment of the £10 SAR fee by debit or credit card if I told them that’s how I would like to pay it?