ICO on S42 assessments of data controller’s compliance with S10

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Jul 212016
 

Here’s the ICO’s response in full. Editing errors, such as the chopped-off sentence “In circumstances where an individual believes,” were in the original.

21 July 2016

 

Case Reference Number RCC0621317

 

Dear Mr Paulley

 

I write in response to your correspondence of 17 March 2016 in which you have raised concerns about the advice provided to you by our office in relation to section 10 and section 42 of the Data Protection Act 1998 (DPA). My name is Traci Shirley and as a Team Manager at the Information Commissioner’s Office (ICO) your concerns have been passed to me to review and respond to. Please accept my apologies for our delay in responding to you.

I have considered your comments and document my findings below.

Introduction
You contacted our office on 16 March 2016 to discuss your concerns in relation to Sky’s information security practice and it’s handling of your personal information. During your call you were advised by a Helpline officer and a ‘senior case officer’ that the Information Commissioner’s Officer (ICO) is unable to conduct an assessment under section 42 of the DPA with regards to whether an organisation has satisfied its obligations under section 10 (1) of the DPA.

You explain that the Helpline officer’s ‘explanation of the ICO’s inability to investigate such referrals was twofold’ in that:

  • ‘the mechanism for enforcing such rights is through the courts’, and
  • ‘s.10 ‘doesn’t give organisations any obligation other than to provide a written notice’.

You explain the conflict between the advice provided by the two officers in that the Helpline officer advised that ‘a data controller’s compliance or otherwise with s.10’ could not be considered by our office. However, the senior officer advised that a ‘the ICO can make a determination if the data controller has failed to provide a notice within 21 days as required under s.10 (3) but as s.10 places no obligation on the data provider to do anything other than provide a notice, the ICO cannot undertake an assessment on the organisations determination as to whether to accede to a s.10 notice or not’.

  • It is your view that each officers understanding of the law is incorrect in that s.42 of the DPA ‘obliges the ICO to conduct assessments on request as to whether it is likely or unlikely that the processing has been or is being carried out in compliance with the provisions of the Act’ and that the Act does not exclude s.10 from this obligation.
  • You further explain that, ‘the ability of the  data subject to enforce their rights by application to the court under s.10(4) of the Act does not negate the Information Commissioner’s obligation to undertake a s.42 assessment’.
  • You reiterate the provisions of Schedule 1 Part II para 8(b) of the DPA relating to the sixth principle of the Act and any contravention of the right under s.10. On the basis of this provision you explain that ‘a failure to comply with a justified s.10 notice is a failure to comply with the 6th data protection principle’.
  • Similarly, you reiterate the provisions of under s.42 of the DPA and explain your view as to why the ICO should ‘conduct a s.42 assessment as to a data controller’s compliance or otherwise with s.10 (1) and (3)’.
  • You have asked to be informed of ‘what discretion you have under the Act to refuse to make an assessment as to the requirements placed upon a controller by section 10 (a)’ [sic].

Having reviewed all of the information available to me I shall document my findings below.

My Findings

The ICO does not record calls made to our Helpline therefore I am unable to review the call that took place between you and our officers. However, it is always our intention to provide a quality service. I apologise for any conflicting advice that you have received from our officers and that you have the felt the need to complain about the advice provided to you on this occasion.

Security practices
You have explained that you initially contacted us in relation to Sky’s security practice and it’s handling of your personal information.  As I am unable review your call and you have not provided further information in relation to the advice provided to you regarding this aspect of your concerns, I am unable to comment further on this matter. However, the seventh principle of the DPA provides that personal information must be held securely. As such, if you believe that Sky has processed your personal information insecurely, you should, in the first instance, raise your concerns directly in writing to Sky. Following this, our office may be able to make an assessment of this aspect of your concerns.

DPA s.10 and s.42
As stated above, I am unable to review the call which took place between you and our officers therefore I am unable to comment specifically on the advice provided to you, or the context in which that advice was provided. 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.

DPA s.42 (1)
A request may be made to the Commissioner by or on behalf of any person who is, or believes himself to be, directly affected by any processing of personal data for an assessment as to whether it is likely or unlikely that the processing has been or is being carried out in compliance with the provisions of the Act.

DPA s.10 (1)
An individual is entitled at any time by notice in writing to the data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the grounds that, for specified reasons –

  1. The processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or distress to him or to another, and
  2. That damage or distress is or would be unwarranted

DPA s.10 (4)
If a court is satisfied on the application of any person who has given notice under subsection (1) which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.

When considering compliance with any notice served on a data controller under s.10 (1), the court will consider whether the processing is likely to cause unwarranted substantial damage or distress. In addition, the court will consider whether s.10 (1) will not apply by virtue of s.10 (2), where the processing is for the a purpose set out in paragraphs 1-4 of Schedule II.

If the court determines that a s.10 (1) notice is justified, s.10 (4) empowers the court to order the data controller to take such steps as the court thinks fit. However, s.10 (4) does not require the court to consider a data controllers compliance with the ‘supplementary provisions’ under s.10 (3) which provide:

DPA s.10 (3)
The data controller must within twenty-one days of receiving a notice under subsection (1) (the data subject notice) give the individual who gave it a written notice – 

  1. Stating that he has complied or intends to comply with the data subject notice, or
  2. Stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

As such, matters of compliance relating to the supplementary provisions under s.10 (3) are for the Information Commissioner’s Office (ICO) to assess under s.42 of the DPA.

The supplementary obligations of the data controller are, within 21 days of receipt of the section 10(1) notice, to give the data subject written notice that either:

  1. the data controller has or will comply with the section 10(1) notice, or
  2. the data controller will not comply with the notice and the reasons its decision.

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.

However, where the data subject has exercised his right in applying to the court under s (10) (4) for an order compelling the data controller to comply with his s.10 (1) notice, the Commissioner may decide not to investigate the data controllers compliance with its supplementary obligations under s.10 (3) on the basis that the data subject is concerned with the data controllers compliance with a notice to cease processing under s.10 (1) rather than the supplementary provisions in s.10 (3).

Schedule 1 Part II paragraph 8 (b) states:
A person is to be regarded as contravening the sixth principle if, but only if –

  1. He contravened section 7 by failing to supply information in accordance with that section
  2. He contravenes section 10 by failing to comply with a notice under subsection (1) of that section to the extent that the notice is justified or by failing to give a notice under subsection (3) of that section

You explain that, ‘a failure to comply with a justified s.10 notice is a failure to comply with the 6th data protection principle’.

Where a data controller fails to comply with the obligations set out in s.10 (3), any such failure may be a breach of s.10 (3) and therefore a breach of the rights afforded to individuals under the sixth principle. In circumstances where an individual believes

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.

Thank you for bringing this matter to my attention and for providing me with the opportunity to address your concerns.

What next?

This concludes the case review and service complaint process. However, if you still believe that we have provided you with a poor service, or if you believe we have not treated you properly or fairly then you may be able to complain to:

The Parliamentary and Health Service Ombudsman, Millbank Tower, Millbank, London SW1P 4QP

All complaints to the Ombudsman must be made through an MP.  I would advise you to first call the Ombudsman’s Helpline on 0345 015 4033 or visit their website at www.ombudsman.org.uk to see if they are able to assist you further.

If, however, your complaint relates to the way in which we have interpreted the law then the Ombudsman cannot help you.  If you want to challenge our interpretation of the law, you should consider seeking legal advice. 

Yours sincerely

Traci Shirley
Team Manager
Information Commissioner’s Office
01625 545790

 


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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 12th January:

The judgment will be handed down on Wednesday, 18th January at 9:45am.

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!)

IMG_1372

Sam Smiths don’t give a stuff about disabled people

 Uncategorized  Comments Off on Sam Smiths don’t give a stuff about disabled people
Apr 132016
 

At the Harewood Arms, there is a stone wheelchair ramp in the car park, to get into the bar. I’ve been a lot over the years – most memorably to celebrate my degree.Humphrey_Richard_Woollcombe_Smith

Last time I attempted to go (with a friend I don’t get to see very often) the door at the top of the ramp was locked. There was a sign saying to use another door (which had steps.) There was no means of contacting staff, so another customer went in and got help. Staff eventually found some keys, though they initially brought the wrong ones.

I complained. I was told that they had been “requested” to keep the door locked “unless needed”. They said that because they “gave (us) access within a matter of a few minutes of (our) arrival” there was no problem. They had locked the door due to its use “by smokers who congregated outside” – causing complaints from guests in rooms above the entrance, and potentially being off-putting for customers entering or leaving the pub.

I felt this was not an adequate reason for keeping the only accessible bar entrance locked, so I took Sam Smiths to court. I lost; the Judge felt that having to wait “a matter of a few minutes” to get in wasn’t “substantial disadvantage“, and in any case was justified by their need to deal with the problems caused by smokers. He dismissed out-of-hand my suggestion of simple measures such as a sign requesting people not to smoke on the ramp, or provision of alternative smoking facilities – he didn’t take any evidence as to the potential efficacy of such measures.

So I phoned the Fire Service. I was concerned that the only accessible entrance was being kept locked, and that the occupiers couldn’t readily find the key to open it. People could be trapped in a fire. The fire service said that they were already aware, and that as a result the pub now keeps the door unlocked.

I was going past the pub today so I thought I’d have a quick shufty:

2016-04-13 16.57.21The door’s open, marked as “entrance to bar“, with the ramp unobstructed and with a new doorbell to boot.

Why was that so difficult, then? Why did they claim to me, and to the Courts, that it simply wasn’t possible to keep this door unlocked, because of the danger of marauding smokers?

Pig-headedness really knows no limits at Sam Smiths.

We already knew that Sam Smiths don’t give a stuff about their local community:

Or for their tenants, staff, managers, or anybody else really:

We now know that they don’t give a stuff about disabled people either.

Mar 132016
 

Clare Pelham, CEO of Leonard Cheshire, is resigning.

Pelham-20140930105114887

She’s resigning without another job to go to.

She’s a career politician. She was previously first chief executive of the Judicial Appointments Commission, the body charged with introducing more diversity into the Judiciary, and was under fire in the Select Committee on Constitutional Affairs for the Commission’s poor record in the first year.  (She restricted appointments to her commission to existing Civil Servants, thus perpetuating the lack of diversity.)

Before then Clare Pelham held senior civil service positions at the Cabinet Office, the Home Office and the Department for Constitutional Affairs. She has also a senior manager at IBM and was a member of the Executive Committee of Coca-Cola.

She has given no reasons for leaving her £150,000 job at Leonard Cheshire. I don’t need a reason, I can celebrate without one. But I smell a rat. I simply can’t see a career person like this leaving her job without some other well-paid, ego-stroking job to go to, without a serious reason.

I think she is leaving before the shit hits the fan.

OR somebody has finally GIVEN HER THE PUSH!

Leonard Cheshire are in financial trouble.

They have written to staff telling them that any Leonard Cheshire home may close, citing increased costs due to the need to pay their carers the Government’s new “National Living Wage” from 1st April. They are closing Honresfeld home with indecent haste and “an uncaring disregard for the wellbeing of residents” according to the Council and CCG, citing economic factors.

I think Clare Pelham can see the writing on the wall, doesn’t want to be associated with this looming PR disaster (she doesn’t give a stuff about the residents and staff, of course) and is escaping quick before she gets mired with the resultant bad publicity. (After all, her career and public profile were always her prime motivation anyway.) She perhaps has in mind the indecent spectacle of her predecessor, Eric Prescott. LCD brought him in as a “hatchet man” to cut costs, but left halfway through after staff morale hit rock bottom – tales of groups of staff forced to cluster round speakerphones to listen to recorded messages about the future of their employment were not confidence-inspiring.

Either that, or Leonard Cheshire have realised that her indifference to the charity’s own services has sabotaged them, and is thus giving her the push.

Leonard Cheshire didn’t prepare for the National Living Wage.

Leonard Cheshire didn’t even begin the process of asking Councils for extra money due to the increase in costs caused by the mandatory National Living Wage (due 1st April 2016), until December 2015. We already know that they hadn’t bothered asking for more money to enable them to pay their carers the  (entirely different) Living Wage Foundation’s Living Wage, until I forced them to do so (in a desultory and non-comprehensive fashion.) Councils have either refused due to their shrinking budgets, or told Leonard Cheshire it will have to wait for a decision pending multiple fee review meetings.

Worries for staff and residents

So LCD have done too little and left it too late. Now staff round the country are demoralised and worried for their jobs, and care home residents around the country (+ their relatives etc.) (with whom Leonard Cheshire have not deigned to communicate on this matter) are left not knowing if their home will be shut in two months with all of them evicted.

This situation is looking increasingly like a repeat Southern Cross. Yeah, thanks for that, Leonard Cheshire Disability.

I quote the founder again:

As time passed, professionalism advanced, and trustee numbers rose. In 1985 the trustees debated proposals which in Cheshire’s eyes “seemed to be based on the assumption that the foundation was moving towards being run by full-time professional staff, with the trustees responsible only for broad policy“. He opposed this, predicting that it would lead to “a radical change in the foundation’s way of thinking.” There would be less local involvement, diminished local fund-raising and a decline in voluntary help. Against this, core costs would rise, and the foundation “would become more and more like the NHS or social services“. (my emphasis)

Do Cheshire Homes have a future?

Mar 032016
 

Leonard Cheshire has decided to close Honresfeld Cheshire Home, Littleborough. It notified the residents and staff on 27th January of the impending closure at the end of March. 22 disabled people with high support needs live there. Arranging new accommodation and moving is difficult and traumatic enough for people without severe impairments. Imagine trying to sort out suitable care, equipment and accommodation at such short notice

Leonard Cheshire claim that they are consulting over this closure; but it is clear that they have decided they will close it, and rapidly. Their two months notice is in breach of the standard contract with Leonard Cheshire residents, which states:

7.6 In addition to any other rights it has to do so, Leonard Cheshire Disability may terminate this Agreement by giving at least three months written notice to the Service User at any time if Leonard Cheshire Disability proposes to close, temporarily or permanently, or to modify or redevelop the Home and believes that it is not possible in such circumstances to continue this Agreement beyond the end of that notice period.

So Leonard Cheshire Disability have to give residents three months notice. They gave them two months. Why?

As I say, they claim they were consulting on their closure. This doesn’t seem to be a consultation on if they will close, but how. They then decided to give residents an extra couple of months to get out – how generous! Given their own contracts say they have to give three months notice, I have concluded that they always intended on shutting in four months, but went for two just so they can show they are being “responsive” to the “consultation”.

cartoon by Crippen

And when we want your opinion, we’ll tell you what it is! Cartoon c/o the excellent Crippen. CC BY-NC-ND 2.0 UK

So why do they have to close anyway, and so quickly?

Leonard Cheshire says that it’s because:

the service is no longer financially viable in the current market. Our charity has been financially supporting the service for a number of years and sadly this is no longer possible.

In addition, the Victorian building requires substantial investment to bring it up to modern-day standards. (my emphasis.)

If Leonard Cheshire have been funding the home for “a number of years”, why the urgent rush to shut it? Is the home that unviable and that skint? The Council and the NHS deny this:

The council and the CCG thoroughly and absolutely refute that the levels of fees paid to Leonard Cheshire, the owners of the home, by Rochdale Borough Council and others can be attributed to their decision to close the home.

We are strongly of the view that with efficient use of resources, the care home could remain open.

We would welcome the opportunity to examine the accounts of Leonard Cheshire and will gladly work with them to provide assistance to review their staffing and care costs in order to find efficiencies to support the home to be viable.

The state of the building and the costs of the works needed to bring it up to standard is a separate issue. We understand that Leonard Cheshire has to make decisions about use of its resources, although we note that according to the last accounts published by the Charity Commission, the organisation has significant levels of reserves.

As a council and CCG we must respect Leonard Cheshire’s commercial decision to close this home as the building needs significant capital investment. We are also aware that any subsequent sale of the land is likely to provide significant additional sale value for the organisation.

We are, however, very disappointed at the way in which Leonard Cheshire has communicated and managed this situation to date. A letter was sent to residents and families on 25 January with the intention to close the home by 31 March.

In our view this shows an uncaring disregard for the wellbeing of residents, some of whom have lived in the home for over 20 years. With better planning and more notice Leonard Cheshire could have worked with Rochdale Borough Council and the CCG to plan the closure and the enforced move for residents more sensitively. (my emphasis.)

So the Council and the NHS think the rapid closure is unnecessary. Leonard Cheshire undoubtedly won’t let them examine their books, Leonard Cheshire is about as transparent and accountable as Colditz. We therfore have to examine other figures.

  • Rochdale council pays Leonard Cheshire on average 44% more per placement than for analogous placements with other providers.
  • They’re not alone: 55 of 71 other councils that place residents in LCD care homes similarly pay more to Leonard Cheshire than to others. (reference)

Perhaps they pay their carers more?

Nope. As previously noted, despite their Chief Executive advocating that carers should be paid the Living Wage as set by the Independent Living Foundation, Leonard Cheshire routinely pays just above the minimum wage. The minimum wage for people aged over 21 outside London is £6.70 per hour. The Living Wage as set by the Independent Living foundation is £8.25 per hour. Leonard Cheshire is currently advertising for carers:

Support Worker (Residential Services) Penzance: £6.77 per hour.

£6.77 per hour.

Leonard Cheshire repeatedly claim that they have “written to all local authorities who commission our services about our desire to pay the living wage” but in fact they still haven’t; for example Manchester City Council contract Leonard Cheshire but have never received any correspondence from them whatsoever asking for increases in fees to enable them to pay the living wage.

So it doesn’t go on carer’s wages. Where does it go?

Good question!

As of April 2015, there were 14 LCD employees who earn more than MPs. (An increase from 11 employees the previous year.) (from their Annual Accounts.) Between them, these LCD employees earn at least £1,300,000 per year (+ private medical care, pensions and other bonuses.) That £1,300,000 is considerably more than Honresfeld residents’ fees. (Assuming that residents’ fees are about £39,000 per year, based upon figures supplied by Rochdale Council, the fee income for Honresfeld is around £850,000 pa.)

Just think: if LCD cut the salaries of their top 14 employees to that of a carer (i.e. the people who actually do the work that makes a difference to disabled people), they could save well over £1,000,000 per year. This saving could more than double the contribution from Honresfeld residents’ fees.

Leonard Cheshire evictions

Leonard Cheshire has a long history of attempting to evicttroublesome” and “non-profitable” people. In the 1950s, it attempted to evict a number of residents  who protested at having to be in their pyjamas by 6pm every day. In 2002, Leonard Cheshire argued for – and got – the legal precedent that they don’t have to respect residents’ human rights, so that they could evict residents from Le Court (the original Cheshire home.) In 2010, “a range of senior (LCD) management” were found to have committed institutional and psychological abuse of me over a number of years, in the process of which they illegitimately attempted to evict me without any justification. Now they are evicting Honresfeld residents with unneeded and cruel haste because they aren’t “profitable“.

I know what Leonard Cheshire the man would have thought. He’s on record. To quote Richard Morris’s biography of him:

As time passed, professionalism advanced, and trustee numbers rose. In 1985 the trustees debated proposals which in Cheshire’s eyes “seemed to be based on the assumption that the foundation was moving towards being run by full-time professional staff, with the trustees responsible only for broad policy“. He opposed this, predicting that it would lead to “a radical change in the foundation’s way of thinking.” There would be less local involvement, diminished local fund-raising and a decline in voluntary help. Against this, core costs would rise, and the foundation “would become more and more like the NHS or social services“. (my emphasis)

In response to the Leonard Cheshire Foundation’s attempt to evict those who objected to the pyjama curfew:

he responded by advising the Management Committee that a Cheshire Home was a home for life.

Honresfeld resident Harry Roach said:

It can’t be right that we can be thrown out after two months. I’ve been here 10 years and I’m happy here.

I thought that they would at least give us a year.

When they said two months I thought ‘You are having a laugh’.

Two months to sort your life out? It would be hard for somebody not disabled, let alone someone in a wheelchair.

Quite.

There is a petition to stop the closure of Honresfeld Cheshire Home.

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