Aug 222017
 

If anybody feels that an organisation may have failed to follow the Data Protection Act whilst dealing with their data, they can ask the ICO for an assessment about whether that processing is likely to have been OK or not, under S42 of the Data Protection Act. The ICO are obliged to respond unless they need the subject to supply more ID or more explanation as to what processing the subject’s concerned about. Those are the ONLY exemptions the ICO can use to avoid having to undertake a S42 assessment.

S42.2 On receiving a request under this section, the Commissioner shall make an assessment in such manner as appears to him to be appropriate, unless he has not been supplied with such information as he may reasonably require in order to—
(a) satisfy himself as to the identity of the person making the request, and
(b) enable him to identify the processing in question.

It is usually a good idea for the data subject to complain to the data controller before bothering the ICO. It’s often probably the best way to get the issue resolved speedily and with the least of fuss, to the benefit of both the data controller and the data subject. It also means that the ICO are less likely to be swamped with S42 requests about stuff that could have been sorted a lot easier by a simple email.

However, that isn’t appropriate in all cases.

My reading of the Act is that the ICO are under an obligation to respond to a data subject’s S42 request for assessment irrespective of whether the data subject has complained to the data controller. The ONLY factors they can take into consideration as to whether they must undertake an assessment or not, is whether they have enough ID to be confident the data subject is who (s)he says (s)he is, and whether they’ve been given enough information to identify the processing in question.

S42 lists other factors that the authority can take into account – but these factors are only to be taken into account when considering how the authority will go about the assessment, not IF they will undertake an assessment. They still have to do the assessment, irrespective of these factors. But in any case, these factors do not include whether or not the data subject has made a complaint to the data controller.

S42.3 The matters to which the Commissioner may have regard in determining in what manner it is appropriate to make an assessment include—
(a) the extent to which the request appears to him to raise a matter of substance,
(b) any undue delay in making the request, and
(c) whether or not the person making the request is entitled to make an application under section 7 in respect of the personal data in question.

So as far as I’m concerned, the law does not give the ICO latitude to insist data subjects complain to the data controller before submitting a S42 request. It doesn’t allow the ICO to refuse to undertake an assessment where the data subject hasn’t submitted a complaint direct to the data controller.

I submitted a S42 request recently, having not complained to the data controller first. The ICO responded:

I note that you also sent us a copy of an email received from ‘Charity Checkout’, which appears to be a trading name of ‘Online Giving Ltd’.  There is no other copy correspondence to show that you have raised a concern with ‘Online Giving Ltd’ in writing and allowed time for its response. You would need to do this before the ICO could progress any concern about this third organisation.

I remonstrated:

This approach is not in compliance with obligations under S42 of the Data Protection Act, which states:

I parroted the above in detail, showing that the ICO cannot legitimately insist on subjects complaining to the controller before the ICO is obliged to conduct an assessment.

It always bugs me when the ICO state that they will not make a S42 assessment unless the data subject has raised their concern with the data controller. This is evidently ingrained and standard practice in the ICO, but it has no basis in law. No doubt the ICO would like it to be in the law, acts as if it is the law and doubtless often it achieves a speedier resolution if the data subject  complains to the data controller, but the fact is that the Information Commissioner is obliged to undertake an assessment whether or not the data subject has raised their concern with the data controller.

As the ICO expects and requires data controllers to comply with the detail of the Data Protection Act, it should do so itself. S42 does not give the Commissioner the right to reject S42 requests on the basis that the data subject has not raised a concern with the data controller. That’s the letter of the law, and the ICO should comply with it.

Please register a complaint that the ICO’s standard practice in this specific is not in compliance with the Commissioner’s obligation under S42 of the Data Protection Act.

They gave their final response:

You are dissatisfied with this approach and do not consider that section 42 of the Act allows the ICO to require that you contact the organisation prior to requesting an assessment.

My Findings

The requirement for individuals to have raised their concerns with the organisation involved is part of the ICO’s operational policy, rather than being written into the legislation.

You will appreciate that the ICO has limited resources, and we cannot take action in response to every concern reported to us. Ultimately our role is to improve information rights practices, and we put our efforts into taking action in those areas where we can make the biggest improvement to the practice of those we regulate. We are an independent body and do not work on behalf of individuals

As explained on our website, we believe that the organisation responsible for a data protection matter should deal with it in the first instance. We expect organisations to take concerns seriously and work with the data subject to try to resolve them. Most organisations will want to put things right when they have gone wrong, and learn from complaints that are raised with them – further, it is best practice for them to have an effective complaints procedure.

If the organisation has been unable, or unwilling, to resolve an information rights concern, the data subject can then raise the matter for us to evaluate whether there is an opportunity to improve information rights practice.

For all of these reasons we are committed to giving organisations the opportunity to respond to public concerns before they are raised with us as the regulator.

I trust that this explains our approach.

Well yes, it explains their approach, but it doesn’t explain how their approach complies with the legislation, which was the sole point in my complaint. “We think our approach is better” isn’t a valid response to a complaint that said approach is not in accordance with their legal obligations.

However, they have successfully stonewalled me through their single-stage complaints procedure, so they won’t consider the issue any further. I wouldn’t want to bother the ombudsmen, partly as I haven’t experienced sufficient harm and in any case, as the ICO pointed out – “If your complaint relates to the way in which we have interpreted the law then the Ombudsman cannot help you.” The only further avenue suggested was, “If you want to challenge our interpretation of the law, you should consider seeking legal advice.” They presumably know that it doesn’t merit that.

I’m therefore reduced to publishing a whiny blog explaining how I’ve been wronged, on an obscure part of the Internet where nobody will read it — similar to the likes of Alan Dransfield.

But I still think I’m right, that the ICO are failing to comply with their legal obligations, and that they have succeeded in their intent of stonewalling me throughout the statutory procedures ostensibly designed to make sure they take on board complainants’ legitimate concerns and change accordingly. (Again, just like Dransfield. Perhaps we’re long-lost relatives or something.)

Aug 062017
 


I’m going on a trip up the Far North line to Orkney. As this is somewhat of a special trip, I decided to go First Class where possible (I booked 3 months in advance with split ticketing to make it affordable.)

As ever with the rail industry, my need for wheelchair access meant booking was not straightforward. I was given contradictory information from four different train operating companies, which resulted in multiple attempted and failed assistance bookings. I ended up buying multiple spurious tickets because different rail staff told me that there are / are not wheelchair spaces in First Class on the various legs.

In the end, the (very helpful) Transport Integration Manager at TransPennine Express sent an email round to his equivalents at Scotrail, VTEC, Northern and (later) RDG to attempt to sort out the horrible mess of broken assistance bookings and duplicate tickets.

Scotrail’s (then) Head of Access and Inclusion, responded with this extraordinary ad hominem attack.

Mr Paulley advised in all circumstances that he knew both ScotRail and VTEC had no first class for journeys he wanted to make including knowledge that ScotRail portion did not do seat reservation.

He pointed out that he had booked first class tickets on our website but I know he would have noticed that there is warning about first class wheelchair spaces.

We did another digging and found that he also send a Textphone request now saying he booked his tickets on Northern website.

I plan to go over the next telephone conversation as his request is that we pay him £7k for not meeting ORR requirements and he took information from approval letter of 2016 something baseless.

Regards
[redacted]

I’m not going to bore everybody by refuting each allegation, nor extemporise on the clearly unacceptable manner in which a senior member of Scotrail staff libelled me to senior managers in other train operating companies, but the “something baseless” extract from the Office of the Rail and Road, and the claim of a warning on Scotrail’s website, are worryingly and demonstrably inaccurate.

The Office of Rail and Road wrote to Scotrail in the May 2016 decision letter approving Scotrail’s Disabled People’s Protection Policy:

Following information received by ORR during the review of your DPPP, we also asked you to clarify how you ensure that passengers using a wheelchair are not able to buy a first class ticket which in practical terms they may not be able to make use of. This is due to restrictions in the accommodation meaning wheelchair users would need to be able to transfer to a seat. You have advised that you have now updated your DPPP passenger document and the accessible travel and first class ticket pages of your website to make this clear. You have also told us you will make the restriction clear when customers are going through the ticket booking process on your website, and that your staff are aware of the restriction when selling tickets in person.

You have also told us that you will correct the information on National Rail Enquiries that stated first class accommodation was available for wheelchair users, as this information is incorrect. Please inform us when the National Rail Enquiries site has been updated and when your online booking process has been changed. We would expect this to be completed within three months of the date of this letter, and will get in touch with you to ensure this work has been completed.

Clearly their website and their staff should have warned me that there aren’t any wheelchair spaces in First Class on Scotrail’s services.

I think this shows that Scotrail have as much contempt for wheelchair users, as they already demonstrated they hold for the ORR and for me personally.

Jun 182017
 

I fancied a trip so I thought I would try booking the above Sleeper. I’d read that whilst their old stock has no accessible sleeper accommodation, their new stock does, with an adapted cabin and shower. Their standard cabins are not accessible for wheelchair users, as the following from Matt and Vicki demonstrates

So I phoned Great Western Railway’s (GWR’s) assisted travel help line, to find out if the train I want to catch will have an accessible cabin. In the process, I discovered:

Locomotive-hauled rolling stock (Sleeper services)

There are no accessible berths.

Note: During the financial year 2015/16, the sleeper rolling stock is being refurbished which will include an upgrade of the existing accessible toilet in the seated accommodation and the provision of an accessible toilet and separate accessible cabin within the sleeper accommodation.

I recorded the phone conversation, and kept a transcript of the text direct call. It took 1 hour 22 minutes, and I still didn’t get told whether the service has an accessible cabin or not. They persisted in telling me that every cabin is wheelchair accessible nine times, even after I had convinced him to read GWR’s own leaflet that states it isn’t.

In the following transcript, my speech is in normal text, the relay operator’s is in italics, and GWR assistance department’s speech is in bold.

  • Note from relay assistant You are in a queue, do you wish to hold or try later?
  • Hold please
  • Pls wait… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… ringing…Explaining Text Relay, please wait…
  • Hello, it’s David from GWR Assisted Travel, how may I help?
  • Hello, please can you tell me if the sleeper tonight has a wheelchair accessible cabin on it and if so if it is still available?
  • OK, please hold the line, I need to check. I’ll be as quick as I can…
  • Note from relay assistant Holding… Holding…
  • Sorry to keep… I’ve checked, it will have a wheelchair bay but we can’t check for this evening as we don’t have enough time to arrange.
  • I am not interested in the wheelchair bay, I asked about the wheelchair accessible cabin. You have previously told me that you cannot tell until 8pm on the day of travel whether the train involved will be one of the refurbished ones with an accessible cabin on. So please find out if this one has an accessible cabin on it.
  • My apologies, I am not able to find that information. My manager has advised that we can’t find this out at this late stage.
  • Wait. Previously, your manager told me that they can’t find out until 8pm on the evening of departure. Now your manager is telling you that you can’t find out at 9pm. Are you saying that there is only an hour a day when you actually have this information, or what? In fact: put me through to your manager please.
  • Please hold the line one moment…
  • Note from relay assistant Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding…
  • Hello, thanks for holding. I’ve double checked with a manager and sales team, who have tried to book the chair accessible cabin for this evening, and confirmed it’s not possible for this evening, and my apologies.
  • I still want to speak to your manager please.
  • OK, I will check he’s free to take your call. Please hold.
  • You might want to tell him that if he doesn’t I am going to write a letter before action for disability discrimination counter to the Equality Act 2010 for failing to make a reasonable adjustment to a provision, criterion or practice that makes it unreasonably difficult for wheelchair users to use GWR’s service.
  • Note from relay assistant we are on hold, however I will read your comment when agent or manager returns.
  • OK.
  • Holding… Holding…
  • Hello, thanks for holding. My manager is not free right now as he needs to look into this and to confirm what you’ve been told previously. We will now need to call you back which will now be tomorrow, it can be arranged for a time convenient to you or before 12 noon tomorrow.
  • Don’t bother, I will jump straight to a letter before action under the Equality Act 2010 for failure to make a reasonable adjustment to a provision, criteria or policy that makes it unreasonably difficult for a disabled person to use GWR’s services. I have had enough of this ridiculous difficulty in booking the sleeper cabin, anybody would think that disabled people have only just been invented. I have been attempting to book this stupid cabin all blooming week. Right. Book me in tomorrow night.
  • OK, I’ll get a manager to call you back tomorrow evening and what time is convenient?
  • No, I specifically said I do not want a manager to phone me back. Do not call me back. No time is convenient. I do not want anybody to call me back. I shall simply start the legal procedure. in the meantime, do what I said – I’ve given you more than 24 hours notice now: book me in for the sleeper for tomorrow night.
  • OK, for booking a sleeper that will have to be done through our telesales team. I can transfer the call through so can take your…
  • Break. This is an assistance booking system. You are required under your licence with the ORR via the DPPP to book assistance and tickets in one go. So go ahead and book the assistance now. The wheelchair accessible cabin. Not the wheelchair space, the cabin. Go ahead and book it for tomorrow’s sleeper right now, don’t put me through to telesales.
  • To book the cabin it has to be purchased by our telesales team. I cannot do this myself.
  • I shall make sure that it is also in the legal letter, copied to the ORR, that you are not complying with your licence conditions to be able to book the wheelchair cabin directly with the assisted travel team. Meanwhile I shall purchase the cabin ticket online as we speak. Book the assistance now, please. Am I getting through, can I be any clearer? You are the assistance booking people. Book the assistance now.
  • Can I take your post code please?
  • [postcode redacted]
  • Thanks, and now your full name and first line of the address.
  • Doug Paulley, [address redacted]
  • That’s great. And now your journey details.
  • I am on the sleeper tomorrow. Paddington to Penzance.
  • That’s great, bear with me …
  • Firstly, please tell me whether the sleeper is one of the refurbished ones that actually has a wheelchair accessible cabin or not.
  • I’ll check all that ..please hold the line.
  • It’s been 30 minutes on this call so far, do you think you could just blooming do it?
  • Note from relay assistant I’m so sorry, we are on hold again.
  • Not your fault, and I am sorry for putting you through transcribing what must be quite a difficult and stressful call.
  • Not at all, and can I apologise for my speed as I have two damaged fingers after playing cricket.
  • ouch! I sympathise. no problem.
  • thanks…Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding… Holding…
  • Hello sir, thanks for holding. I have spoken to some people including our control team, and everything they have advised is telling me it will be wheelchair accessible.
  • OK, so please go ahead and book the accessible cabin. I will pay for the ticket online. and please book all the assistance.
  • OK, I’ll book the assistance now. What I have been advised, all of the cabins will be wheelchair accessible.
  • Ridiculous. Ridiculous. Look on your own website. The old sleeper stock had NO wheelchair accessible cabins. The new one has ONE accessible cabin on it. Even your own web site says that! If you book me a non-accessible cabin I will be absolutely incensed. Do not do that. Find out if there is an accessible cabin or not.
  • As I have been advised that all of the cabins are wheelchair accessible, I’m sure you understand I can only go off the information of what I have been advised of.
  • Look. There is no way on this earth that all the cabins are accessible. I am directly informing you that this is not the case. Your website says similar. Go off the information you are being advised by the GWR website, by the Disabled People’s Protection Policy, and by me. Your old stock sleepers have no accessible cabins. The renovated ones have one accessible cabin. This is most definitely the case, I have seen the plans, I have seen the videos even, I have read GWR’s DPPP, I have read it on your website. For once and for all: Old stock sleepers have no accessible cabins in them. New stock sleepers have one accessible cabin. Either tell me that it’s an old stock sleeper, or tell me it’s a new stock sleeper and book the accessible cabin. It’s not your fault you’ve been given duff information, but it’s not mine either and I will sue GWR for this.
  • As I have advised, I have been told that all of the cabins are wheelchair accessible, and I can only book assistance on and off the train and to a cabin, but I can not book a specific cabin as I have said that all cabins are wheelchair accessible.
  • All cabins are not wheelchair accessible. I feel like I’m banging my head against a brick wall here! You are supposed to be the assistance department and yet you think that all cabins on your sleeper are accessible! Whomever has told you that is fundamentally incorrect. How many times do I have to say it? Only one of the cabins is wheelchair accessible, and that is only on your new refurbished sleepers at that. Do not tell me again that all cabins are accessible as it is demonstrably not the case and you are winding me up even further. It is simply not true.
  • I apologise for this inconvenience and hassle, but I can only advise you what I have been told.
  • You must book the sleeper with the accessible cabin. how often do I have to repeat myself? Do it. If your bosses don’t know how to do it, then knock the managing director out of bed. Speak to a guard. Do whatever you need to do, but do not tell me that all cabins are accessible, because they aren’t. You clearly have never seen the sleeper yourself, nor the people you’ve spoken to, because it’s just ludicrous to claim that all the cabins are wheelchair accessible. Sort it out.
  • As I have advised, I can not book a specific cabin, I can only book assistance to a cabin, and the info I have been advised of that all cabins are wheelchair accessible. if you wish to purchase the tickets and the cabin, I will be happy to book you assistance, however i can not book a specific cabin.
  • Passenger Assist allows you to book a specific cabin, just as it allows any third party Train Operating Company or ticket agent to book a specific cabin, but in the meantime in any case you are the assisted travel department and I require you to inform me which coach and which cabin number is the assisted wheelchair accessible cabin. Do not tell me again that all the cabins are accessible, it is not the case.
  • The system will not allow me to book a specific cabin, and as I have told you, I have been advised that all the cabins are wheelchair accessible, and I am sorry this is not the information you have been told previously or found by other means.
  • The system will allow you to book a specific cabin, it is just that you don’t know how. I know the service specification of passenger assist inside out, just like I know your operator license, the obligations set by the office of the rail and road and the disabled person’s protection policy, and you have the ability to A) tell me which of the cabins is wheelchair accessible if there is one on the train, and B) to book it. Do so. Do not repeat yourself again, just do the job. If you can’t, knock somebody up who can. Do not come back to me and say “all I can do is go by what I’ve been told, all cabins are accessible”. Do not come back to me and say “the system doesn’t allow me to book specific cabins”. I know for a fact that both are incorrect. I have seen the sleeper with my own eyes, for Goodness’ sake! There is no way you can get a wheelchair in any cabin except the one adapted one on refurbished stock. Do not parrot the same thing back to me again: sort the problem.
  • I am sorry, however the system will not allow me to book a specific cabin. I cannot comment on any of your experiences with our system, however I have been shown how to book seats and under the same area it does not give me any options to book a specific cabin. I am so sorry that you feel that I am repeating myself, however I can only go off what I have been advised.
  • Can I break in please? OK. I am now quoting directly from GWR’s booklet “Making rail accessible: helping older customers and people with a disability”. Quote. “Locomotive-hauled rolling stock (Sleeper services) Mainline routes from London Paddington to Penzance. Designated Wheelchair Position: There is one wheelchair space with nearby seating for a companion in coach B. There are no accessible berths.” There is a note further on: “Note: During the financial year 2015/16, the sleeper rolling stock is being refurbished which will include an upgrade of the existing accessible toilet in the seated accommodation and the provision of an accessible toilet and separate accessible cabin within the sleeper accommodation.” So: how come you say that all cabins are accessible? Your old stock have no accessible berths at all. Your new stock has one, “a”, separate accessible cabin. One. Your own leaflet says so, in black and white, right in front of me. So whatever you have been told, by whomever, is demonstrably untrue and I require you to find out if the train tomorrow will have an accessible berth on it, or not. Do NOT come back to me and say that all the berths are accessible, or that you can only go off what you’ve been told. I am requiring you to find out for me, and not to accept what untrue information you have been provided. Clear?
  • I am sorry that you feel that the information that I have provided is untrue, however I am not aware of the leaflet you are reading and can only advise you of what I’ve been told. I am sorry, but all I can do is book you assistance on and off the train and to a cabin, as I have been advised that all cabins are wheelchair accessible. If you wish to escalate this further I will have to advise of either a manager’s call back, or you can submit a complaint in writing to either our Freepost address or our email address.
  • For Goodness’ sake. I will not be speaking to a manager or writing a complaint, it will go straight to legal. To be clear: you are David from the GWR assisted travel team. You are not aware of the leaflet “Making rail accessible: Helping older customers and people with a disability” which is held by GWR, is the key leaflet giving information on accessibility of GWR’s services and is half of the Disabled People’s Protection Policy, as mandated by the Office for Rail and Road within the Train Operating Company Licence, and is directly on the assisted travel page on your website. You have never read the leaflet that is about GWR’s accessible provision? And you are directly refusing to check that what you have been told is true? Even though I have given you incontrovertible evidence that it is most decidedly not the case that all of your sleeper berths are wheelchair accessible? Quoting your own leaflet on the subject? Why are you refusing to double-check? Are you that scared of your bosses? Because believe me, you will get it in the neck as will the rest of GWR when I issue for failure to make a reasonable adjustment under the Equality Act 2010.
  • I have now found the leaflet online, and I am looking at the section you refer to, and see what you are saying, however I have spoken with our control team who have advised that the service is wheelchair accessible. If you wish to take this through legal channels that will be your choice, and I cannot advise you to not do that, however as I have said I can only go off the information I have been told by our control team and managers.
  • Please go back to your control team and managers, quote what you have just read in that leaflet, and tell them that I want and need to know: A) Whether this is a refurbished train with an accessible cabin, and if so B) which coach and cabin number it is. Just to note that I have been on the call 73 minutes so far…
  • I understand, and I will raise what’s in the leaflet with our management and control team. However, they have advised it is, and all are wheelchair accessible.
  • Please go back to your control team and managers, quote what you have just read in that leaflet, and tell them that I want and need to know A) whether this is a refurbished train with an accessible cabin, and if so B) which coach and cabin number it is. What is it? Are you scared to phone them back? Have you been instructed not to bother them any more? Why is it that you are not challenging them?
  • Your call is being transferred to another relay assistant Reconnected to relay, pls wait…
  • So as I advised, I will raise this with our control team and our managers who will get this looked into, but I can only advise you of what they have told me, and that they have said all of the cabins are wheelchair accessible. I cannot tell you any other information than that. And as I have advised, if you would like to escalate this further, you will need to speak to one of our managers who can arrange a call back, or submit a complaint in writing, or alternatively you can go through your own channels if you wish.
  • I am phoning the assistance booking department. You are aware that your own literature states that there are no accessible berths on older stock and only one on newer stock. Yet you are not prepared to phone your managers and control team back to ask them to re-examine the situation. I still require the accurate information as to whether there is an accessible cabin on that train tomorrow night and if so which coach and cabin number it is. You have failed to explain why you are refusing to challenge your managers and the control team on what you have read and what you have heard from me, right now, in order to provide me with the information you are obliged to provide. Stop repeating that you can only tell me what you have been told, and find out the true information. Stop trying to tell me to write, or phone another time, or wait for a call back, or make a complaint, I want the information now, in this phone call. It is not an unreasonable request and you are just perpetuating the pain by making me carry on. Go back to your managers or the control team and find this information for me. By the way, I am of course recording both this phone call and the transcript.
  • OK, let me put you on hold for a few minutes please. Thank you.
  • 79 minutes!
  • Holding.
  • Hello Mr Paulley, I have spoken to our managers, and they have confirmed that this will be raised and it will also be raised with our control team. However, I am not willing to discuss this any further and I will have to terminate the call now. Thank you.
  • Other person has hung-up.

Non-wheelchair users can discover whether there’s a suitable berth for them and book it in seconds on the website or by phone…

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