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Thread: For the attention of Flymo

  1. #1
    Senior Member
    Join Date
    Apr 2014

    For the attention of Flymo

    Hello Flymo

    Following my transfer from SDA to ESA support group, without a F2F, I have been trying to obtain copies of all the information used to make the decision.

    I have posted by recorded delivery two SAR's to the DWP and then waited the 40 days for each - I've heard nothing.

    Recently I sent a reminder of their SAR information obligations, giving a two week period in which to send the requested information, i also sent copies of the recorded delivery signed for proof. There are two more days to go till this deadline, yet so far I have received nothing.

    Please can you tell me what are my options for the next steps, I can use to try to get this information out of the DWP.

    I really am at a loss to understand why it is proving so difficult to receive this information.

    Many thanks for any advice you can offer.

  2. #2
    Senior Member
    Join Date
    Dec 2013
    Quote Originally Posted by grgr11 View Post
    You need to contact the Information Commissioners Office to make a complaint about the time you have waited i.e. 40 days and that the DWP are breaking the law. The ICO will be able to contact the DWP and get the information you require.

    The DWP is obligated under the Data Protection Act 1998 to provide information requested in 40 days.
    Sections 7(8) and 7(10) of the Data Protection Act 1998 set a maximum of 40 days for a data controller such as DWP to respond to a subject access request. As is made clear in section 7(9) of the Act, a court has the power to order a data controller to comply with their obligations.

    The ICO are unlikely to contact a data controller when an SAR has not been responded to in the statutory time limit and one reminder has been ignored unless there is evidence suggesting the failure to respond caused substantial detriment to the data subject. ICO does have powers to issue enforcement notices requiring a data controller to take specific steps and, in the event of a serious breach, to impose a fine, but they simply doesn't have the resources to fire off an enforcement notice demanding action and subsequently follow up on that enforcement notice any time a member of the public complains that an SAR hasn't been responded to in the statutory time limit, especially as the Act has given the public a remedy via the courts for failure to respond to an SAR.

    In any event, general principles of public law require that discretion, including the discretion to exercise enforcement powers, is exercised reasonably and taking into account the public interest. If ICO policy was to use enforcement powers any time it received a complaint from a member of the public over a breach of the section 7 DPA 1998 time limit, ICO would almost certainly fall into an error of law known as "fettering of discretion" by sticking too rigidly to a policy always to enforce.

    ICO's broad policy is to enforce proportionately and only to resort to enforcement when that is justified by the actual or potential detriment of the wrongdoing. A pattern of late responses to SARs by DWP might justify enforcement action, especially if there was evidence of detriment being caused to claimants, but two late responses seem unlikely to reach this threshold for enforcement.

    I would suggest buble48 brings their concerns to the attention of ICO. However, I would not be surprised if all that happens is a note is taken as part of ICO's ongoing surveillance activities and you are offered general advice about your rights under the Act. It is not ICO's job to pursue a complaint against DWP on your behalf if the situation is not one they regard as warranting enforcement action.

    It is clearly disproportionate to take court proceedings under section 7(9) of the Act unless no other option remains, especially as I'm not sure whether these proceedings could be brought under the simplified processes of the Small Claims track of the County Court. If ICO refuse to intervene at this stage, the question is what to do next.

    If the original requests were not issued using DWP's request for personal information form, I would reissue the requests again on that form, attaching copies of the original requests and noting on the form that the request duplicates the attached unanswered request made more than 40 days ago. By making the request on the official form, you help prevent DWP claiming they didn't have the information needed to respond to the request.

    I would also start a formal complaint with DWP. After clicking the coloured text, you need to follow the link to Disability and Carer's Service for complaints relating to DLA, PIP, AA or CA, and the link to Jobcentre Plus for complaints about ESA, JSA or pretty much any other benefit for people of working age. Your first step should be as directed. If you are not happy with DWP's initial response to a formal complaint, you have a fairly rapid escalation pathway: DWP Director General of Operations, the Independent Case Examiner then, via your MP, the Parliamentary and Health Services Ombudsman.

  3. #3
    Senior Member
    Join Date
    Apr 2014
    Flymo, you are correct I did not use the DWP request for personal information form, in any of my SAR requests. I will do as you suggest (given that nothing arrived today in the post) and complete and send the above form - giving them one last chance - before I contact the ICO.

    Many thanks for your help.

    I do hope your health is being kind to you at present.

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