Personal Data is Not 'Personal Data', Not When It's Gathered For the Purposes of the Workplace Parking Levy

About a year ago I revealed that enforcement of the Workplace Parking Levy would involve officers in a vehicle equipped with Automatic Number Plate Recognition (ANPR) tech touring the car parks of Nottingham, recording the registration numbers of cars parked there to determine how many spaces are being used by people working there. I suggested that this was a bit dodgy because, arguably such activity should be registered under RIPA and it would mean shunting quite a lot of individuals' personal data around which implies certain obligations. As the WPL rules do not include spaces used by Blue Badge holders i.e. people with disabilities, this includes what is defined as 'sensitive' personal data which requires explicit consent for processing. In other words, from a data protection point of view, this is some heavy shit.

Not surprisingly others are interested in this issue and there has been a rather illuminating response to a Freedom of Information request. Be amazed at this extract;

"We have determined that the information collected by our ANPR vehicle for the purposes of the WPL does not constitute personal data.

We have not completed the ICO self-assessment questionnaire.

We have obtained legal advice regarding all aspects of the Data Protection Act and the Workplace Parking Levy however, this information is exempt from disclosure under section 42 of this act as we feel releasing the information would breach legal professional privilege."

Ok, so they are claiming that records of thousands of individuals' number plates do not constitute personal data. They claim to have legal advice on this but they're not going to tell us. Handily this let's them off all the obligations for processing personal data fairly, including whether they pass it on to all and sundry which is another of my key concerns.

Let's have a look at the definition of personal data from the Information Commissioner's website;

"Personal data means data which relate to a living individual who can be identified –

(a) from those data, or

(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual."

Now it's probably fair to say that this information doesn't count as personal data under part a), you can't identify somebody from their number plate alone. But what about part b)? We know that NCC has access to the DVLA database because there was a hoo-har about them allegedly being suspended from it a while back due to lax security procedures. The council also processes Blue Badge applications. There's probably more but from these two sources, combined with the ANPR data, individuals would be personally identifiable and the latter is thus personal data. No wonder they're unwilling to share the legal advice that says it isn't, it sounds well dodgy. That FoI exemption they used looks a lot less than watertight as well.

Later on in the response NCC appears to be saying that the ANPR vehicle has yet to be used in anger but it cost £93k so it will be at some point.

There is one other element of the response which has quite a lot of amusement value as well as being wrong. The questioner asked for the locations of signs at NCC's administrative boundaries informing people that they are entering ANPR surveyed areas. Here is the priceless response;

"These signs are in the public domain therefore this information is exempt from disclosure under section 21 of this act as it already publicly available."

Ok, there is an exemption under the Freedom of Information Act for information obtainable elsewhere but I'm really not sure that's what it means. The fact that the signs are physically viewable at the side of the road is not the same as a list of their locations. I hope that actually is a kind of a subtle 'fuck you' because if the FoI officer really believes that is the correct response, the work is only just beginning.

Update;

Thanks to 'Sanman' in the comments for the news that NCC's Data Protection Register Entry now includes vehicle registrations. See 'Purpose 7; Assessment and Collection of Taxes and Other Revenue', further description of purpose includes 'ADMINISTRATION AND ENFORCEMENT OF WORKPLACE PARKING LEVY' and 'Data Classes' includes 'VEHICLE REGISTRATION MARKS'.

This kind of implies that they do accept the vehicle reg numbers are personal data after all which in turn implies that the FoI response is incorrect.

Rumour Mill

I'm hearing what is said to be a very solid rumour that a certain senior NCC councillor is planning an exit from local government and has ambitions of becoming an MEP. I have been given a name but, because I can't substantiate it, I'm not passing it on at this stage.

If it is true it would seriously change the political dynamic at NCC. More importantly, I will be able to go around looking smug with a *you read it here first* face on.

That Answer In Full; Why Housing Benefits Are 'Not Brilliant'

I've just had the minutes through for the full council meeting on 11th June. I asked a question about problems with the Housing Benefits service and here is the answer I got from Graham Chapman. I've added the odd comment as you'd expect.

"Thank you, Lord Mayor, and I promise that the answer will be marginally shorter than the question.

[Guffaw! He's known for his jokes is Cllr Chapman]

Between May 2009 and May 2012 there has been a 14.8% increase in the benefit caseload increasing the annual benefit paid from £133 million to £175 million, that is an increase of 31%. Although not a national comparator, Nottingham puts 82% of cases received into payment, compared with a Core City average of 70%. In simple terms this means that more people that need support are getting that support in Nottingham than in the average Core City, and that is very important point.

[That's interesting. Is Chappers claiming that other core cities get round the issue by simply not paying benefit to people who are eligible? I wonder what these other core cities would have to say about that.

And how relevant is this to speed of processing? You still have to process the claim and make a decision even when benefit isn't payable.]

There has also been a marked increase in the caseload for the private rented sector, an increase of 63% over the same period. Now I am aware that on basic statistics, Nottingham’s performance on speed of processing new claims and changes in circumstances relative to other English local authorities is not brilliant. For 2011/12 Nottingham City Council performance for all new claims was 53 days and 27 days for changes of circumstance. The All England average was 24 days and 12 days respectively.

['On basic statistics'. 'Not brilliant'. It's like pulling teeth.]

On average we allow 36 days for provision of information, with reminder letters and follow-up action taken to secure evidence in support of claims, whereas the vast majority of high performers allow around 14 days, with limited follow-up activity. 

[Can I just stop you there? ALL local authorities are required to allow claimants at least a month to provide any information required to support their claim if the authority notifies them it is required (see sub-para 8). So if these 'high performers' really are cutting claims off after only 14days they are acting unlawfully. Not beyond the realms of possibility I know but without evidence I'm sorry Cllr Chapman but on this one, I name thee 'Bullshitter'.]

If our focus was only on processing times and only on the stats, rather than getting money into people’s pockets then 12%, or some 5,000 people, would not have received support they have. That is quite the opposite of what is implied in the question. In other words, we do not have a cut off date which allows us to say the case has been dealt with, we keep the case on file and work with it, and that way we get far more money into people’s pockets, but our performance statistics don’t look as good, and if anybody asks me which one I prefer, I prefer getting money into people’s pockets than having nice neat performance statistics which show us in a false light.

[Again, this is clearly bollocks as it's based on the same false premise as above. Is Chapman seriously claiming that if you submit a half-completed form and don't respond to chase-ups for 5 years, they'll still process the claim back to day one? That's not how I remember things going. Councils are allowed to allow longer than a month to provide missing info and there are many cases when they should. On this basis the claim that NCC allows an average of 36 days doesn't look over-generous.]

Since July 2011 the benefits service has been working with the Department for Work and Pensions (DWP) to improve performance however. There has been significant investment in the service, both in terms of 13 new posts and additional temporary staff to assist with the speed and accuracy of processing. As a result, new average claims processing time has reduced by 9 days to 44 days in May 2012, and we anticipate further improvements. Performance on changes in circumstances will take longer to improve, the focus of activity during June, July and August is to bring the change of circumstances to a 14 day turnaround. On this matter the questioner does have a point, we are concerned, but we are doing something about it.

[13 extra staff is good. However, I'm a bit cynical about the sticking plaster/PR friendly use of temporary staff not least because of the cost.]

Now, on subsidy, it is acknowledged that in 2010/11 housing benefit subsidy was qualified to the value of £729,000. This was out of a total claim of over £157 million, so that means it is a 99.53% accuracy rate. This is consistent with other authorities of our size and complexity. Some £300,000 of the £729,000 was subsidy claimed in error when the equivalent expenditure had not been incurred, so there was no loss to the public purse nor citizens in the benefits system. Again, this is not what the question implied.

[I wonder what Cllr Chapman's response would be to a benefit claimant who claimed benefit 'in error' when the 'equivalent expenditure' in rent 'had not been incurred'? I suspect he'd have been very happy to have seen him down the Magistrates Court. And it's good to see Chapman being so blase about the remaining £400k.]

On to discretionary housing payments (DHP). Unsuccessful applications for discretionary housing payments are in simple terms the result of the claim not meeting the qualifying criteria.

[Really? That's a bit odd seeing as the potential eligibility is so wide. The assumption is that eligibility exceeds demand and that authorities use their discretion to decide who should receive a payment.]

The local policy and criteria itself was developed in line with the national parameters and in consultation with benefit practitioners, the welfare rights sector, housing professionals in the City, and we have a very good relationship with them.

[What is this 'local policy and criteria' of which you speak? Has Cllr Chapman seen it? In 2009 there was no such thing and the (small) bit of info I've been given about these meetings with the welfare rights sector etc didn't mention anything about drawing up local criteria. Not that they were minuted mind so their usefulness is limited. Maybe it's time for another FoI request to see if this has changed?]

In 2011/12, in recognition of the impact of changes to local housing allowance rates, the Government increased DHP fund allocation, more than doubling it for Nottingham, and I’ll give the Government credit for that. However, due to a transitional protection scheme introduced by the same Government, the full impact of the local housing allowance reforms was not felt during 2011/12, therefore, to expend the money would not have been appropriate. 

[Why the hell not? The best way to demonstrate need is to spend what you've been given. That also serves to increase the next year's allocation.And this claim isn't really consistent with the near 30% increase in applications in 2011/12.]

The DWP therefore agreed that the authority’s underspend could be carried forward to the next financial year. Nottingham City requested that £62,741 be carried forward to 2012/13 making our total provision £274,621.

[I like the way that he makes it sound like it was all planned, rather than an arse-covering exercise. Sorry but I'm not convinced by that at all.]

The take-up and availability of DHPs are widely promoted by frontline benefit colleagues as well as colleagues in housing, welfare rights and within the charitable sector. Thank you."

[Yeah right. That's why the council's leaflet on DHPs hasn't been changed for 7 years and refers you to an office that no longer exists. Oh and while we're here, notice how he makes no mention of the past record of DHP performance over the last 11 years.]

So, that was Cllr Chapman's response. I would rate it as inadequate and misleading to be honest. It's full of unsupported assertions along with blatant inaccuracies. It's a list of excuses that simply don't hold water, like a child caught by a shopkeeper with sweets he hadn't paid for. However, to someone who knows little about Housing Benefit and none of the background to DHPs and their administration in Nottingham, which probably includes the vast majority of councillors, it probably comes across as a robust response.

In Cllr Chapman's defence he probably had no idea what Discretionary Housing Payments are until he was given the above rubbish to read out but, at the end of the day, he's put his name to the response and he is the Portfolio Holder for the service. He is responsible for his answer and it simply isn't satisfactory.

Housing Benefits - The Council Answers?

I got an email today confirming that my question to full council about housing benefits WILL be answered at the next full council meeting.

So, if you're not doing anything on 11 June at 2pm pop down to the Council House and live tweet it...because I don't think I can make it myself and I'd like to know what they say! Oh, botheration...

Anyway, I am genuinely interested in the response and when the minutes come out I will do a post quoting it in full with any commentary that I deem necessary. Such commentary will include 'well said' etc if justified but will also include links to evidence-based rebuttals if that's what the answer requires. If it turns out to be mostly the latter the resultant blogpost will be sent round to all councillors.

In all seriousness, I am genuinely interested in the answers. The question was drafted from around three years of research and certainly was not intended to be a tripping up exercise; the points I raised really do need both answering and tackling. I really do hope that this raises awareness among councillors about the reality of benefits administration in Nottingham and that real improvement is triggered.

In a related issue, NCC is having to gear up to some big new responsibilities as a result of the government's 'welfare reform'. The Post has already written a very good article about one aspect of this, the replacement of the national Council Tax Benefit scheme with a local one, but another development sees the responsibility to administer the discretionary social fund (including crisis loans etc) transferring to councils like NCC.

Both developments are extremely worrying. As far as the Council Tax Benefit change is concerned, the big issue is that it masks a 10% cut in central funding for the scheme and councils look like they're being set up to be the fall-guys for that. Less attention has been focused on NCC taking over a local version of the social fund. I'm particularly worried because the last time NCC took charge of a discretionary benefit scheme it didn't go so well. And it still isn't. You've presumably guessed that I'm talking about our old mate the Discretionary Housing Payments scheme here?

At least NCC appears to have realised there is an issue as it has apparently set aside funding for a new policy officer to do the thinking on these two issues (not DHPs natch). So far Lisa Black and the policy officer responsible for failing to mention DHPs to One Nottingham have been in charge of NCC's welfare reform response. I'm sure it would be unfair to see this new resource as being evidence that they're not up to the job but hey...

However, it looks like the job will go internally and I'm not convinced the expertise is there. And before you ask, no of course I'm not suggesting I should be able to apply for it, I'm still not medically fit, I also have a major skills gap and there's no bloody way I'd go for any job which requires me to report to Lisa Black again cos she's not fit to lick my boots.

So. None of this is looking good. Even if we do get good answers to my big question, it's all changing soon with Universal Credit and these new local responsibilities. It really is not the time to be on benefits believe me.