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Privacy statement - Terms and conditions

data management issues and civil actions

16 January 2014
Compensation claims brought under Section 13 of the Data Protection Act

Particularly in the area of adoption and foster care, we are beginning to see are compensation claims brought under Section 13 of the Data Protection Act. These claims will be relevant to any underwriters who have books of business or specifically insure in this sector. With the increase in private contracts being awarded for healthcare and related services, this is likely to be a growth area for claims.

Commonly, these actions are brought by families who have fostered or adopted former children in care. In all of these cases it has been decided that the name, address and contact details of the family which are fosterers or adopters of a child will be kept confidential from the birth family. Sometimes this is because it is simply in the best interest of the child to effect a ‘clean break’. On other occasions it is because the birth family is perceived to present a risk to the child, perhaps because there are Schedule 1 offenders amongst them.

Problems in handling data and consequences
Circumstances which lead to the disclosure of the foster/adopters address are often very straight forward, an administrative slip, an unredacted document released through pressure of work, but the consequences are significant. Commonly families who are adopters become convinced that they and their children are being ‘stalked’ by members of the birth family and feel that the only way they can put their minds at rest is to move house. It is common for the organisations responsible for the breach to be asked to pay for the cost of relocation and in one memorable case our clients were asked to:

  • buy the adopters (very impressive) house
  • purchase a second (slightly larger) house for the adopters
  • arrange for the out buildings in the second property to be kitted out with expensive equipment to enable the adoptive family to pursue a rare and unusual reptile keeping hobby.

Risks and settlement
Often in the writer’s experience these claims have very little merit on the facts. Foster carers become so hyper-vigilant to the possibility that they may be being watched by the birth family that they interpret every unusual event as evidence of stalking. It is this fear which risks compromising the integrity of the foster and adoptive placement and so until recently all of these claims have been settled irrespective of their merits. The claims often include a claim for pain, suffering and loss of amenity (something which is, in the right circumstances, permitted under Section 13 of the Data Protection Act). The personal injury awards are often modest (ranging from £5,000 to £15,000) but the costs which follow have, to date, been very significant; sometimes double or even treble the damages recovered.

Practical management
From a lawyer’s perspective, what messages can we discern from this background? Put simply:

  • first it is important that all organisations handling personal data have a policy in place which is relevant to the way in which each department works. There is no point in imposing a ‘one size fits all’ policy. The policy needs to reflect the reality of day-to-day working practices
  • second, the policy needs to be thoroughly and comprehensively disseminated to every member of staff who works within a department (even temporary staff). Training on policies needs to be refreshed regularly. The most robust and sensible policy will be of no assistance to you if the Information Commissioner finds it has been sitting in a drawer since the day it was drafted
  • finally, we often find that breaches of the Data Protection Act happen when members of staff are pushing the boundaries of the policy, not because they are being wilfully defiant, but because they want to do the additional work over and above their usual working practices and outside their office based environment. Any policy you have needs to accommodate the reality of these working practices and sadly, if members of staff flout them then performance management and disciplinary procedures do need to be implemented.

In the rapidly changing environment of social care and medical service provision, insurers will need to be conscious that where a private company or charity (for example) is handling this sort of data, perhaps even for the first time, having won a tender from the NHS, any breaches are likely to be accompanied by serious costs consequences. Therefore proper working practices as set out above are best implemented as soon as possible and implementing these prior to tendering would be much more beneficial than attempting retrospective correction.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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