Experian reply to RBS inaccurate Data - Help needed

[animal_lover]

I've recieved a reply today from Experian regarding the letter i sent about processing inaccurate data.

 

advice needed please

 

Thanks AL

 

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[Hadituptohere]

I see Mr Hancock is rolling out the same template letters on quite a regular rate, I dont think anyones getting anywhere with experian until some of the pending court cases of other members conclude

 

Hadituptohere

[davey77]

I agree, after getting the same kind of replies from the CRAs. Nothing short of the threat of legal action for Libel will get these organisations to sit up and take notice.

 

I've already dealt with Hancock and one of my letters (and reply) may interest you:

 

Dear Mr Hancock,

Thank you for your quick reply to my letter dated 8 Jan 2008 in reference to incorrect data held by Experian.

 

I find I must disagree with some of the assumptions you make regarding Credit Reference Agencies (CRAs) responsibilities and legal duties though. You stated in your letter that "companies are not obliged to supply us with an actual copy of the agreement", so I must ask what measure is taken to ensure that companies that supply adverse information to Experian are authorised to do so? It seems to imply that Experian merely 'take the word' of a company to process an individual's credit file without ascertaining the correct documentation exists to allow the processing of said data in the first instance.

 

You also state that: "If a company can demonstrate that an account was being paid on time for a number of months/years prior to falling into arrears, this is often seen as evidence that the individual concerned must have consented to the terms and conditions of the contract."

The example that you use, would hardly constitute 'evidence' of the existence of a properly executed agreement but only that an individual, at some point, made payments towards an account that could just as easily be improperly executed and unenforceable.

Just because a loan or credit card has an inception date a CRA may perceive that an individual has at some point agreed to a contract with a company but this contract must be a properly executed agreement, containing all the prescribed terms as laid out in the Consumer Credit Act 1974 of Office of Fair Trading Guidelines and for a CRA to make the assumption that it is legally enforceable on the sole bases that previous payments have been made in regards to that contract is only guess work based on the part of the CRA and not a legal fact that would be enforced in a court of law.

 

Under the Data Protection Act 1998 (Data Protection Act) CRAs are no longer data processors as they were under the previous 1984 DPA but are now classed as data controllers who receive, change, alter, and further process data and as data controllers have the legal responsibility to ensure that the data that they process is accurate true and correct, and that the individuals concerned have indeed agreed to that processing. According to the Information Commissioners Office (Information Commissioners Office) "It is important to note that by virtue of (a) above it is not enough for a data controller to say that, because the information was obtained from either the data subject or a third party, they had done all that they could reasonably have done to ensure the accuracy of the data at the time." The assumption that agreements are properly executed or that an individual must have given consent due past payments made to a company, as previously stated, would not constitute evidence and for a CRA to accept that situation without trying to obtain further proof of consent would not constitute 'reasonable steps' or taking 'due care'.

This seems clear also under the code of information shared issued by the Information Commissioners Office in that "However, it should be clear why the sharing is taking place and who is involved in it. If organisations want to share sensitive or confidential information, they are more likely to need your consent... Banking Information is considered personal confidential information. If you are asked to consent to information sharing, you should have a genuine free choice. Consent shouldn’t be used as the basis for sharing information if, in reality, you have little or no choice."

 

Experian's website also states that "Only companies who are members of our account sharing scheme can access credit account information. They can only look at your credit account details if you have given them permission. They usually get your permission when you complete their credit application form." I believe this statement to be incorrect as its up to the CRA’s to obtain proof from the supplier that they have got your consent not merely say its “usually given”. That is unacceptable and could not be enforced in a court of law as a CRA would need to show that they had taken reasonable steps to confirm the processing of data.

 

Section 41 of the Information Commissioners Default Guidance Version 3.

 

"Credit reference agencies potentially have a defence against action through the courts by individuals who successfully challenge the accuracy of data received from a lender. However, this defence is only available if the agency takes reasonable steps to make sure the data is accurate and, as soon as they become aware of the challenge, takes steps to mark the file accordingly. Records where the accuracy is challenged can be marked as ‘under query’. This marker alone is unlikely to be sufficient to provide protection against claims, including those for compensation.

 

Agencies should therefore ask the lender to substantiate the disputed information within a reasonable time frame, for example, 28 days, and, if the lender is unable to substantiate the disputed information in that time, should suppress the information from the file."

 

It seems clear from the Information Commissioners Office then that a CRA must substantiate the authority and therefore be supplied a properly executed agreement upon request should an individual ask for relevant documentation from the CRA to prove that the CRA has the lawful right to process data. With this in mind i request such action to be taken at the earliest opportunity.

 

I would appreciate a personal and prompt reply as this is a serious issue and as it stands i cannot see how the policy of Experian equates to compliance in reference to the information and guidance supplied by the Information Commissioners Office, consumer credit acts and Experian's website information.

 

your sincerely,

Davey77

 

And the reply to that was:

 

Dear Davey77

 

Thank you for your e-mail received 15 January 2008.

 

Although you disagree with some of the 'assumptions' I have made regarding our responsibilities and legal duties I would remind you that you are in no position to make a ruling as to whether we have complied with the relevant legislation.

 

I have already explained to you our full query process and how this fits with the Information Commissioner's guidance. I suggest that if you have any concerns regarding our processes you take this up with the Information Commissioner's Office.

 

I have also advised you that we are contacting the companies concerned for you and have marked the entries as disputed.

 

In order to process a search using our records, the company concerned will have to acknowledge that they have obtained an individual's consent before we allow them to access the data. Therefore, we do not require them to provide us with a copy of each individual consent form signed when they use our services to conduct a search. Similarly we do not ask for recordings of telephone calls or computer records when consent is obtained over the telephone or via an internet application.

 

In the same manner, when a company submit account data to us they confirm that the relevant notification has been given and that the data is accurate prior to providing it to us. It is worth noting that the Information Commissioner has recently issued guidance regarding credit agreement data sharing. A copy of this can be found at the following link:

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/credit_%20agreements%20-%20data_%20sharing.pdf

 

The Information Commissioner has advised that despite the steps we take we do not require your consent to process account information about you.As you may be aware the first data protection principle states that:

 

Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless:

 

at least one of the conditions in Schedule 2 is met; and

in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

One of the conditions for processing in Schedule 2 is that the individual has given his consent to the processing. It is the view of the Information Commissioner that consent is not easy to achieve and that organisations should consider other conditions for processing before looking at consent.

 

In the context of applying for credit, consent to share information with the credit reference agencies cannot be freely given. This is because if you do not agree to your data being shared then your application will simply be rejected. In other words you have no choice if you want the credit on offer.

 

The Information Commissioner has notified us that the condition for processing below covers the sharing of account data with the credit reference agencies for the duration of a contract and six years beyond.

 

"The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case because of prejudice to the rights and freedoms or legitimate interests of the data subject."

 

We have been informed that the Information Commissioner takes a wide view of the legitimate interests and considers that it is in the interests of other creditors to make informed lending decisions.Despite your interpretation of the Information Commissioner's guidance, the Information Commissioner's Office also recognise that as an impartial third party, a credit reference agency can only make enquiries of companies on behalf of borrowers and can add a "notice of dispute" to a borrower's credit report where requested. However, while we record information provided by credit lenders, it is important to understand that a credit reference agency is in no position to make a ruling one way or the other in the event of a dispute between the credit lender and the borrower.

 

If you have any further queries, please feel free to contact me directly either by e-mail at [email protected], by telephone on 0115 8286485 or by writing to me at the following address:

 

Directors' Office, Experian Ltd, PO Box 8000, Nottingham, NG80 7WF

 

Yours sincerely

 

Mr L J Hancock

 

Consumer Compliance Executive

 

Directors' Office

[bobbyh99]

Despite your interpretation of the Information Commissioner's guidance, the Information Commissioner's Office also recognise that as an impartial third party, a credit reference agency can only make enquiries of companies on behalf of borrowers and can add a "notice of dispute" to a borrower's credit report where requested. However, while we record information provided by credit lenders, it is important to understand that a credit reference agency is in no position to make a ruling one way or the other in the event of a dispute between the credit lender and the borrower.

 

You could probably spend all day picking the bones out of that reply. What I quite like is they say they are an "Impartial third party"! This is very hard to swallow considering they are paid large sums of money by DCA's etc. to access our information!!