NEED ADVICE ON HOW TO FILL IN POC'S - CRA denied my Automatic decission request

[bh2362]

hi can anyone help me to fill out an N1 for to apply for an enforcement order for call credit to comply with my request to be removed from the Automatic processing.

 

thanks

[nicklea]

I'm not quite sure what you're asking about. If you're talking about automated decision making under the DPA then you need to talk to the creditor that is making the decision - it's no use talking to the CRA about that

[bh2362]

bump

[bh2362]

heres what i got so far:

 

Order under Section 12 and Section 15(2) of the Data Protection Act 1998

 

PARTICULARS OF CLAIM

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

2. On 7-1-11 the Claimant sent a Request, pursuant to Section 12 (1) of the Data Protection Act 1998 to the Defendant.

2.1 An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

3. The Defendant has failed to comply.

5. By virtue of the Defendant's failure to comply with the Subject Access Request the Claimant has suffered damage and distress

6. The damage and distress caused is:

Extra costs incurred in addition to court costs, due to the Defendants failure to comply - this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice, I estimate this cost to be £400

7. The Claimant seeks an order that the Defendant do comply with the Claimant's Subject Access Request

8. Under the terms of Section 12(1) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimant's Request is not included within the scope of Section 12 of the Data Protection Act 1998, the Claimant requests that the Court inspects that information, and where it finds that the Defendant's opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.

9. Damages and costs within the discretion of the Court.

 

I believe that the contents of these particulars of claim are true

 

Signed:

 

Date:

 

[name]

[nicklea]

Really, if you're trying to take action under section 12 DPA then this DOES NOT apply to CRAs. It only applies to the creditor or other company that is taking a decision based soley on the automated processing of your data.

[bh2362]

hi nick

i have been following the advice of surly bonds

http://www.consumeractiongroup.co.uk/forum/showthread.php?29074-VICTORY-%28AT-LAST%29-AGAINST-THE-CRA-s!!!-Oh-how-sweet-it-tastes!&highlight=surly+bonds

 

taken from his letter back from experian

 

As requested I am also adding the following Notice of Correction to your credit report until you notify us that it is no longer required:

 

"THE DATA SUBJECT HAS EXERCISED HIS RIGHTS UNDER SECTION 12(1) OF THE DATA PROTECTION ACT 1998 AND HAS CHOSEN TO OPT OUT OF AUTOMATED PROCESSING AS OF 05 SEPT 2006. CREDIT STATUS ENQUIRIES SHOULD BE MADE VIA A MANUAL PROCESS."

 

I would recommend that when applying for credit you notify each lender of your request as we cannot guarantee that a company will follow the instructions outlined above.

 

I have added this statement to the electoral roll information appearing on your report. As this is information you agree we are entitled to hold, it will be available to anyone searching your details regardless of any other entries being removed from your report.

 

If you have any further queries, please feel free to contact me directly either by e-mail at *********@uk.experian.com, by telephone on ********** or by writing to me at the following address:

 

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

 

Yours sincerely

 

Mr * * *******

Consumer Compliance Executive

Directors' Office

[bh2362]

revised a little

 

Order under Section 12 and Section 15(2) of the Data Protection Act 1998

 

PARTICULARS OF CLAIM

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

2. On 7-1-11 the Claimant sent a Request, pursuant to Section 12 (1) of the Data Protection Act 1998 to the Defendant

3. The claimant had exercised his rights under 12(1) Of the DATA PROTECTION ACT 1998 to opt out of automatic processing of his personal data.

3.1 section 12(1)An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

4. The Defendant has failed to comply.

5. By virtue of the Defendant's failure to comply with the Section 12(1) request the Claimant has suffered damage and distress

6. The damage and distress caused is:

Extra costs incurred in addition to court costs, due to the Defendants failure to comply - this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice, I estimate this cost to be £400

7. The Claimant seeks an order that the Defendant do comply with the Claimant's request under section 12(1) to allow him opt out of automatic processing of his personal data.

8. Under the terms of Section 12(1) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimant's Request is not included within the scope of Section 12 of the Data Protection Act 1998, the Claimant requests that the Court inspects that information, and where it finds that the Defendant's opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.

9. Damages and costs within the discretion of the Court.

 

I believe that the contents of these particulars of claim are true

 

Signed:

 

Date:

 

[name]

[bh2362]

bump

[The Mould]

revised a little

 

Order under Section 12 and Section 15(2) of the Data Protection Act 1998

 

PARTICULARS OF CLAIM

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

2. On 7-1-11 the Claimant sent a Request, pursuant to Section 12 (1) of the Data Protection Act 1998 to the Defendant

3. The claimant had exercised his rights under 12(1) Of the DATA PROTECTION ACT 1998 to opt out of automatic processing of his personal data.

3.1 section 12(1)An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

4. The Defendant has failed to comply.

5. By virtue of the Defendant's failure to comply with the Section 12(1) request the Claimant has suffered damage and distress

6. The damage and distress caused is:

Extra costs incurred in addition to court costs, due to the Defendants failure to comply - this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice, I estimate this cost to be £400

7. The Claimant seeks an order that the Defendant do comply with the Claimant's request under section 12(1) to allow him opt out of automatic processing of his personal data.

8. Under the terms of Section 12(1) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimant's Request is not included within the scope of Section 12 of the Data Protection Act 1998, the Claimant requests that the Court inspects that information, and where it finds that the Defendant's opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.

9. Damages and costs within the discretion of the Court.

 

I believe that the contents of these particulars of claim are true

 

Signed:

 

Date:

 

[name]

 

Good evening bh2362

 

I would like to make a suggestion to you if I may.

 

So, if you are seeking an Order from the court to enforce compliance of the Data Controller with your Notice/request made under said section of the DPA 1998, you will need to make an application to the court asking for this Order to be made, that is done by way of Application notice (N244).

 

Under s12(1) you have requested that said processing be stopped because processing by such means as automated means significantly affects or has affected you, the subject of the data being processed by automatic means.

 

You will need to show how said processing is or has significantly affected you.

 

If you are claiming compensation for damage and distress as a result of what you alledge /contend is a contravention of the DPA by the data controller, then your claim form N1 should state that you seek compensation under sec 13 of the Data Protection Act 1998 for damage and distress.

 

So you are looking at two different actions here.

 

I hope that will help you somewhat.

 

Kind Regards

 

The Mould

[The Mould]

One other thing bh

 

Have you sent the defendant (CRA) a Letter Before Claim?

 

If not, have a good read of Civil Procedure Rules - PRACTICE DIRECTION - PRE-ACTION CONDUCT, print it off from the Ministry of Justice web site, you will find all the info in said Practice Direction that you should adhere to BEFORE commencing with any proceedings.

 

Kind Regards

 

The Mould

[Ruprecht]

I have always used a Part 8 Claim to get companies to comply with the Data Protection Act, that is what the ICO office says too. It would cost £150 to start a claim asking the court to make an order.

 

Not sure if this works, takes ages to load for me:

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf

 

If you are after damages too you'd have to pay extra for that part of the claim.

 

The only automated credit making decision process CRAs do is providing a credit score to a lender I would think, do Callcredit do that? I think Experian and Equifax do.

 

If nothing is inaccurate data wise they hold and you agreed the organisations reporting data on you could, I am not sure where you will get with it.

 

You might ask them if they provide any sort of credit scoring to lenders first....

 

Caveat Emptor!

[car2403]

What are your damages, BH?

 

Part 8 is unlimited costs, so beware as this will NOT be a small claim with limited costs against you if the order isn't granted.

 

Why do you want them to stop processing?

[nicklea]

bh,

 

I really would strongly advise you against doing this. As car says above, this won't be in the small claims track so you will potentially be facing a costs bill that could easily reach a few thousand.

 

I'm sure that you've read section 12 in detail, but for the benefit of others reading this I'll include the relevant bits here.

 

Taking first of all section 1, I'll just post the first bit as it's quite long:-

 

An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data

 

Now, you are asking the CRA to ensure that no decision taken by or on behalf of the CRA is based solely on automated processing.

 

So you need to ask yourself what decisions are being taken by or on behalf of the CRA. Well, the answer is none. The CRA is not taking any decisions it is just passing your data to another party, which it is allowed to do.

 

The creditor will receive data about you from the CRA - this may just be a score or it may include raw data about you as well. The creditor will then combine this data with what you put on the application form to make a decision about whether to give you a loan,mortgage, credit card whatever or not.

 

It is the creditor or other company that you are applying to that are making the decision about you - not the CRA. So you have no sort of claim against the CRA you could only, potentially, seek any enforcement against a creditor.

 

However, I am sure that you have also read the rest of section 12 and I would suggest that a decision on giving you credit would, in any event, be an exempt decision within the meaning of the section and so any notice you give will have no effect.

 

The relevant subsections are:-

 

4) A notice under subsection (1) does not have effect in relation to an exempt decision; and nothing in subsection (2) applies to an exempt decision.

 

(5) In subsection (4) “exempt decision” means any decision—

(a) in respect of which the condition in subsection (6) and the condition in subsection (7) are met, or

(b) which is made in such other circumstances as may be prescribed by the [F1 Secretary of State] by order.

 

 

(6) The condition in this subsection is that the decision—

(a) is taken in the course of steps taken—

(i) for the purpose of considering whether to enter into a contract with the data subject,

(ii) with a view to entering into such a contract, or

(iii) in the course of performing such a contract, or

(b) is authorised or required by or under any enactment.

 

(7) The condition in this subsection is that either—

(a) the effect of the decision is to grant a request of the data subject, or

(b) steps have been taken to safeguard the legitimate interests of the data subject (for example, by allowing him to make representations).

 

 

Ok, so to keep things simple, an exempt decision is one that is covered by both subsection 6 AND subsection 7. To give an example, if you were to request a new credit card or loan then that would satisfy subsection 7 and the creditor will be considering giving you a loan - entering into a contract with you - so subsection 6 is satisfied. As a result, it is an exempt decision and any notce you may give wouldn't have any effect anyway.

 

 

If you have a look at what surlbonds actually achieved, all he got was a notice of correction added to his credit file. It's easy to do that - just write to them. It's also very important to note what else Experian said in their reply to him:-

 

I would recommend that when applying for credit you notify each lender of your request as we cannot guarantee that a company will follow the instructions outlined above.

[bh2362]

One other thing bh

 

Have you sent the defendant (CRA) a Letter Before Claim?

 

If not, have a good read of Civil Procedure Rules - PRACTICE DIRECTION - PRE-ACTION CONDUCT, print it off from the Ministry of Justice web site, you will find all the info in said Practice Direction that you should adhere to BEFORE commencing with any proceedings.

 

Kind Regards

 

The Mould

 

Hi Mould,

 

I cant thank you enough, glad for the support and help on this, i thought no one would step in, my aim is to send the LBA, to comply with the Pre action protocols, and then have this ready.

lots of people say the CRA would or say they dont process data automatically, but this is not true surly bonds proved this, the scoring method is produced by the CRA, this is collated autmatically by analysing the credit file then the credit is able to to this.

and when forced with court action the CRAS must comply.

 

thanks again

[bh2362]

Im confused now because I thought it did affect the CRA's

i thought they produced an automatic Score, so what your saying is CRA's are exempt.

 

hi CAR, the reason is I have 8 defaults im trying to clear!!!

so have nothing to lose really.

[bh2362]

Thanks Nick for the advice on this, i have been charging in again, you say enforcement???

also Ruprecht you say about a Part 8 Claim.

does anyone have some pointers with a good POC, i might be aboe to adapt, i have also been writing to credits for signed authority to process data. and I want to no if i can enforce this.

 

Thanks

[The Mould]

Im confused now because I thought it did affect the CRA's

i thought they produced an automatic Score, so what your saying is CRA's are exempt.

 

hi CAR, the reason is I have 8 defaults im trying to clear!!!

so have nothing to lose really.

 

Good morning bh

 

Are the Defaults valid?

 

Kind Regards

 

The Mould

[bh2362]

hi mould,

 

most of them are not im afraid. nearly all of the are defective i.e wrong layout and dont give enough time.

also the ones like barclays have not ever produced a signed agreement.

Argos is a signed application.

2 x Shop Direct - need i say more about them

HSBC - had a letter bank from them yesterday saying they do not have a signature for a bank account to conform with DPA.

HSBC - Credit card - faulty default have written to them no reply, the CCA request they sent a bank application form, and copy of terms and conditions.

Have done sars on most of these none produced a written agreement.

 

hope this give you an idea

 

B

[car2403]

The Data Controller of the information should be challenged, then, not the CRA

 

It's questionable as to whether they have permission to process your data, but that argument isn't a winnable one for individuals, IMHO

 

Where the Data shared by the DC is wrong, or inaccurate, the fight needs to go to the DC, not the CRA (unless you fancy being a consumer champion and have an unlimited amount of money to take on a fight that you will probably lose, plus that won't affect your everyday life - most are not in this situation)

[bh2362]

HERE HERE....

 

what would you suggest CAR on how to move forward on these or any advice?

 

thanks

[nicklea]

Im confused now because I thought it did affect the CRA's

i thought they produced an automatic Score, so what your saying is CRA's are exempt.

 

Yes they do produce a score - but they do not take any decisions based on that score. Section 12 is all about taking decisions. It is the creditor that you are applying to that is making any decision.

 

As I said above, the CRA just supplies data to the creditor that you are applying to and they then combine that with what you put on your application form to decide whether or not to give you a loan. Just to give you a very simple example, a creditor's scorecard may look something like this:-

 

Give a loan if the applicant is:-

 

homeowner aged over 40 and score >=640

homeowner aged under 40 and score >=660

tenant aged over 35 and score >=700

tenant aged under 35 and score >=720

 

So, the creditor is the one that is making a decision - not the CRA. They are just using, among other things, data supplied by the CRA to make that decision.

 

But, in any event, I would suggest that the decision would be an exempt decision anyway.

 

Ruprecht you say about a Part 8 Claim.

does anyone have some pointers with a good POC, i might be aboe to adapt, i have also been writing to credits for signed authority to process data. and I want to no if i can enforce this.

 

A part 8 claim is just for where they have failed to comply with a SAR. So, I would suggest that this is not relevant in your case.

 

With regard to writing to creditors for authority to process data, this is covered by section 10. If they fail to respond then you can enforce this in court.

[bh2362]

Thanks Nick,

 

so can i challenge the Creditor directly, if they dont have my consent to process data?

[car2403]

HERE HERE....

 

what would you suggest CAR on how to move forward on these or any advice?

 

thanks

 

A new thread on each would help, as this could get confusing here

[The Mould]

Thanks Nick,

 

so can i challenge the Creditor directly, if they dont have my consent to process data?

 

Yes absolutely agree with Car, your argument lay with the Data Controller (the creditors) and not with the Data Processor (the CRAs), however, if you have defaulted on any obligation under a contract with your creditors, then, if you have signed such contract or document giving express consent for disclosure/processing of your personal data, you will not have a valid argument against them.

 

If there is no express consent substantiated by any creditor of you, then you can request that they cease processing of your personal data (as stated by nicklea).

 

First port of call for you bh is to your creditors, do not rush into court on this matter as it currently stands, because you could end up being liable for the defendant(s) cost of responding to an action that is without merit. (don't take the 'without merit' comment the wrong way please bh, I am posting here in order to help you to avoid making a hasty and costly decision).

 

Correspond with your creditors first, in writing only and do not, under any circumstances, entertain any dialogue with them in telephone conversations!

 

Kind Regards

 

The Mould

[bh2362]

Yes absolutely agree with Car, your argument lay with the Data Controller (the creditors) and not with the Data Processor (the CRAs), however, if you have defaulted on any obligation under a contract with your creditors, then, if you have signed such contract or document giving express consent for disclosure/processing of your personal data, you will not have a valid argument against them.

 

If there is no express consent substantiated by any creditor of you, then you can request that they cease processing of your personal data (as stated by nicklea).

 

First port of call for you bh is to your creditors, do not rush into court on this matter as it currently stands, because you could end up being liable for the defendant(s) cost of responding to an action that is without merit. (don't take the 'without merit' comment the wrong way please bh, I am posting here in order to help you to avoid making a hasty and costly decision).

 

Correspond with your creditors first, in writing only and do not, under any circumstances, entertain any dialogue with them in telephone conversations!

 

Kind Regards

 

The Mould

 

Thank you for the advice Mould, I have only been communicating in writing so thats fine, i scan and collect all the correspondance so i get everything saved and on the computer, everything is also sent recorded delivery.

 

anyway Guys if i swith to my own thread, i fear i may get lost in the jungle of unanswered threads!

 

so i will just change the title if thats ok with you guys and would be grateful if you could follow me on my journey to get these removed.

 

many thanks

 

B