Banks, CRA and DPA!!!!!

[Allyxia]

Its a thought - I still dontundersatdn why private companies arent covered by the HRA?

 

Then again Im not a lawyer.

[natwesttookmymoney]

In essence, they're not - and i was wrong earlier.

 

However, it is being argued (in Northampton (not money claim) I was advised - at some length. I won't bore you with the details) that when a private company acts on behalf of - or in a way that displays characteristics of - a public body, then it is brought under the purview of the HRA. So, for example, if a credit reference agency gives a negative report to a local authority that is based on inaccurate or out-of-date information, and the LA denies you instalment facilities for your council tax as a result, then the CRA may be chaseable under the HRA.

But that's the argument - it has not yet been resolved and probably won't be for a few years. (Hearing, appeal, House of Lords, European Court).

Have I manged to extract myself from this one without too much egg on my face?? (slightly pink with embarrassment!):o

Westy

[lookinforinfo]

I don't think you are totally absolved Westy, but maybe this will help.

There are three criteria for determining the eligibility for action under the HRA.

 

The first is that it must be a public body [Government, Courts, local Councils

and the Police being examples]-

 

The second is that of "any person, certain of whose functions are functions of a public nature" HRA s.6 [3].

So when cras process data relating to the electoral rolls, or ccjs these are

functions of a public nature. Indeed, they claim that they have " a legal duty"

to perform certain tasks, which may also bring them within the remit of the Act. Furthermore they have statutory duties enshrined in "The Consumer Credit [Credit reference Agency] Regulations 2000 as well as the Data

Protection Act 1998 s.9 [1][2][3] and s.159 of the Consumer Credit Act 1974.

So processing data on defaults, which appears to have taken on a quasi-

legal status in their eyes may well come under terms of a public nature.

Especially as they would seem to have the tacit agreement of the ICO [itself a government department subject to the HRA] on the legitimacy of the use

of defaults. And their continual insinuations of being in constant close contact with the ICO gives credence to some of their actions at least being

of a public nature.

 

And the third is " the state is also liable for violations of convention rights by

private parties as a result of the inadequacy of domestic legislation."

http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39.pdf

 

This is a very interesting treatise on the workings of the HRA and its short

comings. They make the point that because of the failure of the Act to

sufficiently define s.6[3], the government may be in breach of its

obligations under s.1 and s.13 of the ECHR.

 

Another point they make is that while the more superior Courts tend to take

a wide view of s.6[3], that is not the case with the lower Courts as yet.

So if you were contemplating anything under the HRA, including the text

from the above url may well help to clarify the Judges' decision.

[natwesttookmymoney]

Maybe not totally absolved but a couple of HAil MArys may do the trick, after that!

Thanks very much indeed, lookforinfo. That is extremely useful and I think it it is the bell that the HRA stuff rang in my head a while ago, but I couldn't put my finger on it.

Personally, I'm not

actually doing anything with HRA implications at this time but there is teh Q on the claim form and it certainly sounds like it may be a help with people who are having trouble getting CRAs to behave.

Thanks again. If there were golden pips, I'd give you one but you'll just have to settle for one of the green ones!

Westy

[Allyxia]

i think both of you have put some goodpoints across and its certainly worth a ;look at - at the end of the day im bangingmy head aginst a brick wall with this so called private company acting like a governemnt body - they cant have it both ways!!!

 

I might draft a letter questioning them on the points above and see what responce they have offer!!

[lookinforinfo]

As a result of case Law, it has already been decided that the water companies, private though they may be, are classed as public companies.

This is because their core business is supplying water, which is a duty

of government.

Not so clear cut with cras, but as they do perform acts that are within the

remit of public authorities. there is certainly a case to be made. However I

do not see them rolling over and admitting it.

It would be a lot easier if our financial affairs were classified as "sensitive"

within the DPA to strengthen the case for cras to be subject to the Act. But then our problems would be a lot easier to deal with

anyway, since the processing of sensitive data requires our "explicit consent".

Obvious therefore why our financial data was not included within the

sensitive section.............

[Allyxia]

Looking have you read the new proposal by the Dti on this subject it is proposing to give th CRA more power!!!!

 

There is a link up here somewhere but you be better off going straight to the site by the time Ive found the link LMAO!!!

[lookinforinfo]

If you mean the consultation paper by the DTI-I have just skimmed it now,

Blodwyn. Doesn't look like CAG got an invite to add their comments. No

harm in asking?

Couple of interesting things came out of it-one being that current accounts opened before 1996 are classified as nonconsensual, since banks did not

ask customers to consent to data being passed to cras, though they can

still register defaults.

 

The other one was more worrying as I am unsure where it says that in the

Data Protection Act. This is the offending article [46] "the right to prevent processing likely to cause damage or distress [although in practice this rarely applies to CRA activities because where information is

provided to the data controller under contract or in preparation of contract,the data controller does not have to stop the processing]"!!!

What? Even when it is libellous? Or is that one of the rare times when

they should stop processing?

 

My own view on this document is that the government, or certain

departments of government, want to increase the amount of data

available for use by CRAs, in order to reduce the chances of people

becoming over extended financially. The more that becomes a function

of government policy, the greater the possibility that CRAs will become

subject to the Human Righta Act. Whether that benefit will outweigh

the downside remains to be seen.

Here is the link-

 

http://www.oft.gov.uk/NR/rdonlyres/40CD937C-0F6B-4026-85CD-DCE580962E45/0/oft712a.pdf