Should a CCA be provided under SAR? - discussion

[caro]

It's generally accepted that a CCA doesn't have to be provided when creditors provide information under a SAR, but I've never quite got why that is.

 

 

A friend recently sent a SAR to Barclaycard, who sent plenty of information up to exactly 10 years old. The one thing that they provided which was older was a copy of a signed application for a card. My friend had other cards with BC too but there were no CCAs or applications for them.

 

 

Are we right to accept that a CCA doesn't have to be provided in response to a SAR, or are we being hoodwinked?

[AndyOrch]

No its correct because a DSAR is not a legal request for a credit agreement under the CCA1974 section 77/78/79...its a request under the DPA 1998 for personal data.

 

Also its a legal requirement to request your agreement by way of sec77/8/9. A request must be from or on behalf of the borrower under sections 77 and 78 or from or on behalf of a hirer under section 79. This would include a friend or relative, a solicitor, a claims management company or other third party.

 

Under the Data Protection Act 1998 and the Data Protection Principles, the lender or owner is not allowed to reveal such information to a third party without the authority of the borrower or hirer.

 

It should therefore satisfy itself that the person making the request has proper authority to obtain the information. If a copy of such authority is not enclosed with the request, the lender or owner is entitled to reply by asking to see the authority.

 

http://www.legislation.gov.uk/ukpga/1998/29/section/7

 

You have rights to ask for personal information from creditors and other organisations because of two laws:

 

the Consumer Credit Act 1974; and

the Data Protection Act 1998.

The kind of information that you can get is different under each law.

 

The Consumer Credit Act gives you the right to ask for a copy of your credit agreement and statements of your account.

The Data Protection Act gives ‘subject access rights’ to get personal information held by the organisation about you.

[goodatresearch]

I agree with you. The argument is that you use a s78 a request for a CCA so they don't need to provide one with a SAR. To me this is a flawed argument. A s78 can be satisfied by a recon but they don't have to show the recon is based on the actual agreement, so they in essence can and do send out any old rubbish.

 

Where in the DPA does it actually say they have to provide all personal data except where there's another statute that can be replied upon to request repopulated data?

 

Another argument is that the terms and conditions aren't personal data. How can t & c and PT contained in an agreement executed in relation to a particular client not be personal data?

[ims21]

Interesting topic.

 

The provision of personal data under the SAR is covered by the Data Protection Act and therefore becomes a legal requirement under that Act.

 

Given that personal data is an item from which an individual can be identified and that the agreement would usually have the name and address of the data subject on it (which makes them identifiable) then why does it not have to be disclosed under a SAR.

 

If they don't have it then fine, they cannot disclose it but if they do have it and it is in a relevant filing system then should it not be disclosed to the data subject?

 

I think the question is "why is the agreement not classed as personal data?"

[caro]

No its correct because a DSAR is not a legal request for a credit agreement under the CCA1974 section 77/78/79...its a request under the DPA 1998 for personal data.

 

Also its a legal requirement to request your agreement by way of sec77/8/9. A request must be from or on behalf of the borrower under sections 77 and 78 or from or on behalf of a hirer under section 79. This would include a friend or relative, a solicitor, a claims management company or other third party.

 

Under the Data Protection Act 1998 and the Data Protection Principles, the lender or owner is not allowed to reveal such information to a third party without the authority of the borrower or hirer.

 

It should therefore satisfy itself that the person making the request has proper authority to obtain the information. If a copy of such authority is not enclosed with the request, the lender or owner is entitled to reply by asking to see the authority.

 

http://www.legislation.gov.uk/ukpga/1998/29/section/7

 

You have rights to ask for personal information from creditors and other organisations because of two laws:

 

the Consumer Credit Act 1974; and

the Data Protection Act 1998.

The kind of information that you can get is different under each law.

 

The Consumer Credit Act gives you the right to ask for a copy of your credit agreement and statements of your account.

The Data Protection Act gives ‘subject access rights’ to get personal information held by the organisation about you.

 

Surely the contract is personal between the creditor and borrower. Other authorised people may be able to access it with a cca request, but if the data controller is satisfied that the subject is entitled to data about themselves, including statements, then why not the piece of paper which constitutes the personal agreement? Also the t's&c's form part of that personal agreement so should surely be provided. It doesn't make sense to exclude it.

[jackreacher]

Surely as 'whoever' is obliged in law to supply your agreement under s77-79. There is no need to pursue under a dsar. If both could supply an agreement it would muddy the waters and give them an excuse not to supply, by blaming each other.

 

Definitely personal though IMO. Well My Agreement has got nothing to do with anyone else!

[ims21]

Surely as 'whoever' is obliged in law to supply your agreement under s77-79. There is no need to pursue under a dsar.

 

What about the situation when there is no requirement to supply under the Consumer Credit Act?

[jackreacher]

What about the situation when there is no requirement to supply under the Consumer Credit Act?

 

I did not know there was one? (only a beginner), if that is the case then it should be supplied from somewhere.

[BRIGADIER2JCS]

I did not know there was one? (only a beginner), if that is the case then it should be supplied from somewhere.

The Information Commissioners view on the supply od consumer credit agreements is as follows ( transcript from a letter and phone call to me).

 

 

" Although we might "expect" an agreement to be supplied there is no actual obligation for this to be done the Consumer Credit Act 1974 has adequate provisions for obtaining such documentation".

[jackreacher]

Originally Posted by ims21 View Post

What about the situation when there is no requirement to supply under the consumer crediticon Act?

 

Thanks and I agree Brigadier' ..... I was interested in ims21 point above and how when that situation occurs?

[BRIGADIER2JCS]

Originally Posted by ims21 View Post

What about the situation when there is no requirement to supply under the consumer crediticon Act?

 

Thanks and I agree Brigadier' ..... I was interested in ims21 point above and how when that situation occurs?

One can of course specifically request any document via the SAR process but as said there is no specific obligation within the DPA 1998.

If such a document is " material" to litigation then the court processes can be used to achieve disclosure.

[ims21]

Originally Posted by ims21 View Post

What about the situation when there is no requirement to supply under the consumer crediticon Act?

 

Thanks and I agree Brigadier' ..... I was interested in ims21 point above and how when that situation occurs?

 

An example would be where there is no sum due under the agreement.

[BRIGADIER2JCS]

One can of course specifically request any document via the SAR process but as said there is no specific obligation within the DPA 1998.

If such a document is " material" to litigation then the court processes can be used to achieve disclosure.

When this has occurred an appeal to the ICO has resulted in creditors supplying documents although grudgingly.

[AndyOrch]

Surely the contract is personal between the creditor and borrower. Other authorised people may be able to access it with a cca request, but if the data controller is satisfied that the subject is entitled to data about themselves, including statements, then why not the piece of paper which constitutes the personal agreement? Also the t's&c's form part of that personal agreement so should surely be provided. It doesn't make sense to exclude it.

 

I think you need to look from a different angle and understand the different legislations of the two acts....the requesting of information pertaining to a credit agreement is enshrined within the CCA1974 and also the consequences of none compliance.Sections 77/78/and 79 were drafted for that particular reason.

Credit agreements are governed by the CCA1974 not the DPA 1998.

 

So for argument sake they didn't comply to your request within a DPA....consequences Nil apart from not fulfilling your request.

 

They didn't comply under a section 77/8/9 request...they are unable to enforce or seek any relief until such time they can or only with the courts order.

 

I suppose the confusion can be down to as to why you would want a copy of your agreement......just for reference or because you are in dispute and litigation.

 

What about the situation when there is no requirement to supply under the Consumer Credit Act?

 

There are none that I am aware of.

 

 

An example would be where there is no sum due under the agreement.

 

That's not a valid reason...creditors must still disclose copies of agreements ...unless it has been terminated and even then it must be retained for up to 6 years for historic and money laundering reasons.

 

Andy

[jackreacher]

An example would be where there is no sum due under the agreement.

 

Thanks IMS ... I did know and forgotten (as usual). Normally there would be no legal action in this circumstance? Except of course by the debtor seeking recovery.

 

I have given it some thought and you are right, there is a gap in statutory supply.

 

Brigadier has somewhat covered it in his ICO request. However that is by no means certain.

 

Interesting thread.

[jackreacher]

I think you need to look from a different angle and understand the different legislations of the two acts....the requesting of information pertaining to a credit agreement is enshrined within the CCA1974 and also the consequences of none compliance.Sections 77/78/and 79 were drafted for that particular reason.

Credit agreements are governed by the CCA1974 not the DPA 1998.

 

So for argument sake they didn't comply to your request within a DPA....consequences Nil apart from not fulfilling your request.

 

They didn't comply under a section 77/8/9 request...they are unable to enforce or seek any relief until such time they can or only with the courts order.

 

I suppose the confusion can be down to as to why you would want a copy of your agreement......just for reference or because you are in dispute and litigation.

 

 

 

There are none that I am aware of.

 

 

 

 

That's not a valid reason...creditors must still disclose copies of agreements ...unless it has been terminated and even then it must be retained for up to 6 years for historic and money laundering reasons.

 

Andy

 

sorry Andy crossed.....what about when the debtor seeks recovery of monies and the creditor refuses to supply under the CCA.. perhaps stating the Agreement has been terminated as you rightly say.

 

Would the creditor still have to supply? it seems lots do not!

[AndyOrch]

Why would you need to request a copy of the agreement to substantiate a claim from the creditor?

[goodatresearch]

Agreements are personal data and if they are in a relevant filing system I can see no reason why they shouldn't be disclosed, unless the creditor had something to hide.

 

It does make you wonder why the ICO had made such a wishy washy response doesn't it. They say theres adequate provision in CCA 1974 as an excuse for non disclosure under a SAR, but have also ruled that microfiched docs have to be provided as they count a being in a relevant filing system. Unlike most CCA responses, a microfiched agreement would not be repopulated would it, it would be a direct copy. I have received microfiched docs including application forms as part of a SAR, why would should they be allowed to leave out agreements? makes no sense to me.

[jackreacher]

Why would you need to request a copy of the agreement to substantiate a claim from the creditor?

 

It may be useful to see what you signed up for in the first instance.. I struggled in one case for ppi/unlawful charges.

 

MBNA refused to supply me with the statements (did supply a transaction log which was of little help) but had to give me the agreement. If there was no sum owing they would not have to give me either.

 

In those circumstances it would be very difficult to take the creditor to court with a realistic chance of success.

[BRIGADIER2JCS]

Agreements are personal data and if they are in a relevant filing system I can see no reason why they shouldn't be disclosed, unless the creditor had something to hide.

 

It does make you wonder why the ICO had made such a wishy washy response doesn't it. They say theres adequate provision in CCA 1974 as an excuse for non disclosure under a SAR, but have also ruled that microfiched docs have to be provided as they count a being in a relevant filing system. Unlike most CCA responses, a microfiched agreement would not be repopulated would it, it would be a direct copy. I have received microfiched docs including application forms as part of a SAR, why would should they be allowed to leave out agreements? makes no sense to me.

 

 

 

Some organisation do as a matter of course supply agreements with the SARs, but many others stick by the " no obligation" statement.

 

 

As there is no specific requirement with in the DPA compelling the supply of the agreement it's not a case of being allowed to withhold them rather the lack of any compulsion to do so.

[AndyOrch]

"It may be useful to see what you signed up for in the first instance.. I struggled in one case for PPIicon/unlawful charges.

 

MBNAicon refused to supply me with the statements (did supply a transaction log which was of little help) but had to give me the agreement. If there was no sum owing they would not have to give me either.

 

In those circumstances it would be very difficult to take the creditor to court with a realistic chance of success."

 

But it would be showing on your statements of accounts if PPI was part of the agreement.You dont need the agreement to assist with that

[goodatresearch]

There is a specific requirement in the act to supply all personal data in a relevant filing system, therefore if the agreement is in a relevant filing system it should be provided.

 

Is there an actual list saying what type of personal data should be supplied and are contracts, even in a relevant filing system not on that list? I don't think so? Its all down to the interpretation of what it personal data and what is a relevant filing system.

 

 

Some organisation do as a matter of course supply agreements with the SARs, but many others stick by the " no obligation" statement.

 

 

As there is no specific requirement with in the DPA compelling the supply of the agreement it's not a case of being allowed to withhold them rather the lack of any compulsion to do so.

[goodatresearch]

Not if the PPI was front loaded and the statement of accounts didn't go back to inception.

 

"It may be useful to see what you signed up for in the first instance.. I struggled in one case for PPIicon/unlawful charges.

 

MBNAicon refused to supply me with the statements (did supply a transaction log which was of little help) but had to give me the agreement. If there was no sum owing they would not have to give me either.

 

In those circumstances it would be very difficult to take the creditor to court with a realistic chance of success."

 

But it would be showing on your statements of accounts if PPI was part of the agreement.You dont need the agreement to assist with that

[jackreacher]

"It may be useful to see what you signed up for in the first instance.. I struggled in one case for PPIicon/unlawful charges.

 

MBNAicon refused to supply me with the statements (did supply a transaction log which was of little help) but had to give me the agreement. If there was no sum owing they would not have to give me either.

 

In those circumstances it would be very difficult to take the creditor to court with a realistic chance of success."

 

But it would be showing on your statements of accounts if PPI was part of the agreement.You dont need the agreement to assist with that

 

Yes but what if you deny ticking the yes box. You are the claimant and have to prove your case?

[BRIGADIER2JCS]

There is a specific requirement in the act to supply all personal data in a relevant filing system, therefore if the agreement is in a relevant filing system it should be provided.

 

Is there an actual list saying what type of personal data should be supplied and are contracts, even in a relevant filing system not on that list? I don't think so? Its all down to the interpretation of what it personal data and what is a relevant filing system.

 

 

 

An agreement is not considered "personal data".