Shell Energy - Failure to disclose data

[Intrepid]

Shell Energy received a SAR on 5th May 2021. It was responded to within the statutory deadline with our correspondence and all the information I have given them. However unlike previous reponses from energy companies they failed entirely to provide any information at all regarding the readings used to bill my account save the information I have provided.

 

I pointed this out and they responded by saying they have not witheld any data as they have provided me with electronic bills. They then proceeded to provide me with a copy of the bills they have sent.

 

I responded indicating I am not requesing a copy of my bills but a detailed breakdown of the meter readings used to bill my account, when they were received as well as updated or amended.

 

I am of the opinion their failure to provide this information is a breach of their statutory duty under GDPR and am prepared to sue them in court.

 

A letter before claim has been sent with a 14 day deadline.

 

It is noteworthy when challenged they are careful not to deny holding the data I have requested.

Edited August 7, 2021 by Intrepid

[BankFodder]

Please can we see your letter of claim in PDF format.

What's the story here? Why are you asking for this data?

[Intrepid]

The reasons I have requested the information is I believe it will clearly show that Shell Energy changed back the readings I supplied to the knowingly incorrect industry estimated readings.

This resulted in Shell Energy sending monthly bills for hundreds of pounds and I was forced to cancel the direct debit after they increased it by 519% in an attempt to clear a knowingly incorrect account balance.

 

I also note having further reviewed their data disclose that they conveniently left out the correspondence where they notified me of the direct debit increase.

Shell Energy - SAR Incomplete LBA Redacted.pdf

[BankFodder]

Okay. Looks very good.

How much are you proposing to sue them for? You don't want it to look like a money grab. The whole purpose of the litigation I assume is to get them to sit up and take notice.

Have you got any examples of any correspondence or other information already in your possession which they haven't supplied to you?

That would be very useful evidence of the fact that they haven't given you a complete disclosure.

[Intrepid]

£600, this will allow me to enforce the High Court Baliffs if necessary, I will indicate the distress is significant as rather than a simple oversight it appears to be a concealment of significant data that indicates the incorrect handling of my account.

If it can be established they have failed to perform to the standards of the contract between us as a result of mismanaging the account, I will consider they are in breach of contract and this will help me resolve the dispute in its entirety.

 

In answer to your question regarding other missing correspondence, yes.

 

There is a failure to disclose several automated e-mails as well a proportion of correspondence regarding the Ombudsman complaint upheld against them.

[BankFodder]

I agree that £600 is a nice figure, but you won't get it.

It will compromise your claim and it is the kind of money that may push them to actually go to court for hearing and although you will win on the issue of the breach, you are most likely to fail on the question of quantum.

It is most likely that if it comes to hearing that a judge will consider that you are simply making a money grab and reward you a lot less to the extent that not only will you be penalised in terms of not being able to recover all your costs of litigation but the judge might even consider that you have litigated unreasonably and apply their exceptional discretion to award the losing side's costs against you.

Although we would be talking about statutory breach here and so exercise of cost discretion would, in my view, not be appropriate – I think the judge will be very unhappy to find that you were claiming such a large figure.

Don't forget you are dealing with a major corporation here. If it was some dodgy car dealer then a judgement for £600 would be very useful because you could put the sheriffs in. With Shell Energy there won't be any problem. They will pay out without blinking.

I suggest that you scale it down to about £100 max.

 

I would suggest that you are much better off claiming for this realistic figure because the end of the day your objective is to get the data. Once you got the data whether you had to get a judgement for it or whether they simply woke up and provided you what you wanted plus a payment in order to get you to withdraw the case, you could then examine the data. If it turned out that you are right then you have a basis for inaccurate data processing and that would be a good basis for bringing another legal action against them – once again for distress – and on this occasion you could sue for a higher sum.

 

[BankFodder]

We've crossposted but you will notice that earlier on I asked you for the story and you gave us what I believed was the story.

Now you are telling us that in fact there was a complaint to the ombudsman which was upheld in your favour.

I don't think you need to make it such hard work for us. Why don't you simply tell us the story beginning at A and finishing at Z. In a brief chronological order

[Intrepid]

Thank you for the suggestion, I will take that into account when submitting the claim.

[Intrepid]

The complaint upheld by the Ombudsman was regarding a separate issue where Shell Energy failed to switch the account correctly using incorrect readings. This has been rectified.

Following that complaint Shell Energy continued to bill the account using knowingly incorrect estimates, which had they applied the readings I provided would have prevented the issue from ever occuring.

The billing of the account has been adjusted following a reading taken by an engineer.

However Shell Energy have failed to remove the increased standing charges as a result of having to cancel their direct debit and I am preparing for the fact they will refuse to do so.

With all this in mind, I would post this as a separate issue as right now I am focused on their incomplete disclose.

Edited August 7, 2021 by Intrepid

[BankFodder]

Thanks. Obviously that is a very interesting a very useful story.

All of this points to inaccurate data processing which is a separate issue and you should litigate separately.

If I were you I would hold fire on that completely until you have sorted out the data disclosure problem. I should sue only for a modest amount – maximum £100 – for the distress caused by incomplete data disclosure.

Then when you have got the data and you have the full story in respect of the problems they have caused, then sue them for inaccurate data processing and I think that there is a good basis for a substantial amount of damages for distress – certainly more than £600 and maybe a thousand.

We will know more when we find out the complete story.

Careful preparation on these things is extremely important because when you finally launch your attack, they need to be completely unprepared for it and also to have no answer.

The onlhy thing they will try to argue will be quantum.

Let's see your particulars of claim before you send it out

 

[Intrepid]

Particulars of claim:

 

1.As a Shell Energy Retail customer I have an account with the defendant’s reference number xxxxxx [redacted].

 

2.On 5th May 2021 a Subject Access Request was submitted to the defendant pursuant to the Data Protection Act 2018. The defendant made a partial disclose of data, which upon review it was clear several items of data are missing from the disclose.  incomplete.

 

3.By failing to make a full disclosure as per the Subject Access Request the defendant has breached their statutory duty and continues to do so. The defendant’s breach of their statutory duty and my inability to access my personal data in full has caused me serious issues and distress.

 

4.The claimant seeks damages for distress £200.

[Intrepid]

Thanks for the edit, very useful. From memory although it's been a long time the MCOL text window undoes all of the useful formatting designed to improve legibility and shrinks it into one paragraph.

[dx100uk]

yes i was simply making it clearer for BF to understand.

[BankFodder]

Can you tell us what the "serious issues" are please.

[Intrepid]

The issue is by not disclosing important data regarding their full and complete record of meter readings as well as communication regarding the running of my account that they are effectively withholding information that establishes they mismanaged the account. Their mismanagement of the account has resulted in additional charges which have yet to be removed and will increase over time.

They have failed to disclose data concerning their communication seeking an increased DD payment as well as communication received from the "debt collections" department.

This could be a coincidence but imo there is a pattern forming of data missing from the disclosure regarding important mistakes in handling the account. Namely how and when the readings for the account were changed by them as well as the action they took to recover a knowingly incorrect account balance.

They refuse to deny holding the data when specifically challenged.

Either they do have the data and are failing to disclose it or they have failed to keep accurate records concerning the account.

 

[BankFodder]

The claim you are bringing here is for failure to disclose in response to an SAR.

The objective is eventually to obtain the data and then to show that the data is inaccurate and then begin another claim – probably a more serious claim for inaccurate processing.

Until you have the disclosure of the data, you're not able to demonstrate inaccurate processing and in any event, if you make a claim now for compensation which includes compensation for "mismanagement" – which you haven't established yet, then if later on you bring an action for inaccurate processing, they may be able to argue that you have already recovered compensation for the distress caused by it.

I think that you should have a less detailed particulars of claim and I am about to make an edit to your suggested particulars above.

[BankFodder]

Also, I think that your claim for £200 is excessive at this point. The objective here is to get them to focus and to obtain your data. These people are stupid and if they see a claim for £200 then they are more likely to decide to spend whatever it takes – far more than £200 – simply to beat you. Although you will win on the substantive issue, you could easily find that a judge will reduce the damages you are seeking maybe even two £50 or less.

I would suggest a figure of not more than £100 – and maybe £75 – would prompt them in the end to produce your data and to settle the litigation. Of course it might not – and they might decide to go to court but they are less likely to do so.

After that, if you do obtain information which demonstrates inaccurate processing then you can certainly go for a very much larger claim.

[Intrepid]

In addition to the points above by failing to make a full disclosure, which I can evidence, this leaves me concerned for what other data may have been either knowingly or unknowingly witheld with regards to the running of my account.

I agree I am in no way making a claim for the mismangement of my account and solely for the distress caused as a result of their failure to make a full disclosure.

 

Thank you for the edit of the particulars, I understand the reasoning.

 

With regards to the quantum for distress I understand your logic, however it is clear from the communication received that their final position is likely to be they have made a full disclosure and is how they will defend the claim in addition to your comments regarding quantum.

 

If the amount claimed is very small I anticipate they will either credit the account with the amount claimed or offer to settle but without disclosing any further information. I will of course refuse and the case will ultimately proceed to court.

The claim will be brought for a quantum for distress, as this will likely proceed to small claims and no claim is being brought in order to compel an action thus it will not be a claim made under part 8. I will be in exactly the same position as if we were to settle.
 

Even if I am successful in quantum for distress this is unlikely to result in the disclosure of the data which as you made clear is far more valuable.

If they wish to settle without disclosing the missing data then imo it should be for a substantially larger amount. However they can defend the claim and lose, while still not providing the data.

Edited August 16, 2021 by Intrepid

[BankFodder]

Well you're wrong because you've already pointed out that the data breach is continuing. Therefore, they may settle the claim but the breach continues so it is open you to bring another claim – and another one et cetera.

And of course if the breach is continuing, then it is entirely reasonable for you to decline the settlement and to continue to court to seek a judgement. The beauty of this is that it falls short of a part eight application but it does the same job for you.

You can only claim for the damages that you have suffered in respect of the claim. At the moment you are claiming for a failure to disclose and yet the damages you are attempting to claim are for a far wider issue. This is simply not possible.

You have to do things one step at a time. And once again, if you did get a larger sum in damages, it would leave yourself open to their suggestion that you had already been compensated for inaccurate data processing.

 

[Intrepid]

I sent a SAR to the Energy Ombudsman to provide me with all my personal data concerning their dealings with Shell Energy.

 

They have responded to the SAR in a similar fashion to Shell Energy, providing me only with correspondence and data I have provided to them.

 

As well as requesting all my personal data I requested a copy of all correspondence between the Energy Ombudsman and Shell Energy.

 

The Energy Ombudsman has failed to provide this as well as any data regarding any case notes with regards to their case handling.

 

I believe I am entitled to a copy of such information as it indicates how my personal data has been processed.

 

I believe the disclosure is incomplete and am prepared to bring a claim if there is sufficient cause.

 

In their response to the SAR the Energy Ombudsman states "they may have removed some information to comply with the protection of personal data relating to other parties". I suspect this will be their defence for not having provided the information I have requested.

Edited August 18, 2021 by Intrepid

[BankFodder]

I'm afraid the ombudsman services never provide a satisfactory disclosure and it is difficult to do anything about it.   

we need to concentrate on shell

[Intrepid]

Thank you for the reply

Shell Energy have failed to formally respond to the LBC except in response to some pointless e-mail tennis. The claim will be brought on Monday.

Shell Energy have failed to provide any record of when I entered meter readings into their online capture system. Most likely because this record would show they changed the reading back to a grossly inaccurate figure.

Either they do not keep a record and therefore cannot know when they have received readings or be able to know whether they have received readings, or they do keep such a record and have failed to disclose it.

I suspect the latter as previous disclosures from other energy companies have provided such a record. This is evidence I was considering introducing at a later stage.

[Intrepid]

Claim issued 24th August as edited for £100.

 

Some further pointless e-mail tennis with customer service, who by this point may simply be acting as a wind up merchant.

They offered taking the complaint to the ICO, to which they were informed the complaint had been registered with the ICO 3 weeks ago and they had already been informed as such on the date of submission.

 

They refer me to their customer complaint handling document.

 

I am unclear whether customer service is routing their reponses via the legal team as the rep boldly stated the disclosure was made in full, but I doubt it will be their signature appearing on any witness statement.

 

It appears they want to play some sort of game where I am forced to repeatedly request the information I think is missing from the disclosure, I am considering how this may affect my case going forward however it is also not for me to have to unravel the disclosure out of them like the layers of an onion.

Edited August 26, 2021 by Intrepid

[BankFodder]

They have a statutory duty to make a complete disclosure. You should not keep on having to ask them.

 

On the other hand you need to be sure that they won't be able to prove at some point that they have made a full disclosure.

 

You could warn them that once you secure judgement against them that they will have a further statutory duty to inform the information commissioner of the data protection breach

 

 

[Intrepid]

They have undoubtedly not made a full disclosure by failing to provid copies of the correspondence where they increased the direct debit on the account, as well as two communications sent by their debt collections team.

 

There is a reference to these communications as "tasks" but no copy of the correspondence itself.

 

Imo I have also made clear they have failed to provide a full disclosure of meter readings (including estimates) indicating in detail when they were received, applied to the account, changed or updated.

 

In the past I have received this information including the date and time from previous energy suppliers. I believe not having provided this information in detail fails to meet the standard of a full disclosure.

 

They will likely defend the above stating the information I have requested is provided in the bills I have received. However what is key to incorrect processing is the data they have used to generate the bills. I note from their disclosure that their internal system keeps a copy of invoices in an entirely different format which may well contain this information that they then use to produce bills, none of these internal invoices have been disclosed.

 

They have failed to disclose any of the automated responses to my complaints however this may or may not be regarded as trivial.

 

They also have failed to disclose any communcation they likely have had with the Ombudsman however this will be difficult to prove or get hold of, or they may argue their external correspondence (despite it being requested) does not constitute personal data.

Edited August 26, 2021 by Intrepid