Getting the Hang of Data Protection

by Rebecca Elliott, Solicitor

For a long time I have found that very few people really understand the implications and requirements of Data Protection Legislation and simply add it in to agreements because they have to.

This week after some work with our Data Protection Officer, Nicola, it finally clicked into place for me as to exactly why we are insisting on the certain requirements in, what seems like, everything  we do.

And the answer… well its really just common sense so I wanted to share this.

Data Protection in the context of the Data Protection Act 2018 relates to personal data, so anything that identifies a person e.g. name, address, date of birth, address, email address.

When this is collected from someone that person will be aware of the reasons they are providing the information (or at least they should be).  For example, they are signing up for a course and need to provide their email address so that course materials can be sent over or their phone number so that if there is a change of venue this can be communicated.

It is not necessary to go into this level of detail so long as the person providing the data knows that it will be used to facilitate the course they are signing up to.

Further, it might not be appropriate to go through this sort of detail in a phone call or enquiry email so the person (the data subject) can be referred to a Privacy Statement.

Privacy statements are documents that explain exactly how data will be used and how long it will be kept for.  This might include if the information is going to be passed on to third parties.  These are often found on an organisations website as links can easily be provided.

So, carrying on with the example of signing up for a course, the person or the organisation providing the course may not be doing this themselves, they may be using an independent 3rd party expert to present the course.  It may therefore be necessary for participant’s names, email addresses and contact numbers to be passed on.  And this is fine, as long as the data subject was aware of this at the time they gave their details.

The third party will then become either a Data Processor or a Data Controller in their own right of that data.

A Data Processor only uses the data as specifically told.  For example if they are told that they can email out course materials then they can but they should not use the email address for any other purposes e.g. requesting feedback on the course.

If however you do wish to pass the discretion to use the personal data as they see fit then that third party will become a data controller.  They send whatever they see fit to the email addresses without your direct say so.

As a Data Controller the third party must ensure that they abide by the Data Protection Legislation and will be liable in their own right for any data breaches.  Just because they have the discretion to use the data as they see fit, it must still be compliant with the data protection legislation.

However, again, if you are passing on Data to a third party to act as a Data Controller you must have made the data subject aware that you would be doing this when you collect their Data.  This reinforces the need for a comprehensive and robust privacy statement.

So whenever you are going to be collecting and handling people’s personal data always think carefully about why and how you wish to use this data and make sure the correct safeguards are in place.  Data Protection Legislation is not in place to make life difficult nor discourage the use and sharing of data, rather to make sure it is handled in the right way whenever it is used or shared.

If you have any questions about Data Protection do not hesitate to contact our Data Protection Officer on dpo@nwleicestershire.gov.uk

Top Tips for Statement Writing in Civil Proceedings for Local Authority Officers

by Kerryn Woollett, Regulatory and Enforcement Solicitor

  1. Witness statements should be written in the first person.
  2. Witness statements should follow the chronological sequence of the events.
  3. Witness statements should be divided into numbered paragraphs.
  4. Each paragraph should, as far as possible, be confined to a distinct portion of the subject.
  5. Witness statements must state:
    1. the full name of the witness;
    2. the address at which he or she works;
    3. the position he or she holds;
    4. the name of his or her employer; and
    5. that he or she is the employee of a party to the proceedings (and which party that is).
  6. Include details of how long the current positon has been held.
  7. Also include details of any previous positions held, provided these are relevant, for example if you have been the Licensing Team Manager for 2 years but prior to that you were a Licensing Officer for 15 years this would be relevant.
  8. Include details of any other relevant experience and/or qualifications.
  9. Witness statements must indicate:
    1. which statements in it are made from the witness’s own knowledge and which are matters of information or belief, and
    2. the source of any matters of information or belief.
  10. All numbers, including dates, should be expressed in figures.
  11. If you need to be authorised to take certain action (for example serve a notice, enter property etc.) a copy of your authorisation document should be exhibited to your statement.
  12. Each exhibit should be identified, using the initials of the person making the statement, numbered consecutively within the statement and be in bold, for example ‘KW1’.
  13. Any documents referred to, for example, letters, photographs, notices etc. should be exhibited, unless exhibited to a colleague’s statement.
  14. Where a witness refers to an exhibit or exhibits, he or she should state ‘I refer to the (description of exhibit) marked ‘…’’.
  15. Witness statements must be verified by a statement of truth, the wording of which is as follows “I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
  16. Where a witness makes more than one witness statement to which there are exhibits, in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each witness statement.
  17. Exhibits should be preceded by a cover page.
  18. The pages of a witness statements should be numbered consecutively.
  19. The last page of a witness statement should not include the statement of truth or signature alone. The last page should include the last paragraph of the statement along with the statement of truth and signature.
  20. Witness statements should be signed and dated – the date should be the date on which the statement is signed.

If you need any support with witness statement writing, please do not hesitate to contact us at legal@nwleicestershire.gov.uk

An update from NWL Legal

by Meera Patel, Trainee Solicitor

The Coronavirus is giving rise to the need to adapt the way in which local authorities currently work to meet the unique challenge the pandemic presents.

North West Leicestershire Legal are still available to provide up to the minute, practical advice on the usual services we cover and as a result of the pandemic, the latest developments in a range of areas; key legal changes, advice that has been issued in the areas of governance, procurement and state aid.

Some recent changes and guidance provided below;

We are keen to keep in touch and hear how clients are maintaining operations during this unprecedented time. Please contact us if you require any support. We are still working remotely and fully accessible in aiding legal advice.

Benefits of Public Service Legal Work

by Meera Patel, Trainee Solicitor

Furthering the Public Good

One of the main and most important reason why lawyers work in house for local authorities is because it gives them an opportunity to become involved in decisions affecting their local community.

As an in-house local authority lawyer you support an important public cause – equal access to justice for local people and groups. Such a cause can provide a feeling of personal satisfaction and achievement that you might not gain defending large corporations in the private practice sector.

Better Work Life Balance

I have worked for the public sector for six years and not all of those in the legal sector. One of the most important attributes for me and a key decision why I applied for training contracts within local authorities was because of the emphasis on a work life balance for all employees.

There are no fixed nine-to-five work days. Employees have flexible schedules and opportunities to work from home and/or part-time hours. Such practices are common for in-house public sector lawyers, especially those at North West Leicestershire District Council.

Public sector government lawyers are not under the same pressure as private practice lawyers to meet high billable hours or fee targets. The work culture is often more relaxed as the focus is on providing a solution based service rather than profit.

Valuable Experience and Training Mentoring and Networking Opportunities

As a Trainee Solicitor at North West Leicestershire District Council, an authority that is a part of the East Midlands Lawshare consortium and has valuable connections with other local authorities, fire & rescue authorities, universities, national parks, NHS trusts and town and parish councils, I have had a lot of exposure to training opportunities, networking events and mentoring opportunities. Such opportunities have helped me to build relations with a number of professionals including public sector lawyers and lawyers within private practice, whom I can turn to for advice and are readily available to provide training and support.

The lawyers at North West Leicestershire District Council have the support of senior staff to attend training sessions both within the EM Lawshare framework and other private companies to further their professional development.

Whilst working at North West Leicestershire District Council I have had the pleasure of working closely with team members to market our services externally given the current clients’ needs and having to be more commercially driven. NWLDC have been very forward thinking in their approach as a Local Authority and implemented NWL Legal to ensure that we are meeting the needs of our clients whilst understanding the remits we work within.

Do I Need a Public Consultation?

This note provides guidance to Officers on when they should carry out a public consultation when they are making changes to services or implementing a project. It also sets out the principles that need to be followed in order for a consultation to be appropriate and lawful.

Do I need to consult?

There are three stages to this question:

1. Is there a specific duty to consult that is set out in the legislation and/or statutory guidance that I am working under? For example consultation is required on:

a) the Council’s proposed budget (Local Government Finance Act 1992)

b) Matters of Housing Management (s105 Housing Act 1985)

c) Public Sector Equality Duty (s149 Equality Act 2010)

If a consultation is required, the people specified in the legislation as needing to be consulted must be consulted.

2.Does the “Best Value” duty to consult apply? Under s3 of the Local Government Act 1999 and Best Value Guidance, a consultation is needed if:

a) the Council is making changes (and in particular reductions) to the services being delivered;

b) the Council is reducing or ending funding to an external organisation

If a consultation is required then representatives of tax/rate payers, services users and interested parties must be consulted.

3.Is a consultation needed in the interests of fairness? For example:

a) Have we previously said that we would consult before doing something?

b) Have we consulted in the past before doing the same thing?

c) Will the impact of the decision or project be particularly serious on one location or section of the public?

d) Is this a significant change to the way the Council has done things in the past?

If a consultation is needed, the affected people or bodies need to be consulted.

What makes a good (and lawful) consultation?

The Courts have given some guiding principles to follow in order to ensure a consultation is satisfactory. These are known as the Gunning Principles[1].  These principles are:

a) The consultation must be at a time when proposals are still at a formative stage. It must not be a “box-ticking exercise” which cannot impact on the decision being made.

b) The proposer must give sufficient information to allow intelligent consideration and response.

c) Adequate time must be given for consideration and response.

d) The product of consultation must be conscientiously taken into account in finalising any decision proposals.

[1] R v London Borough of Brent, ex p Gunning [1985] LGR 168

Do I Need an Officer Decision Record?

by Louis Sebastian, Legal Services Team Manager and Deputy Monitoring Officer

I am often asked by officers carrying out Council business whether they need to complete an Officer Decision Record (ODR). This article looks at what an ODR is and when it is needed.

What is an Officer Decision Record?

ODRs come from the Openness of Local Government Bodies Regulations 2014 (Reg. 7) which deals with the recording of decisions made by local government officers on behalf of their council. The regulations state that decisions need to be recorded when:

  1. The Decision would have otherwise been taken by the relevant government body, to committee, sub-committee etc. but has been delegated to an officer; and
  2. The decision is to
    a. Grant a permission or licence;
    b. Affects the right of an individual; or
    c. Award a contract/incur an expenditure which matierally affects that relevant local government body’s financial position

The ODR must contain the following information:

i. the date of the decision;
ii. a description of the decision with reasons for taking it;
iii. details of alternative options, if any, considered and rejected; and
iv. if the decision is taken under a specific, express delegation by a committee, the names of any member of that committee (if any) who declared of interest in relation to the decision.

The key content of a notice is that it contains the reasons for the decision.

When do I need one?

Matters covered by 1. are relatively self-explanatory. In short this includes all decisions made by officers on behalf of the Council. This will cover pretty much everything so it is the limbs of 2. that will determine whether an ODR is needed.

Granting a Permission or a Licence
Where a permission or licence is granted by the Councils (for example Planning Permission, Taxi Licence or Premises Licence), a written record must be made. However, where the legislation under which the licence in granted requires a written record setting out the date and details of the decision, no additional ODR is needed.

Affecting the Right of an Individual
This varies depending on the situation but there is some guidance from case law. The leading case is the Newey case in which a decision that led to the erection of scaffolding and plywood in front of a neighbouring property which blocked light into the property for 60 weeks was held to affect the rights of an individual. We are therefore talking about decisions that have quite significant impacts on the rights of individuals. More common examples might be the decision to erect a new CCTV camera in a particular place or the decision to adopt a Neighbourhood Plan following a referendum.

Award a Contract/Incur Expenditure
There is no case law or guidance as to what amount or what type of spending constitutes a material effect on that council’s financial position and is it is up to each local authority to form its own – reasonable – view. North West Leicestershire District Council’s approach is to look at the financial authorisation thresholds in its Contract Procedure Rules. NWLDC has decided that contracts/expenditure which require approval from Team Manager level or above (i.e. £10,000 or more) constitutes a “material effect” and so require an ODR.

The flowchart below summarises the ODR thought process at NWLDC.

Accelerated Planning Green Paper

by Meera Patel, Trainee Solicitor and Sima Odedra, Senior Solicitor

The Government seeks to implement procedural improvements to accelerate the time taken to make decisions on planning applications. The Green Paper will set out proposals for improving the process for granting planning permissions and, in doing so, the service provided to both homeowners and commercial developers.

In particular the Green Paper will look at solutions for speeding up the decision-making process for planning applications, as well as taking into account the recent review of the planning appeals process which made recommendations to reduce the time taken to conclude planning appeal inquiries. 

So what are some of the proposals and future benefits?

  • The implementation of a new tiered planning system which will help simplify the current out-dated system. This efficient system will allow for a user friendly approach making it a faster, fairer system which works for both homeowners and businesses alike
  • Work alongside the vision of reducing the carbon footprint and in turn cut emission in new homes by 2025. New homes will be introduced with the latest generation of technology including air source heat pumps and cutting edge solar panels reducing carbon emissions in new homes by 80% and lowering household energy bills
  • Review application fees so that council planning departments have the resources they need to provide up to date high quality decisions within a reduced timeframe, for instance by allowing more qualified planners to process applications for new homes and other proposals
  • Refund more fees if councils take too long in making a decision on certain types of planning applications in an attempt to encourage councils to work faster and more efficiently
  • Reduce the number of planning conditions by a third given that planning conditions are sometimes perceived as slowing up the planning process
  • To consider allowing homes to be built above existing properties so that the governments initiative to increase the housing supply by 2020 is met
  • To consider demolishing old commercial buildings allowing for new housing to be developed in its place and revamping high streets

The Accelerated Planning Green Paper will be published sometime in November 2019. The question at the moment is how the government’s proposals will come to fruition.

Managing Risk

by Elizabeth Warhurst, Head of Legal and Commercial Services and Monitoring Officer

Our Head of Legal and Commercial Services and Monitoring Officer was approached by The Law Society to discuss North West Leicestershire District Council’s approach to risk. In the article linked below, in a question and answer style, Elizabeth explains how you can educate your organisation on, and how to adapt to its perception of risk.

Click here to read the article.