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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Retention by DWP of recordings of telephone calls to ESA call centre - how long under GDPR?

Jezy
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Welfare rights team - Colchester Borough Council

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Joined: 22 June 2010

I have an ESA appeal which turns on who said what to whom and when.

My client and his friend (both of whom have severe mental health issues) sent an ESA appeal directly to DWP in May 2017 - not to HMCTS. They claim that this is what they were instructed to do by an ESA call centre operative.

DWP never responded to the receipt of the appeal doc., it seems merely to have ‘sat’ on it because when requested it sent me a copy of it a year later.

The appeal was eventually submitted out of time as an Adesina case - part of the argument being that DWP should have responded if only to send the doc back and advise it was sent to HMCTS. 

The Judge requested transcriptions of calls for the relevant period between the client’s numerous mobile numbers and the DWP. 

The DWP replied that it ‘did not routinely make transcriptions of calls and under GDPR even if made were no longer available’.  A mere matter of semantics I thought and so we submitted an SAR regarding the actual calls

Again the response has been ‘any information we did hold has been destroyed in line with our date retention policies’.

It is my contention, and the basis on the complaint I am about to draft to the DWP, that its retention period is obviously far too short given the nature of the challenges made against to its decisions.  Matters come to light years later and as such both recordings of calls and copies of documents should be being kept for far longer.

I am aware of the GDPR principle that

’ you should only collect the data you need, and only store it for as long as you need it. These points are enshrined in Article 5 of the GDPR, which states that data must be ‘collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes’; ‘adequate, relevant and limited to what is necessary’ and ‘kept… for no longer than is NECESSARY for the purposes’

Any suggestions in the light of experience as to how long the retention period should be?

ClairemHodgson
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Solicitor, SC Law, Harrow

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Jezy - 23 July 2019 01:48 PM

I
I am aware of the GDPR principle that

’ you should only collect the data you need, and only store it for as long as you need it. These points are enshrined in Article 5 of the GDPR, which states that data must be ‘collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes’; ‘adequate, relevant and limited to what is necessary’ and ‘kept… for no longer than is NECESSARY for the purposes’

Any suggestions in the light of experience as to how long the retention period should be?

and that’s the rub.

Necessary is a word that largely depends on the case

DWP’s retention policy takes no account of what might prove to be necessary in the future depending on what mistakes they or a claimant might have made at any time.

My own view is that it’s a function of the facts in any specific case and will probably require a JR of their retention policy.  Or possibly a formal complain by someone to the ICO that the DWP’s retention policy is hopeless.

it becomes clear in e.g. things like PIP appeals where it’s pot luck whether they still have the medicals etc dating back to whenever (I have one where they disclosed the med from client getting mobility when it was first introduced, I was amazed).

all whilst bearing in mind that the volume of stuff they will have is massive and every organisation has a point beyond which they really should be able to shred stuff.

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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I requested all documents and calls for a 6 year period via a SAR (although that’s not how it started out) on the basis that I had an inkling an ESA overpayment plus admin penalty was founded on what I believe is technically known as “*** all”. Putting aside the sheer bloody minded obstructiveness and incompetence of the relevant team I have recently received 1092 pages of text and a CD full of calls covering a 6 year period. Each of the calls on the CD was from a mental health professional to different arms of ESA and every one was recorded. The only anomaly I could find was where one call handler insisted on transferring the call and there was then no recording of that call. Oh, and the magnificent 5 minutes in which a call handler tries to dissuade said medical professional from requesting the a tiny subset of the copies I have subsequently received on the basis that “there would be no point” unless the issue involved an appeal. After they inevitably reject my pretty straightforward supersession requests then appeal is exactly where we’ll be going. The argument being that if you’re going to give me an ESA85A showing Support Group on the basis of being unable to initiate actions then it’s probably not a good idea to argue failure to disclose. Dimwits.

Anyway, my point is that it’s highly likely they do have what you want and you will need to pursue it. They have a long and inglorious history of exactly the sort of denial you describe only for stuff to weirdly materialise when the appeals officer went looking on the morning of the hearing or some such.

My fave recent one is the appeal where DWPs sub claims that we were silly for asserting that previous DLA claims had been successful when they had no record of any such claim let alone an award. Four award letters showing higher rate DLA care later…

Jezy
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Welfare rights team - Colchester Borough Council

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I complained on behalf of my client to the Information Commissioner’s Office about the DWP 14 month retention being too short but to no avail - see attached reply from ICO

[ Edited: 4 Mar 2020 at 11:21 am by Jezy ]

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