Strategy and Partnerships
Chief Legal Officer:
Kathryn Pettitt, Solicitor
Legal and Member Services
Mr Doug Paulley
Strategy and Partnerships
Post Point CH0237
Hertfordshire County Council
County Hall
Hertford, Herts SG13 8DE
DX 145781 HERTFORD 4
Tel:
01992 556242
Minicom:
01992 556611
Fax:
01992 555508
Email:
[email address]
Contact:
Judith Gower
My ref:
JG/KH 136
(by email only)
Your ref:
Date:
10th September 2010
Dear Mr Paulley
Reference Number: FOI/ACS/06/10/2227
I have been informed that you have requested a review of the above Freedom of
Information request made by you on 25 June 2010. Hertfordshire County Council did
not respond to the request until you requested the review.
I am a solicitor employed by Hertfordshire County Council and I have reviewed your
request under our internal review procedures. In carrying out such a review I have
had sight of your original request and our response.
Review Request 1:
I understand your original request was as follows:
“1) Please supply information relating to the incidence of attempts
by care providers to evict residents in care homes - that is, care
providers giving residents notice to leave or otherwise attempting
to get them to leave without their involvement in the decision or
against their wishes.
Please indicate the number of cases you are aware of for the last 3
years, also indicating if and how your council responded to the
situation, and what was the ultimate result of the situation, i.e.
if and how the situation was resolved.
2) Please provide me with the number of instances your council is
aware of where either CQC or local authority safeguarding
procedures have substantiated allegations of institutional abuse of
a Leonard Cheshire social care service user over the past 3 years.
Further, please provide anonymised information on the alleged
behaviour by Leonard Cheshire resulting in the conclusion.”
Under Section 1 of the Freedom of Information Act 2000 (FOI) a public authority has
the duty to inform an applicant whether or not they hold the information requested.
This is known as the duty to confirm or deny.
Under Section 10(1) a public authority must inform the applicant in writing whether it
holds the information requested and if so, communicate that information to the
applicant, promptly, but not later than 20 working days after receipt
of the request.
This was not done.
Your request was received by the Customer Services Centre and forwarded to the
appropriate person. However due to the availability of staff the matter was not dealt
with in the appropriate time frame.
The procedure for handling Adult Care Services Freedom of Information requests will
be reviewed.
Conclusion for Review Request 1
On reviewing your request for information under the Freedom of Information Act I
consider that Hertfordshire County Council did not comply with the requirements of
the Act.
Hertfordshire County Council apologise for not responding within the specified time
frame.
I understand that you were supplied with an answer to your request on 3 September
2010.
Review Request 2:
On 5 September you wrote again
“I wish to appeal the first part, where you say that providing information on people in
care homes given notice or subjected to attempted eviction without their will over the
last 3 years would be too expensive to provide.
I dispute this on two grounds.
1) The request has been refused on the basis that it would take too long to extract
information from records. I dispute that this would be necessary.
Where attempts are made to evict residents in care homes against their will, it is an
event that is likely to escalate and to stick in peoples' minds. Indeed it tends to make
the news, for example: http://news.bbc.co.uk/1/hi/6599155.stm
A simple query to the head of adult social services for each area would therefore likely
yield the required results without a manual search. For the avoidance of doubt, the
results of such an informal information gathering exercise would be more than
satisfactory to me in answering my question.
To assist in narrowing down my request, I am not interested in cases where homes
have closed or changed registration, or where residents are moved on with their
agreement or with support of family due to increased needs that the home can't meet.
I'm much more interested in "unreasonable" evictions or termination attempts.
2) I have made the same Freedom of Information Request to every council in the
country. Whilst not all results are yet in, lots of councils have provided the same
information for their area very promptly and without any apparent difficulty.”
1) I have spoken to those concerned in responding to your request.
Section 84 of the Freedom of Information Act defines information as information
recorded in any form.
The County Council can not use local news stories to supply information under a
Freedom of Information Request nor can it use informal “word of mouth” responses
from managers within each area as that would not be information that is recorded in
any form.
As there is no centralised record holding such information the only reliable method of
obtaining the requested information is to look through every file, of which there are
approximately 5,000, to find the requested information.
Section 12 of the Freedom of Information Act provides an exemption from a public
authority’s obligation to comply with a request for information where the cost of
compliance is estimated to exceed the appropriate limit.
The Freedom of Information and Data Protection (Appropriate Limit and Fees)
Regulations 2004 state that this cost limit is £450 for Hertfordshire County Council
(Part 1 of Schedule 1 of the FOIA).
A public authority must still confirm or deny whether it holds the information
requested unless the cost of this alone would exceed the appropriate limit.
In estimating whether complying with a request would exceed the appropriate limit,
Regulation 4 (3) states that an authority can only take into account the costs it
reasonably expects to incur in:
• determining whether it holds the information;
• locating the information, or a document containing it;
• retrieving the information, or a document containing it; and
• extracting the information from a document containing it.
The four activities are sequential, covering the retrieval process of the information
from the County Council’s information store, in this case individual files of service
users.
An authority can take into account the costs attributable to the time that authority’s
staff are expected to spend on these activities. Such costs are calculated at £25 per
hour per person for all authorities regardless of the actual cost or rate of pay, which
means that in the case of Hertfordshire County Council the limit will be exceeded if
these activities exceed 18 hours.
Section 12 makes it clear that a public authority does not have to make a precise
calculation of the costs of complying with a request. Only an estimate is required.
The estimate must, though, be reasonable
and can only be based on the four
activities listed above.
What amounts to a reasonable estimate can only be considered on a case by case
basis. Where a reasonable estimate has been made that the appropriate limit would
be exceeded, there is no requirement for a public authority to undertake work up to
the limit.
2) I am only able to respond on behalf of Hertfordshire County Council and am
unable to comment on freedom of information requests to other councils.
Conclusion for Review Request 2
On reviewing your original request 25 June 2010 and the Council’s response on 3
September 2010 fully I am satisfied that Hertfordshire County Council has
appropriately applied the Freedom of Information Act 2000.
This now brings the County Council’s internal review into the handling of your request
for information to an end. However, if you remain dissatisfied you are entitled to ask
the Information Commissioner to investigate your complaint. You can write to him at
FOI/EIR Complaints Resolution, Information Commissioners Office, Wycliffe
House, Water Lane, Wilmslow, Cheshire, SK9 5AF.
Yours sincerely,
Judith Gower
Solicitor
