Plans to extend unfair Audit Commission 'hit lists' of people unfairly labelled as not entitled/liars/frauds who are wrongly alleged to be 'incorrectly receiving' a 25% council tax discount when the vast majority of people on these lists are fully entitled into Scotland

Waiting for an internal review by Information Commissioner's Office of their handling of this request.

Dear Sir or Madam,

How many complaints have you received about proposals to give the Audit Commission powers to label every single recipient of a 25% council tax discount recipient in Scotland as a 'potential fraud' and as an 'inconsistency requiring investigation' - with the inevitable result that thousands of innocent people who are fully entitled to their discount will be so labelled - in Scotland?

Please provide any information or briefings you have been sent in support of Audit Commission claims about current data matching in Scotland as it related to the 25% discount set out in the Local Government Finance Act sections related to Scotland and associated regulations, and any other material relevant to disquiet expressed by Scottish local authorities about this misuse of the electoral register in Scotland and the arguments between them and the electoral commission in this matter. If you feel material about the disputes in respect of the electoral register for England would be relevant, please include these two.

How many complaints have you had that Audit Commission statistics about 'additional income' produced in Scotland are inflated because it has been unfairly been using its data processing facilities to produce reports and hit lists stating that Scottish people are not entitled to a 25% discount or to a (so called but non existent in Scotland) spd or sole occupant discount if more than one person is registered at that address for voting purposes.

Yours faithfully,

K Hodgkinson

K Hodgkinson left an annotation ()

It is perfectly proper to be in receipt of a discount of 25% when more than one person lives in the house. However the Audit Commisson labels all people involved where more than one person does live in the house as not entitled, and therefore as potential frauds. These discounts are not based on claims, and nor are they residence based, and any council deducting the discount on such a 'basis' would be in breach of the clear laws instructing it not to do any such thing, but to issue the bill on the basis of statutory assumptions that the same rate and amount of discount will apply for the rest of that year. Some discounts, including some 'single person' discounts have higher discount rates, but the one in question is the one setting out a 25% rate and which applies basically through out the tax year, irrespective of changes in 'residence', so long as no more than one person in the house does not fall to be disregarded.

It seems that at some point the Audit Commission got the idea that there is something called a 'sole occupancy' discount and that nobody was entitled to it if more than one person lives at the address.

It appears that a number of councils may have attempted to remove the blinkers from the eyes of the Audit Commission but have come up against a brick wall.

Now they want to extend this mess to Scotland.

K Hodgkinson left an annotation ()

It appears that the AC has never taken the trouble to obtain internal briefings on the law governing the assessment and deduction of these discounts, but that it now does realise that these exercises do not in fact provide prima facie evidence of false statement, failure to provide material information or lack of entitlement.

We understand that it is currently reviewing its position, while continuing to engage in these uses and disclosures of personal information in England.

Figure of additional income obtained are grossly over estimated because the Audit Commission has incorrectly believed that each 'hit' represents lack of entitement and additional income.

Bizarrely, there is evidence to suggest that some councils are going through the motions of co-operating with the Audit Commission by sending out adjusted demand notices that both 'cancel' and 'reinstate' the discount on the same bill, an action which is not just absurd and a waste of public money but which is also not lawful under the regulations governing the issue of adjusted demand notices. Some people are subjected to this degrading and humiliating procedure more than once in the course of a year.

K Hodgkinson left an annotation ()

Of course, the Audit Commission claims to be encouraging good practice, and has even got some councils to design 'application' forms stating that the applicant is applying for a discount which does not exist in law ie a discount 'on the basis' that they are the sole occupant of their dwelling.

Why it should be thought good practice to mislead applicants for a discount about the legal basis for that discount when by law all demand notices must contain sufficient clear information about all discounts for people to understand when they are not entitled to one and must inform the council that they are not is something that the Audit Commission has yet to explain.

K Hodgkinson left an annotation ()

Of course, the Audit Commission claims to be encouraging good practice, and has apparently even got some councils to design 'application' forms stating that the applicant is applying for a discount which does not exist in law ie a discount 'on the basis' that they are the sole occupant of their dwelling.

The point is that a body which has not taken the trouble to read the regulations, to the extent that it falsely believes there is such a thing as a sole occupant discount and that people receiving it must by law tell the council if another person moves into their house or turns 18 is in no position to issue guidance on good practice.

Why it should be thought good practice to mislead 'applicants' for a discount about the legal basis for that discount when by law all demand notices must contain sufficient clear information about all discounts for people to understand when they are not entitled to one and must inform the council that they are not is something that the Audit Commission has yet to explain.

Information Commissioner's Office

Link: [1]File-List

9th November 2009

Case Reference Number IRQ0277845

Dear K Hodgkinson

Thank you for your email of 8 November 2009 in which you have made a
request for information to the Information Commissioner’s Office.

Your request is being dealt with in accordance with the Freedom of
Information Act 2000.  We will respond by 7 December 2009 which is 20
working days from the day after we received your request.

If you wish to add further information or evidence to your case please
reply to this email, being careful not to amend the information in the
‘subject’ field. This will ensure that the information is added
directly to your case. However, please be aware that this is an automated
process; the information will not be read by a member of our staff until
your case is allocated to a request handler.

Yours sincerely

Joanne Crowley

Assistant Internal Compliance Manager

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 01625 545 700 Fax: 01625 524 510 Web: www.ico.gov.uk

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Information Commissioner's Office

2 Attachments

Link: [1]File-List

7th December 2009

Case Reference Number IRQ0277845

Dear Ms Hodgkinson

I write with reference to your request for information dated 8 November
2009 and further to our acknowledgement dated 9 November 2009.  As you
are aware we have treated your request under the terms of the Freedom of
Information Act 2000 and are now in a position to respond.

Your request asked:

1.         How many complaints have you received about proposals
to give the
Audit Commission powers to label every single recipient of a 25%
council tax discount recipient in Scotland as a 'potential fraud'
and as an 'inconsistency requiring investigation' - with the
inevitable result that thousands of innocent people who are fully
entitled to their discount will be so labelled - in Scotland?

We have not received any complaints concerning the Audit Commission
relating to this specific issue.  Therefore, there is no recorded
information which would fall within the scope of your request.

It may be helpful to explain that it is likely that any complaints
received about the National Fraud Initiative and the sharing of electoral
roll information between the Audit Commission and any local authorities,
regardless of the region in which they are located, would be a complaint
against the local authority not the Audit Commission.

2.         Please provide any information or briefings you have
been sent in
support of Audit Commission claims about current data matching in
Scotland as it related to the 25% discount set out in the Local
Government Finance Act sections related to Scotland and associated
regulations, and any other material relevant to disquiet expressed
by Scottish local authorities about this misuse of the electoral
register in Scotland and the arguments between them and the
electoral commission in this matter. If you feel material about the
disputes in respect of the electoral register for England would be
relevant, please include these two.

We have previously been in contact with the Audit Commission regarding the
National Fraud Initiative and some of this issues that it raises.  This
correspondence has been of general nature concerning the running or
operation of the scheme.  Your request asks for copies of correspondence
sent to us concerning ‘data matching in Scotland as it related to the
25% discount’.  I can confirm that we hold no recorded information in
respect of this particular issue and that would fall within this part of
your request.  Therefore, there is no recorded information held.

However, when the National Fraud Initiative first came to our attention we
sent a letter to all the local authorities within Scotland explaining our
view.  To provide you with some advice and assistance and more
information about this offices involvement I have attached a copy of the
template letter which was sent out in mid to late 2007.  Although it is
our view that this letter was outside the scope of your request it may
provide you with some background information. 

3.         How many complaints have you had that Audit Commission
statistics
about 'additional income' produced in Scotland are inflated because
it has been unfairly been using its data processing facilities to
produce reports and hit lists stating that Scottish people are not
entitled to a 25% discount or to a (so called but non existent in
Scotland) spd or sole occupant discount if more than one person is
registered at that address for voting purposes.

We have not received any complaints concerning the Audit Commission and
the specific issue which would fall within the scope of this part of your
request.  Therefore, there is no information held.

I hope this information is of help and assistance.  However, if you are
dissatisfied with the response you have received and wish to request a
review of our decision or make a complaint about how your request has been
handled you should write to the Internal Compliance Team at the address
below or e-mail [2][email address]

Your request for internal review should be submitted to us within 40
working days of receipt by you of this response. Any such request
received after this time will only be considered at the discretion of the
Commissioner.

If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation.  To make such an application, please write
to the Case Reception Team, at the address below or visit the
‘Complaints’ section of our website to make a Freedom of Information
Act or Environmental Information Regulations complaint online.

 

A copy of our review procedure is attached.

Yours sincerely

Charlotte Powell

Internal Compliance Manager

Yours sincerely

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 01625 545 700 Fax: 01625 524 510 Web: www.ico.gov.uk

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2. mailto:[email address]

Dear Information Commissioner’s Office,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Information Commissioner’s Office's handling of my FOI request 'Plans to extend unfair Audit Commission 'hit lists' of people unfairly labelled as not entitled/liars/frauds who are wrongly alleged to be 'incorrectly receiving' a 25% council tax discount when the vast majority of people on these lists are fully entitled into Scotland'.

Our understanding is that the ICO Scottish Office may had complaints on the issue of Audit Commission data matching involving the electoral register and council tax data sets. Perhaps these complaints are still on your 'to open when funding allows us to get round to it' pile?

You clearly deserve a lot more money than you get, by the way!

Could you please check this? May be a call to your Scottish Office would be one way forward?

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/pl...

Yours faithfully,

K Hodgkinson

Information Commissioner's Office

Link: [1]File-List

8th December 2009

Case Reference Number RCC0281670

Dear Ms Hodgkinson

Thank you for your correspondence dated 7 December 2009.

This correspondence will now be treated as a request for review of your
recent request for information under the Freedom of Information Act 2000.

We will respond by 7 January 2010 which is 20 working days from the day
after we received your recent correspondence.  This is in accordance with
our internal review procedures.

If you wish to add further information or evidence to your review please
reply to this email, being careful not to amend the information in the
‘subject’ field. This will ensure that the information is added
directly to your case. However, please be aware that this is an automated
process; the information will not be read by a member of our staff until
your case is allocated to a request handler.

Yours sincerely

Charlotte Powell

Internal Compliance Manager

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 01625 545 700 Fax: 01625 524 510 Web: www.ico.gov.uk

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Dear Information Commissioner’s Office,

We understand that Audit Scotland has alreadyaltered its fair processing notice to reflect a view that there is no requirement that its data so-called matching has to show an inconsistency in each case or a potential fraud in each case but can consist of potentially inconsistent cases for centrally directed fishing trips in search of actual inconsistencies.

You could investigate this simply by looking at FPNs produced by and recommended by Audit Scotland.

There is a big difference between 'indicates that there is an inconsistency requiring investigation' and 'indicates that there may be an inconsistency requiring investigation'. The first is based on some sort of evidence; the second merely guesswork and therefore less fair and proportionate.

Yours faithfully,

K Hodgkinson

Information Commissioner's Office

Link: [1]File-List

7th January 2010

Case Reference Number RCC0281670

Dear Ms K Hodgkinson

I write further to the acknowledgement of 8 December 2009, by Charlotte
Powell, of your request for an internal review of our response to your
recent request for information made under the Freedom of Information Act
2000.

In your letter of 7 December 2009 you suggest that our Scottish Office may
have received complaints regarding the matching of electoral register and
council tax data sets by the Audit Commission. We have, therefore, checked
with our colleagues in Scotland about this matter. They have advised us
that they received a written enquiry about this matter but that it was not
treated as, nor recorded, as a complaint and that some general advice and
guidance was made to the enquirer.  The response made it clear to the
enquirer that this was a matter that we were well aware of and that we did
not consider that there was evidence of a demonstrable breach of the Data
Protection Act 1998.

In the light of this, and having considered our response to you of 7
December 2009, I am satisfied that we responded properly to your request.
  However, as you are aware from the response provided to you you have a
further right of appeal to this office in our capacity as the statutory
complaint handler under the legislation.  To make such an application,
please write to the Case Reception Team, at the address below or visit the
‘Complaints’ section of our website to make a Freedom of Information
Act or Environmental Information Regulations complaint online.

Yours sincerely

Phil Jones

Assistant Commissioner, Director of Data Protection Practice

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 01625 545 700 Fax: 01625 524 510 Web: www.ico.gov.uk

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Dear Information Commissioner’s Office,

I am puzzled by your statement that complaints about the NFI and the supply of electoral register information would be likely to be a complaint about the local council.

Is it not the case that the NFI's data matching as it applies in Scotland is governed by a Code of Data Matching Practice set out by Scotland and approved by your good selves? And is it not the case that if a particular Data Matching Exercise were in breach of the Code of Data Matching Practice that you would be the people to whom a complaint should be made? And this complaint would be a complaint about both the NFI and any council making unfair use of the results of matching, surely?

It would appear that you may be labouring under some false impressions with respect to this matching exercise.

May I take this opportunity of pointing out that the Scottish Code of Data Matching Practice (2006) states that data matching is used to identify overpayments, underpayments and inconsistencies. In fact Data Matching is defined within that Code as follows:

'Data matching’ means the electronic comparison of two or more sets of personal data which have been collected for separate purposes in order to identify any information which is inconsistent for further investigation. The Code also specifies the sorts of algorithm that must be used in order to ensure that processing is fair.

The Code says

Data matching results provide evidence to auditors of both frauds and under and overpayments.

In the case of this particular exercise this is simply not true.

It also says: (h) To ensure fair processing
of data, the software, techniques and algorithms used in the data matching exercises are those which are indicative of potential fraud and/or under or overpayments only, and will be refined in the light of practical experience.

The point you appear to be missing is that matching council tax data sets and the electoral register does not identify inconsistent information. It does not identify under payments of council tax. It is perfectly legal for a house to be receiving a 25% discount when a person on the electoral register does not appear on council tax records.

The Code also says that information provided to data subjects must be clear. I am afraid that Audit Scotland is not capable of providing clear information on this data match. There appears to be prima facie evidence that Audit Scotland does not understand Council Tax law and, therefore, that it is not capable of interpreting and processing data fairly and in accordance with its own statutory Code of Fair Processing Practice. This evidence may be found in the public domain on the web site of Audit Scotland. Audit Scotland's own fair processing notice states

The data matching allows potentially fraudulent claims and payments to be identified. Where a match is found it indicates that there is an inconsistency which requires further investigation.

Matching council tax discount data sets and electoral register information does not indicate that there is an inconsistency. Even checking initial applications against the electoral register would cause false positives because as the Electoral Commission point out, the ER contains 'nominal' residents as opposed to people who have their sole or main residence at the dwelling. But that is most certainly not what the AC is doing with this data, and it is most certainly not checking whether councils have made that check.

I would also point out that it appears that nobody in Scotland is informing young voters that their data may be used as the basis for labelling their parents or carers as 'potential frauds'. Even if advance warning could ever make this fair, it is not being given.

Audit Scotland has not been able to provide any evidence that it has reviewed the law central to this issue ie Council Tax Law in Scotland, which does operate in the same way as Council Tax Law in Scotland as far as statutory assumptions to the future. Council Tax data sets do not represent the basis of the discount in Scotland any more than the do in England.

However Audit Scotland appears to be relying on a legal opinion obtained by the Audit Commission which says that the matter is finely balanced but that probably a court would not find against the AC.

The big problem with that opinion is that it gives the false impression that this matching appears to provide prima facie evidence of lack of entitlement. This match cannot provide 'prima facie' evidence of lack of entitlement or appear to provide it, because the mere fact that a person on the electoral register is not in council tax data sets does not mean that there is lack of entitlement.

If this legal opinion was meant to provide a full and fair account of the basis of the discount it fails. And you will see that no reference is made within it to council tax law. On the contrary the author of the opinion appears to be basing his statements about this match on 'instructions' provided by the NFI. On this basis, the fault would appear to lie with the NFI for not providing accurate and full instructions. If you ask the NFI what briefings it obtained on council tax discounts prior to this matching exercise you get the answer 'None'. It also appears that the Electoral Commission has never obtained a full briefing on council tax law. It also appears that your own organisation has not obtained a full briefing. It is clear from F of I requests on this site to the Electoral Commission that the Home Office has been circulating inaccurate accounts of the significance of this match.

Its very account of council tax data sent to the NFI is at best misleading. No auditor can tell by comparing electoral register information with council tax data sets that any individual 'claim' was false, or that there is lack of entitlement or that councils have failed to collect money that is due to them.

Unfortunately, it would appear that Audit Scotland is relying on this misleading opinion for its information about council tax law. It would appear that it really believes that each match indicates lack of entitlement. My evidence for this is that the Head of Audit Scotland has said that the way for innocent people to protect themselves against being suspected of fraud is to tell the council that they are not entitled to the discount. But innocent people are entitled to the discount, and they are legally entitled to it and so pretending that they are not in order to avoid being listed as a potential fraud and being subjected to a fraud investigation headed up by the Audit Commission would be legally dubious.

Therefore, I would ask that you as a matter of some urgency undertake or obtain a full and independent account of council tax discount law, including as a matter of some importance not just the regulations but also the law on 'cancelled' discount ie adjusted demand notices so that at least you can spot equivocal, incomplete and misleading accounts of council tax law.

Yours faithfully,

K Hodgkinson

Information Commissioner's Office

Link: [1]File-List

15th January 2010

Case Reference Number RCC0281670

Dear Ms Hodgkinson

I write with reference to your e-mail dated 12 January 2010.

As the outcome of your internal review has been communicated to you and
because the concerns raised in this correspondence are of a general nature
rather than related to your request for information we will deal with this
as an enquiry to this office.

Where a 'request for information' contains an enquiry, rather than a
specific request for copies of information held by the ICO, we deal with
such requests as a 'normal course of business' enquiry rather than a
formal request for information under the FOIA. 

This is in accordance with the guidance given in the ICO publication
'Freedom of Information & Environmental Information Regulations - Hints
for Practitioners handling FOI/EIR requests', which states on page 6
"Requests which are not for recorded information, but instead ask
questions, such as "please explain your policy on x" or "please explain
your decision to do y" are not requests for recorded information and
therefore should be treated as routine correspondence.".  This
publication is available on our website, and can be accessed via the
following link:

[2]http://www.ico.gov.uk/upload/documents/l...

We have therefore forwarded your enquiry concerning audit Scotland to our
regional office in Scotland who will respond to you in due course.

Yours sincerely

Charlotte Powell

Internal Compliance Manager

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 01625 545 700 Fax: 01625 524 510 Web: www.ico.gov.uk

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2. http://www.ico.gov.uk/upload/documents/l...

Dear Information Commissioner’s Office,

Thank you very much.

Thank you for this. In the meantime I note that your office was, according to this site, involved in discussions with the Electoral Commission on this issue in England. The information released by the Electoral Commission includes two letters that misrepresent the significance of the techniques used by the Audit Commission and, therefore, the significance of the output of the data processing. One of these is from the Home Office and the other is from the Audit Commission itself. The name of the Information Commission Office officer involved in these discussions was Kawser Hamid, though he may not have been a direct recipient of either of the two letters.

The possibility does arise however, that the Information Commissioners may possibly have fallen into the trap of believing that this match allows auditors to see individual cases where there is lack of entitlement and therefore revenue foregone.

This is not true. It is even less true that this match allows auditors to identify people who are fraudulently claiming the discount. The content of council tax data sets does not equate to 'claims' made by taxpayers. This is not how council tax discounts work. A similar impression could be reached by a person who looked at the legal opinion commissioned by the Audit Commission without reading council tax law. If this opinion was intended to represent council tax discount law in any sort of accurate manner it most certainly does not. If this lawyer believed that this matching exercise appears to show lack of entitlement in any individual case, then he was wrong. To judge from his wording, it would appear that whoever instructed him got it wrong and that he relied on his instructions. The opinion gives no indication that he actually bothered to read any of the relevant council tax law and regulations,

It does state on the Information Commission web site somewhere that the Information Commission does not consider it to be a problem if councils use the full electoral register to check whether the electoral register in force at the time of an initial application contains the same people as are listed on a claim form. Even this comparison will result in some people being suspected of fraud because as the electoral commission made plain, the two lists are not supposed to 'match' as they are governed by different criteria.

But this is not what the Audit Commission is doing. It uses the electoral register in force almost half way through the tax year. It may well be years since the council obtained the claim form. This, presumably, is why one large category of innocent entitled people on its 'hit' lists involve cases of young adults still in education and training. The mere fact that an adult is on the electoral register but not on council tax data bases does not mean that there has been a failure in duty to the council, or that there is lack of entitlement, or that there is an error or that the council has awarded the discount on the wrong basis or that there is any evidence inconsistent with the lawful deduction and receipt of the discount. Yet these people end up stigmatised and labelled on 'hit' lists for investigation by councils, who then have to spend a lot of time eliminating false positives ie abortive investigations.

No amount of prior notification can make this sort of data processing fair, and none of the prior notification has been accurate or transparent.

It would appear also that, assuming the Audit Commission does understand council tax discounts, however inaccurate and incomplete and unfair the letters and publications it produces on this subject are, the Audit Commission has no intention at all of limiting its data processing activities to situations where there is an inconsistency.

This is questionable because as your office of all people will realise the Code of Data Matching Practice repeatedly states that where a match is found it indicates that there is an inconsistency, and so do all the model Fair Processing Notices in the Code of Data Matching Practice. Your office has material which suggests that decisions on abandoning privacy should be taken on a case by case basis.

How can a match which can never show that there appears to be evidence of lack of entitlement ever comply with the Code of Data Matching Practice?

Presumably you will realise that as council tax law in Scotland is more or less the same, it is not possible to tell by checking Scotland's electoral register that there is lack of entitlement, or appears to be lack of entitlement in any individual case. Yet this is what Scotland's Code of Data Matching Practice says.

I hope you find this helpful.

It would appear to be a waste of time to ask the Audit Commission for any briefings it has on this discount. If it had any briefings then presumably it would not have been sending inflammatory and inaccurate letters to important council offices of the sort revealed on this web site. I say presumably, because I see no evidence that the Audit Commission has a duty to provide fully accurate and fair information about its activities. This may sound harsh, but there is so much evidence to support this view that on balance it is one I have reluctantly reached.

Yours faithfully,

K Hodgkinson