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1.3.7 Access to Case Records

RELATED GUIDANCE

Children Act 1989 Guidance and Regulations Volume 3: Planning Transition to Adulthood for Care Leavers (revised January 2015)

Information Commissioners Office – Guide to Data Protection

REVELANT DOCUMENTS

Lincolnshire County Councils Corporate SARS Policy

AMENDMENT

This chapter was updated in June 2016 to update Section 8, Applications by Care Leavers with regard to seeing their file. In addition, the section on ‘Rights of Access’; Section 7, Applications by Parents and Section 13, Appeals Process have been refreshed and updated. It remains important to acknowledge that even if a child does not have the capacity to understand the implications of a data request about them, it is still their personal data and belongs to no-one else. Links to ‘Children Act 1989 Guidance and Regulations Volume 3: Planning Transition to Adulthood for Care Leavers (revised January 2015)’ and ‘Information Commissioners Office –Guide to Data Protection’ have been added in the Scope Box.


Contents

  1. Rights of Subject Access       
  2. Exemptions
  3. Offering an Informal Approach
  4. Making Subject Access Requests (SARs)
  5. Timescales             
  6. Applications by Children
  7. Applications by Parents
  8. Application by Care Leavers
  9. Applications by Third Parties 
  10. Application on behalf of Deceased Persons
  11. Corrections or Erasure of Records   
  12. Refusal of Access      
  13. Appeals Process


1. Rights of Subject Access

1.1 Subject Access Request (SAR)

Under the Data Protection Act 1998 individuals have a right to see personal information about them wherever and however it is stored unless one of the exemptions set out below applies. Under the legislation, if an individual has requested a' Rights of Subject Access' to personal information this request is referred to as a 'Subject Access Request (SAR)' which is processed by the 'Subject Access Request Team'.

The Data Protection Act applies to both paper and manual records and records held electronically. It is important that electronic recording systems comply with the requirements for children and their families to easily find their story in a logical narrative.

The Freedom of Information Act 2000 gives people the right to see all types of other non-personal information held by children’s services. Local authorities should publicise their access to records policy with clear information about how care leavers and others can apply for their records and access support services.

1.2 Personal Data

Personal data relates to a living individual and allows that individual to be identified from it.

An individual does not have to be the Data Subject to ask to see information held by Lincolnshire County Council. They may be someone acting in the best interests or on behalf of the Subject, for example:

  • An individual with Parental Responsibility;
  • A Solicitor with signed consent;
  • A Carer with signed consent;
  • Or someone granted a Lasting Power of Attorney- Court Order stamped.


2. Exemptions

Some personal data is exempt from the right of Subject Access and may not be disclosed.

Exceptions to the right to access are:

  1. Where the practice of social work would otherwise be prejudiced because access to the information would be likely to result in serious harm to the person requesting the information or some other person;
  2. Where the person is incapable of managing his or her affairs (for example where the person is a child) with sufficient age and understanding and the information was given in the expectation that it would not be disclosed or is information which the subject of the information expressly indicated should not be disclosed;
  3. Adoption Case Records - see Access to Birth and Adoption Case Records Procedure.

These exceptions do not permit the total withholding of information but only those sections of the material covered by the exceptions. The remainder of the case records should be made available to the service user.

The exceptions do not apply where disclosure is required by a Court Order or is necessary for the purpose of or in connection with any legal proceedings. 

In addition, a Court may prevent disclosure of information where a person shows that he or she would be caused serious harm to his physical or mental health by the disclosure.

In all cases, best interest to disclose to the subject or third party should always be considered prior to disclosure which may require Social Workers or Legal input.


3. Offering an Informal Approach

The practice of all staff should be to encourage ongoing and open sharing of information and recording, including providing copies of key documents, (see also Section 3, Confidentiality Policy Values and Principles, Children's Services Policy, Values and Principles).

If a person in receipt of services asks to see a particular document or wants to have information about a particular aspect of the case, the social worker should discuss this with them to see whether the request can be dealt with informally by showing them the relevant part of the file or providing copies of relevant documents. If the document contains third party information this should be forwarded to the Subject Access Request (SAR) team as detailed below.


4. Making Subject Access Requests (SARs)

Subject Access Request Form

A SAR must be made in writing e.g. letter, email, social media, fax, by completing a Subject Access Request Form that can be located on Lincolnshire County Council's Making a Subject Access Request website or via Lincolnshire County Council's Intranet George. The form makes it easier for the individual to include all the details necessary for files to be located but it is not a requirement.

Additional Information Required

All requestors must provide two forms of identification to confirm the identity of the Data Subject, one which confirms their identity and one which confirms their current address dated within three months. One document should be provided from each of the lists below. Originals are not necessary as good quality photocopies are acceptable:

List A (Identity) List B (address)
  • Birth/ adoption certificate;
  • Driving license;
  • Medical card; or
  • Passport.
  • Bank/Building Society statement;
  • Utility bill (electric, gas, telephone or water);
  • Letter from Solicitor / Social Worker / Probation Officer / HM Revenues and Customs / Inland Revenue / Benefits Agency or Employer.

If the requestor is not the Data Subject, they must provide identification for the Requestor and Data Subject plus their entitlement to receive the Data Subjects' personal data e.g. Proof of Parental Responsibility (PR) - Birth/Adoption Certificate, Marriage Certificate, PR Order or Agreement- Lasting Power of Attorney (Court Order stamped) or the Data Subjects Signed Consent.

Processing the Subject Access Request

All SAR's must be forwarded to the SAR Team for processing:

Subject Access Request Team
Lincolnshire County Council
Witham Park House
Waterside South, Lincoln, LN5 7JN

SARS_Team@Lincolnshire.gov.uk
(Tel: 01522 554011)

Once a request has been received verification is checked and a letter of acknowledgment will be sent out to the requestor.

Locating Personal Data

An extensive check for records in a paper or electronic format is conducted by the SAR Team and collated.

The Social Worker or Independent Reviewing Officer must ensure at all times that case records are complete and maintained in line with Children's Services Policy, Values and Principles, Recording Values and Principles.

A social worker should be available to explain the contents of the file if this is requested by the requestor or deemed necessary by the SAR team, to answer questions and to help the person understand the information recorded.

Where the person making the request has specific needs in relation to language or disability, arrangements must be made to present the information in a suitable manner and to involve approved interpreters as needed.

Interpretative and supportive counselling may be advisable in certain cases using a number of interviews to disclose the information, if the person concerned is willing to proceed in this manner.

Where records have not been located the SAR Team will contact the requestor asking if they have any further details to assist in another search.


5. Timescales

There is a Statutory Duty to respond to a SAR within 40 calendar days once all relevant information has been received from the requestor. Dependant of the volume of data requested or location of the records it may not be possible to provide all the information together and where this is the case this will be explained to the requester. It may be appropriate to give the option of drip feeding the records as they are completed.


6. Applications by Children

Requests from children should be treated in the same way as requests from adults. Where a child is considered too young to understand the implications of subject access rights, data about them is still their personal data and does not belong to a third party such a parent or carer.

The SAR team should contact the Social Work Team or other professional for a professional judgment to be made as to whether the child making the request for access understands the nature of the request. Where appropriate, a parent should be asked to provide written confirmation that the child understands the nature of the application.

Children with disabilities have the same rights as others to have access to information held about them. No assumption should be made about their level of understanding. This should be assessed on an individual basis as with all children.

A child of sufficient understanding should be allowed regular access to information held about him or her, consistent with his or her best interests. He or she should read or be told what has been recorded unless it falls within one of the exceptions set out above.

A child should be encouraged to record his or her own observations on the case file including when there is disagreement about an entry in the file.

In Scotland the law presumes that a child aged over 12 has the capacity to make a subject access request. The presumption does not apply in England and Wales but does suggest an approach that will be reasonable in many cases.


7. Applications by Parents

Please refer to Gillick Competency and Fraser Guidelines.

Even if a child is unable to understand the implications of a request, the data about them is still their personal data and does not belong to anyone else, such as a parent. It is the child who has the right of access to information held about them, even though, in the case of young children their rights are likely to be exercised for them by people with parental responsibility.

Before responding to a request for access to information held about a child, it should be considered whether the child is mature enough to understand their rights. If they are they should be responded to rather than the parent. If a worker is unsure about whether a child is able to understand what it means to make a request and how to interpret the information they receive as a result the worker should consider

  • The child’s level of maturity and ability to make decisions like this;
  • The nature of the personal data;
  • Any court orders relating to parental responsibility that may apply;
  • Any consequences of allowing those with parental responsibility access to the child’s information. This is particularly important if there have been allegations of abuse;
  • Any detriment to the child if people with parental responsibility cannot access this information.
Any views the child has on whether their parents should have access to information about them.


8. Applications by Care Leavers

For further information see Children Act 1989 Guidance and Regulations Volume 3: Planning Transition to Adulthood for Care Leavers (revised January 2015)

A SAR request from a Care Leaver is processed in the same way as any other Subject Access as outlined in this procedure.

When an application has been received from a care leaver, it is important that the request is acknowledged promptly and in writing, or other appropriate forms of communication if required. The care leaver should be informed about the process and procedure, timescales for dealing with such requests and the services that the authority is able to provide.

An acknowledgement should be sent to the care leaver within ten working days confirming that records exist. If the authority knows that the care records do not exist, there should be no delay informing the care leaver.

Local authorities should respond to requests from a direct descendant of a care leaver if information about family history is being sought.


9. Applications by Third Parties

As outlined in Section 1, Rights of Subject Access, a request for access to records may be made through a third party acting on the data subject's behalf or best interest, such as a Solicitor, Parent or Carer. It is the responsibility of the third party to produce satisfactory evidence that he or she has the authority to do so as outlined in Section 4.Informed signed consent from the subject would be required where this is not possible they should provide evidence of Parental Responsibility.

The Designated Manager (Access to Records) should decide whether the representative will be allowed access.


10. Application on behalf of Deceased Persons

A personal representative can only access a deceased person's record. Even a next of kin may not be able to access the records if there is a personal representative unless consent is gained from the representative.


11. Corrections or Erasure of Records

If a person considers that any part of the information held on his or her records is inaccurate, he or she has the right to apply in writing for it to be corrected or erased. 

If the objection is justified, there is a duty to correct or erase the appropriate information.


12. Refusal of Access

If the disclosing officer considers there are reasons to refuse a request for access to all or any part of the records (see exceptions in Section 2, Exemptions above), this should be discussed with his or her manager and legal advice should be obtained.

The requestor should be informed of the decision and the reasons for non-disclosure.


13. Appeals Process

The person concerned has the right to apply to the Court for an Order to disclose, correct or erase information held. They also have a right of appeal to the Information Commissioner's Office who may make an assessment about whether the law has been complied with and issue enforcement proceedings to make the Authority comply with the request if necessary and/or recommend an application to court alleging a failure to comply with the Data Protection Act:

Information Commissioner's Office,
Wycliffe House, Water Lane,
Wilmslow, Cheshire SK9 5AF

If you require more information on any other aspect of the Data Protection Act, please visit the ICO website: www.ico.org.uk.

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