GDPR and retaining information

Like many authorities, here at Bradford we are looking at what information we hold in view of GDPR.

We have always resisted deleting records for long term empty properties from our live property database ( Civica APP) as we use this as evidence in the case for a CPO. The information we hold is details of the owner, their address and telephone numbers. We also have details of anyone who has ever contacted us about the property, to express concern or to offer to buy. We call these Service Requests. We always include details of the number of Service Requests received about a property and the issues in our Statement of Reasons for compulsory purchase action under Section 17 of the Housing Act 1985. We have always believed that demonstrating the number of complaints received about a proeprty strengthens the case for compulsory purchase.

We have considered anonymysing the data on our computer system after a period of time, so we will have data that shows someone has contacted us about the house and what the issue was, but would not have their name or address. However, anything written in the action dairy for this Service Request could include telephone numbers, names etc.

Having looked at the Government Guidance on  the compulsory purchase  of empty properties ( Guidance on Compulsory purchase process and the Crichel Down rules 2018), it is unclear how important it is to show the issues the property is causing in the neighbourhood. It states:

Compulsory purchase of empty properties may be justified as a last resort in situations
where there appears to be no other prospect of a suitable property being brought back into residential use.

Authorities will first wish to encourage the owner to restore the property to
full occupation. However, cases may arise where the owner cannot be traced and therefore use of compulsory purchase powers may be the only way forward.
When considering whether to confirm such an order the Secretary of State will normally wish to know:
how long the property has been vacant
what steps the authority has taken to encourage the owner to bring it into
acceptable use and the outcome; and
what works have been carried out by the owner towards its reuse for housing
purposes

 

As you see, there is no mention of the problems a property may be causing in the area. We are keen to know what others are planning to do with data they hold and also what weight do you feel the government office actually attach to issues such as blight, crime and  anti-social behaviour when deciding whether to confirm a CPO?

Lorna Frost.

Empty Homes and Loans Team. Bradford Council.

Forums: 
FOI, data protection etc

The evidence you are collecting is relevant to EDMOs, should you choose to use that measure. Given that the measure exists, even if you have not used them to date, it would be resaonsble to retain information in case there is change of strategy in the future.

The 2012 EDMO changes resulted in the introduction of new evidential criteria under Prescribed Requirements at 4(1)(b):

(b) it must provide to the residential property tribunal—

...

(vi) all information they have that suggests that the dwelling has been causing a nuisance for the community; and
(vii) all information they have that suggests that the community supports the proposed making of the interim empty dwelling management order by the local housing authority

The consolidated SI (incorporating the original SI and the amendments is available for Full Members and Subscribers only in our Information Library here.

nplaw would be the people to advise on the CPO aspects, but looking at the CPO Guidance (accessible via our Library here) a few things jump out.

One is that each case should be taken on its merits, and general principles apply:

It is the acquiring authority that must decide how best to justify its proposal to compulsorily acquire land under a particular act.
...
There are certain fundamental principles that a confirming minister should consider when deciding whether or not to confirm a compulsory purchase order  ... Acquiring authorities may find it useful to take account of these in preparing their justification.

A compulsory purchase order should only be made where there is a compelling case in the public interest.

The more comprehensive the justification which the acquiring authority can present, the stronger its case is likely to be.

However, the confirming minister will consider each case on its own merits and this guidance is not intended to imply that the confirming minister will require any particular degree of justification for any specific order.

All these general points seem to me to warrant a broad interpretation of the evidence that you may want to present, and thus retain.

More specifically, in the case of nuisance properties, I wonder if you should consider using Planning Powers rather than Housing Powers. I am not sure whether precedents exist - again nplaw might advise.

section 226(1)(a) enables acquiring authorities with planning powers to acquire land if they think that it will facilitate the carrying out of development (as defined in section 55 of Town and Country Planning Act 1990), redevelopment or improvement on, or in relation to, the land being acquired

Among the criticial criteria are:

the extent to which the proposed purpose will contribute to the achievement of the promotion or improvement of the economic, social or environmental wellbeing of the area

Alternatively, (looking at more specific functions such as crime prevention) Section 121 of the Local Goverment Act 1972 could be used as the basis for a CPO. This would require that you demonstrate that the CPO is being carried out in the performance of a statutory 'function' rather than just some general improvement in the area. Again, specialist advice would help establish whether this has any mileage.  But when it comes to CPO I don't get the sense that the government has any appetite to stand in the way of local authorities trying to make their areas better for sound reasons, so prima facie I would say that it has some mileage.

S121 has the advantage of being available for 'mixed purposes' - thus housing and crime prevention, for example, enabling you to bring in your evidence around nuisance, crime prevention etc (para115 of the Guidance).

The fact that Housing Powers might have been used does not necessarily preclude use of S121 either, though the issue of which power to choose is only discussed in relation to the mix of Planning and Housing Powers:

139. Will the Secretary of State refuse to confirm an order made under housing powers if it could have been made under planning powers instead?
Where an authority has a choice between the use of housing or planning compulsory purchase powers the Secretary of State will not refuse to confirm a compulsory  purchase order solely on the grounds that it could have been made under another power.

Lest we lose sight of the point of the foregoing: it is that there are CPO powers where the kind of evidence you want to retain would legitimately come into play. 

This is all imho! nplaw would look a good bet to provide some opinion on this and perhaps someone from nplaw will  contribute to the thread.

There are a number of issues here:

  1. Information to justify a CPO
    Whichever statutory power is used to obtain the CPO, you must show that you have a compelling case in the public interest to acquire the property compulsorily.  This means balancing the interests of the individual who will be dispossessed of their property against the wider public interest. It is therefore helpful to set out the history of the property, any complaints received and action taken.

    Reports of anti-social behaviour will be relevant but it shouldn’t be necessary to name the complainants in your Statement of Reasons. Similarly, it can be useful to demonstrate that there is interest in purchasing the property but, again, the details of the enquirers can be anonymised.

  2. Retaining names and contact details of empty property owners
    This is something you are doing as part of your duties as a local authority. Whilst the property remains empty, it would appear appropriate for you to retain this information – but see (3) below.
  3. GDPR/Data Protection

Each local authority will have appointed their own Data Protection Officer (DPO) and will have formulated their own policies and procedures to ensure that they are compliant with the GDPR. Since the DPO is responsible for compliance, I would suggest that you contact your own DPO to make sure that whatever approach you would like to take is one that he or she is happy with. I would suggest that you set out the issue, explain what data you would usually retain and why, and ask your DPO for an indication as to whether this remains acceptable or whether you should alter your current practice. Some authorities will take a more robust approach than others and it is likely to be some time before we have a clear indication from the Information Commissioner’s Office (ICO) as to how such matters should be dealt with. Until that time, we are suggesting that authorities take their own view on the use and protection of such data, as they are the ones who are responsible for the data and who may ultimately be held to account by the ICO.

Fiona Anthony, Professional Support Lawyer, nplaw

Following on from Fiona Anthony's last post on this subject in which she considered it appropriate to retain names and contact details of empty property owners whilst a property remains empty.......I was wondering if anyone has yet agreed/formulated their own general policy and/or procedure for how long to retain contact information for for owners of empty properties, once a property has been brought back into use?

Fiona advised that in the absence of any clear indication from the Information Commissioner’s Office (ICO), each local authority should work with their own Data Protection Officer (DPO) to formulate their own policies and procedures regarding this to ensure that they are compliant with GDPR.

As I'm currently now going through this process with our own DPO, I was wondering if anyone else has completed this with their own DPO yet and if so, could help me out by sharing their agreed policy and/or procedure(s) with me. (Preferably with the justification/reasons for the time length retention) 

Sorry to ask but, whilst our DPO has been helpful so far, they have (understandably, I guess) also asked me if there is an 'industry standard' regarding this and 'what are other local authorities doing'? 

If anyone can help I would be really grateful.    

Many thanks,

Patrick Gordon, Empty Property Officer, Brighton and Hove City Council

01273 293035

patrick.gordon@brighton-hove.gov.uk

 

 

 

 

Following on from Fiona Anthony's (NP Law) last post on this subject back in May 2018, in which she considered it appropriate to retain names and contact details of empty property owners whilst a property remains empty.......I was wondering if anyone has yet agreed/formulated their own general policy and/or procedure for how long to retain contact information for owners of empty properties, once a property has been brought back into use?

Fiona advised that in the absence of any clear indication from the Information Commissioner’s Office (ICO), each local authority should work with their own Data Protection Officer (DPO) to formulate their own policies and procedures regarding this to ensure that they are compliant with GDPR.

As I'm currently now going through this process with our own DPO, I was wondering if anyone else has completed this with their own DPO yet and if so, could help me out by sharing their agreed policy and/or procedure(s) with me. (Preferably with the justification/reasons for the time length retention) 

Sorry to ask but, whilst our DPO has been helpful so far, they have (understandably, I guess) also asked me if there is an 'industry standard' regarding this and 'what are other local authorities doing'? 

If anyone can help I would be really grateful.    

Many thanks,

Patrick Gordon, Empty Property Officer, Brighton and Hove City Council

01273 293035

patrick.gordon@brighton-hove.gov.uk