Briefing. Data sharing rights and responsibilities. Neighbourhoods. Tel: Date: October 2012

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1 Briefing Data sharing rights and responsibilities Contact: Team: Sue Ramsden Neighbourhoods Tel: Date: October 2012 Ref: NS.WR.2012.BR.19 Registered office address National Housing Federation, Lion Court, 25 Procter Street, London WC1V 6NY Page 1

2 New regulations on the sharing of social security information were published in July 2012, under provisions contained in the Welfare Reform Act 2012, to help local authorities and housing associations work together to identify and assist claimants who are likely to be affected by benefit cuts at an early stage. 1.0 Legal basis of data sharing arrangements Sections of the Welfare Reform Act 2012 (the 2012 Act) replace and expand existing data sharing legislation and add new provisions. These new powers are intended to help smooth the assessment of benefit claims and support local authorities and other qualifying persons to carry out functions related to benefits, welfare services and council tax. Regulations set out these powers in detail. For a copy of the regulations see and for a copy of the accompanying guidance see The Act defines welfare services broadly as services which include the provision of accommodation, support, assistance, advice or counselling to individuals with particular needs. 2.0 Implications of these new powers Firstly, these new powers should help local authorities provide a more efficient and responsive service and cut down the amount of information a claimant needs to provide. The regulations provide that this data can be shared without the need to obtain the explicit consent of the individual. However it will still be necessary to make service users aware that their data may be shared in order to comply with the first data protection principle of processing data fairly and lawfully. The information must be held and disclosed for one of the prescribed purposes permitted under the regulations. For example, social service departments are now permitted to share information with the relevant local authority housing benefit (HB) team in order to identify whether a disabled person needs an additional bedroom for an overnight carer. The HB team can then use this information to apply the correct size criteria deduction from April Qualifying persons The new powers allow local authorities to share data internally between themselves and with relevant service providers and, in more limited circumstances, with social landlords who are included in the definition of qualifying persons in the regulations. Relevant service providers include organisations carrying out any function of the local authority relating to welfare services. This could include carrying out local authority duties with regard to homelessness or possibly supporting people or care services provided under contract. Page 2

3 There are specific circumstances for data sharing with and by registered providers. These are for the purposes of: 1 1. Determining whether a person is in receipt of housing benefit 2. Determining the size of dwelling and the number of people occupying it 3. Identifying housing benefit claimants who are or may be affected by the size criteria and providing advice, support and assistance 4. Identifying housing benefit claimants who are or may be affected by the benefit cap and providing advice, support and assistance 4.0 Responsibilities of data sharing It is important to remember that all qualifying persons must continue to take into account the provisions of the Data Protection Act 1998, in addition to the new powers in the 2012 Act, and that there are penalties for misuse of data. One legal firm has offered the following advice: It is an offence, (punishable by up to 2 years imprisonment or a fine) for a qualifying person covered by the regulations (or any of its directors, managers, committee members or other officers) to unlawfully disclose data which is passed to it under the new information-sharing powers. Registered providers and local authorities alike will therefore need to be careful to ensure that any information which is provided to them using the new powers is handled appropriately and only disclosed to other parties when this is legally permitted. They will also need to keep in mind the requirements of the Data Protection Act 1998 which will apply, as much of the information held or shared under the new regulations is likely to be either 'personal data' or 'sensitive personal data'. It must therefore be handled in accordance with data protection principles and only disclosed in accordance with the conditions set out in the set out in the Data Protection Act. 2. Local authorities may have different interpretations of their legal responsibilities around the use and sharing of data. Registered providers working in more than one local authority area may encounter different approaches by different authorities based on these different interpretations of the law and best practice. Local authorities may want reassurance on a number of issues, for example: 1 Social Security (information-sharing in relation to Welfare Services) Regulations 2012 Part 3 Section 6 f-i 2 Trowers and Hamlin Quarterly Legal Update Autumn %20information.pdf Page 3

4 registered providers' security of data storage, and how data will be used to provide advice, support and assistance as distinct from rent collection and possession proceedings 5.0 Powers not obligations The regulations are permissive not mandatory and local authorities and registered providers do not have to share information. Again, this means that local authorities may take different approaches. There are obvious benefits to data sharing in terms of being able to target limited resources at those affected by the welfare reforms and ensure claims are accurate from the start. For example, a registered provider could decide to share information about property size with the local authority. However, it could decide not to share information about the occupants of the household because of concerns about accuracy. Each provider should develop a policy in the light of its own systems and resources and seek legal advice when in doubt about particular responsibilities. 6.0 Discretionary Housing Payments Local authorities may seek information from landlords to help them manage and identify the need for Discretionary Housing Payments (DHPs). The Government has given local authorities some additional money to be channelled through DHPs to help people affected by welfare reform changes. Local authorities will continue to have the discretion to make DHPs to support a wide range of housing needs but new guidance from the DWP states that local authorities should prioritise claims from people living in significantly adapted properties and foster carers affected by the new size criteria from April Registered providers may find it advantageous to flag properties where the provider knows of significant adaptations in order to allow the local authority to both quantify demand and smooth the process of benefit claims from April The Government has not defined significantly adapted and landlords might want to include properties that were specifically designed for disabled people (for example wheelchair-accessible homes). Page 4

5 7.0 Problems with data sharing The information above sets out the new legal framework permitting data sharing. Practice on the ground will vary according to different interpretations of this framework but, probably more importantly, also according to the systems, policies and capacity of local authorities and registered providers. A number of local authorities are still waiting for computer upgrades to benefit systems to allow them to use or pass on data. There will always be a time lag with data being out of date. Local authorities will be relying on accurate transfers of data from the DWP. Each party will need to set up fail safe systems to check and deal with inaccuracies. The Federation is trying to encourage local authorities to adopt common systems so that data can be shared in common formats. Some local authorities are preparing information sharing agreements to facilitate sharing to be entered into by registered providers. Registered providers might look to trying to persuade local clusters of local authorities to work together and offer suggestions as to the most efficient ways to receive and share data. Registered providers should also look at developing policies and procedures to enable internal sharing of data for example, between benefit advice workers and rent collection teams. Page 5