Publication - FOI/EIR release

NHS pension rights and GDPR policies questions: FOI release

Published: 9 Aug 2019

Information request and response under the Freedom of Information (Scotland) Act 2002.

Published:
9 Aug 2019
NHS pension rights and GDPR policies questions: FOI release
FOI reference: FOI/19/01625
Date received: 10 Jul 2019
Date responded: 8 Aug 2019
Information requested

The UK Supreme Court (April 2018) ruled, in respect of pension rights, that notice of termination takes effect when the employee reads it. Newcastle NHS Trust v Haywood. The 40 plus page ruling is available at www.supremecourt.uk. The Cental Legal Office (NHS) issued an update soon after the ruling under "new legislative changes" confirming that the UKSC ruled that Mrs Haywood was entitled to a "higher pension" as a result of their ruling. Given that the ruling provides absolute clarity have the SPPA taken steps to review data held on former NHS employees in receipt of pensions to ensure that they are complying with the legislation in respect of dismissal and pension rights? Furthermore, has the Scottish Government issued any formal directive to that effect? Please provide any documentation that refers to the ruling and any instructions as to compliance. I am trying to understand exactly who is ultimately responsible for ensuring the legislation update is applied in practical terms. Is it the NHS? Is it the SPPA? Please provide clarity and if available the contact information for the person responsible for the implementation of the ruling.

Am I correct in my understanding that public authorities are required to record any such challenges to accuracy by the data subject? If so, please provide documentation in respect of those challenges and the SPPA explanation of why they will not correct my data. I understand the reason for refusal must be documented too. If you have a specific policy that deals with this issue please provide a copy.

Please provide me with a copy of your Record Retention and Disposal Policy.

Response

Some of the information does not fall under FOISA, and, where applicable, SPPA has written to you separately on those matters.  My response is set out referring to each paragraph of your request.

Paragraph 1. Have the SPPA taken steps to review data held on former NHS employees in receipt of pensions to ensure that they are complying with the legislation in respect of dismissal and pension rights?

The SPPA have not taken steps to review data on former NHS employees in light of the Supreme Court’s judgement in the Haywood case. This particular judgement relates to employer’s duties in relation to termination of employment and it would be a matter for NHS employers to take any steps to ensure compliance with dismissal rights and to advise SPPA if there was any impact on a member’s pension rights.

SPPA works to adhere to the Data Accuracy Principle as outlined within Data Protection legislation. We consider data to be inaccurate if it is incorrect or misleading as to any matter of fact.

In order to administrate pensions accurately, both SPPA and employers are bound by the obligations of the statutory regulations and must work together to adhere to their requirements. SPPA’s  role as central administrator of the scheme is to maintain accurate membership records for scheme members during their career and use this information to provide benefit calculations and payments when required. To do this we are completely dependent on the work of scheme employers and the information they provide which we accept in good faith to be accurate and factual.

1.1. Has the Scottish Government issued any formal directive to that effect?

The Scottish Government has not issued any formal directive to that effect.  Therefore, this is a formal notice under section 17(1) of FOISA to inform you that the Scottish Public Pensions Agency does not have the information you have requested.

1.2. Please provide any documentation that refers to the ruling and any instructions as to compliance.

There is no documentation and/or instructions. Therefore, this is a formal notice under section 17(1) of FOISA to inform you that the Scottish Public Pensions Agency does not have the information you have requested.

1.3. Who is ultimately responsible for ensuring the legislation update is applied in practical terms. Is it the NHS? Is it the SPPA?

Please see answer to question 1.

1.4. Please provide clarity and if available the contact information for the person responsible for the implementation of the ruling.

No specific individual was tasked with the implementation of this ruling. Therefore, this is a formal notice under section 17(1) of FOISA to inform you that the Scottish Public Pensions Agency does not have the information you have requested.

Paragraph 4. Am I correct in my understanding that public authorities are required to record any such challenges to accuracy by the data subject?

Article 16 (right to rectification) of the GDPR entitles individuals to have personal data rectified if it is inaccurate or incomplete. The timescales for undertaking this is within one month (this can be extended to two months where the request is considered complex).

The SPPA Website outlines how individuals have a right to request that we amend data that they believe to be incorrect, this sits alongside our privacy policy. Please see link below:
https://pensions.gov.scot/data-protection-privacy-policy

We also have the complaints process (please see link below) that also allows members to challenge SPPA. Both approaches will result in SPPA explaining why data is not being amended (when that is the case).
https://pensions.gov.scot/complaints-handling-procedure

SPPA has a process embedded within our pension administration system to record all Data Protection requests. This right links closely to SPPA’s obligation as a controller (Article 5(1)(d) to take all reasonable steps to ensure that personal data is accurate. The system is such that a record of data protection rights exercised by individuals are held upon the member’s record which includes decisions and challenges.

Paragraph 6. Please provide me with a copy of your Record Retention and Disposal Policy.

Please find attached a copy of SPPA’s Record Retention and Disposal Policy in Annex A.

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Contact

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Central Enquiry Unit
Email: ceu@gov.scot
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