Reply to St Mungo's Defence

IN THE CENTRAL LONDON COUNTY COURT

Claim No. C01CL855

BETWEEN: (1) DECLAN HEAVEY – and –

Claimant

(2) ST MUNGO’S ________________________________

Defendant

REPLY TO DEFENCE ________________________________ 1.

In this Reply to the Defendant’s Defence:

a. The Claimant pleads to the Defence dated 24 August 2016 (and served on 25 August 2016). b. Unless the context requires otherwise, references to paragraph numbers are to the paragraphs of the Defence, and references to supporting document pages are to the documents to the Particulars of Claim.

REPLY TO DEFENCE TO CLAIM

2.

3.

The Defendant admits that on 25 February 2016 the Claimant met with Howard Sinclair, the Defendant’s CEO, and that the Defendant agreed by subsequent e-mail to provide support to the Claimant on a voluntary basis.

As to Paragraph 3 of the Defence:

a. The Defendant avers at 3.b. that “the parties agreed not to enter into a formal, written support agreement, as specifically requested by the Claimant”. On 29 February 2016, Kate Moon of the Defendant sent an e-mail to the Claimant that clarified aspects of the support agreement between the parties (SD, page 22).

The Defendant fails to reference this e-mail at Paragraph 3.

b. The Defendant admits at 3.d. that the Defendant sent an e-mail to the Claimant on 7 April 2016 re-assuring him that “any notes recorded from our meetings will be action notes, these will be brief notes recording any actions agreed by all parties in the meetings” (SD, page 21).

c. The support agreement between the parties culminated in an e-mail the Claimant sent to the Defendant, dated 15 April 2016 (SD, page 18), which the Page 1 of 6

4.

Defendant also fails to reference at Paragraph 3. This e-mail paved the way for a meeting between Kathleen Sims of the Defendant and the Claimant and his wife on 22 April 2016 (the “First Meeting”).

Specifically in relation to the action notes from the First Meeting, the Claimant has set out below an accurate account of the relevant communications between the Claimant and the Defendant that shows that the Defendant has breached the Third and Fourth Principle of the Data Protection Act 1998 (the “DPA”):

a. The original action notes sent to the Claimant on 27 May 2016 by Kathleen Sims (SD, pages 11-12) stated as follows: “Met with Declan and Maria (Lola) Heavey at their property. Introduced myself and explained briefly the St Mungo’s TST model.

“Both Declan and Lola said that currently they would like support to look into volunteering opportunities and are keen to link in with Active Newham.

“I called Active Newham and was informed of the process of how to apply to the scheme. Explained this to Lola and Declan. The application form has to be completed online and Lola was happy to complete this herself and attend the welcome evening.”

b. The Defendant states at 4.c. that on 28 May 2016 the Claimant sent an e-mail to Kathleen Sims “claiming that the action notes from the First Meeting did not constitute brief action notes”. In this e-mail (copy enclosed at Schedule 1 hereto), the Claimant took issue with “explained briefly the St Mungo’s TST model”, with which the Claimant could not have possibly agreed or disagreed; it therefore breached what had been agreed between the parties on 7 April 2016 (and referred to in Paragraph 3.b. above).

c. On 2 June 2016, Kathleen Sims sent an e-mail to the Claimant clarifying that when she referred to “explained briefly the St Mungo’s TST model”, she was referring to internal information relating to the “changing of providers from Lookahead to St Mungo’s and the current staffing restructure” (SD, page 9).

Later on 2 June 2016, Kathleen Sims sent an e-mail to the Claimant (SD, pages 67) attaching an amended version of the action notes from the First Meeting, the first paragraph of which was amended to read as follows: “Met with Declan and Maria (Lola) at their property. Introduced myself and explained ********* [text removed on the request of Mr Heavey].”

d. Later on 2 June 2016, the Claimant sent an e-mail to Kathleen Sims expressing his concern that “the explanation of anything does not constitute an action note” (SD, page 5). In this e-mail, the Claimant, in seeking to have the section commencing with the words “Introduced myself” deleted in its entirety, provided the Defendant with amended action notes to read as follows: Page 2 of 6

“Met with Declan and Maria (Lola) at their home. Phoned activeNewham and was informed of the process of how to apply to the scheme. The application form has to be completed online and Lola was happy to complete this herself and attend the induction workshop.”

e. On 10 June 2016, Kathleen Sims sent an e-mail to the Claimant (SD, pages 2-3) attaching an amended version of the action notes from the First Meeting, the first paragraph of which was amended to read as follows: f.

5.

“Met with Declan and Maria (Lola) at their property. Introduced myself ********* [text removed on the request of Mr Heavey].”

Later on 10 June 2016, the Claimant sent an e-mail to Kathleen Sims expressing his concern that “introducing yourself in any way does not constitute an action note agreed by all parties in the meeting, nor does citing text removed at my request” (SD, page 1). The Defendant did not enter into further communication with the Defendant on the subject.

g. The construct “Introduced myself ********* [text removed on the request of Mr Heavey]” remains undeleted. It does not constitute an action note agreed by all parties in the meeting, meaning it breaches the support agreement between the parties and is therefore inadequate, irrelevant and excessive, in violation of the third data protection principle of the DPA. Further, the action notes from the First Meeting have not been kept up to date, in violation of the fourth data protection principle of the DPA. Despite being kept informed of the progress of the Claimant and his wife’s involvement with Active Newham since the First Meeting, the Defendant has failed to record any of this information.

Specifically in relation to the action notes from a meeting between Paul Keenan of the Defendant and the Claimant on 27 May 2016 (the “Second Meeting”), the Claimant has set out below an accurate account of the relevant communications between the Claimant and the Defendant that shows that the Defendant has breached the Third and Fourth Principle of the DPA: a. The original action notes from the Second Meeting were sent to the Claimant on 2 June 2016 by Kathleen Sims (SD, pages 6-7) and stated as follows:

“Phoned Active Newham. Spoke to worker (Kusima?) and confirmed answer to Mr H query re- obligations after one day intensive volunteers induction.

Confirmed there were fixed obligations and volunteers would be matched with clients on the basis of their availability etc.”

Staff action/intervention: “Signposted to another service.”

b. Later on 2 June 2016, the Claimant sent an e-mail to Kathleen Sims stating that these action notes were “nonsensical and incredulous as well as inaccurate” (SD, page 5). In this e-mail, the Claimant provided the Defendant with an overhaul of the action notes without the staff action/intervention to read as follows: Page 3 of 6

“Met with Declan at our office. Phoned activeNewham for obligations following paid-for befriending training. Spoke with Kolsuma. Informed Declan that there are not fixed obligations following a one-day training course if he wished to pursue the befriending option.”

c. The Defendant states at 4.j. that on 4 June 2016 the Claimant sent an e-mail to Howard Sinclair of the Defendant requesting “amendments to the support agreement”. In this e-mail (SD, page 4), the Claimant sought agreement on four proposed “supplementary provisions” to the support agreement that were aimed at “preventing these violations from occurring again”. The Claimant specifically cited the staff action/intervention “that never occurred, having not even been mentioned in the meeting”. d. The Defendant at 5.d. states: “Specifically in relation to the action notes from the Second Meeting, the Defendant rectified errors identified in those action notes.”

On 10 June 2016, Kathleen Sims sent an e-mail to the Claimant (SD, pages 2-3) attaching an amended version of the action notes from the Second Meeting. In this e-mail, the Claimant’s overhaul of the action notes had been adopted in its entirety, but the staff action/intervention had been retained.

e. Later on 10 June 2016, the Claimant sent an e-mail to Kathleen Sims stating in relation to the action notes from the Second Meeting that the notes “retain a staff/intervention that not only never occurred, but does not constitute an action note agreed by both parties in the meeting”. The Claimant requested that this action note be deleted “to avoid the serious charge of blatantly retaining data that has been previously identified as false” (SD, page 1). The Defendant did not enter into further communication with the Defendant on the subject.

f.

6.

The staff action/intervention “Signposted to another service” remains undeleted.

It cannot be construed as an action note agreed by both parties in the meeting, meaning it breaches the support agreement between the parties and is therefore inadequate, irrelevant and excessive, in violation of the third data protection principle of the DPA. Further, the Claimant still does not know to which service the staff action/intervention refers, which not only renders incredulous any claim that it is not fabricated, false and nonsensical (vague to the point of having almost any kind of interpretation), but contravenes the accuracy and fairness requirements of the fourth data protection principle of the DPA.

As to Paragraph 5 of the Defence:

a. The Claimant avers that the Defendant has breached the DPA in relation to action notes from the First Meeting and the Second Meeting (together referred to as the “Action Notes”).

b. In accordance with its obligations under the DPA, and guidance issued by the Information Commissioner’s Office, the Defendant did not: Page 4 of 6

i.

take reasonable steps to ensure the accuracy of the Action Notes;

ii. carefully consider the Claimant’s challenges to the accuracy of the Action Notes; and

iii. rectify errors or inaccuracies identified in the Action Notes.

c. Specifically in relation to the action notes from the First Meeting, the Defendant: i.

did not amend those action notes in a way that conformed with the Claimant’s request, notwithstanding that the section in dispute was inadequate, irrelevant and excessive;

ii. did not keep those action notes up to date; and

iii. did not explain the purpose of the section in dispute (as sent to the Claimant by e-mail on 10 June 2016 and referred to in Paragraph 4.g. above).

d. Specifically in relation to the action notes from the Second Meeting, the Defendant did not rectify errors or inaccuracies identified in those action notes (as sent to the Claimant by e-mail on 10 June 2016 and referred to in Paragraph 5.f. above.) e. Consequently, the Action Notes are: i.

7.

8.

inadequate, irrelevant and excessive for the purpose of providing voluntary support to the Claimant (as agreed between the parties), in violation of the third data protection principle of the DPA; and

ii. inaccurate and, where necessary, not kept up to date, in violation of the fourth data protection principle of the DPA.

The Defendant admits that it did not respond specifically to the Claimant’s Letter before Claim, but states at 5.f. that it did “make such amendments to the action notes from the First Meeting as requested by the Claimant in the Letter before Claim.” On 31 May 2016, the Claimant sent a Letter before Claim to Howard Sinclair, the Defendant’s CEO, in which he requested in relation to the First Meeting the removal of the action note “explained briefly the St Mungo’s TST model” (SD, page 10). The Defendant did not amend the action notes from the First Meeting in a way that conformed with the Claimant’s request. The Defendant fails to reference the Claimant’s Letter before Claim at Paragraph 5.

It is admitted that, in an e-mail to the Claimant dated 17 August 2016 (copy enclosed at Schedule 2 hereto), Osborne Clarke Solicitors on behalf of the Defendant stated that the Defendant “is keen to do what it can to address your concerns and resolve this issue with you”; but it is denied that the Claimant “was not willing to co-operate with the Defendant in this regard”. During the week commencing 15 August 2016, the Claimant was on annual leave but nonetheless contacted Georgina Graham of Osborne Clarke Page 5 of 6

9.

Solicitors – by e-mail (copy enclosed at Schedule 3 hereto) and by phone – to seek a response to his Alternative Dispute Resolution (ADR) request dated 16 June 2016 (SD, pages 13-14). Rather than respond to the Claimant’s ADR request, the Defendant chose to break off communication with the Claimant unreasonably and without good cause.

The retention in particular of the staff action/intervention “Signposted to another service” has caused great distress. Should this action note go unchallenged, the Claimant and his wife could be evicted from their home for the Claimant’s noncompliance with a supposedly agreed action, albeit unspecified. The Claimant still does not know to which service this action note refers. The fact that the parties have reached this position without the Defendant having deleted a staff action/intervention that is incredulous and nonsensical (vague to the point of having almost any kind of interpretation) raises a serious doubt about the intention of the Defendant with respect to future action notes. This doubt raises the question of “supplementary provisions” to the support agreement to prevent a reoccurrence of these violations (and referred to in Paragraph 5.c. above).

10. The Claimant respectfully submits that the Court should refuse the Defendant’s application to strike out the Claimant’s claim on the ground that errors or inaccuracies have not been rectified in accordance with the Defendant’s obligations under the DPA, and guidance issued by the Information Commissioner’s Office.

Declan Heavey Statement of Truth The Claimant believes that the facts stated in this reply to the defence are true.

Signed:

Full Name: Declan Heavey Dated: 5 September 2016

Served this 5th day of September 2016 by Declan Heavey, 71 Queens Road West, E13 0PE. Tel: 0788 043 7681

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