Witness Statement

Claim No. C01CL855 IN THE CENTRAL LONDON COUNTY COURT Between: DECLAN HEAVEY Claimant and ST MUNGO’S Defendant __________________________________ WITNESS STATEMENT __________________________________

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I, Declan Heavey of 71 Queens Road West, London, E13 0PE am the Claimant in this claim. The facts in this statement come from my personal knowledge.

My contentions that St Mungo’s has breached the Data Protection Act 1998 (the “DPA”) are confined to those on the claim form (with enclosures) and Reply dated 5 September 2016 and as directed by the Court to the two action notes that were deleted by St Mungo’s days before the Preliminary Hearing on 11 October 2016.

Background 3.

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Paragraph 1 of the Particulars of Claim is admitted by St Mungo’s. Its Clearing House service matched me and my wife to a Family Mosaic property as clients of the Mayor of London’s Housing First programme, with our support being provided by St Mungo’s Tenancy Sustainment Team (“TST”) since 1 April 2016.

Housing First is an internationally acclaimed programme for people with a history of rough sleeping, the core principle of which is the provision of permanent accommodation and non-compulsory support (Johnsen with Teixeira, 2010). The Mayor of London’s Housing First programme ended in January 2015, within months of the commencement of our tenancy.

St Mungo’s admits that although its TST model is coercive, it has been agreed with me that my and my wife’s support is voluntary. (It was established in judicial review proceedings we do not require support to live independently but are vulnerable through no fault of our own.) St Mungo’s further admits, in relation to the Support Agreement referred to in Paragraph 3 of the Reply, that TST Manager Kathleen Sims wrote on 7 April 2016 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”.

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I have had two meetings with St Mungo’s TST. On 22 April 2016, Kathleen Sims met me and my wife in our home (the “First Meeting”). Five weeks later, on 27 May 2016, TST Support Worker Paul Keenan met me in the St Mungo’s TST North London office (the “Second Meeting”).

Action note from the First Meeting

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As established in Paragraph 4 of the Reply, Kathleen Sims’s action notes from the First Meeting on 22 April 2016 contained one action note with which my wife and I could not have possibly agreed or disagreed and breached what had been agreed between the parties on 7 April 2016. It read in isolation as follows: “Introduced myself and explained briefly the St Mungo’s TST model.”

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On 10 June 2016, this action note was amended for the second time by Kathleen Sims to read “Introduced myself ********* [text removed on the request of Mr Heavey]”, which still did not constitute an action note agreed by all parties in the meeting and breached the Support Agreement between the parties. It was therefore inadequate, irrelevant and excessive, in violation of the third data protection principle of the DPA. In an email to me dated 7 October 2016 (copy enclosed at Schedule 1.1. hereto), St Mungo’s establishes that only four days before the Preliminary Hearing on 11 October 2016 was this action note from the First Meeting deleted, as I had always sought; and this more than six weeks after St Mungo’s filed its Defence on 24 August 2016, stating at Paragraph 5.c. in respect of the notes from the First Meeting that it had “amended those action notes in accordance with the Claimant’s request”.

Action note from the Second Meeting

10. As pointed out in Paragraph 5 of the Reply, TST Support Worker Paul Keenan’s action notes from the Second Meeting on 27 May 2016 were wholly nonsensical and incredulous as well as inaccurate. After revision by St Mungo’s on 10 June 2016, and more than a month before this claim was filed on 18 July 2016, these action notes were left with one staff action/intervention note that had been falsified and fabricated. It read in isolation as follows: “Signposted to another service.”

11. This was not an action note agreed by both parties in the meeting, meaning it breached the Support Agreement between the parties and was therefore inadequate, irrelevant and excessive, in violation of the third data protection principle of the DPA. Being vague to the point of having almost any kind of interpretation, it also contravened the accuracy and fairness requirements of the fourth data protection principle of the DPA.

12. In a letter to me dated 30 September 2016 (copy enclosed at Schedule 1.3. hereto), St Mungo’s establishes that only eleven days before the Preliminary Hearing on 11 October 2016 was this action note from the Second Meeting deleted, as I had always sought; and this more than five weeks after St Mungo’s filed its Defence on 24 August Page 2 of 5

2016, stating at Paragraph 5.d. in respect of the action notes from the Second Meeting that it had “rectified errors in those notes”.

Allegations of breach under the DPA

13. In following the directions given by the Court, I contend that St Mungo’s breached the DPA in relation to one action note from the First Meeting and one action note from the Second Meeting (together referred to hereinafter as the “Action Notes”).

14. In accordance with its obligations under the DPA, and guidance issued by the Information Commissioner’s Office, St Mungo’s did not: a. take reasonable steps to ensure the accuracy of the Action Notes;

b. carefully consider my challenges to the accuracy of the Action Notes; and

c. rectify errors or inaccuracies identified in the Action Notes in a reasonable and timely manner.

15. Specifically in relation to the action note from the First Meeting, St Mungo’s:

a. did not, as claimed, amend that action note in accordance with my request prior to its deletion on 7 October 2016; notwithstanding that the action note was inadequate, irrelevant and excessive; and

b. did not explain the purpose of the action note as amended for the second time on 10 June 2016.

16. Specifically in relation to the action note from the Second Meeting, St Mungo’s did not, as claimed, rectify the errors identified in that action note prior to its deletion on 30 September 2016.

17. Consequently, at the time St Mungo’s filed its Defence on 24 August 2016, the Action Notes were:

a. inadequate, irrelevant and excessive for the purpose of providing voluntary support to me (as agreed between the parties), in violation of the third data protection principle of the DPA; and b. inaccurate, in violation of the fourth data protection principle of the DPA.

Compensation for failure to comply with certain requirements

18. I seek damages for distress pursuant to Section 13(2) of the DPA. In 2015 the Court of Appeal ruled, in the case of Vidal-Hall v Google, that compensation under the DPA could be awarded for distress alone.

19. In particular, the staff action/intervention “Signposted to another service” has caused substantial distress. Should this action note have gone unchallenged, my wife and I could have been evicted from our home for my non-compliance with a supposedly Page 3 of 5

agreed action, albeit unspecified. Section B.5. of our Tenancy Agreement with Family Mosaic (copy of Section B.5. enclosed at Schedule 1.5. hereto) provides as follows: “We have granted this tenancy to help provide support services to you. If you refuse to co-operate in providing the support services or refuse to accept the services provided, we may treat this as you breaking your tenancy.”

20. To compound this situation, my tenancy record is held by St Mungo’s and can be viewed by Family Mosaic (copy enclosed at Schedule 1.4. hereto). It currently shows my support status as ‘open’. However, had St Mungo’s marked my support status as closed for non-compliance with a supposedly agreed action (albeit unspecified), the tenancy could have been ended by Family Mosaic at any point.

21. That being the case, St Mungo’s conduct posed a threat to life. I am in my mid-fifties and, during the almost four years in total that my wife and I were forced to sleep rough during two periods of homelessness, I was hospitalized with pneumonia (in 2006) and with a viral infection (in 2007). The month before we came off the streets for the second time (in 2014), I was diagnosed with a chest infection and asthma. The latter is a chronic or lifelong disease that can be serious, even life threatening.

22. Pneumonia and other illnesses that affect the lungs are much more dangerous for asthmatics than other people. On 15 April 2014, I was issued a Discharge Summary by the Royal London Hospital (copy enclosed at Schedule 1.8. hereto), stating as follows: “Was assessed and advised to continue with current treatment, but if situation worsening to reattend as chest infection could worsen with pneumonia. If possible should try to find accommodation off the street.”

23. Still to this day, I do not know the service to which the staff action/intervention “Signposted to another service” referred. No mention was made of the action note in St Mungo’s Defence, notwithstanding the extraordinary lengths I had gone before the defence was filed to highlight the seriousness of blatantly retaining data that was false, fabricated and without meaning (vague to the point of having almost any kind of interpretation).

24. I submit that St Mungo’s did not take all reasonable care in the circumstances to avoid breaching the DPA. First, St Mungo’s did not take reasonable steps to ensure the accuracy of the Action Notes (as herein defined). Second, St Mungo’s did not carefully consider my challenges to the accuracy of the Action Notes. And third, St Mungo’s did not rectify errors or inaccuracies identified in the Action Notes in a reasonable and timely manner. This is the long-standing modus operandi of St Mungo’s in respect of my and my wife’s data (see Paragraph 26 below).

25. St Mungo’s claims that it has been willing to address any concerns that I may have about my records on the one hand, yet it only deleted the Action Notes days before the preliminary hearing on 11 October 2016 (transcript from my phone call with St Mungo’s on 1 October 2016 enclosed at Schedule 1.2. hereto). In its attempt to first Page 4 of 5

have my claim struck out, St Mungo’s even had the audacity, through the concealment and distortion of evidence, to state at Paragraph 5.b. of its Defence in respect of action notes in general that it had “rectified any errors or inaccuracies identified”.

26. There is also a substantial risk of another breach. It took St Mungo’s over eight months and the threat of immediate court action to comply with a court order made on 22 May 2015 under the DPA (attached at Schedule 1.6. is a proof document that establishes these facts). And what I have been put through in this case, including, inter alia, having to file a reply to a deceptive and misleading defence, to win a preliminary hearing for the simple deletion of two action notes, is no more than the said modus operandi having been taken to new levels by St Mungo’s.

27. This risk of another breach is in of itself a cause of much distress because my wife and I are obliged to engage with St Mungo’s TST. I therefore request compensation that would minimise, as much as possible, the risk of another breach occurring. There is no guarantee that the next time St Mungo’s would breach the DPA that I would be granted a preliminary hearing. It is reasonable to believe that St Mungo’s, having stated in the cover letter to its Defence that “Mr Heavey’s claims are groundless and completely without merit”, would not have deleted the two action notes had there not been a preliminary hearing on 11 October 2016, with the said eviction consequences.

28. As a bench mark for compensation, I would draw the Court’s attention to the £750 I was awarded for distress last year under Section 13(2) of the DPA (copy of the court order enclosed at Schedule 1.7. hereto). That claim against the Single Homeless Project involved far less uncertainty, vulnerability and distress, not to mention expense, in respect of the breaches under the DPA. There was also no risk of another breach because the Single Homeless Project was challenged as the referral agent, not as my support provider.

Appeal

29. If unsuccessful I respectfully request leave to appeal.

Declan Heavey

Statement of Truth I believe that the facts stated in this witness statement are true.

Signed:

Name: Declan Heavey

Dated: 14 November 2016 Page 5 of 5