6 December 2006
Benefits and Work has discovered that the DWP has adopted a policy of allowing staff to record the telephone calls of ordinary claimants and representatives, not suspected of any wrongdoing, without informing them that they are doing so.
The practice is almost certainly unlawful and may leave departmental Chief Executives liable to criminal prosecution.
Using the Freedom of Information Act Benefits and Work has obtained a copy of a document circulated to DWP offices. The document 'Call Recording - compliance with Data Protection Act' informs staff that:
"One of DWP's responsibilities under the Data Protection Act (DPA) is the obligation to give adequate assurances to our customers that we will process the information we collect and hold about them fairly and lawfully, and will respect individuals' rights.
This requirement extends to the collecting and holding of information we might obtain by recording telephone calls: we are obliged to inform customers that we may record telephone calls, and the reasons why we might do so.
It is possible to do this by providing customers with a recorded or scripted message at the beginning of a telephone call, but Departmental policy - agreed with the Information Commissioner - is that we are not required to provide a telephony-based statement, and can instead rely on appropriate statements on leaflets, forms and the Internet.
We recognise that some parts of the Department already provide a statement about call recording on calls, and there is no reason to stop doing so: but the Information Commissioner has confirmed that the presence of appropriately worded statements on forms, leaflets and the Internet satisfies our Fair Processing obligations in this regard, and Departmental policy reflects this view."
Next year the DWP will be switching entirely to VoIP calls - all calls will be made and received over the internet via computer software. This will give the option for every single call to and from a DWP office to be recorded without callers being informed.
We contacted the offices of the Information Commissioner and were told by a mildly outraged staff member that the document was 'misleading'. He pointed out that the Information Commissioner has no power to tell any organisation that they do not have to inform people their calls are being recorded. All the commissioner can do is affirm that if people have been informed in another way, such as by letter, that their call may be recorded, then it is not necessary for the DWP to also provide a warning at the start of calls. It is for the DWP, however, to ensure that they have taken sufficient steps to ensure that everyone who is being recorded has been so informed.
Amongst the people at risk of not being informed are:
- claimants with learning difficulties or any other disability which may have lead to poor literacy but does not prevent the claimant dealing with the DWP by phone;
- claimants for whom English is not their first language who rely on interpreters;
- claimants whose first contact with the DWP is by telephone;
- any non-claimant making a call on behalf of a friend or relative, for example, to inform the DWP that the claimant has been admitted to hospital: the non-claimant may never have seen or read any DWP literature;
- many ordinary claimants and representatives, unless the DWP can show that there are sufficiently prominent warnings on DWP literature warning that any call may be recorded - this author cannot recall ever having seen such a warning and could find no sign of one on the DWP or Jobcentre Plus websites.
As well as being a breach of the Data Protection Act, the failure to inform callers is potentially a breach of the Disability Discrimination Act where people have not been able to access DWP literature because of their disability. If the claimant cannot access DWP literature because of their ethnic origin then failure to inform them of the recording of their call this may be an offence under the Race Relations Act.
Most importantly, however, intercepting claimants calls and recording them without the other party's consent may be a criminal offence under the Part I ("Unlawful and Authorised Interception") of the Regulation of Investigatory Powers Act 2000. If the Chief Executives of Jobcentre Plus, the Pension Service, the Child Support Agency and the Disability and Carers Service are found to have negligently allowed the unlawful interception of claimants calls they could be personally criminally liable and face fines or imprisonment.
We have written to the Chief Executives of the agencies involved, putting them on notice that criminal offences may have been committed, or may be committed in the future, and asking for their response. If evidence emerges that offences have indeed been committed we will have no hesitation in pressing for charges to be brought against those responsible.