Commentary
Section 1: Disclosure of information
10.Subsection (1) provides legal authority for the Secretary of State and DSDNI to supply social security information to relevant persons for use in connection with switchover help functions. It gives a power to supply such information on request, but not a duty to do so: in other words, the final decision on whether information is supplied in a particular instance will lie with the Secretary of State (or DSDNI, as the case may be). Subsection (2) makes similar provision to allow the Secretary of State to supply war pensions information.
11.In practice, the Secretary of State concerned in subsection (1) is the Secretary of State for Work and Pensions, and in subsection (2) it is the Secretary of State for Defence. All war pensions are administered by the Service Personnel and Veterans Agency (which is part of the Ministry of Defence) for the whole of the UK. “Social security information” and “war pensions information” are defined in section 2.
12.Subsection (3) makes comparable provision in relation to information (“visual impairment information”) held on registers of people who are blind or partially sighted. Such registers are maintained by local authorities with social services functions in England, Wales and Scotland (see section 5(1) for a definition of “local authority”) and by Health and Social Services Boards in Northern Ireland. “Visual impairment information” is defined in section 2.
13.The information may be supplied to “relevant persons” as defined in subsection (4). Any “switchover help scheme” (as defined in section 5) will be under the overall management of the BBC or a company controlled by the BBC or the Crown (or the BBC and the Crown together): the final structure has not yet been determined but the BBC has indicated that it will operate the scheme through a wholly-owned subsidiary company established for the purpose. In practice, much of the administration of the Scheme (e.g. contacting potential applicants, determining entitlements, and delivering equipment and help with installations) will be contracted out to private sector organisations.
14.In principle, “relevant persons” can exchange information between themselves: this is envisaged by subsections (1), (2) and (3) (as indicated by the phrase “for use (by the person to whom it is supplied or by another relevant person)”). For example, a contractor might be made responsible for mailing information to potential applicants. They will need social security, war pensions and visual impairment information in order to identify and contact the people concerned. The Act permits information to be supplied directly to the contractor, or indirectly, via a company that is also a “relevant person”, such as a subsidiary of the BBC or a company owned by the Crown and the BBC.
15.All exchanges of information permitted by the Act are, however, controlled by—
the terms of section 3, which creates offences of disclosure without lawful authority (see below);
the Data Protection Act 1998;
other aspects of the general law, such as any obligation of confidentiality owed to the subject of the information or the body that supplied it; and
the terms of any contract between the companies concerned.
16.“Switchover help functions” are defined in subsection (5) as follows—
the identification of people who may be eligible for switchover help;
making contact with such people with a view to providing help (e.g. writing a letter to them explaining the help available and inviting them to contact the Scheme and ask for help);
establishing whether or not an applicant is eligible for help.
Section 2: Kinds of information referred to in section 1
17.This section defines key expressions used in section 1: “social security information” “war pensions information” and “visual impairment information”. It provides power for the Secretary of State to specify, by order, the precise kinds of social security, war pensions and visual impairment information that can be supplied under section 1. Such orders will be made by the Secretary of State for Culture, Media and Sport.
18.Those expressions are defined as follows—
“Social security information” is information of a description specified by order which is held by (or on behalf of) the Secretary of State or DSDNI and obtained as a result of, or for the purposes of, the exercise of functions in relation to social security.
“War pensions information” is information of a description specified by order which is held by (or on behalf of) the Secretary of State and obtained as a result of, or for the purposes of, the exercise of functions in relation to war pensions (see below).
“Visual impairment information” is information of a description specified by order about persons who are blind or partially sighted contained in a register maintained—
in England or Wales or Scotland, by or on behalf of a local authority (as defined in section 5(1)), or
in Northern Ireland, by or on behalf of a Health and Social Services Board.
19.“Social security” would, as in other statutes, encompass a range of benefits including state retirement pensions, income support, pension credit, income-based jobseeker’s allowance, disability living allowance and attendance allowance. Child support is not included.
20.“War pension” refers to a pension or other benefit for or in respect of a person who has died or been disabled in consequence of service as a member of the armed forces, and certain other pensions and benefits. See the definition given in section 25 of the Social Security Act 1989, which applies in the Act by virtue of section 2(3).
21.Thus, this Act does not permit the supply of all social security, war pensions or visual impairment information, but only of those descriptions of such information as have been prescribed by order under subsection (2), (3) or (4).It is envisaged that this may include—
their name, and any alias by which they may be known, address and date of birth;
their National Insurance number;
whether they live in a residential care or nursing home (so helping to ensure that the right kinds of help are available in residential care and nursing home settings);
details of any person appointed to act on their behalf (to allow such people to be contacted to alert them to the availability of help);
whether they are entitled to help free of charge;
in the case of visual impairment information, preferred means of communication - for example by large print, braille, or tape;
the fact that they have died, where that is the case.
22.Orders are to be made by statutory instrument and will be subject to the negative resolution procedure, that is to say, they can be annulled by a resolution passed in either House of Parliament: see subsections (5) and (6).
Section 3: Offences
23.In order to protect information supplied under the Act against further disclosure, section 3 makes it an offence for certain persons to disclose such information without “lawful authority” as defined in subsection (6). The penalties available on conviction (see subsection (7)) are the same as those for comparable offences under section 123 of the Social Security Administration Act 1992. The offence may be committed either−
under subsection (1), by a relevant person (as defined in section 1(4)) who has received information under section 1 directly from the Secretary of State, DSDNI, a local authority or a Health and Social Services Board, or indirectly from another relevant person (see paragraph 15 above for an illustration); or
under subsection (2), by a person who is or has been employed by a relevant person, or engaged (e.g. as a consultant, rather than an “employee” in the strict legal sense) to carry out a switchover help function, or to provide services or carry out a function connected with carrying out a switchover help function.
24.It is not an offence to disclose information in summary form, such as a statistical analysis, such that no information relating to a particular person can be ascertained from it (subsection (4)(a)), or to disclose it (subsection (4)(b)) in circumstances where the information in question has already been made public with lawful authority.
25.Also, the person charged has a defence if he can prove that, even though in fact the disclosure was made without lawful authority or was a disclosure of information that had not previously been made public with such authority, he believed that one or other of those conditions was met, and had no reason to believe that they were not met: subsection (5). In principle, this reverses the burden of proof in this respect. In criminal matters it is usually up to the prosecution to prove the case beyond all reasonable doubt, but here the defendant must prove the matters that go to make up the defence. The standard of proof is the balance of probabilities.
26.The meaning of “lawful authority” is given in subsection (6). A disclosure is made “with lawful authority” if (but only if) it is made—
for the purpose of carrying out a switchover help function (as defined in section 1(5)) or for doing anything connected with the carrying out of such a function;
in accordance with any enactment or a court order;
for the purposes of court proceedings;
with the consent of the person to whom the information relates or a person authorised to act on his or her behalf.
27.Subsection (7) provides that any person found guilty of an offence under this provision is liable−
on conviction in the Crown Court, to imprisonment for a term not exceeding two years or an unlimited fine or both;
on conviction in a magistrates’ court, to imprisonment for a term not exceeding twelve months or a fine not exceeding the “statutory maximum” (currently £5000) or both.
28.Subsection (8) is a transitional provision in England and Wales and Scotland, but has indefinite effect in Northern Ireland. Where an offence is committed before the coming into force (in England and Wales) of section 154 of the Criminal Justice Act 2003 or is committed in Northern Ireland, or a prosecution takes place (in Scotland) before the commencement of section 35(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, subsection (7)(b) has effect as if it provided for a maximum term of imprisonment not exceeding six months.
Section 4
29.The offences of unlawful disclosure created by section 3 can in principle be committed by a “body corporate” (e.g. a company, or the BBC, which is a corporation by virtue of its Royal Charter). For example, company literature might reveal such information. By virtue of section 4(1), where such a body commits an offence under section 3, an officer of that body can personally be convicted of a criminal offence alongside the company, if it is shown that the body committed the offence with the consent or connivance of the officer, or that the commission of the offence was attributable to any neglect on his part. Thus, if an officer, for example, neglects to make sure that staff are aware of the need to maintain the confidentiality of social security information, or neglects to take steps to control movements of information, with the result that there is a release of such information, he may face prosecution. An individual convicted under this provision is liable to the same punishments as are set out in section 3(7).
30.The aim of subsections (2) and (3) is to ensure that this provision is apt to apply to many forms of corporate organisation. In particular, subsection (3) gives a broad definition of an “officer”, which means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body. It also encompasses a person purporting to act in any such capacity, so a person who (for example) in fact gives orders in a company and is part of its management team might not escape liability by simply saying that technically (e.g. because of the terms of his job description) he does not fall into one of the categories of person mentioned.
