HMRC sharing child benefit data where children may be missing education

Where a local authority is carrying out an investigation under section 47 of the Children Act 1989, HMRC is able to share child benefit information.

Part 5 section 47 of the Children Act 1989 says                                                                                     (1)Where a local authority— …
(b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.”

HMRC says the matter of cause (i.e. decision on vulnerability/risk of harm) is out of the scope of HMRC’s functions, therefore the local authority is not required to demonstrate that to HMRC.

  1. Bradford says HMRC will provide Child Benefit data regarding children missing education.
  2. Sheffield asks HMRC for Child Benefit data when they don’t have a forwarding address for children who have left schools in the city.

These enquiries may relate to “the welfare of a child” in a broader sense, but I cannot see how they meet the threshold of  Part 5 section 47 of the Children Act 1989  where the LA have reasonable cause to suspect that a child … in their area is suffering, or is likely to suffer, significant harm 

I have explained in a previous blogpost how I started to look into this after seeing a briefing note from Bradford about getting child benefit data from HMRC.

Bradford told me via FOI

The council “will only receive data on children and families who are missing, and once CME [Children Missing Education] referrals have been received and local enquiries have been exhausted…

Information will only be requested if a CME referral is received and with all other agencies (eg health and schools) have been exhausted…

Under Section 436A of the Education and Inspections Act 1996 all local authorities have a statutory responsibility to “make arrangements to enable them to establish (so far as it is possible to do so) the identities of children residing in their area who are not receiving a suitable education. In relation to children, by ‘suitable education’ we mean efficient full-time education suitable to her/his age, ability and aptitude and to any special educational needs the child may have.”

We will be working to a Memorandum of Agreement with HMRC which will be in place prior to any data sharing. “

Sheffield told me  (via private FOI with permission to share):

“When families leave Sheffield from a Sheffield school and we don’t have a destination we send parents details to HMRC to try and establish their new address.”

HMRC told me via FOI

All the data that HMRC holds is subject to a statutory duty of  confidentiality, which prohibits its disclosure except where the law  provides otherwise.  Typically for sharing with other parts of Government  a specific legal provision is in place to authorise the disclosure  (subject to various safeguards).  In this particular instance the relevant  legal provision is [2]Paragraph 10A of Schedule 5 Tax Credits Act 2002.   This allows HMRC to share information it holds (for the purposes of its  functions relating to tax credits, child benefit or guardian’s allowance)  with a local authority in England and Wales for use for the purpose of any  enquiry or investigation under Part 5 of the Children Act 1989 relating to the welfare of a child.

Schedule 5 of the Tax Credits Act says
“10A(1)This paragraph applies to information, other than information relating to a person’s income, which is held for the purposes of functions relating to tax credits, child benefit or guardian’s allowance— …
(2)Information to which this paragraph applies may be supplied to—
(a)a local authority in England and Wales for use for the purpose of any enquiry or investigation under Part 5 of the Children Act 1989 relating to the welfare of a child”

Part 5 of the Children Act 1989 says                                                                                          (1)Where a local authority— …
(b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.”

I then asked HMRC

1/ Is there any burden of proof on the body which is asking for HMRC data?
2/ How would a local authority be required to demonstrate it has reasonable cause to suspect a child is likely to suffer significant harm?

HMRC told me

‘there is no burden of proof, as such, on a local authority in England and Wales in seeking HMRC data. Legislation provides that the local authority should conduct enquiries to ascertain appropriate information in conducting enquiries in respect of child welfare that includes visiting the last known address etc.

On making a request to HMRC, the local authority must confirm that they have undertaken and exhausted all appropriate avenues to identify the required information.

The matter of cause (i.e. decision on vulnerability/risk of harm) is out of the scope of HMRC’s functions, therefore the local authority is not required to demonstrate that to HMRC.

The authority is considered to be a trusted partner and as such accepts that should access to HMRC information be abused, there is potential for HMRC to invoke the criminal sanction for “wrongful disclosure” under section 19(1) of the Commissioners for Revenue and Customs Act 2005:
“(1) A person commits an offence if he contravenes section 18(1) or 20(9) by
disclosing revenue and customs information relating to a person whose identity –
(a) is specified in the disclosure, or (b) can be deduced from it.”’

(Reference: Commissioners for Revenue and Customs Act 2005                                       Wrongful Disclosure
http://www.legislation.gov.uk/ukpga/2005/11/section/19
Confidentiality
http://www.legislation.gov.uk/ukpga/2005/11/section/18
Public Interest Disclosure
http://www.legislation.gov.uk/ukpga/2005/11/section/20)

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3 thoughts on “HMRC sharing child benefit data where children may be missing education

  1. Pingback: HMRC Sharing Child Benefit Data With Councils | edyourself

    1. Fiona Nicholson Post author

      Interesting, thanks
      http://www.curia.europa.eu
      Press and Information
      Court of Justice of the European Union
      PRESS RELEASE No 110/15
      Luxembourg, 1 October 2015
      Judgment in Case C-201/14
      Smaranda Bara and Others v Președintele Casei Naționale de Asigurări de Sănătate and Others
      Persons whose personal data are subject to transfer and processing between two public administrative bodies must be informed in advance
      The Data Protection Directive1 governs processing of personal data when they are contained within a filing system.
      Ms Smaranda Bara and numerous other Romanian citizens are self-employed workers. The Romanian tax authority transferred data relating to their declared income to the National Health Insurance Fund, which then required the payment of arrears of contributions to the health insurance regime.
      The persons concerned (data subjects) contested, before the Curtea de Apel Cluj (Court of Appeal, Cluj, Romania), the lawfulness of that transfer under the Directive. They submit that their data were used for purposes other than those for which those data had initially been communicated to the tax authority, without their prior explicit consent and without their having previously been informed.
      Romanian law empowers public bodies to transfer personal data to the health insurance funds so that the latter may determine whether an individual qualifies as an insured person. The data concern the identification of persons (surname, first name, personal identity card number, address) but does not include data relating to income received.
      In those circumstances, the Court of Appeal, Cluj, asks the Court of Justice, in essence, whether EU law precludes a public administrative body from transferring personal data to another public administrative body for the purpose of their subsequent processing, without the data subjects being informed of that transfer and processing.
      In today’s judgment, the Court of Justice holds that the requirement of fair processing of personal data requires a public administrative body to inform the data subjects of the fact that their data will be transferred to another public administrative body for the purpose of their processing by the latter in its capacity as recipient of those data. The directive expressly requires that any restrictions on the requirement to provide information are imposed by legislative measures.
      The Romanian law that provides for the free transfer of personal data to the National Health Insurance Fund does not constitute prior information that would allow the data controller to dispense with his obligation to provide prior information to the persons from whom data are collected. That law does not define either the transferable data or the detailed arrangements for transferring those data, which are to be found only in a bilateral protocol agreed between the tax authority and the Health Insurance Fund.
      As regards the subsequent processing of the data transferred, the directive provides that a controller of data must inform the data subjects as to his own identity, the purpose of the processing, and any further information necessary to ensure the fair processing of the data. That
      1 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).
      http://www.curia.europa.eu
      further information includes the categories of data concerned and the existence of the right of access to and the right to rectify the data concerning him.
      The Court observes that the National Health Insurance Fund’s processing of data transferred by the tax authority required informing the data subjects of the purposes of that processing and the categories of data concerned. In this case, the Health Insurance Fund had not provided that information.
      The Court holds that EU law precludes the transfer and processing of personal data between two public administrative bodies without the persons concerned (data subjects) having been informed in advance.
      NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.
      Unofficial document for media use, not binding on the Court of Justice.
      The full text of the judgment is published on the CURIA website on the day of delivery.
      Press contact: Christopher Fretwell  (+352) 4303 3355

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