ntl's reply to my stat notice - have they contradicted themselves?

[un1boy]

Hiya,

I sent Surly's Stat notice, to which NTL have replied basically saying that I have misinterpreted the Data Protection Act and that they have had simlar letters.

I'd like your views on the following information they wrote:

_______

Dear Un1boy,

I write in response to your Section 10 notice dated xxxx received by ntl xxx.

Whilst your notice is very comprehensive and clarifies very clearly what your requirements are, unfortunately it also interprets a number of the requirements of the Data Protection Act 1998 incorrectly. Interestingly, ntl has received other notices worded exactly the same as yours, which obviously also misinterpret the Act.

With regard to your allegation that ntl has unlawfully processed your data by breaching principles 2, 3, 4 and 5 of the Act, I can confirm that that is not actually the case, all processing has been conducted fully in compliance with the Act. Working through your notice I would like to offer the following comments.

The default recorded on your account shows a settlement date of xxxx and you allege that you actually settled your account in xxx . As you will recall, the outstanding amount that you owed ntl was passed to a debt collection agency and they collected the monies owed. Whilst you tried to make a payment in November, that payment bounced and your final payment was actually made on xxxxx. This was subsequently marked as satisfied on your credit file on the next download of data from Equifax.

With regard to your written permission being revoked upon termination of the contract, whilst that may be true for some clauses of the contract it does not necessarily apply to all clauses of the contract. In particular clause 8.2 of ntl’s terms and conditions state that:

8.2 We may search the files of credit reference agencies which may keep a record that search. Details of how you conduct your account may also be disclosed to such agencies.

Consequently, all ntl has done is disclose details of how you conducted your account as permitted by your contract and this is not limited by whether the contract is current or has been terminated.

This is further supported by clause 8.3 of ntl’s terms and conditions which state that:

8.3 By having ntl services installed in your home and/or by using them you are giving us your consent to the following:

i. whilst you are a customer and for as long as necessary for the specified purposes after you terminate your Services we may use your personal information…..

Consequently, contrary to what you state, ntl has processed your data fully in compliance with principle 2 as your data was obtained for a specified and lawful purpose and was subsequently processed in a manner that was compatible with that purpose.

Whilst you may not recall being served with a default notice, I can confirm that one was sent to you on xxx clearly detailing that you had breached the terms of your agreement with ntl and giving you 7 days notice to settle the outstanding amount or a default would be filed. Therefore as you did not settle your account the default was appropriate to file and consequently no breach of the Consumer Credit Act occurred in regard to the management of your account.

With regard to the time period that the Credit Reference Agencies retain data, this is a matter foir them to respond to. However, the Information Commissioner, the regulator for the Data Protection Act, has issued a guidance note entitled “Credit Explained” and within that note it states:

Your credit file may show the following:

· A live account. This may show on your credit reference file until the account is settled or closed. It may then show on your file for 6 years.

· A settled or closed account. This may show on your credit reference file for 6 years from the date it was closed.

· A defaulted account. This may show on your credit reference file for 6 years from the date of the default. A default normally occurs when the terms of a credit agreement have not been met and the account is 3-6 months in arrears. When the debt is repaid, the entry on your credit reference file should be marked as settled or satisfied.

Clearly the Information Commissioner is fully aware of the 6 year timeframe and if there was a problem in regard to compliance with the Data Protection Act, he would have taken action long before now. Consequently there is no issue in this regard.

With regard to your request for ntl to stop processing your data where the processing is causing or is likely to cause substantial damage or substantial distress, whilst you have correctly cited the wording from the Act, you have not provided any evidence to demonstrate how ntl’s processing has caused you personally substantial damage or distress. Clearly to invoke this right, evidence must be provided to support the allegation to enable a data controller to make a considered decision as to whether they need to act or not. From the contents of your letter, this evidence has not been provided so clearly ntl is unable to make an informed decision and can only assume that no damage or distress has actually been caused as no evidence has been provided to support the allegation.

However, with regard to exemptions to Section 10, as you correctly point out 10(2)(a) does give an exemption if the conditions in paragraph 1 to 4 of Schedule 2 are met. Whilst I note your contention that none of these paragraphs provide ntl with an exemption, I can confirm that they do in fact provide two exemptions;

· Paragraph 1 – the data subject has given their consent.

· Paragraph 2(a) – for the performance of a contract which the data subject is party to.

As detailed previously, your consent was not terminated upon cessation of the contract and ntl’s terms and conditions (performance of a contract) permitted ntl to file the default.

With regard to Section 35, this does not make it a criminal offence to disclose personal data without express written consent, in fact it actually permits disclosure under certain conditions. There is a criminal offence under the Data Protection Act for unlawful disclosure of personal data, however I will notgo into detail here as it is not for me to educate the author of this letter, which may have been yourself or a third party considering that identical letters have been received by ntl, regarding the finer details of the Act.

I will now detail ntl's actions in regard to your summary of requirements:

1) ntl will not cease to continue to store your data. ntl is entitled to retain such data for it's own business purposes and to fulfil certain legal obligations, for example to evidence its VAT returns.

2)Section 12 of the Act does not apply here, and as with Section 35 above, it is not for me to educate the author of this letter on the requirements of the Act.

3)In the interests of co-operation, ntl has agreed to remove the default from your credit file and I can confirm that your file is now marked as satisfied. No data will therefore now be disclosed to the credit bureaus. However, with regard to your request to not disclose your data to any third party, ntl can not fully honour this request. Should ntl be served with a lawful request for your data, e.g. from a law enforcement agency or Court, ntl will have no choice but to disclose your data, otherwise we will be subject to litigation for non compliance with such an order, something we are not prepared to do.

4)As detailed in 3 above, the default has been removed from your credit file and this has been marked as satisfied. In accordance with the terms of your contract, it was appropriate for ntl to disclose your data to the credit bureaus and therefore this data will remain on your credit file. However, as this now shows your account as satisfied, this will not have any adverse impact on your credit rating as as a result you will not suffer any substial damage or distress. Consequently, this action actually fulfils the requirements of your notice.

______

Am I tripping, or does 3 say that the data will be removed but 4 contradicts this and says it won't?

For a start, they haven't sent me a copy of the agreement, as per my CCA request nor did they send me any Default Notices (nor copies of them!). So I;m gonna send them n lba for that anyway, which should work!

Can anyone else confirm whehter I have interpretated the above correct?

I'm thinking of draftinga reply to this - or, should I wait and see their reply to my CCA request, seeingas they have sent me NOTHING in the 42 days allowed?

[un1boy]

This is what I've drafted up as a reply!

 

Thank you for your letter dated xxxx which was received xxxxx.

 

I would like to take this opportunity to point out that the burden of proof lies with ntl in response to my statutory notice of which you replied in 22 days. You have been unable to provide the true signed copy of the original agreement and you have also failed to provide a true signed copy of the alleged default notice. Therefore the terms that you allege I agreed to you have committed a criminal offence under the Consumer Credit Act.

 

You refer to sections 8.2 and 8.3 of ntl’s contract which I have reproduced for your convenience:

 

8.2 We may search the files of credit reference agencies which may keep a record that search. Details of how you conduct your account may also be disclosed to such agencies.

 

8.3 By having ntl services installed in your home and/or by using them you are giving us your consent to the following:

 

i. whilst you are a customer and for as long as necessary for the specified purposes after you terminate your Services we may use your personal information…..

 

As mentioned above, ntl have failed to provide a true, signed copy of the contract as requested in my letter dated . Non complaisance with that request alone is a criminal offence; I won’t go into detail about that here as it is being dealt with separately.

 

Consequently, contrary to what you state, ntl has not processed my data fully in compliance to any section of the Data Protection Act (Data Protection Act) as it has been obtained illegally, without my consent.

 

In terms of the account being settled, I repaid the full balance of the account in November 2005. The debt collection agency ‘lost’ my payment and it took them 6 weeks to clear the balance. Angela Hall was dealing with the situation. Therefore the account was settled in November 2005. Your comments, “you allege that you actually settled your account in November 2005” are both offensive and defamatory. I have raised the situation with the Debt Collection agency and ntl many times, but neither has acted upon it; I have evidence in the form of bank statements to prove that the balance was repaid on the date that I state. I require a written apology and for my records to be updated with ntl to reflect the true payment date.

 

With regard to the time period that the Credit Reference Agencies retain data, I have enclosed a copy of a letter sent by Experian regarding this for your reference. You also mention the Information Commissioner’s guidance note entitled “Credit Explained” and within that note it states:

 

Your credit file may show the following:

· A live account. This may show on your credit reference file until the account is settled or closed. It may then show on your file for 6 years.

· A settled or closed account. This may show on your credit reference file for 6 years from the date it was closed.

· A defaulted account. This may show on your credit reference file for 6 years from the date of the default. A default normally occurs when the terms of a credit agreement have not been met and the account is 3-6 months in arrears. When the debt is repaid, the entry on your credit reference file should be marked as settled or satisfied.

 

I would like to take this opportunity to highlight the fact that this is a guidance note and not a legal requirement. In a court of a law a Judge is obligated to act upon his interpretation of the law, not guidelines.

 

I would like to bring your attention to the following statement: “However, with regard to exemptions to Section 10, as you correctly point out 10(2)(a) does give an exemption if the conditions in paragraph 1 to 4 of Schedule 2 are met. Whilst I note your contention that none of these paragraphs provide ntl with an exemption, I can confirm that they do in fact provide two exemptions;

· Paragraph 1 – the data subject has given their consent.

· Paragraph 2(a) – for the performance of a contract which the data subject is party to.”

 

Consequently, for Paragraph 1 – as mentioned above, ntl has failed to provide evidence of my consent and for Paragraph 2(a) – I am not party to any contract as the original contract has not been provided and is therefore unenforceable.

 

I trust I have made the situation clear and I am prepared to give you 14 days in which for to instruct all third parties, not exhaustive of Experian, Equifax and MyCallCredit (if applicable) to remove my data from their systems and also remove all data ntl holds about me from their systems. If I have not had written confirmation of this in the time mentioned I will have no option but to issue a claim through the county courts for the removal of the data and also my costs.

_________

 

any feedback etc would be greatly appreciated!

[Tinkerbelle]

Ok. So what was your main aim when you began to take on NTL?

 

Was it to remove the default? They have done that so what is the problem here?

[un1boy]

Hi Tinks.

 

Yes, you're right, they have and that was my main aim. The issue here is that the DCA 'lost' my payment for ages so it should have been satisfied November 2005, not Feb 06 - I've told the DCA and NTL, neither have done anything about it.

 

The Account history shows about 6 months were the payments are classed as '4' in arrears and danger, which is incorrect as I NEVER missed a payment with the DCA - they were the ones who messed up my payments.

 

I preferrably want the whole entry removed, that way the "late payments" which weren't late won't show -that can effect your credit score too, can't it?

[Tinkerbelle]

If you have proof of when the payments were made send it to them and tell them that if they don't correct it in x days then you will take them to court.

 

There is no need to get all arsy about it.

 

**** them off and it's unlikely they will do anything. I know you're annoyed but sometimes it's best just to play it cool. Harder said then done I know - especially coming from someone who's tolerance level is pretty much zero.

[un1boy]

lol, yeah -I'm the same, zero tolerance.

 

Do you think my reply is arsey? Oh, so do you think I should just redraft it saying that I've got evedence and they need to update it?

[Tinkerbelle]

Yes your letter is arsey.

 

I have already suggested what you should do.

 

Regards.

[un1boy]

ok, well i'll redraft it and post it as soon as it's done - thanks for our help tinks!

[un1boy]

Well, firstly, NTL have failed to respond at all to my CCA request, nor to my LBA for it so I'm going to issue a claim though the courts.....can you check over my POC:

 

The claimant wrote to the Defendant on xxx enclosing a £1 postal order requesting a certified copy of the default notice issued on account ********* on xxxas well as a certified copy of the origional agreement. After subsequent attempts to obtain a copies, the Defendant has failed to supply them. It is the Claimant's contention that the Defendant is obligated to supply copies under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit).

It is also the Claimant's contention that at no time did the Claimant grant permission, either expressly or implied for the Defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract. The Claimant believes that the Defendant's perceived right to arbitrarily choose to extend the length of that contract without the Claimant's agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations 1999. The Defentant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity and it is therefore the Claimant's contention that the Defendant is in breach of both the contract itself and the Data Protection Act 1998, by the Defendant's continual disclosure of personal data.

________________________

Is this ok?

[file_wizzard]

Well, firstly, NTL have failed to respond at all to my CCA request, nor to my LBA for it so I'm going to issue a claim though the courts.....can you check over my POC:

 

The claimant wrote to the Defendant on xxx enclosing a £1 postal order requesting a certified copy of the default notice issued on account ********* on xxxas well as a certified copy of the origional agreement. After subsequent attempts to obtain a copies, the Defendant has failed to supply them. It is the Claimant's contention that the Defendant is obligated to supply copies under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit).

It is also the Claimant's contention that at no time did the Claimant grant permission, either expressly or implied for the Defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract. The Claimant believes that the Defendant's perceived right to arbitrarily choose to extend the length of that contract without the Claimant's agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations 1999. The Defentant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity and it is therefore the Claimant's contention that the Defendant is in breach of both the contract itself and the Data Protection Act 1998, by the Defendant's continual disclosure of personal data.

________________________

Is this ok?

You need to be careful if your are citing the lack of provision of a default notice as part cause.

 

Under the CCA S77 (1) & 78 (1) there is specific no requirement to provide a default notice the duties only extend to providing;

 

a) A copy of the signed credit agreement for the alleged account

b) A statement of account

c) The amount (if any) currently payable by the debtor to the creditor

 

If you wish to cite the requirement for compliance to a correctly issued default notice then this will be governed by a S.87 of the CCA

 

Also was this actually a CCA regulated agreement in the first place ?

[un1boy]

You need to be careful if your are citing the lack of provision of a default notice as part cause.

 

Under the CCA S77 (1) & 78 (1) there is specific no requirement to provide a default notice the duties only extend to providing;

 

a) A copy of the signed credit agreement for the alleged account

b) A statement of account

c) The amount (if any) currently payable by the debtor to the creditor

 

If you wish to cite the requirement for compliance to a correctly issued default notice then this will be governed by a S.86 of the CCA

 

Also was this actually a CCA regulated agreement in the first place ?

 

Thanks for this....the default has been sorted now, I just included it to show that they haven't produced it....

 

As for it being a CCA regulated agreement - I don't know, but they cashed the cheque!!!

[un1boy]

Also was this actually a CCA regulated agreement in the first place ?

 

They cashed the cheque whereas T-Mobile wrote back saying they weren't covered!!

[un1boy]

This is what I've drafted up as a reply!

 

Thank you for your letter dated xxxx which was received xxxxx.

 

I would like to take this opportunity to point out that the burden of proof lies with ntl in response to my statutory notice of which you replied in 22 days. You have been unable to provide the true signed copy of the original agreement and you have also failed to provide a true signed copy of the alleged default notice. Therefore the terms that you allege I agreed to you have committed a criminal offence under the Consumer Credit Act.

 

You refer to sections 8.2 and 8.3 of ntl’s contract which I have reproduced for your convenience:

 

8.2 We may search the files of credit reference agencies which may keep a record that search. Details of how you conduct your account may also be disclosed to such agencies.

 

8.3 By having ntl services installed in your home and/or by using them you are giving us your consent to the following:

 

i. whilst you are a customer and for as long as necessary for the specified purposes after you terminate your Services we may use your personal information…..

 

As mentioned above, ntl have failed to provide a true, signed copy of the contract as requested in my letter dated . Non complaisance with that request alone is a criminal offence; I won’t go into detail about that here as it is being dealt with separately.

 

Consequently, contrary to what you state, ntl has not processed my data fully in compliance to any section of the Data Protection Act (Data Protection Act) as it has been obtained illegally, without my consent.

 

In terms of the account being settled, I repaid the full balance of the account in November 2005. The debt collection agency ‘lost’ my payment and it took them 6 weeks to clear the balance. Angela Hall was dealing with the situation. Therefore the account was settled in November 2005. Your comments, “you allege that you actually settled your account in November 2005” are both offensive and defamatory. I have raised the situation with the Debt Collection agency and ntl many times, but neither has acted upon it; I have evidence in the form of bank statements to prove that the balance was repaid on the date that I state. I require a written apology and for my records to be updated with ntl to reflect the true payment date.

 

With regard to the time period that the Credit Reference Agencies retain data, I have enclosed a copy of a letter sent by Experian regarding this for your reference. You also mention the Information Commissioner’s guidance note entitled “Credit Explained” and within that note it states:

 

Your credit file may show the following:

· A live account. This may show on your credit reference file until the account is settled or closed. It may then show on your file for 6 years.

· A settled or closed account. This may show on your credit reference file for 6 years from the date it was closed.

· A defaulted account. This may show on your credit reference file for 6 years from the date of the default. A default normally occurs when the terms of a credit agreement have not been met and the account is 3-6 months in arrears. When the debt is repaid, the entry on your credit reference file should be marked as settled or satisfied.

 

I would like to take this opportunity to highlight the fact that this is a guidance note and not a legal requirement. In a court of a law a Judge is obligated to act upon his interpretation of the law, not guidelines.

 

 

I would like to bring your attention to the following statement: “However, with regard to exemptions to Section 10, as you correctly point out 10(2)(a) does give an exemption if the conditions in paragraph 1 to 4 of Schedule 2 are met. Whilst I note your contention that none of these paragraphs provide ntl with an exemption, I can confirm that they do in fact provide two exemptions;

· Paragraph 1 – the data subject has given their consent.

· Paragraph 2(a) – for the performance of a contract which the data subject is party to.”

 

Consequently, for Paragraph 1 – as mentioned above, ntl has failed to provide evidence of my consent and for Paragraph 2(a) – I am not party to any contract as the original contract has not been provided and is therefore unenforceable.

 

I trust I have made the situation clear and I am prepared to give you 14 days in which for to instruct all third parties, not exhaustive of Experian, Equifax and MyCallCredit (if applicable) to remove my data from their systems and also remove all data ntl holds about me from their systems. If I have not had written confirmation of this in the time mentioned I will have no option but to issue a claim through the county courts for the removal of the data and also my costs.

_________

 

any feedback etc would be greatly appreciated!

 

ok guys, I sent this letter to Ian Woodham at NTL and got an interesting reply. He even apologised for his comments about me not paying my account until Fed 2006!! hehe.....

 

I will try and post his letter, but I have to type it and my computer broke so will psot it when I can.

 

NTL ahve annoyed me though - just to let you know, he used the same arguments as T-Mobile now, which I am glad about because I have just issued an N1 to T-Mobile so I will see how that claim pans out before I go for NTL and the CRA's!

 

I will do though, so I'll keep yopu posted!

[un1boy]

Hi,

 

Now that NTL has turned into Virgin Media, can they continue to process defaults and old account infomation on credit files?

[ASIIndustries]

Yes, all NTL / Telewest have done was to re-brand the company name, it is the same old NTL / Telewest company the with the same old issues!

[un1boy]

Yes, all NTL / Telewest have done was to re-brand the company name, it is the same old NTL / Telewest company the with the same old [edit]!

 

Oh, that's interesting....I thought Virgin ahd bought the company rather tahn just rebranding?

[ASIIndustries]

(Virgin Media : Press Office : Our History)

 

It is all about the perception of the brand, my perception of the brand is as follows.

 

Company - Service - Billing - Support - Cost

NTL . . . . . . 2 . . . . . .1 . . . . 1 . . . . . 4

Telewest . .. 3 . . . . . .1 . . . . 3 . . . . . 3

Virgin . . . . . 3 . . . . . .4 . . . . 4 . . . . . 3

Virgin Media. 3 . . . . . .1 . . . . .2 . . . . . 2

 

1 = very bad

2 = bad

3 = average

4 = good

5 = very good