Decision
Mr Y and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-145548-V4K3M3
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URL: http://www.bailii.org/ie/cases/IEIC/2024/145548.html
Cite as: [2024] IEIC 145548
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Whether the Department was justified in refusing to grant an application made under section 9 of the FOI Act to amend records relating to an application for Carer's Allowance
3 September 2024
This case relates to an application for Carer's Allowance, and other associated benefits, with respect to the applicant's mother. The applicant in this case has submitted a separate appeal to this Office seeking records relating to him as held by the Department. A decision in this matter is also issuing by today's date.
As part of the applicant's separate request for records, the Department provided the applicant with a number of records relating to the application for Carer's Allowance. On 21 November 2023 the applicant wrote to the Department to indicate that 'false information' was contained in eleven of these records (numbered FOI-7, FOI-8, FOI-9, FOI-10, FOI-12, FOI-20, FOI-21, FOI-24, FOI-30, FOI-31 and FOI-41). The Department interpreted this as an application under section 9 of the FOI Act to amend records relating to the applicant on the basis that they were incomplete, incorrect or misleading.
On 15 December 2023 the Department refused the applicant's request. It said that the applicant had not, on balance, adequately demonstrated that the information contained in the relevant records was incomplete, incorrect or misleading.
On 19 December 2023 the applicant wrote to the Department reiterating his view that false information was contained in the relevant records. The applicant also stated that, contrary to information contained in FOI-8, 'I moved my mother never moved myself' out of the family home. It would appear that the Department interpreted this as an application for an
internal review of the original decision. On 11 January 2024 the internal reviewer affirmed the original decision.
On 19 January 2024 the applicant appealed the matter to this Office.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above and to the submissions made by both parties. I have also examined the records at issue and the additional records submitted by the applicant in support of his application. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in its decision to refuse to amend records relating to the relevant application for Carer's Allowance.
Section 9 provides a mechanism for the amendment of records held by FOI bodies which contain personal information relating to the applicant. It provides for the amendment of such records where the personal information in the record is incomplete, incorrect or misleading.
An applicant seeking to exercise the right of amendment under section 9 must show that the information which is the subject of the application is incomplete, incorrect or misleading. The information concerned must be personal information within the meaning of the FOI Act. The amendment of a record under section 9 may be made in the following ways: (a) by altering it (b) by adding a statement, or (c) by deleting the information.
The Act is silent on the question of where the onus of proof lies in section 9 cases. This Office considers that in the absence of any express statement in the Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading.
The Act is also silent as to the standard of proof which should apply in such cases. This Office takes the view that the standard of proof required in such cases is that of "the balance of probabilities". It follows, therefore, that an applicant seeking to exercise the right of amendment under section 9 must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading.
This Office does not consider its his role, arising from section 9, as being to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, we must have regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the FOI body, and make a decision on that basis. In requiring an applicant to provide evidence that the information in a record is actually incomplete, incorrect or misleading, this Office is not making any prior judgement as to the accuracy of a record. The fact that an applicant fails to provide sufficient evidence to enable the Commissioner to conclude that the information in a record is incomplete, incorrect or misleading will cause the records to remain undisturbed, but this does not carry any judgement on the part of this Office that the record is, in fact, complete, correct and not misleading.
Furthermore, this Office would not be justified in directing an FOI body to amend its records on the sole basis of contrary statements or opinions, however strongly held, by the person seeking the amendment. Thus, an applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.
It is not the role of this Office to investigate complaints about the manner in which records such as professional reports were created, or to consult with relevant experts in order to make findings on applications for the amendment of such records. The role of this Office does not extend to examining the professional judgment of a body or its staff in the creation of records. Neither is it our role to conduct a comprehensive enquiry as to the accuracy or completeness of records. Rather, as noted above, we must have regard to the evidence actually provided by the applicant, as well as to any rebutting evidence put forward by the FOI body, in order to make a decision on that basis.
Directing the amendment of information in a record held by an FOI body, as sought by the applicant, is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of an FOI body is not something to be decided upon lightly. This Office takes the view that amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts, or with the way the contents of a record explain subsequent actions and decisions of public bodies.
It is also important to note that, with certain limited exceptions, in cases where a section 9 application is refused, the FOI Act requires the FOI body to attach to the record concerned the application for amendment, a copy of the application or a note indicating that it has been made. This in itself is quite significant as it alerts all future users of the record that aspects of its contents are disputed by the applicant.
The records at issue
The records which the applicant has argued are incomplete, incorrect, or misleading comprise the following. FOI-7 comprises a letter from a social welfare inspector to the Carer's Allowance Section of the Department indicating that the applicant is now residing at different location. FOI-8 comprises a memorandum from the Carer's Allowance Section of the Department to the relevant Social Welfare office asking it to determine if the applicant was providing full-time care and attention to his mother. FO1-9 comprises a letter signed by the applicant wherein he said that he is applying for the Household Benefits Package as he is in receipt of Carer's Allowance with regard to his mother. FOI-10 comprises both an application for the Household Benefits Package dated 29 August 2020 and an application for Habitual Residence Condition dated 6 August 2020, both in the name of the applicant. FOI-12 comprises a copy of an New York State identity card in the name of the applicant. FOI-20 comprises a letter dated 6 August 2020 from the applicant in support of his application to satisfy the Habitual Residence Condition.
FOI-21 comprises two pages of a sample application form for the Habitual Residence Condition. FOI-24 comprises correspondence from the Carer's Allowance Section to the applicant seeking further information relating to the applicant's habitual residence in relation to the claim for Carer's Allowance. FOI-30 is a Means Reporting Form in the name of the applicant. While the form contains information relating to the applicant, the form is not signed by the applicant. Rather, a Social Welfare Inspector has annotated the form to say that due to the COVID-19 pandemic he was unable to obtain the requisite signature. However, the Inspector states 'I am satisfied information provided by Customer is truthful and complete'. The form is stamped with the date of 4 July 2020. FOI-31 comprises correspondence from the Social Welfare Inspector to the applicant dated 23 June 2020 seeking further information in relation to the application for Carer's Allowance. Finally, FOI-41 comprises correspondence from the Carer's Allowance Section of the Department to the Social Welfare Inspector dated 18 June 2020 relating to the application for Carer's Allowance and asking the latter to seeking further information in relation to the matter.
Is the information at issue 'personal information'?
For a potential right of amendment under section 9 to exist, the information concerned must be personal information within the meaning of the FOI Act. Personal information is defined in section 2 of the Act as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
Having examined the records at issue, it is not apparent to me how FOI-21 can be said to contain the personal information of the applicant, comprising as it does a standard blank sample application form for the Habitual Residence Condition as provided by the Department. I am therefore satisfied that FOI-21 does not contain any personal information that is amenable to amendment under section 9 and I do not need to consider it any further as part of my review.
Therefore, with regard to the remaining records at issue; namely, FOI-7, FOI-8, FOI-9, FOI-10, FOI-12, FOI-20, FOI-24, FOI-30, FOI-31 and FOI-41, I will proceed to examine whether the applicant has shown that his personal information as contained in these records is incomplete, incorrect or misleading.
Is the personal information incomplete, incorrect or misleading?
During the course of the review, the applicant was invited to make a submission in support of his argument that the records should be amended. He was also provided with an explanation of the role of this Office and its approach in relation to applications made under section 9 of the Act.
In response the applicant provided this Office with correspondence dated 26 June 2024 from his solicitor to the Office of the Ombudsman. While such submissions would appear to relate to a separate compliant to that Office, in the circumstances, I am satisfied that the applicant considers such correspondence to comprise his submissions to this Office for the purposes of this review and I will treat the arguments raised therein as reflective of the applicant's position vis-à-vis the records at issue in this case. However, I also note that this correspondence contains significant personal information in relation to the applicant's marriage, residence abroad and family members. Therefore, in certain circumstances, I do not consider it appropriate for me to detail in this decision the entirely of the information provided, however, I can say I have had regard to it.
The essence of the correspondence from the applicant's solicitor is that the initial application for Carer's Allowance, as well applications for other subsequent allowances, whilst made in the name of the applicant were in fact made by someone other than the applicant, purporting to be him. The applicant's solicitor said that the application for Carer's Allowance, contained at FOI-32 in the records released to the applicant as part of his separate request for records, was submitted in the applicant's name but not with his knowledge. This correspondence also refers to a letter from his estranged spouse appended to this application and I understand this corresponds with a letter to which I will refer to below as part of the 'Enclosures' documentation.
The applicant's solicitor further contends that the Means Reporting Form, which I consider to correspond to FOI-30 as described above, did not have any information filled out at paragraphs 17-19 of the form and referred to an interview with the carer, i.e. the applicant. However, the applicant's solicitor said no contact was made with the applicant by any member of the Department regarding this application.
The applicant's solicitor further contends that the letter dated 6 August 2020, which comprises an application to satisfy the Habitual Residence Condition contained in FOI-20, was not in fact written by the applicant and was written by an individual purporting to be him. The applicant's solicitor also refers to typed correspondence in the name of the applicant and I consider that these arguments relate to FOI-9. In a similar manner, the applicant's solicitor said that application for a Household Benefits Package dated 29 August 2020, contained at FOI-10, was made in his name by an individual other than him. In addition, the applicant's solicitor said that the email address contained in this application is incorrect as it differs from the applicant's email address by one digit.
The applicant's solicitor also refers to a letter sent by the Department to the applicant dated 28 June 2021 stating that a review should be carried out by the Department with respect to the level of care being provided to the applicant's mother. The applicant's solicitor said this correspondence was never received by the applicant. While the applicant's solicitor seems to state that a letter issued to the applicant on this date, given the date and subject matter as outlined, I am satisfied that this corresponds with FOI-8. However, contrary to the position as outlined by the applicant's solicitor, it would appear that this is not in fact a letter to the applicant but rather, as outlined above, a memorandum from the Carer's Allowance Section of the Department to the relevant Social Welfare office asking it to determine if the applicant was providing full-time care and attention to his mother.
The applicant's solicitor also said that the applicant disputes the contention in FOI-7 dated 17 December 2021 that he was no longer residing in the family home. The correspondence further said that around June 2021 the applicant and his mother moved to a neighbour's house on a temporary basis.
In addition, appended to the letter from the applicant's solicitor was a file of 45 pages of records entitled 'Enclosures'. These comprised, in the main, certain records which had previously been released to the applicant, in whole or in part, following the separate FOI request referred to above.
In addition, further additional correspondence was included in this dossier as follows:
● Correspondence from the Department dated 22 November 2023 to the applicant relating to a complaint made by the applicant in relation to the decision to award him Carer's Allowance with respect to his mother. The correspondence provides a detailed timeline of the matter. The correspondence states that an application for Carer's Allowance made in the applicant's name dated 18 June 2020 for which the first payment was received by the applicant in August 2020. The correspondence also states that the applicant contacted the Department on 12 July 2022 to indicate that he wished to cease his claim for Carer's Allowance.
● A letter from the applicant's spouse dated 26 June 2020 which I understand is the letter appended to the original application for Carer's Allowance (FOI-32) referred to above. While much of the letter contains sensitive personal information which I do not propose to detail here, I consider it relevant to note that the letter indicates that the applicant, having returned from New York, 'is home to stay indefinitely and care for his mother'.
● Correspondence from a private carer firm dated 18 April 2023 indicating that they provided three hours of additional support per week to the applicant's mother from August 2020 to October 2021. The correspondence indicated that the applicant's mother was residing at the property referred to in the application for Carer's Allowance and 'the Primary Carer's name documented on the file was [the applicant's spouse and the applicant].
● Correspondence from a firm of accountants stating that they represent the applicant and which provided certain information in relation to the applicant's financial affairs. The letter also contains the following reference: 'During 2020 and 2021 [the applicant] had to take responsibility as full-time carer for his mother'.
Finally, the applicant also provided the first page of a bank statement in his name from a bank account in a New York-based banking institution listing transactions from March to April 2020.
The Department maintains its position that the applicant has not provided sufficient information in support of his application. With regard to FOI-30, the Department further added that applicant's comments were provided to the Social Welfare Inspector who had been dealing with the case who indicated that on 23 June 2020 he wrote to the applicant requesting further information in relation to the application for Carer's Allowance. The Inspector further said that this correspondence was addressed solely to the applicant with a return envelope for this reply. The Inspector added that the information which he received in the return envelope formed the basis of his report.
The essence of the applicant's position is that a fraudulent application was made in his name for Carer's Allowance with respect to his mother. That said, it is important to note that whilst the letter from the applicant's solicitor makes significant reference to the application for Carer's Allowance, referred to as FOI-32 above, this is not amongst the records the applicant is seeking to amend. Therefore, with respect to these arguments, I consider it necessary to examine them only where they are relevant to the specific personal information relating to the applicant contained in FOI-7, FOI-8, FOI-9, FOI-10, FOI-12, FOI-20, FOI-24, FOI-30, FOI-31 and FOI-41.
FOI-7
I am satisfied that the specific information which the applicant is seeking to amend in this record is the reference in the correspondence dated 17 December 2021 to the applicant having moved his residence to a different location.
The correspondence from the applicant's solicitor would appear to argue that the applicant departed the family home 'in or about March 2022'. It would also appear to be the case that the applicant's solicitor considers that the correspondence from the private carer's firm supports this position in that it states that one of their carers provided three hours of weekly support to the applicant's mother in the family home until October 2021. However, beyond this the applicant has provided no further evidence to this Office.
As I have outlined above, this Office would not be justified in directing an FOI body to amend its records on the sole basis of contrary statements or opinions, however strongly held, by the person seeking the amendment, nor would an applicant's assertions along form sufficient evidence to warrant an amending, in the absence of supporting evidence.
Having considered the matter, I cannot see how the information provided by the private carer firm, of itself, means that the information dated 17 December 2021 relating to the timing of the departure of the applicant from the family home is incomplete, incorrect or misleading. While the applicant clearly disagrees with relevant reference in FOI-7, he has not shown on the balance of probabilities, that the information is incomplete, incorrect or misleading. I find, therefore, that the Department was justified in refusing to amend this record.
FOI-8
As set out above, the correspondence from the applicant's solicitor appears to have misunderstood the exact nature of this record and having reviewed it, I am satisfied that it constitutes a memorandum from the Department to the applicant's Social Welfare office asking it to determine if the applicant was providing full-time care and attention to this mother.
I have considered the entirety of the arguments made by the applicant to this Office. Having done so, I cannot see how any of them could support the proposition that the information in this record is incomplete, incorrect or misleading. In the circumstances, I do not consider that the applicant has demonstrated, on the balance of probabilities, that the record is incomplete, incorrect or misleading. Therefore, I find that the Department was justified in refusing to grant the applicant's section 9 application with respect to this record.
FO1-9
This record comprises typed correspondence dated 1 September 2020 in the name of the applicant which indicates that the applicant wishes to apply for the Household Benefits Package as he is in receipt of Carer's Allowance with regard to his mother.
As set out above, I am satisfied that the reference in the correspondence from the applicant's solicitor to a typed letter in the applicant's name around the time of the application for the Household Benefits Package in fact refers to this correspondence. The applicant's solicitor appears to argue that this correspondence, although purporting to be from the applicant, was in fact written by another individual. In addition, the applicant disputes the description in the letter of the specific care needs of his mother.
I accept that the applicant challenges the accuracy of this record, both with respect to the author of the record and the contents of the records such that they relate to the care requirements for this mother. However, neither the applicant nor his solicitor provided this Office with any evidence to support his argument that the information was incorrect or misleading and warranted amendment under section 9 of the Act. In the circumstances, I do not consider that the applicant has demonstrated, on the balance of probabilities, that the record is incomplete, incorrect or misleading. Therefore, I find that the Department was justified in refusing to grant the applicant's section 9 application with respect to this record.
FOI-10
This record contains both an application for the Household Benefits Package dated 29 August 2020 and an application for Habitual Residence Condition dated 6 August 2020, both in the name of the applicant.
The correspondence from the applicant's solicitor argues that the application for a Household Benefits Package was made in the applicant's name by an individual other than him. In addition, the applicant's solicitor said that the email address contained in this application is incorrect as it differs from the applicant's email address by one digit. However, it is important to note that while the applicant's solicitor has argued that a letter to support the application for Habitual Residence Condition (FOI-20) is incomplete, incorrect or misleading, the applicant's solicitor has made no specific arguments with respect to the application for Habitual Residence Condition itself.
Beyond mere assertion, neither, the applicant nor his solicitor has adduced any evidence to support his contention that an individual other than himself submitted the two applications. With regard to the email address contained on the application for the Household Benefits Package, beyond the applicant's comments, no evidence has been provided to support the applicant's position that the email address is incorrect or incomplete. In the circumstances, I am satisfied that that applicant has not shown on the balance of probabilities, that the information contained in FOI-10 is incomplete, incorrect or misleading. I find, therefore, that the Department was justified in refusing to amend this record.
FOI-12
As set out above, this record comprises a copy of an New York State identity card in the name of the applicant. Neither the applicant nor his solicitor have advanced any specific arguments to the effect that the information contained in this record is incomplete, incorrect or misleading and I find the Department was justified in refusing the request to amend this record.
FOI-20
As set out above, this record comprises a typed letter in the name of the applicant dated 6 August 2020 in support of an application to satisfy the Habitual Residence Condition. The letter outlined the personal background of the applicant and provides detail in relation to his departure from New York in March 2020.
The correspondence from the applicant's solicitor argued that this record was written by an individual other than the applicant. However, neither the applicant nor his solicitor has provided any evidence to support his contention. Having considered the submissions made, I do not consider that the applicant has demonstrated, on the balance of probabilities, that the disputed record is incomplete, incorrect or misleading. I find, therefore, that the Department was justified in refusing to amend this record.
FOI-24
This record comprises correspondence dated 4 August 2020 from the Carer's Allowance Section of the Department to the applicant seeking further information relating to the applicant's habitual residence in relation to the claim for Carer's Allowance.
Neither the applicant, nor his solicitor, have made specific arguments with respect to the information in this record. That said, I have considered the general arguments put forward by the applicant and his solicitor as set out above. Having done so, I cannot see how any of them could support the proposition that the information in this record is incomplete, incorrect or misleading. In the circumstances, I do not consider that the applicant has demonstrated, on the balance of probabilities, that the record is incomplete, incorrect or misleading. Therefore, I find that the Department was justified in refusing to grant the applicant's section 9 application with respect to this record.
FOI-30
FOI-30 comprises a Means Reporting Form in the name of the applicant. As described above, while the form contains information relating to the applicant, the form is not signed by the applicant. Rather, a Social Welfare Inspector has annotated the form to say that due to the COVID-19 pandemic he was unable to obtain the requisite signature. However, the Inspector states 'I am satisfied information provided by Customer is truthful and complete'.
The applicant's solicitor contends that contrary to references contained in paragraph 20 of the record to an interview with the applicant, no contact was made by officials of the Department with the applicant in relation to this application. In addition, as set out above, the applicant's solicitor has queried why paragraphs 17-19 of the form does not contain any information.
As indicated above, an applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence. Neither, the applicant nor his solicitor has adduced any evidence to support his contentions. In the circumstances, I am satisfied that that applicant has not shown on the balance of probabilities, that the information contained in FOI-30 is incomplete, incorrect or misleading. I find, therefore, that the Department was justified in refusing to amend this record.
FOI-31
This record comprises correspondence from the Social Welfare Inspector to the applicant dated 23 June 2020 seeking further information in relation to the application for Carer's Allowance.
Neither the applicant nor his solicitor have made any specific arguments to the effect that the information contained in this record is incomplete, incorrect or misleading. That said, I have considered the entirety of the arguments made by the applicant to this Office with regard to the application for Carer's Allowance. Having done so, I cannot see how any of them could support the proposition that the information in this record is incomplete, incorrect or misleading. In the circumstances, I do not consider that the applicant has demonstrated, on the balance of probabilities, that the record is incomplete, incorrect or misleading and I find the Department was justified in refusing the request to amend this record.
FOI-41
This record comprises correspondence from the Carer's Allowance Section of the Department to the Social Welfare Inspector dated 18 June 2020 relating to the application for Carer's Allowance and asking the latter to seeking further information in relation to the matter.
Neither the applicant nor his solicitor have advanced any specific arguments to the effect that the information contained in this record is incomplete, incorrect or misleading. That said, I have considered the entirety of the arguments made by the applicant and his solicitor. Having done so, I cannot see how any of them could support the proposition that the information in this record is incomplete, incorrect or misleading. In the circumstances, I do not consider that the applicant has demonstrated, on the balance of probabilities, that the record is incomplete, incorrect or misleading. Therefore, I find that the Department was justified in refusing to grant the applicant's section 9 application with respect to this record.
In sum, having carefully considered the applicant's submission and supporting documentation, I find that he has not provided additional information in support of the application for amendment. In the circumstances, I find that the applicant has not shown, on the balance of probabilities, that the information contained in the records at issue is incomplete, incorrect or misleading. Accordingly, I find that the Department was justified in refusing to amend the records in question.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to refuse the applicant's request to amend the records at issue in this case.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Mary Connery
Investigator