HM Revenue & Customs (HMRC) has recently changed their policy on the release of employment history details for a person who is Deceased.
HMRC will no longer disclose information it holds to a legal representative or the personal representative of the Deceased person without a Court Order. HMRC have advised that a request does not fall within the Data Protection Act 1998 as the Act only applies to personal information held about a living individual. The Association of Personal Injury Lawyers (APIL) has advised that this is an incorrect interpretation of the Data Protection Act as the right to privacy dies with the individual and any such rights are passed to the personal representative of the Deceased.
This change in policy has caused serious problems for Claimants and their solicitors. Prior to this change, it could take 6 months to obtain an employment history from HMRC, and these recent changes only create further delays. Furthermore, in cases such as asbestos related diseases, a Deceased person’s employment history is particularly important as a case is compiled from the information held relating to their national insurance contributions from 1961 onwards. The employment history will list all the employers of the Deceased and will allow the solicitor to establish when and where they worked, the extent of exposure, and identify the correct title of the potential Defendants. It provides the Claimant and the potential Defendants with proof of employment during the relevant period of alleged asbestos exposure. The problem faced by Claimants is that employment histories are required prior to issuing proceedings, and without confirmation of the correct Defendants, a Court Order may not be granted for the purposes of such proceedings.
This change has also caused serious problems for HM Coroners, who require sight of a Deceased person’s employment history when determining cause of death. Last week, HM Coroner for Liverpool, André Rebello, issued a notice under paragraph 1, schedule 5 of the Coroners and Justice Act 2009, requiring HMRC to produce a work history in connection with an inquest he has been conducting. However, a representative of HMRC failed to attend and give evidence. APIL have advised that the HMRC takes the view that this notice is not binding on it and it will only issue work histories with an order from the High Court. HMRC has also proceeded to issue judicial review proceedings against the Lord Chancellor, asking the Administrative Court to quash the schedule 5 notices.
There was no consultation prior to this policy change and HMRC has failed to fully explain why this policy change was implemented. What is most disappointing is that it flies in the face of the Government’s aim to speed up the claims process for asbestos related diseases and in particular, mesothelioma. At present, it will be necessary to make an application for a Court Order and endure the increased delay and expense, and await the outcome of any judicial review proceedings and discussions.