There is also the issue of whether or not to give named nominees a collection
notice as information on them has been obtained from a third party, the
member. Again, the trustees will not wish to breach confidentiality or to
give the nominee an expectation that he will receive death benefits.
The Commissioner recognises that this is a problematic area. I would suggest
that trustees should nevertheless be able to show that they have weighed up
the risks of disclosing or providing a notice against the risks of not doing
so. Also, if a subject access request is received, the trustees could contact
the member first to find out if there are any objections to disclosing before
deciding whether or not to go ahead with subject access. Similarly, the
trustees could, on the nomination forms, ask members to inform their nominees
that they have been so nominated and that consequently data will be held on
them by the trustees.
-----Original Message-----
From: [log in to unmask]
Sent: 09 August 2001 13:52
To: [log in to unmask]
Subject: Re: pensions
Interesting messages from Richard Burrow and Tim Wrighton expression of wish
forms.
My view is the same as Tim's: where these forms are in sealed envelopes
bearing only the member's name on the front (as opposed to details of the
nominated beneficiaries), then it is arguable that no relevant filing system
exists in relation to the beneficiaries.
However: (a) many forms are not kept in sealed envelopes (there is often a
desire to check that they have been properly completed, and (b) pension
scheme administrators are increasingly scanning and keeping forms
electronically. In these cases, it seems to me, it may be difficult to
resist disclosing an extract of a form if a beneficiary nominated in it
requests it under section 7.
I agree with Richard that this is - at best - potentially embarrassing. At
worst, it puts the trustees in an impossible position: do they comply with
the data protection legislation or respect the duty of confidentiality owed
to the member? Any thoughts anyone?
Even more potentially difficult is the situation where a male member
nominates another male individual, describing him as his "partner"? If this
is evidence of both parties' sexual life, how can the trustees comply with
the requirement to obtain the explicit consent of the nominee whilst, again,
not breaching the duty of confidentiality they owe to the member. I still
have not come up with a solution to this one - except to advise the trustees
to breach the Act. I am open to wise suggestions!
Francois Barker
Solicitor, Pensions Unit
Hammond Suddards Edge
Tel 0121 222 3000
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