By Alison Preuss, re-blogged from Leahurst66
I am a fan of timelines, as can be seen from my magnum opus GIRFEC and the Cult of SHANARRI – a chronology of significant events on the road to hellbeing and The (continuing) Chronicles of SHANARRI (2018 edition).
I find that setting out chronologies of communications with public servants can be a useful exercise, if only to illustrate the sheer frustration of seeking straight answers to straight questions while getting only evasive political spin or stony silence in return.
Reproduced below are my latest exchanges with the Scottish Government’s education directorate (or whatever it is now called) in relation to troubling behaviour by local authorities towards parents who have, entirely lawfully, decided to withdraw their children from council schools for home education. As a recent survey by the Scottish Home Education Forum showed, this is often the result of children’s additional support needs -including severe anxiety, chronic illness and disability – being unmet, or problems being exacerbated by schools.
Also included are communications with my constituency MSP, for reasons which will become apparent.
Names of individuals have been removed, and the same exchanges with civil servants would be obtainable, similarly redacted, under the FOI (Scotland) Act 2002, although this would not apply to all the emails to/from my MSP.
The ‘named person’ in the education directorate with responsibility for elective home education had previously been knowledgeable and helpful in clarifying understanding of the law and guidance on home education for parents who made direct enquiries by telephone or email. My own last contact was in February 2017, just prior to my writing this article highlighting one council’s ultra vires data sharing activities. [As an aside, this FOI request to the same council, from 28 May, remains long overdue.]
This latest saga started in the middle of May 2018, so let us begin …
I telephoned the assigned ‘named person’ at the Scottish Government’s education directorate to seek clarification on the parameters of statutory home education guidance in the light of increasingly serious complaints by parents about local councils’ misrepresentation of the law and non-consensual data processing activities. A new ‘named person’ had recently assumed the role within the directorate and felt unable to deal with specific queries, but requested that I send an email outlining the issues so that they could be discussed with the head of department and duly responded to.
First email sent to the ‘named person’:
Dear Named Person
Further to my telephone call on Monday, I would welcome clarification from the Scottish Government on aspects of the home education statutory guidance . I also wish to request a meeting with relevant personnel to discuss a number of concerns that have been raised by members of the Scottish Home Education Forum, which I co-ordinate, and other local networks.
As you know, all Holyrood legislation, policies and guidance must comply with overarching human rights and data protection legislation, and in circumstances where wording is insufficiently clear or open to interpretation, must be ‘read down’ to ensure such compliance. This includes the home education guidance.
Given that the provision of education in the compulsory years is a parental duty, the only reasonable grounds for withholding consent to remove a child from a council school roll are, rightly and non-controversially, set out in the guidance as being (a) current child protection registration or ongoing child protection investigation (which will already be known to the child’s school); and (b) parental failure to provide an adequate outline of proposed home education provision (which need not resemble school education or mirror the CfE).
Those who have parental responsibility for children need no permission to home educate per se, which appears to be widely misunderstood by local authorities and other agencies, many of whom also persist in citing the wrong date for commencement of compulsory education (which is the August following the fifth birthday).
There is also very little information for parents about home education on council websites, which the guidance requires, and what is published or relayed to those who enquire directly is often inaccurate. Language is generally sloppy, with ‘home-schooling’ (with no basis in Scots law of guidance) often being used instead of the correct terminology. I am sure you will agree that this is really not good enough.
Unfortunately, section 3.3. of the home education guidance has given rise to mission creep and the adoption of ultra vires policies and practices by a number of local authorities. Some have taken it upon themselves to re-interpret the national guidance and mis-apply it to mandate ‘background checks’ on all parents seeking consent to withdraw their children from council schools.
The mis-application derives from the following excerpt from the guidance for local authorities:
On receipt of a request from a parent, you should consider quickly whether there is any existing evidence, either in an authority’s own records or from other services or agencies, indicating that there may be good reason to refuse consent.
The following passage has also given rise to difficulties:
In a small minority of cases, where information has to be sought from various sources, it may not be possible for a decision to be issued within 6 weeks.
The ‘small minority of cases’ referred to here are in fact those children who are already subject to child protection registration or current referral on care and protection grounds. Information may not be routinely sought or shared with other agencies for the purely administrative purpose of removing a child’s name from the school roll, since such fishing expeditions represent an infringement of Article 8 of the ECHR and the Data Protection Act 1998. When the latter is superseded by GDPR on 25 May, individuals – especially children and young people – will be afforded greater protection from such misuse of their personal information.
A further issue has arisen from the suggestion that “the child should also be given the opportunity to express his or her views”, which has been misconstrued by some councils as a compulsion on children to give their views. This runs contrary to Article 12 of the UNCRC, as is confirmed on the Children’s Commissioner’s website, and children and young people may legitimately refuse to do so. Regardless of the child’s views, the final decision rests with their parents, who may choose to discharge their legal duty by sending them to a council school or by other means. Both choices have equal validity and status in law, but schooling requires proactive opt-in by parents.
Numerous examples have come to the attention of our forum where parents have been misled and obstructed by councils when exercising the right to educate by other means. Many have proceeded to obtain evidence via subject access requests of councils trawling all family members’ personal data without notification, let alone informed consent.
When challenged, it has been claimed that consent for the child’s withdrawal from school is conditional upon the education department gaining access to personal data held by other agencies, including sensitive health information, social work and police records. At the same time, councils have bizarrely claimed to be relying on consent as the basis for such data processing, which cannot therefore be valid when consent has not been freely given.
When asked to cite an alternative lawful basis, councils have been unable to offer any satisfactory response (or any response at all in the case of Dumfries and Galloway Council). There can be no lawful basis for the processing of personal information for the sole purpose of removing a child from a council school since the legal duty to educate lies with parents and the consent anomaly only applies to children who are being withdrawn to be home educated. Moving to a different area, transition between primary and secondary, school closures and withdrawal from independent schools have no such conditions attached and it is unacceptable that children should be held hostage by council officials acting beyond their powers.
It is especially concerning that some of our members, whose children are unable to attend school due to chronic illness, disabilities or unmet support needs, are having to rely on ‘reasonable excuse’, as set out in the 1980 Act, when a council unreasonably withholds consent for their formal withdrawal, and that several have been referred to the children’s reporter and been subject to social work investigations as a result.
I would be grateful for a response to the above concerns and confirmation that the home education guidance must be interpreted in accordance with human rights and data protection laws as I have outlined. I would also welcome a meeting to discuss these matters in more detail.
I look forward to your response.
on behalf of the Scottish Home Education Forum
First follow-up email:
Dear Named Person
I hope you have by now had an opportunity to discuss the issues I raised with colleagues.
Can I enquire as to when I might expect a response to my email?
Second follow-up email (I was keen):
Dear Named Person
Any progress on this yet?
I had meanwhile contacted my constituency MSP seeking support for the parliamentary petition I had recently raised with a colleague and took the opportunity to mention the lack of response to my correspondence since it was highly relevant to the petition.
I am contacting you as my constituency MSP to request your support for petition PE01692: Inquiry into the human rights impact of GIRFEC policy and data processing .
The petition is due to be lodged shortly and the SPICe briefing has now been published.
My co-petitioner and I believe an independent inquiry is necessary into the human rights impact of GIRFEC, in particular the non-consensual data processing threshold that was embedded unlawfully into public policy from 2013, without reference to parliament or any legal scrutiny.
Families we support are still being adversely affected by policies that have remained uncorrected since the 2016 Supreme Court judgment, and GDPR which has now come into force.
I have raised several issues with the education directorate in anticipation of giving evidence to the petitions committee later this month. However, having been asked to submit my request for specific clarifications in writing, which I did on 18 May, I am disappointed not to have received any response to my original email or subsequent reminders.
I am sure you will agree that an independent public inquiry would allow for all the evidence to be examined and would be a positive step towards rebuilding trust through transparency.
In the absence of any response to the email of 18 May, I again telephoned the Scottish Government, only to be informed that the ‘named person’ had ‘just left’ the office. I therefore ascertained the name of the head of department and forwarded my original email for her attention, along with this covering note:
Dear Head of Department
I have been unable to reach Named Person by telephone, so having ascertained that you are head of the relevant department, I am forwarding my original correspondence for your attention.
Since I am shortly due to give evidence to the Public Petitions Committee on behalf of the Scottish Home Education Forum, it would be useful to have a definitive response from the relevant government department in relation to the points raised.
I look forward to your response in early course.
Only to receive this automatic out-of-office response:
I work part time and am out of the office until Tuesday, 19 June and my emails will not be read until my return. If your email is urgent, please forward it to Named Person (email@example.com, 0131 244 XXXX). ”
Head of Department
You would be hard pressed to make this stuff up!
At least my constituency MSP (well, a member of her staff) responded to me:
Thank you for your email.
I am unable to commit any support for this petition until I have fully read all information on this matter.
You mention in your email that you sent an email on the 18th May requesting specific clarifications in writing.
Can you confirm if you have received a response to this yet and if not do you wish us to pursue this on your behalf?
I look forward to hearing from you.
Office Manager to MSP
Call me a desperate constituent, but I replied the same day, intimating that I would be giving oral evidence to the Public Petitions Committee the following week and reminding my MSP that her party had previously supported home education.
Thank you for your response via your case worker. I trust you will take some time to read the documentation submitted to the petitions committee in support of an independent public inquiry.
I have still had no response to my email enquiry of 18 May to the Scottish government education directorate, or indeed to any follow-up emails and phone calls, so I appreciate your offer to take the matter up on my behalf. It should, of course, not be necessary.
I have copied my correspondence below for your reference and will be referring to the lack of response during the committee session next Thursday.
You may be interested to know that home education has always been supported by the SNP and that Michael Russell was instrumental in ensuring appropriate guidance was put in place during his time as education minister.
I gave evidence with my co-petitioner Lesley Scott to members of the Public Petitions Committee at the Scottish Parliament.
Excerpts from the Official Report:
Alison Preuss mentioned an unanswered letter to the education directorate. I do not know whether there is anything that we can do to get the information that has been requested.
My constituency member of the Scottish Parliament has taken up the issue. She said that she would write to the directorate. I have not heard back yet.
We can flag that up in the correspondence. Not responding is different from responding in a way that the questioner does not like; it is frustrating in itself.
I went back to my MSP:
I indicated to the Public Petitions Committee yesterday that my constituency MSP had offered to pursue the lack of response from the education directorate to my correspondence of 18 May.
Can you or your case worker please confirm that this is indeed in progress?
I would also be interested to know whether or not you feel able to support the call for a public inquiry in the light of the evidence presented by my colleague and me.
All credit to my MSP, whose office got the ball rolling (while neatly side-stepping the question about support for the petition):
From: MSP <firstname.lastname@example.org>
To: Named Person <Named.Person@gov.scot>
Subject: FW: PE01692: Inquiry into the human rights impact of GIRFEC policy and data processing (Case Ref: ME1462)
Dear Named Person
I have been contacted by AP who contacted yourself as of the email below on the 18th May, she has informed us that she has yet to receive an response to this email [original communication attached] and I would be grateful if you could offer a timescale as to when she may receive a response.
I look forward to hearing from you.
Office Manager to MSP
Oh my! The very next day, I received from the mailbox of the original ‘named person’ this email from Named Person 2, copied to my MSP and herself (at her own email address):
My apologies for not responding to your request sooner. Unfortunately Named Person has been on sick leave for some time now, and this query had not been picked up by us in her absence.
I will now look into your request and will get back to you as soon as I can.
Named Person 2
School Funding, Infrastructure and Organisation Workforce, Infrastructure & Reform Division
PLEASE NOTE I DON’T WORK ON MONDAYS
So the original Named Person had allegedly been on sick leave ‘for some time’ (sensitive personal data, I’d have thought?), yet the last time I called on 15 June (a full month on from my initial telephone call during which I had also sent several follow-up emails), she was said to have been in her office that day and had just left the building. Unbeknown to my MSP (as I didn’t mention it), I had also emailed the original named person’s manager and got an auto-reply to say she (the manager) only worked part-time (Tuesday-Thursday) and would reply on her return, but to contact the (poor sick?) named person in the meantime if an urgent response was required. It had indeed become urgent by then, given the failures to acknowledge any of my communications, but there was still no response form the head of department on her return to the office.
Returning to the ongoing saga, later the same day (and no doubt only due to the MSP’s involvement in the matter), a second email was received from Named Person 2, this time just to me and whoever else might have been bcc’d in:
Thank you for your enquiry, and apologies again for the delay in responding to you
We want all children and young people to receive the support that they need to reach their full potential, and to learn in the environment which best suits their needs including home education. Home education is a parental choice, and is an equally valid choice alongside the option to send a child to school.
Scottish Ministers encourage local authorities and home educating parents to work together to develop trust, mutual respect and a positive relationship that functions in the best educational interests of the child. The current guidance, which you already referred to, sets out the legislative position and provides advice on the roles and responsibilities of local authorities and parents in relation to children who are home educated. It is however now more than 10 years old, and we are therefore planning to take forward a refresh of the statutory home education guidance in due course. The guidance will be updated to reflect recent changes to relevant policies, including GDPR and GIRFEC, as well as taking into account the views of stakeholders including home educators.
With regards to the cases you cite – whilst there is no statutory right to appeal, all decisions should be reviewed internally by local authorities on request. Local authorities should also provide parents with details about their complaints procedure. Decisions made by authorities under their statutory powers are also generally subject to external review by the Court of Session through the judicial review process. Some local authorities have mediation services and the existence of these should be made known to home educating families. Parents may also choose to pursue the matter with the Scottish Public Services Commissioner (Ombudsman).
Given your interest in this subject, we would like to add your contact details to the Consultee list to enable you to fully engage in the consultation exercise and offer your views which will be taken into consideration along with all other comments received. Would you be happy for us to do this?
I hope this is helpful.
Named Person 2
I immediately asked the audience (the Scottish Home Education Forum): “Does that answer our specific concerns and the request for a meeting in my email of 18 May?” “Not remotely”, they opined.
So I wrote back:
Dear Named Person 2
With respect, this does not address any of the specific points or questions I asked in my original email and reads like a press office / SpAd statement. I also note that you have not responded to my original email as the subject line relates to the communication forwarded by my MSP’s office.
In my original email of 18 May (following an earlier telephone conversation with Named Person) I specifically requested a meeting with relevant personnel to discuss data protection and human rights issues arising from the guidance, which have been raised by our forum members and remained unresolved due to misapplication of the law by councils and other agencies. Can I assume this request is being denied? It is not clear from your response as it has simply been ignored. If so, why, when I am aware of at least one meeting with Glasgow City Council, the minutes of which have proved impossible to locate? There would appear to be a deliberate policy of excluding home educators from discussion of policies that affect them and an inability to locate any notes of meetings or details of commissioned reports).
Any ‘refresh’ of statutory guidance will, of course, not be lawful unless it fully complies with Convention rights and GDPR, as well as reflecting the purpose, as debated in parliament, of section 14 of the 2000 Act from which it derives, i.e. the protection of families from councils’ unreasonable demands in relation to the withdrawal of children from state schools.
Drafting new guidance without the participation of home educators from the outset is unacceptable, since they should be involved long before any ‘consultation’, especially in the light of the current catastrophic degree of ignorance and incompetence on the part of some local authorities.
Your other suggestions are academic when such local authorities have no respect for the law and refuse to engage with complainants, even via their solicitors. It should surely also come as no surprise that most families do not have access to £15,000 for judicial review.
I can only assume from this frankly insulting response that the Scottish Government has no intention of supporting the human rights of home educating families in any meaningful way, since you have omitted to confirm, as I specifically asked, the necessity of ‘reading down’ of home education guidance to comply with Convention and GDPR rights (as definitively interpreted by the UK Supreme Court in 2016).
I will be replying separately to your earlier email, which intimated to my MSP that my previous communication had been inadvertently overlooked.
Meanwhile, please confirm the government’s response to my request for a meeting (yes or no will suffice) and that it has no substantive response to the detailed points on which I sought clarification to offer to families whose rights continue to be routinely infringed by local authorities, schools and other ‘services’.
And Named Person 2 replied (we were on a roll!), but still failed to answer any of my points:
I am sorry that you found my response less than helpful. I responded to the email from your MSP’s office, rather than the original one, as this was the first I became aware of your query. As I explained below, unfortunately Named Person has been on sick leave for some time and this meant that your query was left unanswered. My apologies for this oversight on our part.
The process of updating the guidance has not yet commenced, and of course we will be ensuring that any new guidance fully complies with any relevant legislation. We will be communicating with stakeholders, including home educators, during the refresh process and as I stated we would like to include the Scottish Home Education Forum in this process. This will be organised in due course, and if you would like us to include the Forum we would be very happy to do so.
Named Person 2
Me again (getting straight to the point(s)):
Dear Named Person 2
For the avoidance of doubt, I will ask (again):
- Is my request for a meeting with relevant departmental personnel being declined?; and
- Is there to be no substantive response to the specific points raised in my email of 18 May?
I realise from your departmental signature that this matter probably falls outwith your remit, but I would expect a full and frank response from the relevant head of department to detailed queries concerning statutory guidance published by the Scottish Government.
Since that flurry of ‘engagement’, no further response to my two questions, let alone the wider issues, has been forthcoming. The possibility of obtaining straight answers is once again looking as likely as John Swinney admitting he has been painted into a corner by the UK Supreme Court.
I have forwarded the email exchange of 4 July to my MSP asking her to pursue a substantive response to the serious questions raised on behalf of home educating families in Scotland, and advised her of the failure of the head of department to respond to my separate email of 15 June.
Further to our previous correspondence, I am now forwarding you the email exchanges I have had with Named Person 2 since the initial acknowledgement you were copied into (in the absence of Named Person with whom I had originally spoken).
You will need to read the emails from the bottom up in order to make sense of the sequence, but since the last flurry of ‘engagement’ on 4 July, there has been no further response to my two specific questions, let alone the wider issues involved.
I am therefore asking you to seek a more substantive response to the specific concerns I raised back in May and which have now apparently been dismissed in a completely cavalier fashion.
You will also be unaware (as I did not previously mention it) that Named Person’s head of department (whose contact details I ascertained from the CEU) also failed to respond to my email of 15 June, which I sent shortly after I had been notified that Named Person had left for the day. Perhaps that one was also ‘inadvertently’ missed?
I do not consider the responses I have received to date to have addressed any of the specific questions asked and I would therefore appreciate your support in pursuing the matter on my behalf.
I would also appreciate an indication as to whether or not you will offer your support for the joint parliamentary petition by the Scottish Home Education Forum and Tymes Trust, to which the directorate’s ongoing lack of response is, of course, highly relevant.
Meanwhile, in the interests of keeping members of our forum (and the public) fully informed of the chain of events to date, I have published a timeline on my blog, with personal details suitably redacted.
I look forward to your response.
There is surely little hope of ever ‘Getting It Right’ if ‘notes of concern’ from parents are ignored for weeks before being summarily dismissed by two Named Persons and a Lead Professional. ‘Getting Our Act Together’ (GOAT) would perhaps be a more appropriate acronym.
To be continued….