Members of a national home education network have issued a warning to Bradford Metropolitan District Council that current procedures and proposed policy changes outlined in a report by its deputy children’s services director “may not be in accordance with the law”.
At a meeting of the council’s Children’s Services Overview and Scrutiny Committee yesterday (12 October 2016), Gill Kilner, representing Action for Home Education (AHEd), raised a number of legal questions relating to the report, which were dismissed as “muddying the waters” and went unanswered.
Immediately after the meeting, at which the deputy director’s recommendations were approved with minor amendments, parent campaigners pledged to demand “proper scrutiny” by elected members of “legally unsafe” policies and procedures which directly affect their children’s interests.
Citing a Supreme Court ruling which found information-sharing provisions in Scottish legislation to breach children’s and families’ human rights, Ms Kilner insisted that proposals by the council to obtain child benefit records to “hunt down” unregistered home educated children risked violating strict rules on data protection.
She said that blanket data sharing arrangements with HMRC, as described in the report to councillors, were neither necessary nor proportionate to the stated aim of tracing children missing education (CME).
Guidance published last month confirmed that the government’s CME policy does not relate to children who are electively home educated by their parents, but to those vulnerable children who are neither registered at school nor receiving ‘education otherwise’.
In a briefing paper circulated to committee members in advance of the meeting, AHEd also criticised a move already in progress to introduce a procedural delay to the de-registration of children from school in contravention of overarching statutory requirements.
The Education (Pupil Registration) (England) Regulations 2006 mandate the immediate removal of a pupil’s name from the school roll upon written notification by the parent, after which the head teacher must send formal notification to the local authority. The introduction of a 20-day delay, as is proposed in Bradford, would leave head teachers liable to be fined, AHEd has claimed.
Speaking after the council meeting, Ms Kilner said:
“It is wrong to conflate elective home education with children missing education, and we believe using child benefit records to track and trace children educated otherwise than at school is a breach of human rights and data protection legislation.
“Home educated children and their families have the right to go about their lawful business without being targeted by over-zealous officials who misunderstand the law.
“There was no mention in the report to councillors of any consultation with stakeholders and data subjects on the sharing of their personal records, never mind any legal impact assessment of these proposals in the light of the recent Supreme Court judgment which set strict parameters for information sharing.”
AHEd’s briefing paper advised councillors:
“Any processing of personal data (collection as well as sharing) below the Children Act Section 47 threshold without consent is unlawful unless it meets the human rights necessity and proportionality tests.
“To comply with the Data Protection Act and the Human Rights Act the information sharing must be a) with consent; and b) necessary, but the data sharing proposed […] meets neither criteria.”
Current home education liaison practice in Bradford was also said to breach the Elective Home Education Guidelines for Local Authorities and Section 437 of the Education Act by “seeking extensive information about a child’s provision before any concerns have been reported that it may be deficient.”
Under the 1996 Education Act, parents have the duty to ensure their children are suitably educated during the compulsory years. Parents have the choice of fulfilling that responsibility by ensuring their children’s regular attendance at school, or otherwise, which includes elective home education.
Commenting on the Bradford proposals, data protection expert Tim Turner said:
“The Supreme Court ruled that a clear data protection condition is required with reference to the Data Protection Act, and that human rights proportionality cannot be wished away just because you think you’re doing the right thing for children.”
“Bradford Council have to be able to show how they can justify the disclosure from and to HMRC and DWP. If a ‘legal obligation’ is claimed, they need to be able to say which one, i.e. which act, which regulations, which section precisely.
“They have to be able to show that the disclosure is proportionate and should have done a human rights proportionality assessment. They should also directly inform parents of any data sharing agreements, including evidence of the data protection conditions they think they have met.”
According to the landmark Supreme Court ruling handed down on 28 July, the mere passing of an ‘enabling’ Act to permit blanket information-sharing would constitute a breach of family privacy if it failed to meet the relevant tests, leaving the Scottish Government with no option but to cease implementation of central provisions of its flagship Children and Young People Act.
Deputy First Minister John Swinney has promised new legislation, which must not only be passed by the Scottish Parliament but must also satisfy the court as to its compliance with human rights and data protection laws.
Several legal cases are said to be in progress in Scotland following alleged illegal data sharing by councils and other bodies acting on policy guidance which facilitated non-consensual data processing at a much lower threshold than protecting children’s vital interests.
AHEd said it had discussed its concerns with members of the NO2NP campaign which spearheaded the successful Supreme Court action.