This is a second article written in response to the 2023 consultation on proposed revised guidance on elective home education in England. However it also has relevance for families in Wales, where the government published new guidance earlier this year including similar unjustifiable attempts to extend state supervision of HE children.
What’s been said?
In our previous Byte we highlighted the caveat “so far as it is possible to do so” from s436A of the Education Act 1996. This important limitation protects LAs from unreasonable expectations, whilst at the same time restraining what they are able to do. Despite English and Welsh guidance explaining the meaning of this phrase differently, our earlier article highlighted that both omit an important understanding in regard to this ‘warning.’ Put simply, it means that LAs are only able to do what it is lawful for them to do. This should go without saying, but life does not work like that. Basic truths like this have to be spelled out time and time again!
No piece of legislation stands alone, but is part of a complex legal system where state authority has been rightly restricted by other Acts of Parliament and international treaties. The previous article highlighted the Human Rights Act 1998 and the Data Protection Act 2018 as examples of domestic legislation which limit what LAs can do. It also pointed out the lack of clear guidance on data protection in both the draft English guidance for LAs and the Welsh guidance or in either jurisdiction’s accompanying documents for parents: English guidance and Welsh handbook.
It is astounding that both Education departments seem unable to fully inform children and parents about their rights to protect their personal data. It should also be noted that they are unable to give clear guidance to local authorities as to the lawful basis on which they are being asked to collect data. Reports from HE families on both sides of the border emphasise that the lack of such guidance is causing confusion in schools as well as LAs.
Whilst Human Rights are a complex matter and best left to lawyers, understanding data protection, though also complex, is something which every citizen should see as important. To help illustrate the need to keep well-informed about this area, what follows is a brief case study of the confusion which is growing in council offices in England.
Why does it matter?
This article is concerned with just one section, sub-titled “What authority does CBMDC have to collect and use this information?” This is a vital question because unless they have authority to collect data from home educators, they cannot legally do so without consent from the data subjects.
In the previous policy this section was quite brief:
We collect and use your personal information to carry out tasks in the public interest. If we need to collect special category (sensitive) personal information, we rely upon reasons of substantial public interest (equality of opportunity or treatment).
The authority has for some reason decided to expand this significantly. The revised version reads:
We collect and use your personal information to carry out tasks in the public interest and as a legal requirement.
1. Education Act 1996 s.7 and s.436A;
2. DofE Guidance “Elective Home Education” 2019
It is lawful for CBMDC to process (i.e. record and/or use) such information, on the basis that the processing would be necessary for the performance of a public task within the meaning of the UK GDPR and the Data Protection Act 2018; specifically, necessary for ‘the exercise of a function conferred on a person by an enactment or rule of law’.
If we need to collect special category (sensitive) personal information, we rely upon reasons of substantial public interest (equality of opportunity or treatment).
Because HE families are not as familiar as they could be with data protection laws (who has the time?), this expanded version may give them the impression that they have no choice but to provide their LA with whatever personal data they request. If that is your impression, please think again. Guidance should be provided to help LAs properly understand and apply legislation, not to provide them with additional authority to do something which isn’t laid out in an Act of Parliament.
It appears that their Data Protection Officer is relying in part on Article 6(1) UK GDPR and in particular subsection (e) which in part states (though please read it all):
1. Processing shall be lawful only if and to the extent that at least one of the following applies:
(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
Article 9(1) UK GDPR prohibits the processing of “special category data” other than in clearly defined circumstances. Whilst this type of data does not include basic information like name, address and date of birth, it does cover several aspects of the data LAs may require parents and children to provide. For example, “racial or ethnic origin, political opinions, religious or philosophical beliefs,.. health…” The exceptions are specified in part (2) where subsection (g) relating to “public interest” states:
processing is necessary for reasons of substantial public interest, on the basis of domestic law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject;
There are several safeguards here. The public interest must be substantial, proportionate, and the data processing body has to respect the subject’s right to data protection. In other words, this is not a free pass to collect any data which a LA wishes to harvest.
So what can they lawfully collect? This is limited by Article 6(3) which begins:
The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down by domestic law. [Emphasis added]
The rest of this section then specifies the conditions which may be laid out in legislation – we encourage you to read it.
In Bradford’s case, two sections of the Education Act, 7 & 436A, are cited as giving them authority to collect and hold data apparently without consent. Section 7 is well known to home educators because it confirms the responsibility of parents to ’cause’ their children to receive a suitable education. Section 436A is also very familiar to HE families (see previous article for the full text). Neither of these make any reference to collecting data on children who are receiving a suitable education otherwise than in school. It is worth repeating here what we emphasised in the previous Byte, that this section of the Act is limited to identifying those who are not in receipt of an education, not those who are. Therefore if LAs’ responsibility to collect data without consent is required by the above sections, then one would think that in order to meet Article 6(3), which data should be collected would be clearly spelled out in the Act, along with whose data can be collected and the ways in which it is permissible to process it.
Earlier this year we published “When ‘Consent’ isn’t ‘Consent'”. You might find it useful to read that article if you have not already done so. The aim of this present article is to bring to the attention of readers the point that the authority of LAs in both England and Wales to collect data on EHE children and parents without their informed consent is not as clear as LAs often insist.
The following points are offered as evidence for HE parents to reflect on as they consider whether or not there is a requirement to place their children on non-voluntary registers, as Bradford is suggesting:
- why was Section 48 in last year’s (now abandoned) Schools Bill required to set up registers?
- why in 4.9 of the draft guidance for LAs does the DfE recommend “operate a voluntary registration scheme for children in receipt of EHE” if legislation exists?
- why does the draft guidance put the onus on LAs to work out the lawful basis of data collection rather than spelling out what information they are authorised to collect and retain?
- similarly, why has the Welsh Government also failed to include such important information in its guidance for both LAs and parents?
- why has the Welsh Government thus far been unable to introduce compulsory registers for all children in Wales, even though it has been committed to doing so since 2019?
The team at the HE Byte have always thought that the present DfE guidance failed to address data protection as fully as it should, and this has not been rectified by this revision. If the Department is not challenged to do so this time round, HE children and parents will find themselves increasingly corralled by ill informed LA staff who think they can harvest any data they desire from their homes.
If you need to understand how intrusive the gathering of such information will be, please look at the Welsh Government documents released recently after multiple requests from home educators there. We will leave it to you to decide if they reveal highly intrusive objectives or if the intentions behind them are benign and seeking the best for all children.
If you need to understand better why it is important to stop this chaotic overreach being encouraged by state officials in both England and Wales, take in the words of one of Bradford’s own MPs Naz Shah> (Lab. Bradford West) during a Westminster Hall debate on HE in March [full transcript / video]:
“Every parent has a right to choose whether they send their child to school or home educate them, and that right should be respected. Although I recognise the need for change and reform, it is also important that local authorities have clear guidance on how to work with home-schooling families in a manner that supports the needs of children as well as the rights of parents to home school their children. Many constituents have come to see me about how local authorities have overreached and gone into people’s homes in a manner that is, as my constituents put it, akin to a police-style investigation. I have been told of one occasion on which inspectors came into a home, went around recording with a video recorder, and livestreamed it to somebody else back in the office. This is clearly invasive and conflicts with people’s rights to a private and family life.” [Emphasis added]
All parents need to consider carefully if they want to resist similar levels of overreach as exhibited here by Bradford’s employees or not. If the draft DfE guidance is not challenged robustly, then this LA’s “police-style investigations” are very likely to spread to every part of the country!
What can I do?
If you have not already done so, read the What can I do? section at the end of the previous Byte. This encourages you to familiarise yourself with the draft guidance between now and the holidays, and to keep up with the various articles which are being published about what is being proposed. It also provides an introduction on how you might respond once the holidays are over.
In regard to protecting your family’s data, you will find some helpful information in the “For the public” section of the Information Commissioner’s Office website. Ask yourself if the Welsh documents referenced above meet the required standards.
There are several relevant articles on this website too. These can be found by searching the data protection tag. Here are some you may like to start with:
- When ‘Consent’ isn’t ‘Consent’ – 12 Jun 23
- Protect Your Valuable Data – 24 Mar 23
- Counting Children – 26 May 22
- Proposals for Local Authority Registers Create Wider Concerns – 25 Feb 22
- Hungry for Your Children’s Data? – 10 Jan 20
The second of these highlights research which concludes that “policy developments and data linkage and analytics practices to inform services interventions are moving ahead of public knowledge and consent.” It calls on all citizens to equip themselves so that we are able to “to challenge these processes if we think they need challenging.” The research team produced this video to highlight the issues.
Finally, to keep informed over the coming weeks, bookmark our English Consultations page which will be updated regularly. You could also consider subscribing to our emails which are sent out when new Bytes are published, or follow us on Facebook.