Scrutinising the Scrutiny Committee: Bradford
Yesterday, myself and two friends attended a meeting of Bradford Metropolitan District Council's Children's Services Overview and Scrutiny Committee which I was allowed to address on the report about home education submitted by its Children's Services department.
I took with me some paper copies of the AHEd briefing paper which lists the legal problems with the content and handed them around at the meeting. Councillors in attendance had received this earlier by email too.
I quoted the commentary about this report from data protection expert Tim Turner:
"The Supreme Court [The Christian Institute and others v The Lord Advocate (Scotland), 28 July 2016] 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 are 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. There is 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. 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 conditions they think they have met."
- as well as answering questions about the law and practice of home education. Committee members were frustrated by the reactive position set out by Section 437 of the Education Act, so I explained the reasons for this in conjunction with Section 7 and the duty being on the parent to cause the child to receive the education and not on the local authority. Therefore, the parent has to decide the content based on her relationship with her child and so local authorities must only intervene if there are concerns.
The general sentiment expressed by members of the council and officers present was that this situation was regrettable. One member even later suggested "We should abandon" the "wooly worded' S437 and rely instead on Section 175 which, the meeting seemed to think, gave the local authority the duty to safeguard and promote the welfare of all children in the area including unregistered elective home educated ones. I disputed this interpretation but officers disagreed with my arguments and I was accused by one committee member of "muddying the waters" by my suggestions that the report should comply with the law.
Needless to say, officers and councillors cannot cherry pick the laws they like the best and ignore all others, much as some of these meeting attendees wished to do so. I think many of the problems faced by home educators in their interactions with local authorities are caused by this mistaken attitude to the law.
There was much talk of tracking and safeguarding responsibilities, "There is no legal definition of a suitable education, so how can we know what one is?" and "We don't know what we don't know."
I think some of this consternation may have come from the most recent edition of the Children Missing Education guidance which now stipulates that they should have "..robust policies and procedures in place to enable them to meet their duty in relation to these children, including ensuring that there are effective tracking and enquiry systems in place.." but it also stipulates, in line with the recent Supreme Court judgment in the case of The Christian Institute and others v The Lord Advocate (Scotland) that "Local authorities should not make blanket enquiries", which is exactly what the report in question seems to be describing in its second section 5.4, when it says:
"We do not have a data sharing agreed with DWP but it has now been agreed with HMRC that we can be involved in their second phases, which began in Sheffield. This means they will share details of families who are in recived of child benefit, allowing us to cross reference that data with the information we hold on CYP in the district. The pilot will run from Jan – June 2017 and is likely our intelligence will increase during that pilot."
Members of the meeting, councillors and officers alike, kept reassuring me that this report was "not about me". And yet, as I explained, if this kind of hunting down of lawful home educators goes ahead, my children's education provision will be negatively affected, because it will be a slippery downward slope from that point until we are back at the nightmarish situation recommended by Graham Badman which cannot happen while there are so many unknown elective home educators to provide support to those who are known.
But "It's just like having your bag checked at the airport," said one councillor. "It's not nice, but we have to put up with it so that everyone can be safe."
It's really NOT like having your bag checked at the airport.
I asked, if it's all about illegal schools as this local issue apparently was in the beginning, then why weren't the illegal schools more effectively policed under Section 98 of the Education and Skills Act? "We have no powers under that section," I was told. "The only department who could enforce that is planning and they have no right of access to a building.." But they do.
As in the case of the Serious Case Reviews, the laws are already in place for identified problems to be resolved, but they are not properly used because they are poorly known about, poorly understood or forgotten about and more laws are called for instead. I would contend that this is neither an effective nor an efficient way of delivering a service.
As my subsequent letter to the leader of the council explained, the scrutiny committee failed, in this case, to scrutinise.
Worryingly these points were not picked up by the scrutiny committee, one of whom accused me of "muddying the waters" by raising them. A friend who attended the meeting with me described the committee's processing of the report as "a head-nodding, rubber-stamping exercise" which I feel I should bring to your attention.
What was secured was an agreement to change the wording of the currently misleading information supplied by the local authority to parents on home education and for the new safeguarding hub/team to be noted as "ensuring the promoting and wellbeing of all children", rather than just those who are "not attending any registered provision".
These are small victories when the data protection concerns alone should have led to the report being withdrawn and rewritten, but my understanding is that this meeting was not our last chance to secure this outcome.
Engaging with local authorities in committee meetings is something I can recommend though, despite the challenges they can present. We were made to feel welcome and our views were heard. It is something I will be doing again and again, especially now that so many changes appear to be being pushed through at the local authority level instead of the national one. I think if more committees were scrutinised by the public on a regular basis, council meetings might become more dynamic and involve less 'head-nodding and rubber-stamping'. We are not powerless in the situation, our elected representatives are supposed to be answerable to us and the system of open meetings is designed specifically for this purpose.
I can see it becoming a national pursuit for home educators up and down the country, because I hear that similar data-sharing schemes are also either planned or already underway in the boroughs of Staffordshire, Sheffield, Haringey, Greenwich and Sunderland. HMRC is apparently "unsure about the legal position" of this data sharing, but doing it anyway. And yet according to the momentous victory secured by the Christian Institute and others in the Supreme Court this summer, blanket data sharing is quite definitely unlawful.