The well-intentioned call from the NAHT for a new clause 82 to amend the Bill to allow local authorities to share welfare recipients’ sensitive, confidential data (from eligible parents) to auto-enroll children entitled to pupil premium (those eligible to receive free school meals) ignores nuanced discussion and decision-making already had on plans which had already been dropped from the open policy making process between 2014-16 in the Bill preparation.
Questions of practicality
The opt in model will move to an opt out model, and appears to intend to address consent and choice. However the wording will be unlikely to deliver this when applied as the mechanism is to be offered after the data sharing has already happened.
Providing simply “the means” in 82 (8) to opt out, does not create any requirement on local authorities and schools to ensure that both existing and future affected parents will know how to do so. Schools will not want to willingly.
There is no legal duty upon all datasharing parties to inform parents of the change in existing arrangements. Just the mechanism.
While the proposed amendments suggests that local education authorities must provide the means for a parent or guardian of:
a) opt out of the arrangements envisaged in sections 1 to 4
b) consider opting in to free school meals at the beginning of each academic year, having previously chosen to opt out.”
The key is timing. Only after the families’ data have been used and schools have been told who is eligible, would schools have a duty to offer parents a means of declining to take it up. Given that schools would not want to tell parents they can decline pupil premium entitlement for the school (by declining the FSM label for their child after the event), how likely is this to happen, and how does this preserve parents and child’s rights to privacy?
The final amendment proposal, 9) local education authorities and schools must take all reasonable steps to preserve the confidentiality and right to privacy of qualifying children and their parents, is fundamentally undermined by the clause itself. It denies the right to privacy by removing the requirement for informed processing, or choice, before information is shared
Any opt out on offer is only of value if it is meaningfully communicated and that there is a duty to do so. There is nuance in this debate already held, which now in the proposal is absent:
- a duty to communicate the opt out: this is only meaningful before the data are used in this way, but if not enshrined in the Bill, the duty to provide the means alone to do so afterwards, is rather worthless.
- respecting parental rights and result of their decision: how will HMRC, DWP and school systems ensure they label no one for pupil premium, who has exercised this right, after they decline the conflated FSM status
- ensuring child/parent relationships are respected: Parents may wish to ensure their children are not aware of a change in family circumstances. How will the child’s FSM status be communicated and consistently ensure there is no accidental sharing or creating stigma? When and how will the child’s best interest overrule this?
- lack of clear method of knowing how decisions are reached or whether they are accurate: for example, for families excluded from its process. Would there be a process for schools to know why those who thought themselves eligible have not been flagged, and will those audits be made available and transparent to parents?
- Copying and sending identifiable data about named individuals between organisations is fundamentally an old fashioned response to current and future-looking data needs.
How will this be done? Will LAs link the data with commercial classifications as some do now, such as ACORN or MOSAIC used by some local authorities? How would the data be sourced: every new term, every new school year? How is it costed?
Cost implications for schools
Only last month, this paper from Bournemouth borough council shows its thinking for a feasibility study, and states it has no budget to implement such a change.
“Automatic enrolment for FSM will require a module upgrade to our current R&B Information Management System. This will come with a cost of £14,000 plus %20 annual maintenance costs. The local authority has no funding for this, nor for the additional administrative staffing that would be required.” [sic]
Rushing this through without adequate time for scrutiny and public discussion of practical impact, skips over discussion and reasons for it to have been decided against in the Bill making process 2014-16 in the first place.
Under current budgets, it is entirely understandable that schools are desperate to receive any non-ringfenced funding they can, to continue activities that would not otherwise happen. [Sutton Trust, 2015] It is absolutely right that the child’s best interests must come first. However all parents’ and all pupils’ privacy and their entitlement to autonomy over who knows what about their circumstances, no matter how temporary, will be removed. It has implications for relationships between school and home. Some parents “are too proud” or perhaps rather better put would be, they or their children feel stigmatised, sharing these data with school. They don’t want school staff to know. This proposal offers no solution to that. Parents and pupils simply lose their right to decide.
This is the wrong technical solution and principle for what is essentially an issue of ensuring adequate funding. Not least because this change will cost money.
We suggest it is inappropriate to create legislation which opens up sensitive and confidential data from families forever, without known and costed benefit, and without assessment of proportionality, risks and adequate, meaningful safeguards.
Unfortunately, it is not appropriate to be added at the eleventh hour and it is no simple amendment.
The Digital Economy Bill is based fundamentally on the wrong technical solution of increasing the volume of copying and sending of sensitive data about individuals between organisations, public and private, and is unnecessary to deliver in this case the principle of ensuring adequate funding for all children’s needs in areas of deprivation.
The premium is paid to schools, allocated using data from families on a named-basis, who have met a range of criteria at any time over the previous six years, or who have been in care. When children start school it could mean a 6-year past data trawl of every family without their knowledge, to search through both financial (HMRC) data to check parental income levels, and past welfare recipient status (DWP) to match admissions data and pass on information to the right school.
It would enable “the disclosure of information held by a local authority to a relevant school.” For those who would be flagged as qualifying, parents’ financial and welfare status will be handed to a school without parental knowledge or consent. The FSM label on every child’s record, lasts a lifetime and is shared with outside third parties including commercial businesses and journalists without consent.
Questions of principle. “Proposals should not weaken the Data Protection Act.”
Objection is to some extent a question of principle. The balance of rights between State and citizen, the removal of a fundamental universal right to privacy, rights to be involved in decisions about them and in family life, and questions of necessity and proportionality.
The Digital Economy Bill was developed over 2 years which included the Open Policy making involvement of local government and civil society organisations. It ended with some opinions widely apart, but long after this FSM proposal had been dropped.
Part 5 of the Bill will allow Departments share the public’s personal data without consent between other Departments (and other public bodies) for three main areas: research, chasing debt and fraud, and ‘tailored public services’ which is a range of purposes that the government defines, ‘where the objective has a public benefit‘. Controversial parts were tacked on in three eleventh hour meetings January-March 2016, opening up for example all civil registration data (births, marriages, deaths) and had already undermined the legitimacy of the process. To return an already debated topic by the back door which had decided was not appropriate in this Bill, further undermines the legitimacy of the process.
This amendment appears to directly contradict the principles explained in that 2-year process, that the new legislation would not conflict with Data Protection principles or that ‘proposals should not weaken the Data Protection Act.’ Principles which include the common duty of confidentiality and making sure that data subjects (people) know that information about them is used in ways they reasonably expect and with no surprises. This is enshrined in our current data protection legislation, reiterated in the Bara ruling, on sharing between public bodies.
- There is a legal duty to inform people whom the personal data is about, before it is shared.
- There is a duty for people to be told the purposes at the time when the data are collected, what the data will be used for and by whom in future.
- There are clear rights and responsibilities about data processed automatically which affect decisions and interventions.
Our general submission to the consultation in spring 2016 after participation in the 2016 sessions of the Better Data in Government open policy meetings excluded pupil premium as this had been dropped from proposals. [download .pdf 262 kb]