15 July 2022
Government proposes children’s databases that would result in extensive data sharing and invasive questions about family life￼
By Jess Pembroke, Head of Data Protection
The Schools Bill is currently making its way through the legislative process. Within this bill are provisions for a mandatory register of home educated children. Whilst the government claims it supports the right of parents to educate their children at home; home educators argue that this Bill is far from supportive.
During recent debate in the House of Lords Baroness Fox of Buckley said “My Lords, we have heard a lot today about the Bill being a missed opportunity, and certainly, as legislation often signals government priorities, it does seem a random mix of parts. But something this Bill definitely does not prioritise is freedom or choice in education. Instead, it promises hyper-centralisation, more regulation, more bureaucracy and more state control…. Regardless of one’s personal views about home education, these are important principles to defend in a free society, and I worry that the Bill threatens that historically light touch that has worked perfectly well to date in relation to local authorities and home educators. Even more concerning is how EHE registration is helping to identify children who are not receiving safe education, implying a link between home education and the safety of children, yet the DfE’s assessment is that there is no correlation between home education and safeguarding risk. Is this proposed regulatory regime for a small percentage of pupils involved in home education necessary? Home educators find this approach insulting and ironic. Many would argue that they choose to educate their offspring at home because they are not safe at school. Some opponents of home education suggest that because home-educated children are invisible or unseen by authorities, there is a particular safeguarding risk. This is perverse when we know that many children who are visible and seen daily at school are not guaranteed safety. “
What’s most concerning is, that in its current state the proposals are arguably in conflict with privacy legislation designed to protect the personal data and rights of freedoms of individuals, in this case children and families.
Incompatibility with data minimisation principle
The third principle of the General Data Protection Regulation (UK GDPR) states that data processing should be “adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’)”; however this Bill includes the following clause:
“436C Content and maintenance of registers
(1) A register under section 436B must contain the following information in respect of a child registered in it— (a) the child’s name, date of birth and home address, (b) the name and home address of each parent of the child, (c) such details of the means by which the child is being educated as may be prescribed, and (d) any other information that may be prescribed.
(2) A register under section 436B may also contain any other information the local authority consider appropriate.”
A legal basis for a local authority to legally require parents to provide any other information it considers appropriate is hardly compatible with the data minimisation principle of the GDPR. The home educating community has examples of local authorities (who are currently permitted to ask for certain information to assess the education children are receiving at home) asking invasive questions such as parental income, value of the family home and whether the children are sexually active.
Excessive data collection
In addition to collating data directly from parents, the Bill is proposing that a whole range of out-of-schools settings (which could include childminders, relatives, tutors and children’s clubs) provide information to the local authority. Many of these settings are likely to be small organisations which are currently exempt from registration with the ICO and will have limited data protection expertise. This is likely to result in these small organisations collecting excessive data that they don’t currently require to deliver their services or in some cases (due to the extra administrative burden organisations) may simply close or refuse to provide their services to home educated children resulting in discrimination.
Broad data sharing requirements
The Schools Bill also includes a clause which would enable the local authority to share the “other information the local authority consider appropriate” with an undefined prescribed person.
A local authority in England may provide information from their register under section 436B which relates to a child to a prescribed person if the authority consider it appropriate to do so for the purposes of promoting or safeguarding the education, safety or welfare of— (a) the child, or 15 (b) any other person under the age of 18.
As this element gives the local authority the option to share the data, rather than compels the data sharing, at least will require some consideration of the principles of GDPR and the ICO Data Sharing: a code of practice; however, the question remains whether the proposed contents of the register comply with the GDPR in the first place.
I have requested that the Department of Education share its Data Protection Impact Assessment on the Schools Bill to see what risks to individuals’ rights and freedoms have been identified and its proposed mitigations. Whatever your views on Home Education, questions should be asked about the wider implications of collecting and processing personal details of children and families.
If this Bill is passed in its current form, we can be certain that Data Protection Officers in local authorities will have to give due consideration the new raft of personal data to be collected, stored and shared. We will keep you updated about further developments as they happen. To sign up to our newsletter click here.
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 Children not in school Government consultation response February 2022
 Schools Bill [HL] Volume 822: debated on Monday 23 May 2022
 Schools Bill 436E Provision of information to local authorities: education providers
 Schools Bill 436C Content and maintenance of registers