Elective home education: withdrawal from council schools

The request was successful.

Dear Dumfries and Galloway Council,

I previously submitted a similar FOI request, which is available here for your reference: https://www.whatdotheyknow.com/request/w...

I am making this new request (but not on behalf of the same organisation) in order to ascertain an updated picture of council policy and practice in the light of more recent legislation and binding case law relating specifically to data processing and human rights.

(1) Please provide the following information for the period July 2014 to May 2018 inclusive, broken down by school year:

(a) How many requests have been received from parents for consent to withdraw children from school for elective home education?

(b) How many such requests have been processed within the 6 week time scale set out in the home education statutory guidance?

(c) How many such requests have not been processed within the 6 week time scale set out in the home education statutory guidance?

(d) In respect of any consent requests which exceeded (or are currently exceeding) the 6 week time scale set out in the home education statutory guidance, please provide details of the actual processing period for each request and reasons for the delay.

(2) How many complaints and/or notes of concern have been received from (a) parents and (b) lay or legal representatives regarding delays in processing council consent to withdraw their children from school for elective home education (from July 2014 to May 2018 inclusive)? [It should be noted that council consent is not required to home educate, only to withdraw a school-age child from a council school s/he has attended on one occasion or more - and there are exceptions to requiring such consent set out in statutory guidance].

(3) How many contacts from elected members (councillors, MSPs) have been received in relation to elective home education, and what was the nature of each of these requests (from July 2014 to May 2018 inclusive)?

(4) Please provide copies of all the council's home education policies in use since 2013 (with dates) and the current version which is used by staff and is available for parents as required by the home education guidance.

(5) Please outline the legal basis for processing the personal data of parents in relation to the withdrawal from school of children for home education, and clarify how prior consent is obtained for such processing where the legal 'necessity' threshold has not been met to ensure compliance with Article 8 of the ECHR.

(6) Is a child's withdrawal from school for home education conditional upon parental consent for data sharing between 'services' (e.g. NHS, social work, police, third sector), and how is formal consent obtained from data subjects, including third parties (e.g. other family members)? Is such consent valid under GDPR?

Thank you in anticipation of your assistance.

Yours faithfully,

Alison Preuss

Dumfries and Galloway Council

FREEDOM OF INFORMATION (SCOTLAND) ACT 2002

Thank you for your request for information which was received on 23/05/2018 which we are dealing with in terms of the above legislation. We have given your request the unique reference 336853 and we would appreciate it if you could quote this on all correspondence to us.

Under the terms of the legislation, we have an obligation to respond to your request within 20 working days from the day after your request was received. We will therefore aim to respond to your request by 20/06/2018.

Please be aware that, in some circumstances, a fee may be payable for the retrieval, collation and provision of the information you have requested. If this is the case, a fees notice will be issued, which would need to be paid in order to progress your request.

If your request for information is considered and deemed as a 'business as usual' request, it will be responded to by the appropriate Service within the Council.

If you have any queries in the meantime, please contact [email address].

Kind Regards

FOI Unit
Dumfries and Galloway Council

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Any email message sent or received by the
Council may require to be disclosed by the
Council under the provisions of the Freedom
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Dear Dumfries and Galloway Council,

This FOI response is now overdue. Can you please advise as to when I might expect it?

Many thanks
Alison Preuss

Alison Preuss left an annotation ()

This council's failure to comply with FOI legislation can be added to the list of of other compliance failures, including GDPR, human rights and several pieces of education legislation.

Dear Dumfries & Galloway Council

I have received no response to my request under the FOI Act 2002 (https://www.whatdotheyknow.com/request/e...), which was delivered to you via email on 23 May 2018 and acknowledged the same day (https://www.whatdotheyknow.com/request/e...).

It should have been fulfilled within 20 working days, i.e. by 21 June, but my email querying the delay, which was sent on 22 June, has gone unanswered. (https://www.whatdotheyknow.com/request/e...)

According to the ICO, a non-response represents a refusal of a request.

I am therefore now requesting a review of your failure to fulfil my FOI request, which should be notified to me within 20 working days, i.e. by 27 July 2018. If no response is forthcoming, I will lodge an appeal with the Scottish Information Commissioner.

Please acknowledge receipt of this communication and confirm you are processing a review of my request.

Yours sincerely

Alison Preuss

Dumfries and Galloway Council

Please find below the Council's response to your request 336853 which was received on 23/05/2018.

Details of request: (1) Please provide the following information for the period July 2014 to May 2018 inclusive, broken down by school year:

(a) How many requests have been received from parents for consent to withdraw children from school for elective home education?

(b) How many such requests have been processed within the 6 week time scale set out in the home education statutory guidance?

(c) How many such requests have not been processed within the 6 week time scale set out in the home education statutory guidance?

(d) In respect of any consent requests which exceeded (or are currently exceeding) the 6 week time scale set out in the home education statutory guidance, please provide details of the actual processing period for each request and reasons for the delay.

(2) How many complaints and/or notes of concern have been received from (a) parents and (b) lay or legal representatives regarding delays in processing council consent to withdraw their children from school for elective home education (from July 2014 to May 2018 inclusive)? [It should be noted that council consent is not required to home educate, only to withdraw a school-age child from a council school s/he has attended on one occasion or more - and there are exceptions to requiring such consent set out in statutory guidance].

(3) How many contacts from elected members (councillors, MSPs) have been received in relation to elective home education, and what was the nature of each of these requests (from July 2014 to May 2018 inclusive)?

(4) Please provide copies of all the council's home education policies in use since 2013 (with dates) and the current version which is used by staff and is available for parents as required by the home education guidance.

(5) Please outline the legal basis for processing the personal data of parents in relation to the withdrawal from school of children for home education, and clarify how prior consent is obtained for such processing where the legal 'necessity' threshold has not been met to ensure compliance with Article 8 of the ECHR.

(6) Is a child's withdrawal from school for home education conditional upon parental consent for data sharing between 'services' (e.g. NHS, social work, police, third sector), and how is formal consent obtained from data subjects, including third parties (e.g. other family members)? Is such consent valid under GDPR?

Response:

(1) Please provide the following information for the period July 2014 to May 2018 inclusive, broken down by school year:
(a) How many requests have been received from parents for consent to withdraw children from school for elective home education?

2014 - 4
2015 - 5
2016 - 7
2017 - 20
2018 - 12

(b) How many such requests have been processed within the 6 week time scale set out in the home education statutory guidance?

2014 - 2
2015
2016
2017 - 1
2018 - 5

The six week timescale referred to is contained within guidance to which the Council should give due regard. The Council are not bound by this guidance or the timescales set within it. Individual applicants are advised of delay in processing applications regarding removal from the school role.

(c) How many such requests have not been processed within the 6 week time scale set out in the home education statutory guidance?

2014 - 3
2015 - 5
2016 - 6
2017 - 19
2018 - 2

The six week timescale referred to is contained within guidance to which the Council give due regard. The Council are not bound by this guidance or the timescales set within it. Individual applicants are advised of delay in processing applications regarding removal from the school role.

(d) In respect of any consent requests which exceeded (or are currently exceeding) the 6 week time scale set out in the home education statutory guidance, please provide details of the actual processing period for each request and reasons for the delay.

A current application has been suspended within the six week timescale and this has been confirmed to the applicant in writing. The Council remain in communication with a third party representing this applicant.

(2) How many complaints and/or notes of concern have been received from (a) parents and (b) lay or legal representatives regarding delays in processing council consent to withdraw their children from school for elective home education (from July 2014 to May 2018 inclusive)? [It should be noted that council consent is not required to home educate, only to withdraw a school-age child from a council school s/he has attended on one occasion or more - and there are exceptions to requiring such consent set out in statutory guidance].

There is currently ongoing legal communication as relating to one application to consent to be removed from the school role.

There are no complaints or notes of concern that are recorded by the Information and Complaints Unit as being solely relating to elective Home Education

(3) How many contacts from elected members (councillors, MSPs) have been received in relation to elective home education, and what was the nature of each of these requests (from July 2014 to May 2018 inclusive)?

Elected Member Enquiry Service has record back to October 2016. Between then to 31 May 2018 there is record of one Elected Member enquiry received in November 2017 that would relate to home education. In accordance with Section 17(1)(b) of the Freedom of Information (Scotland) Act 2002, Dumfries and Galloway Council advises that it does not hold information for July 2014 to October 2016.

(4) Please provide copies of all the council's home education policies in use since 2013 (with dates) and the current version which is used by staff and is available for parents as required by the home education guidance.

The current Home Education Policy is attached. This Policy is being reviewed with input from Legal Officers. Those seeking consent to withdraw from the school role are advised that the current policy is being reviewed.

(5) Please outline the legal basis for processing the personal data of parents in relation to the withdrawal from school of children for home education, and clarify how prior consent is obtained for such processing where the legal 'necessity' threshold has not been met to ensure compliance with Article 8 of the ECHR.

The Council do not hold information in relation to this specific question as the individual circumstances of each request will determine whether there can be legally compliant information sharing, if so required, in the absence of consent.

(6) Is a child's withdrawal from school for home education conditional upon parental consent for data sharing between 'services' (e.g. NHS, social work, police, third sector), and how is formal consent obtained from data subjects, including third parties (e.g. other family members)? Is such consent valid under GDPR?

In accordance with Section 17(1)(b) of the Freedom of Information (Scotland) Act 2002 Dumfries and Galloway Council does not hold the information requested.

Please be aware that the Council holds the copyright, where applicable, for the information provided and it may be reproduced free of charge in any format or media without requiring specific permission. This is subject to the material not being used in a misleading context. The source of the material must be acknowledged as Dumfries and Galloway Council and the title of the document must be included when being reproduced as part of another publication or service.

If you require any further clarification, please contact us. However, if you are not satisfied with the way in which your request has been dealt with, you can request us to carry out an internal review of the decision by emailing [email address] or writing to us within 40 working days of receiving this response.

If you are dissatisfied with the outcome of the review, you have the right to apply to the Scottish Information Commissioner for a decision. Appeals to the Commissioner can be made online at www.itspublicknowledge.info/Appeal or in writing to: The Office of the Scottish Information Commissioner, Kinburn Castle, Doubledykes Road, St Andrews, Fife, KY16 9DS.

Kind Regards

FOI Unit
Dumfries and Galloway Council

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Any email message sent or received by the
Council may require to be disclosed by the
Council under the provisions of the Freedom
of Information (Scotland) Act 2002.

FOI Responses, Dumfries and Galloway Council

1 Attachment

Apologies, Home Education Policy is attached as detailed below

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Dear Dumfries and Galloway Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Dumfries and Galloway Council's handling of my FOI request 'Elective home education: withdrawal from council schools'.

For ease of reference, I have marked my original questions as 'My Request', the council's responses as 'Council Response' and the reasons I am seeking a review as 'Review'.

MY REQUEST: (1) Please provide the following information for the period July 2014 to May 2018 inclusive, broken down by school year:
(a) How many requests have been received from parents for consent to withdraw children from school for elective home education?

COUNCIL RESPONSE:
2014 - 4
2015 - 5
2016 - 7
2017 - 20
2018 - 12

MY REQUEST: (b) How many such requests have been processed within the 6 week time scale set out in the home education statutory guidance?

COUNCIL RESPONSE:
2014 - 2
2015
2016
2017 - 1
2018 - 5
The six week timescale referred to is contained within guidance to which the Council should give due regard. The Council are not bound by this guidance or the timescales set within it. Individual applicants are advised of delay in processing applications regarding removal from the school role <sic>.

REVIEW: Given the council’s claim not to be bound by statutory guidance, can citizens assume this applies equally to other guidance and codes of practice (e.g. GIRFEC), or is such non-compliance reserved for elective home education guidance?

MY REQUEST: (c) How many such requests have not been processed within the 6 week time scale set out in the home education statutory guidance?

COUNCIL RESPONSE:
2014 - 3
2015 - 5
2016 - 6
2017 - 19
2018 – 2
The six week timescale referred to is contained within guidance to which the Council give due regard. The Council are not bound by this guidance or the timescales set within it. Individual applicants are advised of delay in processing applications regarding removal from the school role <sic>

REVIEW: Given that the council claims not to be bound by statutory guidance, can citizens assume this applies equally to other guidance and codes of practice (e.g. GIRFEC), or is such non-compliance reserved for elective home education guidance?

MY REQUEST: (d) In respect of any consent requests which exceeded (or are currently exceeding) the 6 week time scale set out in the home education statutory guidance, please provide details of the actual processing period for each request and reasons for the delay.

COUNCIL RESPONSE: A current application has been suspended within the six week timescale and this has been confirmed to the applicant in writing. The Council remain in communication with a third party representing this applicant.

REVIEW: No response has been made to my request for the actual timescales and reasons for delays in processing (which are stated as having occurred in the majority of cases). On what legal basis has the council chosen to ‘suspend’ a parental request to withdraw a child from a council school, and what were the grounds conveyed to the ‘applicant’, given that this clearly constitutes a refusal?

The Education (Scotland)Act 1980 prohibits councils from unreasonably withholding consent for the withdrawal of a school-age child from a council school, while statutory guidance deriving from Section 14 of the Standards in Scotland’s Schools (Scotland) Act 2000 provides that six weeks is a reasonable timescale for processing consent or notifying refusal of such consent. Regardless of the council’s claim that it is not bound by statutory guidance (from which an inference of maladministration may well be drawn), compliance with human rights and data protection legislation (as definitively interpreted by the UK Supreme Court) is mandatory for all public bodies.

MY REQUEST: (2) How many complaints and/or notes of concern have been received from (a) parents and (b) lay or legal representatives regarding delays in processing council consent to withdraw their children from school for elective home education (from July 2014 to May 2018 inclusive)? [It should be noted that council consent is not required to home educate, only to withdraw a school-age child from a council school s/he has attended on one occasion or more - and there are exceptions to requiring such consent set out in statutory guidance].

COUNCIL RESPONSE: There is currently ongoing legal communication as relating to one application to consent to be removed from the school role <sic>.
There are no complaints or notes of concern that are recorded by the Information and Complaints Unit as being solely relating to elective Home Education

REVIEW: My request related to the number of concerns raised with council staff (e.g. the council’s data controller) by parents and representatives during the process of withdrawal from school, not just the Information and Complaints Unit.

MY REQUEST: (3) How many contacts from elected members (councillors, MSPs) have been received in relation to elective home education, and what was the nature of each of these requests (from July 2014 to May 2018 inclusive)?

COUNCIL RESPONSE: Elected Member Enquiry Service has record back to October 2016. Between then to 31 May 2018 there is record of one Elected Member enquiry received in November 2017 that would relate to home education. In accordance with Section 17(1)(b) of the Freedom of Information (Scotland) Act 2002, Dumfries and Galloway Council advises that it does not hold information for July 2014 to October 2016.

MY REQUEST: (4) Please provide copies of all the council's home education policies in use since 2013 (with dates) and the current version which is used by staff and is available for parents as required by the home education guidance.

COUNCIL RESPONSE: The current Home Education Policy is attached. This Policy is being reviewed with input from Legal Officers. Those seeking consent to withdraw from the school role <sic> are advised that the current policy is being reviewed.

REVIEW: I asked for all versions in use since 2013 (with dates) but have only been provided with the latest version.

MY REQUEST: (5) Please outline the legal basis for processing the personal data of parents in relation to the withdrawal from school of children for home education, and clarify how prior consent is obtained for such processing where the legal 'necessity' threshold has not been met to ensure compliance with Article 8 of the ECHR.

COUNCIL RESPONSE: The Council do not hold information in relation to this specific question as the individual circumstances of each request will determine whether there can be legally compliant information sharing, if so required, in the absence of consent.

REVIEW: I contend that the council must hold this information, not only in order to implement its home education policy but also to comply with ECHR and GDPR, which requires data subjects to be notified of the legal basis for any information processing (including the gathering and sharing of personal data that can identify individuals). Information processing can only be compliant if it is ‘in accordance with the law’ and meets the relevant necessity test, or is based on unambiguous, fully-informed consent of data subjects. My request relates to the specific threshold test (which cannot be arbitrary and requires foreseeability on the part of data subjects), and the legal basis on which the council is relying to process the personal and special category data of children and their family members in the absence of consent or notification.

MY REQUEST: (6) Is a child's withdrawal from school for home education conditional upon parental consent for data sharing between 'services' (e.g. NHS, social work, police, third sector), and how is formal consent obtained from data subjects, including third parties (e.g. other family members)? Is such consent valid under GDPR?

COUNCIL RESPONSE: In accordance with Section 17(1)(b) of the Freedom of Information (Scotland) Act 2002 Dumfries and Galloway Council does not hold the information requested.

REVIEW: I contend that the council must hold this information, not only in order to implement its home education policy but also to comply with ECHR and GDPR, which requires data subjects to be notified of the legal basis for any information processing (including all gathering and sharing of personal data that can identify individuals).

Given the omissions in the council's response, I am now requesting that you undertake an internal review of the handling of my FOI request.

A full history of the FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/e...

Kind regards

Alison Preuss

FOI, Dumfries and Galloway Council

Dear Ms Preuss,

Thank you for your e-mail dated 16th July 2018 containing a request for an internal review of the way in which the Council handled your request for information.

I will be conducting the review, however please note that I consider some of the content of your request to be new, for example, 1 (a), (b) & (c), however I will aim to include those elements of your request into the overall review and respond as soon as possible.

Yours Sincerely

Interim Senior Information Management Officer
Information Management and Complaints Unit
www.dumgal.gov.uk

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Thank you for confirming the internal review is in progress.

Yours sincerely,

Alison Preuss

FOI, Dumfries and Galloway Council

1 Attachment

Dear Ms Preuss,

Thank you for your e-mail dated 16th July 2018 requesting an internal review into the way in which the Council handled your request for information under the FOISA.

I have now completed my review and the following paragraphs deal with each of your points in turn:

Your Request: (b) How many such requests have been processed within the 6 week time scale set out in the home education statutory guidance?

Council's Response:
2014 - 2
2015
2016
2017 - 1
2018 - 5

The six week timescale referred to is contained within guidance to which the Council should give due regard. The Council are not bound by this guidance or the timescales set within it. Individual applicants are advised of delay in processing applications regarding removal from the school role <sic>.

Your Review Request: Given the council’s claim not to be bound by statutory guidance, can citizens assume this applies equally to other guidance and codes of practice (e.g. GIRFEC), or is such non-compliance reserved for elective home education guidance?

Council's Review Response: There is no set timescale in legislation, therefore I am satisfied with the Council's original disclosure.

Your Request: (c) How many such requests have not been processed within the 6 week time scale set out in the home education statutory guidance?

Council's Response:
2014 - 3
2015 - 5
2016 - 6
2017 - 19
2018 – 2
The six week timescale referred to is contained within guidance to which the Council give due regard. The Council are not bound by this guidance or the timescales set within it. Individual applicants are advised of delay in processing applications regarding removal from the school role <sic>

Your Review Request: Given that the council claims not to be bound by statutory guidance, can citizens assume this applies equally to other guidance and codes of practice (e.g. GIRFEC), or is such non-compliance reserved for elective home education guidance?

Council's Review Response: There is no set timescale in legislation, therefore I am satisfied with the Council's original disclosure.

Your Request: (d) In respect of any consent requests which exceeded (or are currently exceeding) the 6 week time scale set out in the home education statutory guidance, please provide details of the actual processing period for each request and reasons for the delay.

Council's Response: A current application has been suspended within the six week timescale and this has been confirmed to the applicant in writing. The Council remain in communication with a third party representing this applicant.

Your Review Request: No response has been made to my request for the actual timescales and reasons for delays in processing (which are stated as having occurred in the majority of cases). On what legal basis has the council chosen to ‘suspend’ a parental request to withdraw a child from a council school, and what were the grounds conveyed to the ‘applicant’, given that this clearly constitutes a refusal?

Council's Review Response: In accordance with Section 17(1)(b) of the Freedom of Information (Scotland) Act 2002, Dumfries and Galloway Council can give notice that it does not hold the information requested.

Your Request: (2) How many complaints and/or notes of concern have been received from (a) parents and (b) lay or legal representatives regarding delays in processing council consent to withdraw their children from school for elective home education (from July 2014 to May 2018 inclusive)? [It should be noted that council consent is not required to home educate, only to withdraw a school-age child from a council school s/he has attended on one occasion or more - and there are exceptions to requiring such consent set out in statutory guidance].

Council's Response: There is currently ongoing legal communication as relating to one application to consent to be removed from the school role <sic>.
There are no complaints or notes of concern that are recorded by the Information and Complaints Unit as being solely relating to elective Home Education

Your Review Request: My request related to the number of concerns raised with council staff (e.g. the council’s data controller) by parents and representatives during the process of withdrawal from school, not just the Information and Complaints Unit.

Council's Review Response: At the time of the Council's original response to your FOISA request there was one ongoing legal communication relating to one application to consent to be removed from the school role. There are no other complaints or notes of concern recorded corporately.

Your Request: (4) Please provide copies of all the council's home education policies in use since 2013 (with dates) and the current version which is used by staff and is available for parents as required by the home education guidance.

Council's Response: The current Home Education Policy is attached. This Policy is being reviewed with input from Legal Officers. Those seeking consent to withdraw from the school role <sic> are advised that the current policy is being reviewed.

Your Review Request: I asked for all versions in use since 2013 (with dates) but have only been provided with the latest version.

Review Response: I have arranged for a further search of the Council's record and attach a previous Home Education Policy which was agreed by the Council's Education Committee in November 2007 and subsequently reviewed in June 2011.

Your Request: (5) Please outline the legal basis for processing the personal data of parents in relation to the withdrawal from school of children for home education, and clarify how prior consent is obtained for such processing where the legal 'necessity' threshold has not been met to ensure compliance with Article 8 of the ECHR.

Council's Response: The Council do not hold information in relation to this specific question as the individual circumstances of each request will determine whether there can be legally compliant information sharing, if so required, in the absence of consent.

Your Review Request: I contend that the council must hold this information, not only in order to implement its home education policy but also to comply with ECHR and GDPR, which requires data subjects to be notified of the legal basis for any information processing (including the gathering and sharing of personal data that can identify individuals). Information processing can only be compliant if it is ‘in accordance with the law’ and meets the relevant necessity test, or is based on unambiguous, fully-informed consent of data subjects. My request relates to the specific threshold test (which cannot be arbitrary and requires foreseeability on the part of data subjects), and the legal basis on which the council is relying to process the personal and special category data of children and their family members in the absence of consent or notification.

Review Response: I confirm that the lawful basis is that processing is necessary in the exercise of official authority vested in the Council as data controller under the Standards in Scotland's Schools etc Act 2000, the Education (Scotland) Act 1980 and the Education (Additional Support for Learning) (Scotland) Act 2004.

Your Request: (6) Is a child's withdrawal from school for home education conditional upon parental consent for data sharing between 'services' (e.g. NHS, social work, police, third sector), and how is formal consent obtained from data subjects, including third parties (e.g. other family members)? Is such consent valid under GDPR?

Council's Response: In accordance with Section 17(1)(b) of the Freedom of Information (Scotland) Act 2002 Dumfries and Galloway Council does not hold the information requested.

Your Review Request: I contend that the council must hold this information, not only in order to implement its home education policy but also to comply with ECHR and GDPR, which requires data subjects to be notified of the legal basis for any information processing (including all gathering and sharing of personal data that can identify individuals).

Review Response: No, a child's withdrawal from school for home education is not conditional upon parental consent for data sharing between services.

Yours Sincerely,

Duncan McQueen
Interim Senior Information Management Officer
Information Management and Complaints Unit
Tel: 01387 260471 (Int: 64471)
[mobile number]
e-mail: [email address]
www.dumgal.gov.uk

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