This consultation CLOSED on 25.4.24. https://www.gov.wales/node/59753/respond-online Here is my response submitted on 22nd April
Question 1: Currently local authorities do not know about all children in their area but are still responsible for them. Do you think the requirements in the regulations will help local authorities to identify children not currently known to them or children missing education?
I have answered no. The draft regulations go beyond the limits of primary legislation on children missing education. Section 436A of the Education Act 1996 says a child is missing education if they are not registered pupils at a school, and ARE NOT [my emphasis] receiving suitable education otherwise than at a school.
Draft Regulation 3 attempts to redefine CME as a child who MAY NOT be receiving suitable education. Goalposts have been moved and the legal definition of a child missing education has changed from “not receiving” – which indicates a definite negative judgment – to “may not be receiving” which is based on conjecture and obviously casts a much wider net based on stereotyping and blanket assumptions.
The database proposals are about amassing information on the child’s family support network. The Schedule published at the end of the draft CME database regulations state that the local authority is required to collect contact details for ALL parents of the child. Why is this necessary? “Parent” is defined in the Interpretation of the draft regulations as “any person with parental responsibility for the child (within the meaning of section 3 of the Children Act 1989) or who has care of the child at any time“. This could easily be a number of people. Again, why is this necessary?
The Schedule also requires the LA to collect “The name and address of the person providing all or part of the education”. It is not explained what is meant by “providing” education and again could easily be a number of people including extended family and informal education and activity groups often found in elective home education, some of whom would opt out of involvement if they had to be on a database. This would be detrimental to the child’s education and wellbeing and again, no reason has been given as to why it is necessary.
Finally, the draft regulations state that the LA is required to collect information on “Any additional learning needs that the child may have and any additional learning provision that is called for”.
Having to collect all this information a complete “CME record” will be a lengthy process and only serve to delay timely provision of educational support to the child which is what an identification of CME is meant to bring. Once a child is identified as missing education the local authority must make sure that action is taken to provide them with suitable education which may also involve support arrangements [source = CME Statutory Guidance Wales] It is therefore unhelpful to muddy the waters about what “missing education” actually means. The primary function of the database appears to be about completing “CME records” for children who are not actually “missing education” but only “potentially missing“.
Question 2: Does this proposal allow for local authorities to meet their section 175 duty under the Education Act 2002, which is to undertake their education functions with a view to safeguarding and promoting the welfare of children?
I have responded no because the main focus of activity with regard to the proposed CME database is amassing information about the family support network of a child who MAY be missing education for whom no welfare or safeguarding risk has been identified and for whom no support has been costed should this turn out to be necessary. Information collecting becomes the object of the exercise, a fishing expedition where information is collected on the basis that some of it might turn out be useful, such as people with care of the child at any time or any person providing education to the child at any time. This will be a drain on time and resources which are already stretched to breaking point. Furthermore, regulations 8 and 9 state that a child will remain on the database until the child becomes a registered pupil or the LA is satisfied that a child is receiving suitable education.
The Interpretation section of the draft regulations states that “registered pupil” means a child registered as a pupil at a school in a register kept under section 434 of the 1996 Act and that “school” has the same meaning as in section 4 of the 1996 Act. The draft regulations say nothing about the LA’s alternative provision duty under section 19A of the Education Act 1996 (unlike the over-optimistic Impact Assessments) However, it may be that a child missing education (really missing as per section 436A not potentially missing as per the draft regulations) is not able to attend school “by reason of illness, exclusion from school or otherwise” which could include the child’s mental health. In such circumstances it would not be expedient [as per section 437(3)(b)] for the LA to use school attendance order provisions of the 1996 Act, instead the LA would need to make alternative provision arrangements. The omission of any reference to s19A or s437(3)(b) suggests that the CME database is not really about the welfare of children but about getting children into school whether or not this is appropriate for the individual child’s health or wellbeing.
Question 3: Under the regulations, local health boards will disclose the information in the Schedule (name, address, gender and date of birth of child) to the local authority so that they can develop a children missing education database. Question 3 (i): Do you agree that the information requested in the Schedule is reasonable and proportionate to enable the local authority to identify children not currently known to them and who may be missing education? Please provide additional information to support your answer:
I have responded no. It is neither reasonable nor proportionate. It is unreasonable and disproportionate. Under section 436A a registered pupil cannot be “missing education” and the draft regulations explicitly exclude registered pupils from the database. Over 98% of children of compulsory school age are registered at school. Data will be shared on half a million children but 98% of these names and addresses will not be required for the database.
I also note that the draft regulations at Regulation 4 specify “GMC contractor” disclosing data to the local authority so why does Q3 only ask about LHBs and not GPs sharing details of children registered at their practice? A flawed question will prompt an incomplete answer.
Furthermore, the primary legislation for children missing education (436A as above) concerns children who actually are missing education not who “may be” missing education. Putting children who “may be” missing education on to a database turns this into a fishing expedition.
It seems likely that the information from health will be in 2 stages, starting with points 1-4 in the schedule which will be required (not requested) as set out in the preamble to Q3, followed by requests to GPs and LHBs for the name, address, telephone number and email address of the child’s parents, including non-resident parents. The draft regulations currently limit disclosure to schedule points 1-4 but subordinate legislation permitting further data disclosure (points 5-7 and beyond) could be laid as soon as the Welsh government has brought section 29 of the Children Act 2004 into force.
Question 3 (ii): Do you agree that the information requested in the Schedule is sufficient to enable the local authority to identify children not currently known to them and who may be missing education? If you do not believe the information requested is sufficient, please outline what information should be included in the Schedule:
It was not possible for me to answer the multiple choice here since the options are only yes, no or don’t know. Respondents in favour of the database will no doubt answer that more information than covered by points 1-4 of the schedule (name, address, gender and date of birth of child as per preamble to Q3) should be required from health. It seems likely that respondents in favour of the database will want to be able to get parents email and telephone numbers from health, either at stage 1 of the information collecting process (the initial required data disclosure from health) or at stage 2 (the follow up enquiries).
The earlier attempt by the Welsh government to set up the database in 2020 was more overt and did require more information at the outset, but it was acknowledged that this was disproportionate. The current proposals are more covert; there is a split between required and permitted disclosure in a multi-step process but the end result is the same. Section 29 of the Children Act 2004 is the enabling legislation on which the Welsh government relies and as soon as section 29 is brought into force, the Welsh government will be giving itself wide-reaching regulation-making powers.
The draft regulations published with the consultation may bear little resemblance to the regulations subsequently laid before Senedd. Section 29 for Wales is the same legislation which almost allowed the ContactPoint national database here in England. At this point the Welsh government is only mentioning local databases but local databases appear at s29(1)(a) while a national database appears at s29(1)(b).
Question 4: Are there alternative systems and processes that would enable the local authority to identify a child they have no prior knowledge of? If you have answered ‘yes’, please state what those systems and processes are:
It was not possible for me to answer the multiple choice here since the options are only yes, no or don’t know. The system being proposed goes much further than identifying children “they have no prior knowledge of”.
Once the “no prior knowledge” children have been identified, they will go on a database which will be called a “children missing education database” which is a misnomer because as per Regulation 3 it will include some children NOT missing education and exclude some children who ARE missing education (the former because a home educated child will be “potentially missing education” and the latter because a registered pupil cannot be “missing education” regardless of their non-attendance)
A home educated child will go straight from “no prior knowledge” to child “missing education” but the consultation has nothing to say about a “prior knowledge” child who is really CME for example where the LA cannot find a suitable school place. This latter group may be overlooked since they are hiding in plain sight and this problem will be compounded by hyperfocusing on the “no prior knowledge” CME children.
Data Cymru has told me that national CME statistics are not collected so I have submitted FOIs to individual local authorities in Wales to try and establish how many children are out of education at any given time. It would appear that the government was not aware of LA CME processes before undertaking this latest database project. I note that Q15 asks LAs about their existing CME processes, but again focusing on the “no prior knowledge” cohort rather than the children currently missing education whom the LA knows about already and to whom they owe a duty to arrange suitable provision.
Meanwhile, any “known” home educated child is only one step away from going on the database if the government persists with the current wording of regulation 3. This is because of how regulation 3 interacts with the Welsh government guidance on home education. It isn’t clear whether this is intentional and foreseen, or whether it is an unintended consequence.
Regulation 3 says (1) A local authority must establish and operate a CME database. (2) Where the conditions in paragraph (3) are met in relation to a particular child the CME database must include the information set out in the Schedule that is available to the local authority in relation to that child. (3) The conditions are that— (a) the child is ordinarily resident in the local authority’s area, (b) the child is not a registered pupil, and (c) it appears to the local authority that the child is not, or may not be, receiving a suitable education.
Regulation 3 (3) COULD say “and (c) the child is not receiving suitable education” which would remove the impact on home educated children outlined in this answer. If the wording of regulation 3 (3)(c) remains unchanged [“and (c) it appears to the local authority that the child is not, or may not be, receiving a suitable education“] then a local authority following regulation 3 and the government home education guidance could be expected to go through its existing list of home educated children and create database entries for any child where it had the slightest doubt or unresolved query, such as an initial negative reason for home education, or where the last information on file is over a year old. Paragraph 4.35 of the home education guidance 2023 states that “A meeting should take place at least once a year to ensure the suitability of education is maintained and that the child is considered to be making suitable progress.”
The current wording of regulation 3 (3)(c) also affects children who may be taken out of school to be home educated in the future. The consultation paperwork suggests that problems with school are an indicator that home education is less likely to be successful. The Children’s Rights Impact Assessment states that “where parents feel that they had to take this decision” [to remove the child from school to home educate] “the education that they provide may not be efficient or suitable.” Examples of negative reasons for home educating include “child’s anxiety, threat of prosecution, bullying, medical reasons, or breakdown in relationship with the school.”
If the legal definition of a child missing education is changed from “not receiving” – which indicates a definite negative judgment – to “may not be receiving” which is based on conjecture and stereotyping and blanket assumptions, it will result in an anxious child or a bullied child, or a child with health problems, or a disabled child being classed as “potentially missing education” and put on the database as soon as they start to be home educated.
Question 5: What, if any, advantages and disadvantages do you think there would be in the disclosing of the required data to populate the database? Complete the section relevant to you.
i) Parents and carers
ii) Children and young people
iii) Local health boards and general medical contractors
iv) Local authorities
v) Other
It seems there may be a character limit on each box for Q5 (1000 characters?)
Children and young people
I have been made aware of child-friendly documentation circulated behind the scenes and not available publicly which asserts that “only children who are potentially CME will be on the database and the rest of the information will be deleted.” There is no foundation for this misleading assurance, indeed there could be multiple tailored versions derived from the original GP patient lists.
Local health boards and general medical contractors
Local health boards and GPs will be required to disclose patient data which is a breach of trust. GPs will be blamed as they are often the first point of contact for families. GPs are also missed from a lot of the questions, which only mention LHBs resulting in the consultation process being flawed. The information required from health will be in 2 stages, the initial stage being points 1-4 in the schedule in regulations with points 5-7 following afterwards. Further points may also be added to a schedule at will, on the basis that if some information sharing is good, then more information sharing is better. Furthermore, once individual GP practices have given the local authority a list of all school-age children registered at their surgery, the LA will only transfer a tiny percentage of the list onto a database. The draft regulations focus exclusively on access and security for the database itself. There is NOTHING in the consultation document about list security.
Other
The enabling legislation (section 29 Children Act 2004) provides for wide-reaching regulation making powers and it is well known that subordinate legislation does not receive anywhere near the same scrutiny as a new law. I am writing this from England where such delegated legislation are termed “Henry VIII powers”. The draft regulations published with the consultation are no more than illustrative drafts not binding on the government. For example, the parent Act provides for permitted data sharing as well as required data sharing [s29(6) and (8) Children Act 2004], and provides for “any concerns” to be recorded on the database [s29(4)(f) CA 2004] as well as contact details for the family doctor [s29(4)(e) CA 2004] Section 29(11) gives the government power to make regulations allowing information to be shared “notwithstanding any rule of common law which prohibits or restricts the disclosure of information”. We don’t know where the government is planning to take this database.
Question 6: The draft regulations propose that local health boards disclose information to local authorities annually. Do you agree with an annual return? If not, how often do you think this information should be provided to local authorities and when would the most appropriate time be?
I do not agree with the annual return proposed in this consultation because I do not agree with bringing section 29 Children Act 2004 into force. The Welsh government may believe it is easier to take a shortcut and attempt to use an existing law rather than trying to make a new law but section 29 contains sweeping powers for legitimising data-sharing “notwithstanding any rule of common law which prohibits or restricts the disclosure of information” [s29(11)]. Section 29 even provides for a national database [s29(1)(b)] which almost happened with ContactPoint in England. It is irrelevant how much or how little of section 29 the government needs for the present database.
Moreover, regardless of my views on frequency of disclosure, I also note that GPs have again disappeared from the question. There is a lack of clarity about the role of “GMC contractors” throughout this consultation. I assume they are integral to the project since they have been expressly added this time; I have compared the 2 sets of draft regulations line by line and the earlier database proposals in 2020 did not include GPs. In terms of frequency of return, I note that local authority respondents in the previous consultation wanted returns to be as frequent as every 6 weeks or half-termly and Q6 seems worded to prompt calls for more frequent data disclosure. In practice however any limitations on required disclosure could be circumvented by enabling permitted disclosure via extended provisions in section 29 ie a workaround exists in law if GPs can be persuaded to cooperate once section 29 is brought into force.
Question 7: What would be the implications of a more frequent data return in terms of technical, administrative and resource implications on: i) local health boards; ii) local authorities; iii) other
It seems there may be a character limit on each box for Q7 (1000 characters?)
Local authorities
The word “implications” invites a subjective response without any hard facts about extra staffing costs or expenditure on provision. No Regulatory Impact Assessment has been published. Local authorities may suppose that additional costs would be covered and also that they would be ring-fenced, neither of which may turn out to be the case. Q19 directed towards LAs only asks about additional resource and technical implications of “processing the data received from local health boards”. There are no questions about potential costs of associated functions such as ALN assessments, Additional Learning Provision or section 19A alternative provision for children unable to attend school which is in marked contrast to the claimed benefits of the database set out in the Children’s Rights Impact Assessment and the Integrated Impact Assessment published with the consultation.
Other
In respect of ALN the Impact Assessment says “These families could request that their children’s needs be determined, and this may result in local authorities having to develop an individual development plan outlining the child’s identified needs and the provision of any additional learning provision which may be required to meet these identified needs” including “outreach from a local authority’s specialist support services” or the child “attending a special school”, adding that this “could also increase workload and put financial pressures on local authority services as they would need to process any requests for determination of a child’s needs and provide for any subsequent additional learning provision. Some parents could request that their child’s needs are determined through the medium of Welsh which could put pressures on local authorities.” The claimed benefits cannot materialise if funding is not available.
Question 8: Who within the local authority would need access to the children missing education database in order to carry out their functions?
The database is called the children missing education database. The only person requiring access to a children missing education database is a person who needs it for their job of tracking children missing education (To be clear, this would be children who are really missing education as opposed to children who are potentially missing education as per Regulation 3) However, as currently drafted regulation 12 allows read/write access to the database for anyone working in the area of school admissions, safeguarding, wellbeing, or additional learning needs. This is a great many people and no reason or justification is given for why this is necessary.
In addition, an employee might have a number of roles and be able to access the database regardless of whether the current work task or function is directly related to children missing education. Regulation 12 mirrors Regulation 9 from 2020 except that Access to the Database has been changed to Access to the CME database. This is despite the scope of the database being supposedly “reduced” from 2020 (the word “reduced” is twice used in the Integrated Impact Assessment) Why would access remain as broad if the scope is reduced?
Moreover, this particular regulation (access to the database) was found to be seriously flawed in 2020. Legal advice from David Wolfe KC was cited by a number of respondents in 2020 [https://familiesfirst.wales/wp-content/uploads/2021/12/Home_Education_Welsh_Education_Database_summary_Wolfe_2020.pdf]. Response 113 from 2020 is a typical example “David Wolfe says that “regulation 9 is drafted extremely widely. First off, it allows people employed in relation to the 9(2) functions to access the information, without then saying they can only use it for those functions.” “On the face of the draft, they could then use the information for other purposes.” [https://web.archive.org/web/20210226212531/https://www.gov.wales/local-authority-education-databases] The same point applies in 2024, with even more force since the scope has been reduced from 2020 yet the database access regulation is heedlessly copied and pasted from 2020.
I would also repeat the point made in Q5 that LAs will receive lists with details on hundreds of children including the name of the GP practice where each child is registered (because GP practices will supply lists of child patients) The consultation questions focus exclusively on access and security for the database and have nothing to say about the lists. There could be multiple tailored versions in wide circulation derived from the original GP patient lists.
Questions 9-12 are directed at Local Health Boards and cover privacy risks, compliance and corporate risks, protocols for children who have died, experience of data disclosure/processing, additional resource and technical implications of processing and disclosing the required data to local authorities. In the previous database consultation the General Medical Council said “all patient information attracts the common law duty of confidentiality. We don’t set different standards for protecting clinical or medical information and other personal information.“ It objected to “a blanket approach to information sharing” adding that doctors are expected “to make sure that patients know what information is being shared about them, and to obtain consent to sharing, unless doing so would undermine the purpose of the disclosure – for example, where informing them would prejudice the prevention, detection or prosecution of a serious crime.”
Questions 13-14 are directed at General Medical Service Contractors and cover privacy risks, compliance and corporate risks, plus protocols for children who have died. There are 4 questions for LHBs but only 2 questions for GPs. LAs will receive lists with details on hundreds of children including the name of the GP practice where each child is registered (because GP practices will supply lists of child patients) The consultation questions focus exclusively on access and security for the database and have nothing to say about the security of these lists. There could be multiple tailored versions in wide circulation derived from the original GP patient lists. Additionally GPs are NOT asked about experience of data disclosure/processing and NOT asked about resource and technical implications of processing and disclosing the required data to local authorities, including answering follow-up questions when the LA needs to complete the database record for a child “potentially missing education.” This is a flaw in the consultation process, see my answer to Q23
Questions 15-19 are directed at Local Authorities and ask about existing CME processes, plus protocols for children who have died, privacy risks, compliance and corporate risks, experience of “this type of processing” plus “additional resource and technical implications of processing the data received from local health boards.” See my answer to Q23.
Question 20: Do you think anything in the draft regulations could have a disproportionate impact on those with protected characteristics?
I am taking the list of protected characteristics from section 4 of the Equality Act 2010 namely age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
In terms of age, in the first instance every child between 5 and 16 (school-age) will be affected because if they are registered for health services their details will be shared because “a list” will be passed to the local authority. The only way not to have details shared is not to be registered with health services. During the consultation period no child friendly documents were published on the consultation website which meant that children – the age group directly affected by the proposals – were placed at a disadvantage. A subgroup of children, namely home educated children, will be further affected by draft regulation 3 with the constant threat of being labelled and put onto a database for “missing education”, not because they or their parents have done anything wrong but because goalposts have been moved and the legal definition of a child missing education has changed from “not receiving” – which indicates a definite negative judgment – to “may not be receiving” which is based on conjecture and obviously casts a much wider net based on stereotyping and blanket assumptions. (I understand that the Welsh government has belatedly acknowledged that these proposals are particularly significant for home educated children and that 3 consultation events aimed at home educated children will take place after the consultation closes)
In terms of disability, the Impact Assessments accompanying the consultation claim that children with Additional Learning Needs requiring Additional Learning Provision will derive additional benefit from being on a database although it “could also increase workload and put financial pressures on local authority services.” The consultation does not ask local authorities about these costs, only the cost of initial data processing from health, and therefore it seems likely that children with ALN will incur all the stigma of being labelled “missing education” – on the basis that they “may” be missing education – but without any enhanced provision. These may be children who are not attending school because there is no suitable school place to meet their needs, yet the draft regulations state that the only remedy for “missing education” is to become a “registered pupil” at a school. The Children’s Rights Impact Assessment goes as far as to say that “child’s anxiety, threat of prosecution, bullying, medical reasons, or breakdown in relationship with the school” are “negative reasons” for home education, which are presumed to lead to less successful outcomes, hence these children would be much more likely to be categorised as “potentially missing education” which is about conjecture and stereotyping rather than the facts of a particular case. The omission of any reference to s19A or s437(3)(b) (alternative provision or expedient for a child to attend school) suggests that the CME database is not really about the welfare of children but about getting children into school whether or not this is appropriate for the individual child’s health or wellbeing.
In terms of race, the Children’s Rights Impact Assessment singles out home educated Gypsy Roma Traveller children [GRT] who it assumes are likely to be engaged in employment [“If GRT learners are working”] which may mean less time for education, thereby providing a ready-made reason for the local authority to put the child onto a “potentially missing education” database in anticipation. By this token all secondary age GRT children could be pre-emptively classed as “potentially missing education” and would go onto the CME database as soon as the local authority became aware of their race or ethnic minority status. These children may be home educated because parents believe school is not a viable alternative as identified in this recent ONS survey https://www.ons.gov.uk/peoplepopulationandcommunity/educationandchildcare/bulletins/gypsiesandtravellerslivedexperienceseducationandemploymentenglandandwales/2022 yet the draft regulations state that the only remedy for “missing education” is to become a “registered pupil” at a school, without any assurance that the school system will be more responsive to the needs which arise from the child’s race or ethnic minority status, and without costing for additional support and finally with all the sanctions for non-attendance which flow from being a registered pupil.
Questions 21 and 22 are about the Welsh language.
Question 23: We have asked a number of specific questions. If you have any related issues which we have not specifically addressed, please use this space to report them
Summary: significant information is missing from the consultation documents and some important questions have not been asked hence the consultation process is flawed. There is no Regulatory Impact Assessment which means we don’t know what new money – if any – will be available and hence whether the proposals will actually benefit children who need non-standard provision. The promised child friendly version of the consultation documentation has never been added to the “All Documents” government web page.
There is no information about when the Regulatory Impact Assessment will be published ie there is no assessment as to the likely costs and benefits. This is significant because we don’t know what is being factored in as a cost, whether it is limited to database administration (as per consultation questions) or whether it includes associated costs after children have been identified such as securing suitable alternative provision for children unable to attend school, or the cost of arranging ALN assessments and the cost of Additional Learning Provision (as per Children’s Rights Impact Assessment and Integrated Impact Assessment). Q19 directed at LAs only asked about additional resource and technical implications of processing the data received from local health boards” not about any potential follow-up costs. This is a flaw in the consultation process.
We also don’t know whether the Welsh government will claim that the proposals will result in savings overall and/or that relevant costs are already being incurred by LAs. Either of these would mean LAs not getting new money and therefore children not benefitting in ways that have been claimed. For example, the Welsh government may say that having a database will mean less spending on investigation or intervention or that LAs already have CME processes in place and a database will only make CME systems quicker and more efficient. In short, we don’t know whether the alleged benefits enhancing children’s rights set out in the Children’s Rights Impact Assessment have ever been costed. If there is no money allocated for ALN then it won’t happen.
Secondly, when the consultation was launched on January 31st 2024 the CRIA said at Point 5 under the heading Communicating with Children and Young People “Given the complex nature of this work, we intend to undertake a targeted consultation with children and young people on these proposals as this is likely to be more effective in gauging and collating views. A child friendly version of the consultation documentation will be prepared to support this engagement.” The online response page has a link to 4 documents written at an adult level of comprehension and states “You should now have everything you need to get started.” This may be true for adults but not for children and young people. At the time of writing on April 19th less than a week before the consultation closes, there is still no “child friendly version of the consultation documentation” available on the consultation pages, none of which show an update since January 31st.