Spying on school parents was unlawful and breach of human rights

3 August 2010 by

Worth lying for?

(1) MS JENNY PATON (2) C2 (3) C3 (4) C4 (5) C5 and POOLE BOROUGH COUNCIL, Investigatory Powers Tribunal – Read ruling

The Investigatory Powers Tribunal (IPT) has ruled that a local council acted unlawfully in spying repeatedly on parents suspected of lying about where they lived in order to get their child into a sought after school. The ruling may not, however, prevent local authorities from spying on families for similar reasons in the future.

The IPT exists to investigate complaints about conduct by various public bodies, including in relation to surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA). Section 28 of RIPA allows a public body to apply to conduct direct surveillance if the authorisation is necessary on various grounds, including the detection of crime.

The Paten family alleged that between 10 February and 3 March 2008 they were the victims of unlawful directed surveillance authorised and carried out by the Council. The Council’s case was that the surveillance of the family was necessary for the prevention or detection of crime and that it was proportionate for determining the veracity of information supplied the local education authority. The council suspected that the family were lying about their address in order to get their child a place at a sought-after local school.

The couple owned two properties in the area in 2008, although only one, ‘Property 1’, was in the catchment boundary. They had lived in Property 1 since 1998, but had bought ‘Property 2’, consisting of two flats, in 2005 as an investment. They lived in Property 2 sporadically between 2005 and 2008, including a 6 months stint between October 2006 and April 2007 while Property 1 was rented out. The family finally moved from Property 1 to Property 2 in 2008 after the place for their child was secured. Property 1 was let.

The Council had applied for permission to conduct surveillance on the family under Part II of RIPA “to prevent fraudulent obtaining of a school place.” The application continued that there was “No other way of obtaining accurate information on where family resides on a permanent basis.”

Surveillance unlawful

The council had applied to surveil the family on the basis that it was for the purpose of preventing or detecting crime. The Tribunal rejected this, as:

The evidence shows that the Council’s purpose, in the circumstances of this case, was to detect whether the Complainants were, as Ms Paton informed the Council, ordinarily resident in the catchment area of the preferred school and, if they were not, to prevent C5 from taking up a place at that school. The Tribunal accept that the Council was not seeking to use surveillance to create a secret database of information. But, as the Council asserted in its evidence to the Tribunal, the surveillance was used “to obtain evidence that could be put to the parents concerned to challenge their claims.”

Moreover, “no specific crime was identified in the application for authorisation or in the grant of it“, and more importantly, “there was no consideration as to whether there was or needed to be any evidence of any actual or potential criminal offence of any kind by the 3 children or their father, yet they were all put under surveillance.”

The Council had also not considered whether measures other than covert surveillance were feasible, which it should have prior to applying for authorisation. The Tribunal therefore ultimately found that the surveillance was not a proportionate means of attaining the end sought:

The Tribunal have concluded that the surveillance was not proportionate and could not reasonably have been believed to be proportionate. No consideration was given and no allowance was made in the setting of conditions of the surveillance for the fact that 3 of the targets were young children who were not believed to be parties to a suspected crime. The suspected crime could be prevented or detected without the children themselves being made targets of the surveillance.

The Tribunal went on to deal with the human rights arguments. Article 8 of the European Convention on Human Rights.provides that “everyone has the right to respect for his private and family life, his home and his correspondence” and this can only be interfered with by a public authority if various conditions are met, including “the prevention of disorder or crime”. In the absence of a valid justification for the surveillance, the Tribunal found that it was also a breach of the family’s rights.

Parents safe, for now

Local councils have become somewhat addicted to surveillance of citizens in the past decade, particularly in relation to suspected benefits cheats. The powers have apparently been used in this way on an amazing 8,500 occasions in the past two years (although, it is not entirely clear from the article if the statistic is for surveillance of this particular kind). After this decision, it is difficult to see how local authorities could justify surveillance of families for this reason in the future, given the decision of the IPT that the policing of school catchment areas was not a strong enough justification either for the purposes of RIPA or to breach a family’s Article 8 rights.

However, the Tribunal did not go as far as saying that such surveillance could never be lawful. It accepted that lying about one’s address for the purpose of applications for schools could be am offence under the Fraud Act 2000, but said that it was not “necessary or appropriate… to reach a concluded view on the scope of that provision, or on its application to the circumstances of this case or to other cases of this kind.” It took real issue with the fact that the Local Authority had never had any real intention of prosecuting parents; rather, the likely sanction if they were found to be lying would be to deny their child’s place at the school.

So, in order for local authorities to continue surveilling suspect families in the future, they would have to make much clearer on school admission application forms that parents fraudulently providing the wrong address will be prosecuted, and then go some way towards actually prosecuting them. It seems unlikely that councils will take this draconian route, but on the basis of this ruling it is probably still open to them to do so.

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