I’m interested in the fact that Poole Borough Council put the Paton family under surveillance because they thought they might have fraudulently applied for a school place for their daughter. I’m also interested in Liberty’s response.
I feel like an incredible reactionary this week: but I will be again here. It’s all very well Liberty’s arguing that this use of powers is “ridiculously disproportionate” – though incidentally, the line taken by Alex Gask in the video embedded in the link I’ve given (that it’s always OTT to use this kind of power at all for checking up on school applications) is not the same as the line another spokesman took on Newsnight tonight (he thought it’d be okay if subject to prior judicial authorisation). The real question is, should councils simply be prepared to let this fraud go? If you think parents should be stopped from cheating their children into school places, then councils have to do this type of thing in some cases: apparently Poole has done it in three cases, two of which were revealed to involve fraud. If you’re happy for pushy parents to take the liberty of fibbing their kids’ way to privilege, then you’ll take the libertarian line.
I’d be happy if judicial authorisation were needed – but to argue that the powers can never be used proportionately is (sorry) in itself a disproportionate view.
The real question is, should councils simply be prepared to let this fraud go?
But would it have been fraud (in the legal sense) given that no money changed hands?
And if it would not have been fraud, what was the legal basis for surveillance?
It would be interesting to read what jurisprudence has to say about lying? Is it always lying not to provide the truth?
I’d argue that there was a spectrum; on one side would be examples of not providing the truth in Nazi Germany, on the other side would be not providing the truth while giving evidence under oath. Somewhere in between one would find filling in forms to the local council. Anyone got any jurisprudence notes / links etc as to where it might be?
A natural instinct is for parents to want the best for their children. If the available schools in most areas of the UK are looked at seriously then the non-State schools usually come up trumps – (with exceptions). Why is it that STATE schools are not the better schools? Again, a POLITICAL question, the answer to which ultimately lies in electing better government.
The UK is now a surveillance society in so many ways and this is another example. If powers to investigate are given to officials then they will use them. Again, the House of Muppets should make sure that powers given to local councils are reasonable and can only be used reasonably.
Please could you venture an opinion on whether this was potentially a criminal matter i.e. fraud. Tim Martin, Head of Legal at Poole may have confused ‘fraud’ with ‘cheating’. Telling lies to get a school place may be morally reprehsible, as is adultery, but is it criminal?
JonB at the Register, in the comments, argues:
Fraud law was updated in 2005-6 since, amongst other issues, goods or money had to be obtained rather than services. Education is clearly a service, but look what it says regarding services:-
http://www.publications.parliament.uk/pa/ld200506/ldbills/007/06007.1-5.html#j100
11 Obtaining services dishonestly
(1) A person is guilty of an offence under this section if he obtains services for
himself or another—
(a) by a dishonest act, and
(subsection 2)
(a) they are made available on the basis that payment has been, is being or
will be made for or in respect of them,
That is, the services so stolen must be normally charged for, and they mustn’t have made the payment. Now, either education is free in which case it can’t be fraudulently obtained or it’s paid via taxation in which case they’ve paid in full.
It appears that by investigating “fraudulent” school applications, they weren’t actually investigating an offence at all.
So is it or isn’t it a criminal matter to tell lies to get a school place? Unless it is a criminal matter, Tim Martin doesn’t have any authority to launch surveillance under RIPA and will have to content himself with what the parents clearly said was their intention – to move after the qualifying date, which they duly did.
Not sure why JohnB thinks section 11 is the only possibly relevant one. What’s wrong with section 2, Fraud by False Representation?
Nevertheless I’m quite definitely of the view councils should let this kind of thing go, certainly if the alternative is going to these lengths.
I certainly don’t think they should let it go! If this, what else should they simply let go? Restaurants breaching food safety regs? Is that on the same level as terrorism? People driving and using mobile phones? People faking injuries to get compensation or benefits?
It seems to me obvious that the more you let go people who just fake a sprained ankle for the sake of a few hundred pounds, the more likely you are to end up with people breaking their girlfriend’s legs to bag a bigger sum. It’s no good just assuming everyone is honest and reasonable: most people are, but they’ll end up losing out because of that if you do absolutely nothing about the dishonest. I realise these people turned out to have been telling the truth… but you obviously can’t know that before you investigate – or you wouldn’t have to investigate.
On criminality, it’d certainly be a conspiracy to defraud, wouldn’t it? That’s not been abolished by the 2006 Act. And this is a good reason not to abolish it!
How can it be conspiracy to defraud? Where is the victim – the school is contracted to educate one child, it gets one child. It runs no economic risk. Which child they educate makes no economic difference to the school because they will get a top-up for special needs. It isn’t possible for them to lose anything.
In respect of a child who might have had a place at the school, they get a place at another school which has exactly the same economic value to them (i.e. an education provided by the state) so they don’t lose anything except their preference. A preference has no economic value in this context – you can’t get a tax refund when the hand you your third-choice of school.
The applicant parents are entitled to a school place, they will get a school place, and every school place in the state sector has the same theoretical monetary value, being capitation per child plus any allowances which attach to each special-needs child. A parent may tell a lie to secure a preference, but as the preference has no quantifiable economic value, how can securing it constitute a loss to anyone else?
Plus, since education is paid for out of central taxation and the parents are taxpayers, they’ve already paid for it. Is it possible to conspire to get the stuff you’ve already paid for and to which the child has a entitlement?
Nobody is asking for the council to ‘let it go’. There were things that Tim Martin (head of legal at Poole BC) could do which were entirely within his authority. He could have looked at the council tax records and the electoral register, or asked the primary school to confirm the address given by the parents. He could have gone to a quoted address, then called in the number of families who claimed it as a dwelling and asked them if they all really lived together – without calling anybody a liar, of course. In the end, though, if it isn’t a criminal matter then he can’t invoke RIPA.
This is not about whether the use of RIPA was proportionate, but whether he was able to use it at all.
I agree that if you can get to the truth by lesser methods than surveillance, then you should. But what if you can’t? If they’ve resorted to it too early here, then I agree they shouldn’t have. But in principle, do you agree with me that if they really do need surveillance they should be able to use it?
On conspiracy to defraud, I’m not sure I agree that a school place has no economic value. But anyway, I don’t think the offence requires economic loss as such. Look at this article at Wikicrimeline. I think it’s clear that both the education authority and the child who was entitled to go to the school but couldn’t because of the fraud, are prejudiced by the fraud.
In practical terms what did this failed investigation cost the taxpayer and/or ratepayer? The presumption by the local authorities of criminality is worrisome.
I’d guess that they were seeking a relatively high profile case pour encourager les autres. Such is their incompetence that they could not even get that right. All this exercise has done is to show that the authorities are bumbling meddlers and to demonstrate another loophole to those who are so inclined.
Is this a success?
Thank you for the wiki article – there has been some interesting info about school funding in the Telegraph today which may affect the debate.
On the subject of surveillance, Tim Martin at Poole reached for RIPA more as a shield than a sword; I think he picked up the wrong one. It may be possible for a local authority to launch visual surveillance legally but they would have to take the same chances as you, I or a newspaper in doing so – we would argue that it isn’t illegal to log people in public places so long as we could avoid anything which amounted to harassment or stalking. Whereas we might argue public interest, the council might argue a public duty to do what it reasonably can to uphold the fair allocation of places, which means that proportionality arises in respect of the use of surveillance, not the use of RIPA.
In the case of the Paton family, Martin is on a wobbly chair as he authorized the surveillance but AFTER the qualification date when nothing of any evidential value could be obtained because every parent is entitled to move after the qualifying date without it affecting their eligibility. So my answer to the question ‘should’ councils do civil surveillance would be no, they can’t be trusted to tell one end of practical from the other, as Unsworth queries. They wouldn’t be in to this pickle if they could.
On the conspiracy to defraud, it was stated that school places have an economic value. (It would be daft not to – you can divide the education budget by the number of children in state education to get a per-head average figure.) What is unusual is that all state school places have exactly the same theoretical economic value to the user, defined as: ‘one free-at-the-point-of-delivery state education up to at least age 16’. Every child is entitled to its 1EDU benefit, every child is guaranteed to be able to go to a state building and collect its 1EDU, regardless of whether the parent has paid a penny towards that.
However, it is not guaranteed that the 1EDUs-worth will be provided by a particular supplier. All the parents have is a right to express a preference for providers but there is very specifically and clearly no obligation on the LA to meet ANY preference – they only agree to try. Sorry, I haven’t got the case refs on that, but it was more of a political PR thing again. It sounded great to say ‘parental choice counts’ but then it turned out that the choice was not enforceable. Entitlement is this: you are entitled to one education, you are entitled to express a preference, you are not guaranteed a preference. You do not have an entitlement to receive your preference.
In the wiki article the widest relevant point seems to be the Privy Council in 1991 repeating Lord Denning’s 1961 dictum “If anyone may be prejudiced in any way by the fraud, that is enough.”
Who, if anyone, has been prejudiced? Not the local authority. Theirs is purely a matching exercise. They have two applicants, they provide two places, they fund 2EDUs, regardless of which child goes where.
You get your 1EDU which is the entitlement, you get to express a preference, which is an entitlement, that’s your lot. The idea that a child would have obtained a place but for the untruthful application of another is tenuous because there never was any guarantee, right, or due of a place at any particular school. Even Blackstone refers to the prejudice of another man’s right – but if there isn’t a right, can you prejudice it?
The entitlement to an education is not affected – both children get one. The entitlement to express a preference is not affected. Those were the only two rights.
Following today’s Telegraph research, it appears that some popular schools may receive less cash per head than some less-favoured ones. It is very difficult to argue that losing the preference amounts to a penalty if a place at a less-preferred school means the council spends more on a child than it otherwise would. More cash is surely a benefit?
This is where things get sticky for the LA. Suppose one accepted that the disappointed child is suffering a loss due to having not got their preference by reason of someone else’s lie, (the ‘but for’ argument), then it follows that they must have suffered a loss due to their not having got their preference. The exact reason why falls away. It creates an obligation on the LA to fulfill that preference or face a later claim for having imposed a loss. This was exactly what they did not want, precisely why you only have a right to express a preference not a right to a specific place.
I wouldn’t want to be standing in Tim Martin’s boots. Politically the ice is cracking under his feet; not only is lying to get a school place possibly not a criminal matter, exposing the council to all sorts of criticism and liability, but it is disadvantageous for it to become one because it opens the possibility of enforceable entitlement for school applicants.
What really needs solving is that parents are not happy with schools; that is not Tim Martin’s area and he should have declined to try to use the law to solve the problem that way, primarily because it just will not work. Lacking a magic wand, he offered to give it a bash with a lump hammer. Is it working yet?
I can’t really see what the individual harm that is complained of here is – this is a record of their movements in public.
While there is reason to be worried about public authorities compiling huge numbers of such records, or indeed of retaining them beyond the necessary time, neither of those factors apply here. A possible safeguard would be to require public authorities that engage in surveillance to delete such records when no-longer required, and to notify the subjects after surveillance has been completed.