A primary school breached the Data Protection Act 1988 and Human Rights Act 1998 and unlawfully misused the personal information of a child with Down’s Syndrome and her mother, the High Court has ruled.
In ST (A Minor) & Anor v L Primary School (Rev 2)  EWHC 1046 Deputy Master Hill QC ordered the school to pay ST (the child) and RF (the mother) £1,500 and £3,000 respectively for the misuse of personal information.
However, she made no award of compensation or damages for the data protection and human rights breaches.
ST attended the school from February to July 2013. The school’s ‘General Concerns’ document recorded that on her first half-day at school, she (i) sat on the floor, blocking the door so no-one could go in or out, (ii) tried to bite, kick and pull the hair of three staff members; and (iii) threw a box containing books, scissors etc across the room. It was noted that other children were frightened and were taken out of the classroom.
On 13 March a ‘Major Incident’ was recorded in the General Concerns document. This involved ST throwing things, pulling things off the tables, biting legs and hands and pulling legs. ST calmed down and then a further incident happened later that afternoon, with children having to duck to avoid objects that were being thrown. ST was also aggressive to various staff members to the extent that they had to build a barrier of chairs between them and her.
Evidence was given that 7-8 parents contacted the school to express concern about what their children had seen and experienced in class.
The headteacher, together with a staff member with particular responsibility for behavioural issues, decided that rather than respond to each parent individually, they would write a letter to all the year 5 parents. The headteacher told the court that she had written such a letter on three previous occasions.
The claims arose out of the sending of this letter on 14 March 2013. Whether RF had given her consent for it to be sent was a matter of dispute. The letter read:
As you are aware we have a new child in year 5, her name is [S] and she has Downs Syndrome. [S] is a lovely little girl who brings many positives to our School. However she does find some aspects of School life challenging and your child may have witnessed some behaviour that they find disturbing.
We would like to reassure you that your child's safety is paramount. The staff are trained in positive handling techniques and are more than capable of dealing with any situation that arises. We anticipate that these episodes will become less frequent as [S] settles in and we get to know one another more fully.
In the meantime if you, or your child, has any concerns please don't hesitate to come in and talk to myself, [JE] or [another staff member] about them.
Thank you for supporting our values based inclusive education programme at [L] Primary School.
The headteacher’s evidence was that the letter generated a positive response from the year 5 parents and therefore as far as she was concerned it had had the desired effect of integrating ST into the school.
There were further incidents of challenging behaviour by ST in late March, in late June and in July. The school eventually formed the view that it could not meet ST’s needs and recommended that she be placed in a specialist school with staff more experienced in addressing behaviour like ST’s. The school withdrew her place.
In February 2014 the First-tier Tribunal (Special Educational Needs and Disability) concluded that the school had unlawfully discriminated against ST by withdrawing her place at the school.
The FTT found that the 14 March 2013 letter amounted to direct discrimination contrary to the Equality Act 2010, s.13, because other children would not have had a letter that singled them out as a “behaviour problem” sent. The Tribunal also found that the sending of the letter amounted to an act of discrimination arising from disability contrary to s.15 of the 2010 Act.
The mother also complained about the letter to the Information Commissioner’s Office. In its reply the ICO pointed out that the FTT had concluded that the evidence did not show that RF had provided consent for the letter to be distributed to the year 5 parents. The watchdog also said it had decided that it was unlikely that the school had complied with the requirements of the DPA.
RF initiated this claim on 28 February 2019.
Deputy Master Hill QC concluded that:
- The claimant’s evidence as to RF not having consented to the sending of the letter was consistent and clear. In those circumstances the most compelling evidence from the school would be needed to prove that RF had agreed that the 14 March 2013 letter was sent. The school’s evidence was not compelling.
- The school breached the first data protection principle by sending the letter.
- The sending of the letter amounted to publication of information about ST to a group of people she did not know. This amounted to an interference with her Article 8(1) rights. This interference was not justified.
- She did not consider that the letter would have been sent if ST was not disabled. “On that basis the sending of the letter amounted to a difference in treatment of ST compared to other children based on her disability and thus a breach of her Article 14 rights read with Article 8.”
- RF was capable of being identified by the letter as she was known to be ST's mother. “She is, as I have found above, the very protective mother of a disabled child who provides her with extensive daily care and regularly advocates for her child's rights. Her status as the mother of a disabled child is integral to her daily existence and to her identity. Her concerns over her child's welfare were key to her own personal integrity and wellbeing. The sending of the letter adversely, in her view, affected her reputation in the School community.” In those circumstances the Deputy Master considered that the information within the letter was protected by her Article 8(1) rights to respect for her privacy and family life. She did not consider that the interference with those rights was justified under Article 8(2).
- In relation to the misuse of personal information, ST and RF did have a reasonable expectation of privacy about the information in the letter, “not least because it was protected by their Article 8 rights”. The Deputy Master did not consider that the school could discharge the burden of showing that the disclosure of the information was justified for the purposes of this tort.
In relation to remedy for ST, the Deputy Master decided:
- There was no clear evidence that ST was informed of the sending of the letter and had been distressed by it. The Deputy Master therefore made no award of compensation to ST under the DPA.
- No further award of damages should be made for ST’s HRA claim as she was not satisfied that to do so was necessary to award ST just satisfaction under the HRA, s.8(3).
- In light of the limited evidence of the direct impact on ST of the sending of the letter, an award of £1,500 under the head of misuse of private information was appropriate. This sum was appropriate to reflect the sending of the letter in itself.
In relation to remedy for RF, the Deputy Master decided:
- An appropriate award for RF for the misuse of personal information was £3,000. “In my view such a figure properly reflects the distress she suffered, but the absence of medical evidence that she sustained any psychiatric injury as a result of the letter alone.”
- There should be no further award of damages under the HRA.
In conclusion the Deputy Master
- found that the school breached the DPA but made no award of compensation to ST for the breach;
- made a declaration that the school breached the Article 8 and 14 rights of both ST and RF but made no separate award of damages under the HRA; and
- concluded that the school unlawfully misused personal information and that this merited awards of £1,500 to ST and £3,000 to RF.