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Secondary education

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Original poster

What are school allowed to disclose if asked for a reference for a child?

32 replies

Whataplonkerheis · 27/05/2021 13:40

My DC, year 9 has developed some anxiety about returning to school after the latest lockdown and we have sought some help from a therapist who has been great. Things are almost back to normal now but it has highlighted some issues with the school.

We have been in discussions with the school regarding this, with a meeting and several zoom calls. The therapist wrote to school, with our permission, requesting some adjustments which would be very helpful to our DC. Some of these the school accepted, others they refused to consider. We know of another school locally that has all the measures recommended already in place.

We now want to move our DC from their fee paying school to this (also independent) one. Entrance exams and interviews have been successful, as their is only one place, with competition for it. They have requested a reference, and have been in touch to say the current school have highlighted that there are mental health issues involved. We might now lose this place, even although the issues are hugely improved and they are no longer seeing the therapist.

Are they allowed to disclose this? I would have thought this was a breach of confidentiality, but would appreciate an external viewpoint.

OP posts:
Confuzzled2020 · 27/05/2021 14:18

Personally, I would say if the school is put off by the mental health issues (past or present) then its not the right school. My daughters anxiety issues have been fully passed on to her new school. I would phone new school and talk it through with them. Be very upfront and say this is why we are moving - we want your pastoral care.

UserAtRandom · 27/05/2021 14:35

If you want the new school to put adjustments in place for your DC, surely you are going to have to let them know about your DC's mental health issues anyway? Was it in the context of what they might have to do that they were contacting you?

PresentingPercy · 27/05/2021 15:35

You school must, by law, have a Data Protection Policy. In order to answer your question, you should read it.

It governs what information a school can hold about pupils and who they can share if with. It is reasonable for sensitive information to be shared in a managed move but, I believe, that consent from you should have been obtained from you regarding the reference. However this is my understanding of a policy I am familiar with but you need to read yours. It should be readily available.

I would, though, talk to your new school. All of you should work together to support Dc. You might wish to give additional information from the therapist that the original school doesn’t have. Whatever you do, don’t hide anything. The second school could terminate the contract with you if you do. So be open and honest.

Original poster
Whataplonkerheis · 27/05/2021 17:43

Thank you for the replies so far.

The potential new school were aware that returning after lockdown had caused anxiety, and they already have the measures in place that the therapist recommended to the existing school, so no new measures would have been required and the new school prides itself on pastoral care rather than academic results which is why it seemed such a good fit. This is youngest of 3 DC, DH and I very much want to see them happy and thriving rather than getting 9s in their GCSEs.

We have been open with the potential new school with this, but we’re getting the vibe in discussions re this that the existing school are trying to make it difficult for them to leave and have been trying to put a spanner in the works by providing a less than glowing reference. Several pupils in the year have recently left and I’m sure they are reluctant to see a nice fee disappear.

At this stage in Y9 it is a “now or never” situation. Some schools started GCSE options at the start of Y9 and will not even consider a move at this point.

If we do make the move to the new school then we’ll be committed to paying two sets of fees next term as we haven’t given a term’s notice, which is frustrating as the reason we want to move is that they won’t accommodate the measures requested.

I’m rambling a bit now. I just feel frustrated that the existing school are possibly engineering us to stay against our wishes. If they do have to continue at the current school I don’t want a bad atmosphere surrounding them, but I really feel stuck.

Are we within our rights to be provided with a copy of the reference?

OP posts:
prh47bridge · 27/05/2021 18:31

Confidential references for education purposes have the same exemptions from GDPR as job references. So yes, your child's existing school is able to share this information in a reference. This also means the school does not have to comply with a request to see a copy of the reference. They can choose to share it with you if they want but you cannot compel them to do so.

Original poster
Whataplonkerheis · 27/05/2021 19:01

@all prh47bridge Thank you for that. Much appreciated.

OP posts:
PresentingPercy · 27/05/2021 19:53

In addition there is a duty for the information kept on DC to be accurate and up to date. You said this was not the case OP. I do not think this is completely a black ad white case. It was also a health issue and not just an educational one. Our policy talks about consent in such circumstances. School data might be exempt but health data that is inaccurate is another matter. In my view.

prh47bridge · 27/05/2021 21:09

@PresentingPercy

In addition there is a duty for the information kept on DC to be accurate and up to date. You said this was not the case OP. I do not think this is completely a black ad white case. It was also a health issue and not just an educational one. Our policy talks about consent in such circumstances. School data might be exempt but health data that is inaccurate is another matter. In my view.
Since the OP wanted to move her child to another school, she will almost certainly have consented to a reference being obtained. That gives her child's current school all the cover they need to share information with the new school.

The Data Protection Act 2018 Schedule 2 Paragraph 24 provides exemption from articles 13-15 of GDPR regardless of the contents of the reference.

PresentingPercy · 27/05/2021 21:26

So the requirement for accuracy and up to date information is waived in this circumstance? So they could, in effect, say anything? I am not sure this is what the law intended.

Coronateachingagain · 27/05/2021 23:36

@PresentingPercy @prh47bridge does that meet that the current school can provide a reference about your child but you are not allowed to know what they wrote? Seems wrong under common law, but I know you are very knowledgeable so I am now worried by what you say as it is most probably correct

prh47bridge · 27/05/2021 23:49

@PresentingPercy

So the requirement for accuracy and up to date information is waived in this circumstance? So they could, in effect, say anything? I am not sure this is what the law intended.
No, I didn't say that. The reference should reflect the most up to date and accurate information they have. If the only information the school has happens to be inaccurate and out of date, they won't get into trouble for using that. They could, however, get into trouble if they knowingly give information that is incorrect or out of date.
prh47bridge · 27/05/2021 23:54

[quote Coronateachingagain]**@PresentingPercy* @prh47bridge* does that meet that the current school can provide a reference about your child but you are not allowed to know what they wrote? Seems wrong under common law, but I know you are very knowledgeable so I am now worried by what you say as it is most probably correct [/quote]
Statute law always overrides common law. The current legislation is the Data Protection Act 2018. It specifically exempts confidential references given for the purposes of education from subject access rights. I presume the idea is that someone writing a reference should be able to do so honestly, without worrying that the subject of the reference might get to see what they have written.

Coronateachingagain · 27/05/2021 23:58

@prh47bridge thank you for the clarification. This is a big point to take into account when changing schools, especially if prep schools are concerned.

My only point is, who would keep them honest about providing accurate and up to date information o the best of their abilities? Seems like a black hole. Worried that in these times a prep may be sloppy in providing references if that means they will lose a customer.

prh47bridge · 28/05/2021 00:01

Just to clarify my response to @PresentingPercy, confidential references don't have complete exemption from GDPR, just from certain specific parts of GDPR. In particular, the requirement that certain information is provided to the data subject when the data is collected (either from the data subject or some other source) is waived, as are the data subject's access rights. The freedom to share information comes from the fact that the data subject (or, in this case, the data subject's parent acting on their behalf) has consented to the reference being given. My experience is that most independent schools ensure that consent covers special information, which includes information about health. I suspect most parents in the OP's situation sign the paperwork including the consent without thinking about it.

Coronateachingagain · 28/05/2021 00:01

@prh47bridge I guess you could ask what information they were keeping about your child? They should be able to give you this? It is not the same as asking what they said to the other school.

Coronateachingagain · 28/05/2021 00:03

@prh47bridge

Just to clarify my response to *@PresentingPercy*, confidential references don't have complete exemption from GDPR, just from certain specific parts of GDPR. In particular, the requirement that certain information is provided to the data subject when the data is collected (either from the data subject or some other source) is waived, as are the data subject's access rights. The freedom to share information comes from the fact that the data subject (or, in this case, the data subject's parent acting on their behalf) has consented to the reference being given. My experience is that most independent schools ensure that consent covers special information, which includes information about health. I suspect most parents in the OP's situation sign the paperwork including the consent without thinking about it.
Is the consent you refer to the one given to the new school, or the one the parent would already have signed with the current school?
prh47bridge · 28/05/2021 00:06

[quote Coronateachingagain]@prh47bridge I guess you could ask what information they were keeping about your child? They should be able to give you this? It is not the same as asking what they said to the other school. [/quote]
Yes, a school is required to respond to a subject access request for most information. There are just a few specific exemptions.

prh47bridge · 28/05/2021 00:08

Is the consent you refer to the one given to the new school, or the one the parent would already have signed with the current school?

It could be either. Both schools may cover it. The current school may include it in their contract. The new school may ask the parent to consent to them obtaining a reference and to the current school providing one.

prh47bridge · 28/05/2021 00:11

[quote Coronateachingagain]@prh47bridge thank you for the clarification. This is a big point to take into account when changing schools, especially if prep schools are concerned.

My only point is, who would keep them honest about providing accurate and up to date information o the best of their abilities? Seems like a black hole. Worried that in these times a prep may be sloppy in providing references if that means they will lose a customer. [/quote]
The short answer is no-one. However, although a school does not have to provide a copy of a confidential reference in response to a subject access request, the person writing the reference needs to be aware that the recipient of the reference may choose to disclose it. The parent cannot force disclosure, but the recipient can disclose it if they wish. If the parent gets hold of the reference and finds it is inaccurate, they would be able to take legal action against the reference giver.

Coronateachingagain · 28/05/2021 00:20

Thank you @prh47bridge - great insight on how the rules work. Very useful.

Original poster
Whataplonkerheis · 28/05/2021 06:47

Many thanks to all who have contributed, as always so many knowledgable mumsnetters.

@Coronateachingagain has it spot on with ”Worried that in these times a prep may be sloppy in providing references if that means they will lose a customer”

This is what I suspect and there doesn’t seem there is much I can do about it. Interestingly the new school admissions policy requires exam and interview but no mention of reference. I don’t see much value in pointing this out to them, it’s an independent school and if they decide they don’t want us that is their decision, particularly as there is another candidate waiting.

Just frustrated with current school. Thanks again for all the advice.

OP posts:
lanthanum · 28/05/2021 11:28

Would the new school not be guilty of disability discrimination if they turn someone away on mental health grounds? (On the other hand, if that's their attitude, maybe that suggests they're not the right place...)

prh47bridge · 28/05/2021 11:51

If the OP's child is classed as having a disability then yes, this could be unlawful discrimination.

PresentingPercy · 28/05/2021 16:21

It is hard to say if the first school had up to date information and whether they had updated their records. The DC is no longer seeing a therapist. Has no issues right now. So what did the school say in the reference? It would appear not an accurate position.

I notice in the policy I am familiar with, it is clear that when DC change schools on a managed move that consent to exchange of data is sought. It is not assumed. I really do believe this is the best policy to keep everyone informed. Of course, there might even be phone calls between schools where no one would have a clue what was said. However, I still would prefer to see sensitive information handled with care when being given to another, completely separate, establishment.

Original poster
Whataplonkerheis · 28/05/2021 16:58

Quick update, just had a call from potential school to say that offer letter is in the post tonight.

This has just reaffirmed our view that this will be the right school and that the way the current school have handled the whole situation, including being unwilling to make the requested adjustments and supplying a reference which raised questions, is no longer the right school.

Thanks again to all posters who replied. It certainly raised some interesting points.

OP posts: