Bristol City Council will face tough questions over the coming weeks as the row over it monitoring social media accounts belonging to parents of children with special education needs and disabilities (SEND) rumbles on.
A planned vote by all councillors on a motion calling for an independent inquiry into officers’ gathering of social media posts criticising SEND services was postponed this month due to the Queen’s death.
The rescheduled full council meeting will not take place until 18 October. That’s a fortnight after Ofsted and Care Quality Commission inspectors return to Bristol to assess progress on “significant weaknesses” in SEND provision uncovered in 2019.
But a People scrutiny committee meeting, also delayed after the queen’s death, will now go ahead on Monday 26 September. Committee members, several of whom have direct experience of the SEND system, will grill officers on the contents of an internal ‘fact-finding’ report published earlier this month, in which the council’s legal services department cleared it of any wrongdoing.
The report has been widely criticised, with Graham Morris, the Conservative councillor for Stockwood who has tabled the motion for an independent inquiry, calling it “bureaucracy marking its own homework”.
A leading specialist SEND lawyer, Ed Duff, told the Cable the council had taken a “cynical” approach aimed at limiting parents’ ability to speak out about service failings.
Meanwhile Christine Townsend, the vice-chair of the People scrutiny committee and Green councillor for Southville, said she expects next week’s meeting to be “explosive”.
Criticism of the council a ‘conflict of interest’
The fact-finding report was put together after emails leaked in July revealed officers had harvested information from SEND parents’ social media accounts.
The council claims this was necessary to prove a conflict of interest between two parents holding formal roles within Bristol Parent Carer Forum (BPCF) while also “campaigning” – often critically of the council – in various online forums. The parents, HH and JS, became chair and vice-chair of the forum, one of a network of groups set up to make sure local services meet the needs of SEND children and their families, in January 2022.
BPCF was funded by a grant from the Department for Education (DfE) – via its partner, the charity Contact – as well as by money from the council and the local clinical commissioning group. Contact’s guidance says parent carer forums should work in a spirit of “co-production, collaboration and partnership” with their local authority, which the council says the parents’ actions went against.
The fact-finding report repeatedly states that the council had ongoing issues with BPCF in terms of its governance and whether it was representative of the city’s parent carer community.
But it adds there were “further concerns” around HH’s appointment to the forum’s steering group, in September 2021, and JS being a member before later taking up the formal role of vice-chair.
Both parties’ social media posts were known to the council’s communications team as well as staff working in the SEND service area. But officers began internally sharing them in late September 2021, before discussing them with an advisor at Contact who recommended passing with BPCF “evidence or copies of the social media posts that are in the public domain”.
The council has claimed BPCF also asked it to gather evidence to substantiate its concerns – something the forum has strongly denied. Either way, in September officers gathered evidence of social media posts by both parents, including cross-referencing photos on one of their Facebook accounts with an image used in an anonymous Twitter profile, to substantiate links between the two.
Several officers collated further evidence in October 2021 – without formal written authorisation – and sent this to BPCF. The forum then set out a range of actions, around training reps and strengthening governance, intended to address the council’s concerns.
Months later, in April and May 2022, officers again gathered and collated social media posts by HH and JS to use as further evidence of conflict of interest in meetings with BCPF and Contact. The following month, the council pulled its support for BPCF’s application for further DfE funding, which the report says was “in part” down to the social media activity.
‘Deeply cynical approach’
While the council says the DfE and Contact agreed “in principle [that] campaigning activity can represent a conflict of interest”, BPCF has maintained that its members broke no rules.
It said in a statement that “personal social media activities, individual freedom of information requests, and personal judicial review actions, are all individual rights which are out of the remit of Bristol Parent Carer Forum to control”.
Despite the council’s claim that the monitoring was in order to show a conflict of interest, the fact-finding report shows that officers’ monitoring of parents’ social media began months before HH and JS became chair and vice-chair of the forum, and before JS joined its steering group.
Ed Duff, a specialist education and social care lawyer, described the council’s approach as “deeply cynical”.
“I can’t see how the local authority would have had genuine concerns about the activities of those people. A parent carer forum, first and foremost, is not to advocate for a local authority, it’s to provide support for families,” he told the Cable. “[The council’s actions are] clearly targeted at restricting individuals’ ability to criticise or challenge local-authority decision-making when it comes to special educational needs.
“A parent who’s annoyed with rubbish services, who has the wherewithal to get involved, will do so to try to sort things out,” Duff said, adding that he could not see this as a conflict of interest.
Besides the alleged conflict of interest, there is the question of whether the council broke any laws in the course of monitoring and harvesting the parents’ social media posts.
It is not alone in doing so. A 2019 study found that surveillance of families’ social media accounts had become “normalised” among some local authority social work teams.
Bristol-based family law barrister Lucy Reed warned in a blog published at the time that council employees risked entering a “minefield” by spying on parents’ profiles.
The Regulation of Investigatory Powers Act (RIPA) 2000 requires local authorities to get a magistrate’s approval before conducting directed surveillance – essentially covert monitoring likely to result in someone’s private information being obtained. In its fact-finding report, the council says this did not happen because “all information collated was publicly available”.
But Home Office guidance says that whether monitoring somebody’s social media amounts to directed surveillance depends on whether they have a reasonably held expectation of privacy in what they post.
While it’s unlikely this would cover public tweets tagging the council, the expectation can still apply to content where someone has not used any privacy settings, if they did not intend for their posts to be used for covert investigation. Parents have also told the Cable of council staff gaining access to a private Facebook group, although we could not confirm this has taken place.
“If the study of an individual’s online presence becomes persistent, or where material obtained from any check is to be extracted and recorded and may engage privacy considerations, RIPA authorisations may need to be considered,” the Home Office guidance says.
As mentioned by a recent article in the Bristolian, the council’s own children’s services procedures manual specifically warns staff about repeatedly viewing social media profiles, and urges them to seek legal advice before doing so.
Council needs to regain parents’ and carers’ confidence
Regardless of the legal ins and outs, there has been widespread condemnation of the council’s behaviour in terms of the damage to its already troubled relationship with local parents and carers, and to its own reputation.
Besides addressing the report, Monday’s meeting will examine updated figures showing the council’s ongoing struggles to address the delays parents of SEND children face around assessments for education, health and care plans (EHCPs).
EHCPs set out children’s additional needs within school and are meant to be completed within a 20-week timescale. The council’s poor performance in this area has been a key source of friction with local parents – and was one of five failings identified in 2019 that inspectors will be looking into when they visit in early October. The latest data shows a slight improvement on previous years but that so far this year less than 40% of EHCPs are being completed on time.
The others were a lack of accountability among leaders, inconsistencies around how children with SEND are identified and assessed, underachievement and lack of inclusion of children with SEND, and the “fractured relationships” at the heart of the monitoring scandal.
A few days after Ofsted and the CQC depart, full council will vote on Morris’s motion calling for an independent inquiry.
“We want the mayor to accept the need for an independent investigation,” said Tony Dyer, the Green councillor for Southville who chairs the overview and scrutiny management board that would oversee the process.
“This wouldn’t necessarily need to be conducted externally – scrutiny should determine the remit of the investigation, with outside advice – but the council needs to regain the confidence of the parents and carers of SEND children,” he added.
Councillors will scrutinise the fact finding report on Monday 26 September. The full statement submitted by BPCF can be found here.
Ofsted and the CQC are inviting Bristol’s parents and carers to contribute their views about weaknesses in local SEND provision, ahead of their re-inspection of services, via an online survey that opens on Monday 26 September.