A family won a landmark ruling today when a council was found to have acted illegally in spying on them for nearly three weeks to discover whether they had lied about living in the catchment area of a top primary school.
A tribunal ruled that Poole council had breached the law by using powers designed to catch serious criminals to track every movement of the Paton family.
The council had kept Jenny Paton, her partner Tim Joyce and their three daughters under covert surveillance between February 13 and March 3 2008 after receiving two phone calls claiming the family did not live at the address they had given on the school application form. If they had not lived at the property, their children would not have been eligible for a place at the local primary – Lilliput first school in Dorset. The school has been rated outstanding by inspectors and is over-subscribed.
The council had watched the family at home, recorded their movements in detail and used "physical surveillance" on six occasions to establish whether they were lying. The council's notes describe the couple's car as a "target vehicle".
The surveillance is thought to have taken place because the family put their home up for sale, but lived in it until the end of January to ensure their youngest daughter would qualify for the school. They later moved to another part of the town and their daughter was accepted at the school.
The council claimed it was acting under the Regulation of Investigatory Powers Act (Ripa), which allows councils to carry out surveillance only if they suspect serious crimes, including terrorism. The legislation was introduced in 2000 to give the police, security services and the Revenue and Customs service powers to spy on people to fight crime and terrorism.
But in what is a landmark ruling, the tribunal found that the council had not needed to use the powers granted under Ripa. It is the first time such powers have been challenged at an open hearing. The tribunal also ruled that the council had breached the family's right to privacy as stated in the Human Rights Act.
The ruling stated that the surveillance was "not proportionate and could not reasonably have been believed to be proportionate". "The complainants have been unlawfully subjected to directed surveillance," it added.
Corinna Ferguson, legal officer for civil rights group Liberty, said the "sinister treatment" of the Paton family proved surveillance powers "need to be far more tightly restricted and supervised".
The government is reviewing the use of surveillance powers as part of the Counter Terror Review announced by the Home Secretary last month.
The coalition agreement has said it will change the law to ensure councils can only use Ripa powers if they are approved by a magistrate and only then to stop serious crime.
The family only discovered they had been under surveillance when it was revealed during a meeting with council officials to discuss their school application.
A spokesman from the Local Government Association said councils needed surveillance powers to catch fly tippers, rogue traders and benefit fraudsters, among others. But added that the powers should be used proportionally.
Paton said, in an interview with Sky, that she brought the case to
"test" the legislation. "We did not bring it to be exonerated or to
claim any compensation for injured feelings," she said. "This was
really about bringing a case so other people could see just how absurd
and insidious this piece of legislation actually is."
The housing minister, Grant Shapps, said Poole had "appallingly abused
state powers". "I fear it is just the tip of the iceberg," he said. He
said the government would change the law "to stop the rise of a town
hall Stasi". "Town halls are not the secret service or the police, but
surveillance powers designed to tackle terror and the most serious
crimes have been over-used and misused," he said. "Britain is not a
totalitarian state, but we have some laws which are as draconian and
arbitrary."
A spokesman for the council said the local authority had fully accepted the ruling. "We would like to apologise to Ms Paton and her family for any distress caused as a result of its actions in this case," he said.
"As the local education authority, the council has a duty to uphold the integrity of the school admission process. The council takes this responsibility very seriously and has always sought to ensure that the process is fair for all families and not open to abuse by those who may seek to exploit the system to the disadvantage of other parents and children."
He added that the council no longer used Ripa for investigating potentially fraudulent applications for school places following a scrutiny committee review, approved by the cabinet in December 2008.
In July last year, Harrow council in north London dropped a test prosecution against a mother accused of lying about her address to secure a place for her son at a primary school.
The council had taken Mrinal Patel to court for allegedly applying for a place for her five-year-old son, Rhys, at Pinner Park first school using her mother's address last January.
Patel, who denied the charge, was thought to be the first parent in the country to be taken to court for school application fraud.
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