Data Retention – AKA: “Can I keep this SEN file?”
Frequently I see the same questions asked and the same (wrong and unlawful) responses given. Even when I evidence my answer with the guidance that should be adhered to I find the original individual will ‘prefer’ a response to the one that is given. Well, if you want to stay on the right side of the law, not breach GDPR and ensure that you don’t have sleepless nights, here is what you need to know.
What do I need to pass on?
Primary-Secondary transition, or mid-year transfer in any phase
You are required to pass on all of their file without weeding any content out (unless it’s a duplicate or should have been destroyed previously). You MUST NOT keep a copy of the file in electronic or print format. You must transfer the information within 15 school days of confirming their new enrolment.
EXCEPTION 1: The parent has just applied for an EHCP and you know you are going to have to help the secondary with the application. It would be reasonable to keep a copy of relevant materials to help you with this. But get consent from the parents and don’t keep it for longer than necessary. In theory you shouldn’t need it longer than half a term and certainly not more than 20 weeks.
EXCEPTION 2: The parent is suing the school for not meeting needs. If this is the case there is a good chance there is a legal team involved and they will have asked for copies of the files. YOU do not need to keep a copy, but they may need to. Let them deal with it.
They’ve reached 16/18, or they’ve left the country/gone to Home-Ed (any age)
As the last known school, you are required to keep their file until they reach the age of 25 or 31 if they were on your SEN register (with any status). 25 years because that’s how long an EHCP could be valid for + 6 years for the statutes of limitation…in other words the 6 years they’re still allowed to pursue a claim for if they disagree with their provision/education etc. Some LA will store the files for you if the child has left the country or gone to home education. Others will tell you to keep it. You must do so until the ages above.
Some people assume this means it only applies to children with an EHCP. It doesn’t, it applies to any child who is on the SEN register.
“It’s OK I’ve passed on their paper file; I’ll delete my Google drive when I’ve got time!”
You are beaching the data protection act and GDPR. You are keeping information without consent or due purpose. You MUST remove electronic copies at the same time as your paper files and also ensure that no back-ups exist with the information.
“It’s the second week of term and I still haven’t received information from their last school.”
They have 15 school days from notification that they are on your role (assuming you both had the same term dates.) So, three weeks. Of course, earlier is better.
Primary schools should know which secondary schools their pupils are going to and many will pass on the files at the end of the Summer as soon as the pupils go into guest status on the secondary school MIS. Even if the child then appeals their school place and goes to another school, it is reasonably easy to track down their file. However, it is understandable with the new rules around GDPR that schools want the children physically on roll before they will transfer the information over. Catch 22.
How do I destroy the information?
Information must be destroyed in an appropriate manner. Apparently dousing in petrol and burning on your own bonfire or throwing away with last year’s lesson plans is not a secure method of disposal! The IRMS toolkit gives guidance on the type of security measures that must be taken when undertaking destruction of personal data.
Where can I find more information…and what exactly are we talking about (with reference to files) here?
The IRMS Toolkit for Schools. This should be your bible. Whilst it does state that it is not statutory, the DfE guidance on Data Protection (which is statutory) directs you to the IRMS guidance. For SEN purposes the pages you specifically need are 12-15 (around what the file consists of and what you must transfer/keep) and page 92 (which is specific to SEN although does have the wrong heading – it is the second table entry headed Attendance!)
* Transfer files within 15 school days *
* Transfer everything – no weeding allowed *
* Do not keep copies *
* If you are their final school, keep the file until they are 25 *
* or 31 if they are SEN, regardless of SEN status *
* Destroy data securely *
If you’d like to hear me talk about this in more depth then please visit my YouTube Channel SENsible SENCO and watch the video on Data Retention.