[2025] UKUT 308 (AAC)

the balance of interests fell plainly in favour of disclosing identities of the SoSE facilitators (notice of appeal).

The Appellant argues that the First-tier Tribunal failed to take into account that Parliament has determined that it is reasonably necessary for the public to know the identity of those teaching sex education, and is also required by the Statutory Guidance. Parliament has not determined that it is reasonably necessary for the public to know the identity of those teaching sex education. No legislative provision to that effect has been brought to my attention and I am almost certain that none exists (guidance is not made by Parliament).

It is true that the Statutory Guidance provides that a school’s sex education policy should identify “who is responsible” for teaching sex education. I do not, however, read this as a requirement to name each and every person, member of school staff or otherwise, who delivers sex education at a school. I read the guidance as imposing an expectation that a sex education policy will identify the member/s of school staff with overall responsibility for the teaching of sex education. Had the intention been to name each person who delivers sex education, the Statutory Guidance could have said so in terms. Moreover, such a requirement would be almost impossible to implement since some identities would not be known when a policy was made. Teaching staff appointed after a policy was made could not be named nor supply teachers, and the same difficulties would arise if an attempt were made to name staff of external organisations that might be commissioned to provide sex education. The First-tier Tribunal could not have erred in law by failing to take into account a non-existent requirement. It follows that the Tribunal did not err in law by failing to accept that anyone teaching sex education must reasonably expect to have their identity disclosed to parents.

I am not convinced that the First-tier Tribunal was presented with the argument that disclosing the facilitators’ identities was consistent with parental rights to determine what education a child receives. In any case, if such a right exists, I am not persuaded by the argument because determining what education a child receives is not the same thing as determining who delivers education.

The Appellant criticises the First-tier Tribunal for finding that the statutory framework for regulating who works in schools was sufficient when no party made submissions on what that framework was. The Appellant’s case before the Tribunal included the argument that the School’s statutory safeguarding duties should carry no weight given the absence of any evidence that the School did any vetting of SoSE staff. That did in fact amount to a submission about the nature of the framework since it presupposed that such vetting was required. The Tribunal found that “the statutory framework that has been established to regulate who works in schools meets that interest [of ensuring that appropriate, properly qualified and safe individuals are teaching sex education]” (paragraph 174). So, that was a finding that the statutory framework was established for a particular purpose. It was not in terms a finding that the framework ‘was sufficient’ but the Appellant had not argued that it was insufficient; she argued it should be left out of account because there was, she argued, no evidence that the School vetted the SoSE facilitators.

The First-tier Tribunal’s key determination was that the legitimate interest pursued by the Appellant could be met by means other than disclosing the identities of SoSE facilitators. This rested on a finding of fact that, at the relevant time, the names and biographies of SoSE facilitators appeared on their website which meant that the Appellant had the opportunity to make her own assessment of their suitability. The Tribunal did not simply state that there was a statutory framework for regulating those who work in schools and leave it at that. Even if the Tribunal did impliedly find that the statutory framework was ‘sufficient’, its dispositive reasoning rested not on that but on its finding that the Appellant had the opportunity to make her own assessment of the suitability of SoSE facilitators. The Tribunal did not err in law as contended by the Appellant.

The Appellant criticises the First-tier Tribunal for wrongly taking into account whether she was ‘unable’ to make a complaint, when the relevant question was whether the effectiveness of a complaint was limited by her ignorance of the identities of SoSE facilitators. Before the Tribunal, the Appellant did argue that a statutory complaint would be less effective (as well as ineffective) unless she knew the identities of SoSE’s facilitators. In the first sentence of paragraph 176 of its reasons, the Tribunal rejected the argument that the Appellant would be “unable to make a complaint if she does not know the names of the individual facilitators”. If the rest of that paragraph is then read, it is clear that the Tribunal meant ‘unable to make a complaint, or unable to make an effective complaint’. That is because the Tribunal went on to describe complaints that the Appellant would have been able to make on the information available to her, or which she had the opportunity to ascertain from SoSE’s website (in its then form). The Tribunal dealt with the argument that, without knowing the identities of SoSE facilitators, the Appellant was unable to make an effective complaint and properly explained why the argument was rejected.

The Appellant submits that the First-tier Tribunal failed to take into account that her ability to discuss the teaching of ‘that individual’ with her daughter was limited by ignorance of their identity The Appellant’s case before the Tribunal did not, in terms, include the argument that ignorance of the identities of SoSE’s facilitators limited her ability to discuss teaching at the Session with her daughter. What the Appellant argued was that, if she knew the facilitators’ identities, she could answer questions her daughter might have about them (Tribunal skeleton argument) and their teaching (Tribunal notice of appeal). These arguments were dealt with by the Tribunal’s finding that the Appellant had the opportunity to make her own assessment of individual facilitator suitability using the then-publicly available information on SoSE’s website. The Tribunal did not err as submitted by the Appellant.

The Appellant argues that the First-tier Tribunal applied a higher threshold than that of reasonable necessity. That might be justified, she submits, if schools make mistakes but, sometimes, they do. This argument overlooks that the Tribunal’s key finding was that the Appellant had the opportunity, at the relevant time, to make her own assessment of facilitator suitability. That would have involved some waste of time for the Appellant because there were several facilitators listed on SoSE’s website, and only two participated in the Session, but that is not why she criticises the Tribunal’s approach. She says it applied too high a threshold by failing to recognise that sometimes schools make mistakes. Had the School made a mistake in this case, all that a parent could have done to ameliorate the mistake was carry out their own assessment of suitability using publicly available information and the Tribunal found that the Appellant had the opportunity to do this. The Tribunal did not err by failing to recognise that sometimes schools make mistakes so that disclosure of facilitator identities was necessary in this case.

The Appellant argues that the First-tier Tribunal failed to ask itself, when considering whether SoSE facilitators had a reasonable expectation of privacy, if the role of SoSE facilitator was ‘public-facing’. However, the argument rests on the assumption that the Statutory Guidance required the School’s sex education policy to identify the SoSE facilitators who delivered the Session. Since I have already decided that the guidance does not require this, the Appellant’s argument cannot succeed.