Guidance

Ofsted's directed surveillance policy

Updated 19 January 2023

Applies to England

Introduction

Ofsted is authorised to use directed surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA) to gather evidence of the commission of a criminal offence.

Directed surveillance may be appropriate if we have exhausted all other methods of gathering evidence, or if we cannot gather the necessary evidence by other means.

RIPA came into force in England and Wales in September 2000. It covers in detail the type of surveillance that certain public authorities, including Ofsted, may carry out lawfully, and the circumstances in which it may be carried out.

RIPA sets out:

• when we can carry out directed surveillance

• who should authorise each use of the power

• what use we can make of information gathered by directed surveillance

The aim of RIPA is to ensure that any use of investigatory powers by a public authority is compliant with the Human Rights Act 1998. In particular, RIPA ensures the right to the protection of private and family life under Article 8 of the European Convention. The European Convention made this a qualified right, meaning that it can be interfered with in order to protect the rights of another, or the wider public interest. Therefore, Ofsted may interfere with these rights, but only if the interference is:

• in accordance with the law

• necessary

• proportionate

The Investigatory Powers Commissioner’s Office (IPCO) oversees the use of RIPA powers by public authorities. It carries out regular inspection of authorities for that purpose.

We take our statutory responsibilities seriously and will act in accordance with the law and the current codes of practice. We will take necessary and proportionate action in relation to our RIPA powers.

Our surveillance powers

We are authorised under RIPA to carry out directed surveillance only to prevent or detect a crime. This power is available when Ofsted suspects that a person has committed, or is committing, an offence under the Childcare Act 2006, the Care Standards Act 2000 the Adoption and Children Act 2002 section 96 of the Education and Skills Act 2008 or any associated regulations. Occasionally, it may be necessary for us to use directed surveillance to gather evidence to justify using other means of investigation, for example the right to enter and search.

You should read this policy along with:

• our social care enforcement policy

• our early years enforcement policy

• the codes of practice made under section 71 of RIPA

What surveillance is

Surveillance includes:

• monitoring, observing, listening to or watching persons, or following their movements; this can involve listening to their conversations and other similar activities, or monitoring their communications

• recording any of the above

• surveillance using, or with the assistance of, appropriate surveillance devices

Surveillance can be overt or covert. Any surveillance that is carried out where the subject is aware of it comes under the definition of overt surveillance. Overt surveillance does not require RIPA authorisation.

RIPA authorises and regulates only our covert, directed surveillance. Section 26(2) of RIPA defines directed surveillance as surveillance that is:

• covert, but not intrusive

• carried out for the purposes of a specific investigation or operation related to preventing or detecting a crime

• likely to result in the obtaining of private information about a person or persons

• carried out in a way that is premeditated, rather than, for example, the chance observations of an inspector attending a setting to carry out an inspection

Before authorising directed surveillance, our authorising officer will consider whether there is a privacy risk to anyone beyond the subject that we are investigating. This is known as ‘collateral intrusion’. When possible, we will take measures to avoid or minimise unnecessary intrusion into the lives of those not directly connected with the investigation, and especially into the lives of children and young people.

Social media and websites

If we are planning to gather information from social media and other websites as part of an investigation, we will consider whether authorisation under RIPA is necessary. If authorisation is required, we will follow the usual process for obtaining and granting a RIPA authorisation.

Surveillance outside RIPA powers

RIPA does not give us the power to carry out surveillance other than directed surveillance for the purpose of criminal investigation. There is no requirement for other surveillance we carry out to be authorised under RIPA. This means that we can lawfully carry out other surveillance relying on different legislative powers. RIPA provides a framework to ensure that any directed surveillance we carry out is authorised and supervised in a way that complies with the Human Rights Act 1998 and data protection legislation. At times, we may need to seek legal advice to ensure compliance with other legislation.

Obtaining RIPA authorisation

Our staff must apply for, and obtain, written authorisation from an authorising officer before carrying out directed surveillance. Before seeking authorisation, they must consult a gatekeeper.

Staff who carry out directed surveillance must have received approved training and be familiar with the requirements of the codes of practice.

Similarly, to advise on or authorise directed surveillance, gatekeepers and authorising officers must have received approved training and be familiar with the requirements of the codes of practice.

Making an application

All applications for directed surveillance must include the following information:

• why – the reasons that directed surveillance is necessary and what crime it will prevent or detect

• what – a detailed explanation of the information we expect to gain from the directed surveillance

• where – the location where the directed surveillance will take place

• when – the date we intend to start the directed surveillance and for how long we will carry it out

• who – the identities, if known, of those who are to be the subjects of the directed surveillance

• how – the methods and equipment we will use, for example a camera, listening device, car or computer

• the details of any potential collateral intrusion, the justification for that intrusion and the steps that we will take to limit it

• the arrangements made to ensure that the surveillance remains covert

We will only use directed surveillance if it is not possible to obtain the necessary information by any other means.

Granting authorisations

The authorising officer will consider the following 4 factors when determining whether the application for directed surveillance is appropriate and proportionate:

• how the size and scope of the operation is balanced against the gravity and extent of the suspected criminal offence

• how and why the methods to be used will intrude as little as possible on the person who is targeted and other individuals who may be affected

• why the use of the power is appropriate and the only reasonable way of obtaining the information or evidence

• what other means of obtaining the information have been considered and why these are not appropriate or sufficient

The authorising officer will then balance the impact of carrying out directed surveillance on individuals against our responsibility to prevent and detect crime and to safeguard children and other service users. In carrying out this balancing exercise, we must ensure that we only carry out directed surveillance where it is proportionate to do so. Proportionality also requires us to demonstrate that the methods and tactics we use when carrying out each surveillance operation are the least intrusive possible. Authorisation may be granted for a period of up to 3 months.

Authorising officers will only approve directed surveillance if they are satisfied that:

• it is an appropriate and proportionate response

• it is to obtain evidence that someone is committing, or is likely to commit, a criminal offence or offences

• those nominated to carry out the operation are trained appropriately in covert surveillance

• all sections of the application form are complete, and the form includes all necessary information for the authorising officer to reach a decision

When approving a request to authorise directed surveillance, the authorising officer will provide details of the following:

• why they are authorising the surveillance

• what they are authorising

• the length of time the surveillance is authorised for

• where the surveillance will take place

• what equipment may be used

• why it is a proportionate response

The authorising officer may set conditions for the conduct of the directed surveillance.

Reviewing authorisations

We will keep a record of all applications for directed surveillance, including the exact details of the approved authorisations, for at least 3 years from the date that the operation ends. We will store these records securely, in line with our retention policy.

The authorising officer will review each authorisation regularly to assess whether it should continue or be cancelled. The review will consider the following:

• whether the directed surveillance continues to meet the criteria set out in the application form

• whether the directed surveillance remains proportionate

• whether Ofsted can gather the evidence required in any other way

• all evidence gathered by the directed surveillance up to that point

• any additional information that may have a bearing on the decision, including the extent of any collateral intrusion

The authorising officer will also review the authorisation when the directed surveillance operation is complete.

Renewing authorisation

An application for renewal should, whenever possible, be sent to the authorising officer who granted the original authorisation. If the original authorising officer is not available, another trained authorising officer may consider the application. The authorising officer must read the original application along with the renewed surveillance application form. The authorising officer will check that the renewal application includes details about:

• any significant changes to the information in the previous authorised application

• the reason it is necessary to continue directed surveillance

• the value of continued directed surveillance to the investigation of the suspected offence, based on the evidence gathered so far

• the proposed length of time for the additional directed surveillance

• the extent of any collateral intrusion to date

An authorising officer may renew authorisation in writing for a further 3-month period, or grant it orally in urgent cases, which may last up to 72 hours.

Cancelling authorisation

An application must be made to the authorising officer for the cancellation of the directed surveillance once we have completed the operation, or have decided not to continue with it for any reason. Authorisations must be cancelled and cannot be allowed to lapse.

The original authorising officer must cancel the authorisation. If the original authorising officer is no longer available, the duty to cancel will fall on the person who has taken over the role of authorising officer, or a person who is acting as an authorising officer. The authorising officer must cancel the authorisation as soon as possible after the operation has ended, or as soon as they are satisfied that the directed surveillance no longer meets the criteria.

Training and development

All staff authorised to apply for authorisations or to carry out directed surveillance must have received approved training.

Authorising officers must have received initial training from external expert sources, and will receive refresher training internally on an annual basis.

The Deputy Chief Inspector (Chief Operating Officer) has been delegated to act as senior responsible officer (SRO) for RIPA by His Majesty’s Chief Inspector, and will attend an internal awareness event in relation to RIPA on an annual basis. The SRO and all authorising officers and investigators will receive regular updates on changes to the law and practice in this area.

Maintaining records and retaining evidence

We will maintain and retain the following:

• all applications for directed surveillance, including the outcome of the application

• a record of the period for which the surveillance has taken place

• the frequency of reviews as prescribed by the authorising officer

• a record of the result of each review of an authorisation

• a record of any renewal of an authorisation; the reason why the person renewing an authorisation considered it necessary to do so; and the reasons, if any, for not renewing an authorisation

• the date and time of any instruction by the authorising officer

• the reasons for cancelling an authorisation

We will store all information in line with our retention policy.

In line with the codes of practice, we will hold a central record of all surveillance authorisations. We will make the record available to the relevant commissioner or inspector from the IPCO on request. We will retain a record for each authorisation for at least 3 years from the date on which the directed surveillance operation ends.

We will ensure that there is continuity in respect of any surveillance material, such as logs or photographs. We will store this material securely for as long as it is or may be relevant to any future criminal, regulatory or civil proceedings. We may disclose the material to a court or tribunal, and to other parties if the court or tribunal directs this.

We will destroy surveillance material immediately once it is no longer required for a criminal investigation/prosecution or in relation to regulatory/civil proceedings.

The authorising officer is responsible for ensuring that the handling, storage and retention of the products of surveillance are in line with this policy and the codes of practice. They are also responsible for ensuring that we comply with all data protection requirements, including the Data Protection Act 2018 and the Law Enforcement Directive.

If the authorised directed surveillance operation gathers evidence of criminal offences other than those under investigation, the surveillance officer will secure the evidence and inform the relevant agency.

Errors

If we become aware that an error has occurred, we will report this within 10 days of becoming aware of it. Errors include, for example, surveillance activity that has taken place without lawful authorisation. Our legal services team will draft a full error report to the IPCO, which will include details of:

• the nature of the error

• the cause of the error

• the amount of surveillance carried out and the material obtained or disclosed

• any unintended collateral intrusion

• any analysis carried out, or action taken

• whether any material has been retained or destroyed

• the steps taken to prevent recurrence, in brief