Tribunal confirms that Wirral Council paid ~£48,000 to Emma Degg connected to confidential compromise agreement

Tribunal confirms that Wirral Council paid ~£48,000 to Emma Degg connected to confidential compromise agreement                                             In a recent Tribunal judgement involving a freedom of information request made to Wirral Council by Paul Cardin, there has been official confirmation that the ~£48,000 payout by Wirral Council to a former employee was to Emma Degg (referred … Continue reading “Tribunal confirms that Wirral Council paid ~£48,000 to Emma Degg connected to confidential compromise agreement”

Tribunal confirms that Wirral Council paid ~£48,000 to Emma Degg connected to confidential compromise agreement

                                           

Emma Degg at the Wallasey Constituency Committee Working Group 1st October 2014
Emma Degg at the Wallasey Constituency Committee Working Group 1st October 2014

In a recent Tribunal judgement involving a freedom of information request made to Wirral Council by Paul Cardin, there has been official confirmation that the ~£48,000 payout by Wirral Council to a former employee was to Emma Degg (referred to in the judgement as X).

Emma Degg was a chief officer at Wirral Council. She was the Head of Neighbourhoods and Engagement on a salary of between £77,697 and £86,330.

It has been revealed in the judgement that before leaving Wirral Council Emma Degg signed a confidential compromise agreement with Wirral Council. This compromise agreement included not revealing the amount she was paid to leave Wirral Council or the date she was paid it.

The FOI request along with Wirral Council’s responses can be read on the whatdotheyknow.com website and ICO decision notice FS50522678 can be found on ICO’s website.

Mr. Cardin’s appeal to the Tribunal was dismissed. The judgement stated that the Article 8 (privacy) rights of Emma Degg was a factor in favour of not disclosing the information.

The Tribunal upheld ICO’s decision notice FS50522678 that the information requested should be withheld on grounds that it constitutes personal information.

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Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

                                                     

Treasury Building (Wirral Council), Hamilton Square, Birkenhead, 19th August 2014 (you can click on the photo for a more high-resolution version)
Treasury Building (Wirral Council), Hamilton Square, Birkenhead, 19th August 2014 (you can click on the photo for a more high-resolution version)

Yesterday on a sunny afternoon, I went to the Wirral Council building pictured above known as the Treasury Building to inspect various Wirral Council invoices. I was exercising an obscure right under s.15 of the Audit Commission Act 1998 c.18. This right means that for a few weeks each year, as an “interested person” you can inspect the accounts for the previous financial year that in the process of being audited by Grant Thornton. You can also inspect all books, deeds, contracts, bills, vouchers and receipts that relate to these accounting records and make copies of all or any part of the accounts and those other documents. This year (for Wirral Council) that period ran from 21st July to the 15th August, so sadly if you’re thinking of exercising this right you’ll now have to wait till next year to do so!

However I had put in my request during that brief time period for five areas I was interested in. I’ve briefly describe what those four areas were, the first was invoices from SCC PLC (which is a large IT company), the second and third batches were invoices for legal matters (solicitors, barristers, expert witnesses, court fees etc), the fourth were some general invoices and the fifth were various contracts (two of which were the Schools PFI contract and the Birkenhead Market lease).

The contracts aren’t ready yet, but the invoices were available for inspection yesterday and I also exercised my s.15(1)(b) right to copies. Just the copies of invoices comes to hundreds of pages of documents (which may take me a while to scan in). Some pages are more heavily redacted than others. However this blog post is going to concentrate on just one which is document 117 in one of the two legal bundles. The document (in the form I received it from Wirral Council) is below (you can click on the photo for a more readable version).

11KBW Invoice for appeal of an ICO decision notice (October 2013) Metropolitan Borough of Wirral (£1872) redacted
11KBW Invoice for appeal of an ICO decision notice (October 2013) Metropolitan Borough of Wirral (£1872) redacted

A bit of context is probably needed about this invoice first. 11KBW is a London-based chamber of barristers that specialise in employment, public and commercial law. You can find out more about them on their website. This particular invoice for £1,872 (including VAT) was for “perusing and considering papers, advising by email, telephone and writing and drafting grounds of appeal to an ICO decision notice”. Whereas the first bit of that is understandable, if you don’t know what an ICO decision notice is then I’d better explain.

If a person makes a Freedom of Information request to Wirral Council, then is not happy with the response, requests an internal review, then they’re not happy with the internal review they can appeal the decision to the Information Commissioner’s Office (known as ICO). The ICO prefer to deal with things informally, but if they can’t they will issue a “decision notice”. A decision notice is an independent view of ICO’s one way or the other on the FOI request and as to whether the body to whom it has been made has complied with the Freedom of Information legislation and sometimes also the Environmental Information Regulations.

Unless the body to whom the FOI request is made or the person making the request appeals the decision notice within 28 days, the body to whom the FOI request is made has to comply with the decision notice within 35 calendar days. Sometimes ICO agree with the body the FOI request is made to so no further action is required. Other times the decision notice compels the body (unless they appeal) to disclose the information. If the public body doesn’t comply with the decision notice within 35 calendar days then ICO can tell the High Court about this failure and it would be dealt with as a “contempt of court” issue.

Helpfully (unlike a lot of other court matters), ICO have a search function on their website for decision notices. As the invoice is for drafting grounds of an appeal (which has to happen within 28 days of the notice) a search for decision notices from the 27th September 2013 to the 25th October 2013 brings up three decision notices FS50496446, FS50491264 and FS50474741.

The first of those three (FS50496446) states in the summary “As the council has now provided a response, the Commissioner requires no steps to be taken.” so it’s not that one. The last sentence of the summary on FS50474741 states “This decision notice is currently under appeal to the Tribunal” (which is a little out of date as by now the tribunal has already reached its decision on that matter). Therefore this invoice is (by process of elimination) about the eight page decision notice FS50474741.

The decision notice goes into the detail about what the original FOI request (which you can read for yourself on the whatdotheyknow website) was about (made on the 4th February 2012), which is for correspondence between Wirral Council and DLA Piper UK LLP. Much of the correspondence is between DLA Piper Solicitors and Anna Klonowski Associates Limited and includes an amendment to the contract between AKA Limited and Wirral Council. The information also included Bill Norman (Borough Solicitor)’s advice to councillors on publication of Anna Klonowski Associate’s report which was previously published as an exclusive on this blog on December 12th 2011.

When the AKA report was published, the issue made the regional TV news (you can view a video clip of that below this paragraph) and a no confidence vote which removed both Cllr Steve Foulkes as Leader of the Council and the minority Labour administration. The Labour administration was replaced by a short-lived (~3 month) Conservative/Lib Dem one in the February of 2012. The whole matter was a very sensitive (and somewhat embarrassing) period in Wirral Council’s history (even more than the public inquiry into library closures was) and it’s probably somewhat understandable as to why Wirral Council didn’t want information as to what happened “behind the scenes” being released into the public domain. As far as I remember (and it was some years ago so I hope my memory is correct on this point), Wirral Council was paying DLA Piper to give legal advice to itself and AKA Limited. This was in relation to the inquiry of AKA Ltd started by Cllr Jeff Green into Martin Morton’s whistleblowing concerns (in the brief period when as a Conservative councillor he was Leader of the Council).

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However, in addition to the details of the decision notice, other information has been blacked out. The part at the top right where it states “professional fees of”, I think relates to a junior barrister called Mr Robin Hopkins who is also on Twitter. The reason behind this is that at the bottom of the invoice it states “PLEASE MAKE CHEQUES PAYABLE TO Mr Robin Hopkins” and his name also appears as the organisation name on the list of invoices Wirral Council publish of over £500 for October. On Wirral Council’s systems although a small number of invoices from barristers chambers come under the name of the barrister’s chambers, most appear using the barrister’s name as the organisation.

As to the name of the Wirral Council officer that the pro forma invoice is addressed to, it would seem most likely that this is Surjit Tour. Not only does his short name fit what is blacked out, but he’s also the Head of Service for this service area within Wirral Council. I don’t know whether he’d actually be the solicitor at Wirral Council giving instructions to the barrister on this issue (as there are over a dozen solicitors employed at Wirral Council). I’ve no idea whose signature it is on this invoice and there are three other places on the invoice where officers’ initials or names have also been blacked out.

When the appeal to ICO’s decision notice was heard at the First-Tier Information Tribunal you can read this post about it on Paul Cardin’s blog, there’s another write-up about it in Local Government Lawyer and a copy of the 16 page unanimous decision of the tribunal can be read here.

The invoice (partly revealed) with my educated guesses in green as to what’s behind the redactions is below. However it begs the question, why did Wirral Council redact this information and what have they got to hide? Or is it just a case of they’d prefer the press and public to forget about the entire Martin Morton/AKA issues which were compared to “Watergate” by Cllr Stuart Kelly? If they’d chosen not to appeal this decision wouldn’t that meant a saving of £1,872 that Wirral Council could have instead spent on education or social services? I thought that a Labour councillor (was it Cllr Phil Davies?) stated that the current Labour administration was “open and transparent”? Only as recently as June of this year wasn’t the Cabinet Member Cllr Ann McLachlan stating “the key problem here that we have a high volume of FOIs from a small number of people”? So do Wirral Council see the people making FOI requests as the problem rather than their own cultural attitudes towards openness and transparency?

Partially unredacted invoice relating to an appeal to ICO Decision Notice FS50474741 (Robin Hopkins of 11KBW) Metropolitan Borough of Wirral for £1872 (invoice 117)
Partially unredacted invoice relating to an appeal to ICO Decision Notice FS50474741 (Robin Hopkins of 11KBW) Metropolitan Borough of Wirral for £1872 (invoice 117)

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4 down, 11 to go of the unpublished appendices to the Anna Klonowski Associates report

4 down, 11 to go of the unpublished appendices to the Anna Klonowski Associates report

4 down, 11 to go of the unpublished appendices to the Anna Klonowski Associates report

                        

from: John Brace
reply-to: john.brace@gmail.com
to: “Graham Burgess (Wirral Council Chief Executive)”
cc: Cllr Phil Davies , Cllr Jeff Green , Cllr Phil Gilchrist
date: 18 November 2013 11:14
subject: follow up to question and answer session at Friday’s Improvement Board meeting
mailed-by: gmail.com

Dear Graham Burgess, Cllr Phil Davies, Cllr Jeff Green and Cllr Phil Gilchrist,

In order that the public know the progress of the commitments made on Friday’s Improvement Board meeting I am publishing this email and will happily also publish any replies unless you indicate you do not wish your reply to be put in the public domain.

A brief update on some progress I have made on the appendices to the Anna Klonowski Associates Limited report. Appendix B (the Equality and Human Rights Commission Letter dated 29th December 2010) has been helpfully supplied by Paul Cardin.

Appendices C (the first improvement plan) and D (the Care Quality Commission Inspection Report) I discovered at the weekend had already been published by Wirral Council as part of a Cabinet agenda from over three years ago.

Appendix G (the Standards for England decision notices) have already been published too and I am not asking for appendix L (medical information relating to Martin Morton). This just leaves appendices E, F, H, I, J, K, M, N, O, P and Q.

With regards to my supplementary question about appendix P (minutes of the DASS Monitoring and Development Sub Group Meeting), as this was the only meeting minutes referred to in the appendices list I made an error. My question should’ve referred to notes in a different appendix, which contained the notes of the Charging Policy Working Group held on the 22nd August 2005, my apologies for any confusion caused.

I would be interested in receiving an unredacted copy of the notes and accompanying table (unredacted in respect of the three councillors who were there if deleting the redaction of officer names is an insurmountable problem) of the Charging Policy Working Group. The only councillor I am able to ascertain was there so far was Cllr Pat Williams.

With regards to appendix E (charging policy for supported living services) as this was a policy I presume it was agreed by councillors. It therefore can’t be claimed that a policy falls into one of the reasons you gave on Friday for not publishing the appendices. Publishing it would help the public understand the series of events that happened and whether it was an unlawful policy implemented by officers or whether officers acted outside of an agreed policy.

I am sure you (apart from Cllr Gilchrist who couldn’t be there) remember the mood of the public at Friday’s meeting and how although Wirral Council has changed in some ways that convincing the public of that change will be a difficult challenge.

I asked the questions I did on Friday because if the public were informed fully about what actually happened, then knowing what happened and the chain of events that led to it would allow the public to decide for themselves whether the changes made since then would prevent a reoccurrence in the future.

Until there is more disclosure of what went happened, despite Wirral Council’s desire to “move on” some members of the public will still want to know and the details of who, what, why, where and when which at the moment are answers that are only filled with speculation.

I hope this sets out my position and I look forward to a more detailed response about the future publication (or the reasons against publication) of the remaining appendices to the Anna Klonowski Associated Limited report and the question about removing the redactions of councillor and officer names (at Head of Service level and above) in the Martin Smith report.

Yours sincerely,
John Brace

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The Klonowski Files (Part 1) Equality and Human Rights Commission letter dated 29th December 2010

The Klonowski Files (Part 1) Equality and Human Rights Commission letter dated 29th December 2010

The Klonowski Files (Part 1) Equality and Human Rights Commission letter dated 29th December 2010

                       

On Friday I asked at a meeting of the Improvement Board, Graham Burgess (Wirral Council’s Chief Executive) the following question:

The final report of Anna Klonowski Associates Limited was published as part of the Cabinet agenda of the 12th January 2012. Wirral Council also received from Anna Klonowski Associates sixteen appendices (listed below), which apart from appendix G (Standards for England decision notices) have not been published. If Wirral Council is now “open and transparent” when will the other fourteen appendices be published (except for appendix L)?

A Appendices as Referred to in the Report
B Equality and Human Rights Commission Letter Dated 29 December 2010
C First Improvement Plan
D Care Quality Commission Inspection Report
E Charging Policy for Supported Living Services
F Documents Relating to 27 Balls Road
G Standards for England Decision Notices Cllr Pat Williams, Cllr Moira McLaughlin, Cllr Denise Roberts and former Cllr Ann Bridson
H Documents Relating to Reimbursement Claims
I Emails Relating to Supported Living Contracts
J Documents Relating to Service Provider 2
K Documents Relating to Service Provider 3
L Medical Information Relating to Martin Morton (MEDICAL IN CONFIDENCE)
M Documents Relating to Service Provider 4
N Minutes of Adult Protection Strategy Meeting Relating to Service Provider 4
O Documents Relating to the Safeguarding Adults Unit
P Minutes of the DASS Monitoring & Development Sub Group Meeting Held on the 11 December 2008
Q Employment Dates for WMBC Employees

A brief explanation about some of the acronyms used above. DASS refers to Department of Adult Social Services and WMBC to Wirral Metropolitan Borough Council. Service Provider 2 was Assisted Living Services (ALS), Service Provider 3 was Salisbury Independent Living Services (SIL) and Service Provider 4 was Options for Living according to this key to the terms used in the Anna Klonowski Associates report.

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The answer given by Graham Burgess (unfortunately he didn’t give a separate answer for each appendix) and starts at 6:12 in the video above was, “Just a response to the first question which relates to a whole series of appendices to the AKA report.

Our view is that all those appendices actually contain very sensitive personal information and to release those appendices would be in breach of data protection and also the duty we have to individuals that gave us information in confidence or relating to their own personal, medical or financial circumstances. Therefore it’s our view that it would be inappropriate to release those documents as they contain a whole host of sensitive information.

Clearly these matters can be tested, if people wish to test our view, by FOIs and the Information Commissioner but so far our position has been and has not been challenged in respect of those appendices. As you can see from some of them anyway clearly showing they do contain very sensitive personal information.”

Joyce Redfearn, Chair of the Improvement Board said, “I think that was recognised within the question certainly in terms of one of the appendices.”

Cllr Jeff Green, Leader of the Conservative Group said, “Yeah, can I just check with the Chief Executive said ‘We decided’ who the we were?”

Graham Burgess, Chief Executive responded, “It’s err the Council. I’ve no doubt said the Council.”

John Brace said, “Sorry, as I’m entitled to a supplementary on that. In relation to P in that list which is the minutes of the DASS Monitoring & Development Sub Group Meeting. I know that there were councillors present at that one and that was used as a justification that councillors had signed off on the special charging policy. So if you released it with the other names blacked out, wouldn’t that then mean people could then have at least a bit of accountability as to who the people were who agreed to that?”

Graham Burgess responded, “Can I also say Chair, that with your agreement it would be the intention of the Council to print all these questions, to place all these questions on our website and all the answers to them as well so they can be unearthed by people who couldn’t make this meeting so they could see what was said and what we’re saying.

In respect of that errm, obviously this is a question we got at five o’clock last night which was reasonable and obviously your supplementary has just been asked now. So I’d need probably to go away and take advice on that point and we’ll give the answer both to you John personally and put the answer on the website for everybody to see. Certainly Joyce and the Improvement Board will take that into account when they write the final report.”

Joyce Redfearn said, “So thank you for the particular question, it was really helpful.”

Below is the first appendix I asked to be published, appendix B (Equality and Human Rights Commission Letter Dated 29 December 2010) supplied by Paul Cardin (not Wirral Council), who has further information on some of the background to the letter in a blog post headlined “The Saga of DLA Piper – can the truth finally be allowed to emerge? Er, not yet…”. You can click on the image of the letter for a larger image, but as search engines can’t spider images, the text of the letter is also included below it.

Letter to Angela Eagle MP from Mike Smith, Chair of the Disability Committee of the Equality and Human Rights Commission

Equality and
Human Rights
Commission

equalityhumanrights.com

29 December 2010

Angela Eagle MP
House of Commons
London
SW1A 0AA

Dear Ms Eagle
Mr Paul Cardin

In response to your letter of 9 November 2010, in which you outline Mr. Cardin’s concerns that the overcharging of disabled residents amounted to discrimination.

I do not agree with the conclusions drawn by the Council’s Director of Law namely that discrimination did not occur because the residents were not overcharged for reasons relating to disability.

Current discrimination law and supporting case law clearly establish that motive and intent are irrelevant to this issue. The facts are that disabled people were subject to unlawful levels of charging (whether or not the cause was maladministration).

It is therefore the opinion of the Commission that Mr. Cardin’s concerns should be included in the Inquiry, in order to identify whether there are other issues or systemic problems that need to be addressed.

Furthermore inclusion of Mr. Cardin’s concerns in the Inquiry will assist the Local Authority in communicating their commitment to fully investigating this matter.

Yours sincerely

Mike Smith
Chair of the Disability Committee

Equality and Human Rights Commission
3 More London Riverside
Tooley Street
London
SE1 2RG
Tel: 020 3117 0235
Fax: 020 7407 7557
info@equalityhumanrights.com

The Equality and Human Rights Commission was established by the Equality Act 2006 as the Commission for Equality and Human Rights

So going through the list of reasons Graham Burgess gave for not publishing appendices such as these.

1. Does it contain “very sensitive personal information”?

No, it doesn’t. It does contain Paul Cardin’s name and if Wirral Council wished to protect his privacy it could easily have been released the letter with his name blacked out. However I had Paul Cardin’s permission to republish the letter without any redactions.

2. Would it be a breach of the data protection legislation for Wirral Council to release and publish such a letter?

In my view no (apart from the point about whether Paul Cardin’s name should be included when published or not). Wirral Council have been criticised in the past for using the spurious reason of data protection legislation to try and stop filming of their meetings so I don’t think they’re as familiar with this legislation and case law on the subject as they claim to be. My own personal experience is that I’ve previously won a case (in 2012) in the Birkenhead County Court involving a breach of the Data Protection Act 1998 where one of the two defendants was a Wirral councillor. Sadly it seems at least one Wirral councillor has very little understanding of the data protection legislation.

3. Would it breach the duty Wirral Council has to individuals that gave them information in confidence?

No, this is a letter written to Angela Eagle MP. I very much doubt that Mike Smith was told by Anna Klonowski Associates Ltd that his letter would be kept confidential or that he was providing it on these terms to Anna Klonowski’s investigation on those terms.

4. Does it relate to personal, medical or financial circumstances?

No, it does relate to overcharging but not in detail.

This however brings us to a final question which seems to be the crux of the matter.

5. Would releasing or publishing a letter from the Chair of the Disability Committee of the Equality and Human Rights Commission that states that disabled people were subject to unlawful levels of charging which amounted to discrimination, which contradicts the legal opinion of Wirral Council’s former Director of Law be something that would be embarrassing to Wirral Council? The answer to that one is yes. As usual comments on this matter are appreciated.

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