Tag: public interest test

Wirral Council U-turns on refusal of FOI request for values and culture presentation

Wirral Council U-turns on refusal of FOI request for values and culture presentation

Wirral Council U-turns on refusal of FOI request for values and culture presentation

                                                

Over a year ago (3rd July 2014) I made a Freedom of Information Act request to Wirral Council using the excellent whatdotheyknow.com website for an email (and an attached Powerpoint presentation to the email) sent by Surjit Tour on Thursday 24th April 2014 with the subject of L&MS – Values and Culture Presentation. L&MS stands for Legal and Member Services (Member meaning councillor in local government jargon).

On the last day of July (31st July 2014) I got a reply. Mr Tour had considered the FOI request and refused it. His response referred to section 36 (prejudice to effective conduct of public affairs) of the Freedom of Information 2000. For those familiar with this part of the Freedom of Information Act this is one of the parts that is subject to a public interest test.

Surjit Tour (left) at a recent meeting of Wirral Council's Standards and Constitutional Oversight Committee
Surjit Tour (left) at a recent meeting of Wirral Council’s Standards and Constitutional Oversight Committee

Mr. Tour (who made the first decision on this request) claimed in refusing the request that releasing his email (and attachment) would:

(b) inhibit the free and frank provision of advice or exchange of views;
or
(c) otherwise prejudice the effective conduct of public affairs.

 

Further detail was given about why this request was refused “The information requested was used as an integral part of a management meeting where a corporative initiative was openly discussed and debated” and “The Council has held/is holding a series of management meetings where there must be a safe space to share corporate initiatives and openly discuss and debate any issues arising in these meetings. It is also my reasonable opinion that if the requested information were to be disclosed, it would likely have a “chilling effect” that would inhibit the free and frank discussion and debate on matters of importance to the Council and its workforce. Any disclosure is likely to undermine the ability of officers to express themselves in a frank and open manner.”

It was further claimed that “disclosure would restrict the free and frank exchanges of views”, “disclosure would stifle debate at such meetings and could lead to poorer decision making” and “disclosure would have a potential detrimental effect on future management meetings” although “transparency in disclosure of the content of the management meeting” was given as a factor in favour of disclosure. Also stated in the response was “I consider it is crucial that officers are able to engage in discussion and exchange views in an open and frank manner.”

At the time I got this response I didn’t request an internal review. I’d requested internal reviews before when Mr. Tour had claimed section 36 applied to the information requested. You can see an example of a request here for minutes of the Standards Working Group meeting of the 17th December 2013 where Mr. Tour refuses it based on section 36 and at internal review the former Chief Executive of Wirral Council Graham Burgess agrees with Mr. Tour.

At the time I probably thought it pointless to request an internal review as I thought the Chief Executive would just agree with Mr. Tour.

In February 2015 councillors at Wirral Council appointed a new Chief Executive Eric Robinson. So I submitted an internal review request on the 25th March 2015.

The new Chief Executive Eric Robinson on the 21st April 2015 agreed with Mr. Tour.

His responses were as follows, first to my point about whether it was a conflict of interest for Mr. Tour to decide on whether to release his own email:

“I do not agree that Mr. Tour would have been conflicted when he gave careful consideration to and applied the Section 36 exemption.”

 

In response to the point that the email and attachment was sent before the meeting, didn’t detail what was debated at the meeting therefore how could it “stifle debate at such meetings”?

“The contents of the attachments still remain current and topical to the Council. Officers who took part in this management meeting and those who will be present at further meetings, must be afforded a safe space in which they can openly discuss and debate these corporate initiatives.”

 

Finally responding to my point “well surely if Wirral Council is “open and transparent” then being “open and transparent” here about a very important aspect of the organisation (values and culture) would demonstrate to the public that Wirral Council has changed?” he replied:

“The Council is committed to openness and transparency and communicates this to the public in many ways. As well as the consultation exercises the Council has been involved in with members of the public; we also publish information and communications via our web pages.”

 

He included various links to the Council’s website to the Corporate Plan, a page on the Transparency Code and a page on the Freedom of Information Act 2000 & the Data Protection 1998.

Finally he stated:

“To summarise, as the Reviewing Officer, I have carefully considered the original response provided by the Monitoring Officer and my reasonable opinion is that I fully concur with his initial response. I am of the opinion that the exemption contained within Section 36 of The Freedom of Information Act 2000 has been correctly and appropriately applied. As the Reviewing Officer, I believe I have considered all relevant and material factors and issues.”

 

and

“After taking all factors into account, it is my reasonable and considered opinion that the reasons and rationale provided by Mr. Tour are valid and robust in nature. I do not consider I need to add anything more in this regard and I am satisfied that the public interest test in maintaining the exemption outweighs the public interest for disclosure.”

 

So on the 19th May 2015 I appealed this decision to the Information Commissioner’s Office. On the 11th August 2015 Wirral Council supplied the attached Powerpoint presentation but stated that the email had since been deleted.

Shortly after I received an email from the Information Commissioner’s Office stating that the case was now closed, although I have emailed them this morning asking them to clear up that the Chief Executive at internal review stated “The contents of the attachments still remain current and topical to the Council.” which would suggest more than one attachment to the email, yet only one attachment was supplied.

So what is in this eighteen slide Powerpoint presentation that Mr. Tour and Mr. Robinson seemed so keen to prevent being released?

Ironically (considering what I’ve just written above) slide 10 on integrity states

“We communicate & are open and honest in what we do.”

 

However that point aside, the slides are about “organisational vision”, “values” and “culture”.

Slide 7 states that Wirral Council’s vision is:

“Wirral should be a place where the vulnerable are safe and protected, where employers want to invest and local businesses thrive and an excellent quality of life is within the reach of everyone who lives here.”

 

Slide 9 introduces Wirral Council’s values which are:

“integrity, efficiency, confidence and ambition”.

 

Slides 10 to 13 define each of these values.

“Integrity

  • We treat everyone with respect
  • We are accountable and take responsibility for our actions & decisions
  • We communicate & are open and honest in what we do

Efficiency

  • We seek innovative & creative solutions
  • We work effectively together to make the most of our resources
  • We proactively look for ways to improve

Confidence

  • We fully use the skills, talents & assets of our partners, communities and organisation
  • We take decisions and deliver
  • We learn from & share knowledge and expertise with others

Ambition

  • We deliver with energy and pace
  • We are risk aware, not risk averse
  • We have pride in our place and our people striving to be the best we can for Wirral”

The last slide refers to “support & change agents to be allocated”. If anyone would like to explain to me what a “support & change agent” is please leave a comment!

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Incredible: 1 of many responses to the Lyndale School consultation that Wirral Council refuse to release

Incredible: 1 of many responses to the Lyndale School consultation that Wirral Council refuse to release

Incredible: 1 of many responses to the Lyndale School consultation that Wirral Council refuse to release

                      

Labour councillors at a public meeting of Wirral Council's Coordinating Committee voting to consult on closing Lyndale School (27th February 2014)
Labour councillors at a public meeting of Wirral Council’s Coordinating Committee voting to consult on closing Lyndale School (27th February 2014)

Rather predictably, Wirral Council turned down my Freedom of Information Act request for the responses to the consultation on the closure of Lyndale School yesterday, on the basis that they would be publishing them as part of the Cabinet papers for the special meeting on the 4th September. Rather worryingly they stated in their response “Wirral Council can confirm that the requested information will be made available and published during September 2014”, however a legal requirement requires them to publish such reports at least “five clear days” before the meeting meaning the latest the responses should be published is the 27th August.

Applying the “public interest test” to this Freedom of Information Act request, they go on to state “the Council believes that all the information/responses for the consultation require collating and then they are published as a complete article. The Council does not want to release partial information at this time and
then have to amend its response.”

They’ve also not answered my question about how many responses there were to the consultation. I previously published, on the 14th July the Parents’ Response to Wirral Council Consultation Document on the Closure of The Lyndale School which in print form (at least on my computer anyway) runs to fifty-three pages.

Although councillors were sent it before the debate on Lyndale School at the last full Council meeting on the 14th July, I remember during that meeting, the Mayor Cllr Foulkes stating that he’d only received it on the Saturday before the meeting (which was on Monday evening) so how could he be expected to have time to read it before the meeting (or words to that effect)? Similar reasons were also given by councillors last week on the Audit and Risk Management Committee over the amount of time to read a late 526 page supplementary agenda.

So, despite the fact that Wirral Council don’t seem to want the consultation responses to be published until around a week before the special Cabinet meeting (perhaps because all the responses will be hundreds of pages) here is a another consultation response from a married couple of a child at Stanley School. If Lyndale School closes, Stanley School is one of the two schools that Wirral Council have suggested that Lyndale children will be transferred to. I’ve blacked out the names and contact details of the parents who wrote this response.

LYNDALE CONSULTATION
Personal observations and thoughts from Parents with a child at Stanley School who has Severe Learning Disabilities, Autism and who is non-verbal.

Mrs XXXXXX attended the Consultation Meeting held at Stanley School on 3rd June and visited Lyndale School on 10th June, spending a morning meeting children and staff.

Firstly, the consultation document has no explanation of PMLD other than that it means Profound and Multiple Learning Difficulties (or is it Disabilities!) There is also nothing about the children currently at Lyndale (apart from the number of pupils) and their complex health and medical needs which are especially relevant to this consultation. This document has not made it easy for people and parents of especially Stanley school where there are currently no children with PMLD to be consulted properly when there is no meaningful information about the children that go to Lyndale in it. It is far too general and the information too money focused with nothing about the very complex needs of the children. The term CLD is also only defined as Complex Learning Difficulties (also disabilities) and no explanation or example given again.

We are against the proposal to close Lyndale School for the following reasons:

  • Lyndale school caters so well for the children who go to that school. Why jeopardise that? The children have very specific educational, care, health and developmental needs which we do not feel can be met at any other Wirral school. All avenues should be thoroughly explored to keep Lyndale School open. It is a vital part of the community it serves and it enriches the lives of the children that go there. Their families feel safe in the knowledge that their children are safe, happy and well looked after by the staff and health professionals at the school. This also aids their educational learning.
  • Large schools are not necessarily better schools. The advantage of a smaller school especially for children with PMLD is that their needs can be met in more manageable and stimulating surroundings and class sizes can be much smaller and better personalised.
  • Stanley school as it is currently staffed and equipped is not suitable for the children who go to Lyndale. It will need substantial investment to improve its suitability if it hopes to give children from Lyndale the same quality of life they currently have.

We can only comment on Stanley and not Elleray Park.

  • The children who attend Stanley school as well as having Complex Learning Disabilities, in many cases also have additional needs stemming from autism, communication difficulties and behavioural issues. They do not have the same physical frailties as most of the Lyndale children and many will not understand the potential dangers of physical interactions.
  • The practicalities of putting together 90+ very physically active children with predominantly physically frail and vulnerable children is a real worry for us and other parents/carers from both schools. There is a very real possibility of harm being caused inadvertently.
  • Bringing the Lyndale children to Stanley school will bring massive disruption to all of the children from both schools. It also raises serious safeguarding issues when physically frail children are in close proximity to robust physically active children with unpredictable behaviour patterns.
  • Stanley school has one full time nurse. Additional specialised staff would be needed (at significant cost) to provide medical support for the Lyndale children’s medical and health needs. Also specialised training in lots of areas including tube feeding and use of oxygen would be essential.
  • Outdoor environment. There is a lack of suitable outdoor play space at Stanley even for the current children who attend. For a new build this is unacceptable and should not have been allowed to happen. There are no green spaces nor the sensory garden which was promised. The upper school playground is the
    area in which the school transport drops off and picks up and was painted by the council with road markings. This has caused a vast amount of confusion and problems for a lot of children who are directed to play there when parents/carers spend so much time and effort trying to teach road safety. It will be even more unsuitable and totally uninspiring for children whose current school has a vast
    amount of greenery, quiet areas, a wonderful sensory garden and practical outside spaces.
  • Indoor environment. The new Stanley school has been set up to be predominantly low arousal and this conflicts with the stimulating environment at Lyndale.
  • There is not currently the capacity at Stanley to cope with the relocation of Lyndale children and provide spaces for children coming through the new Education Health and Care Plan (statementing) process due to begin September 2014.
  • Parents/carers chose a school for their child based on circumstances at the time of statementing. If Lyndale is closed then the council will be shifting the goal posts for many of the pupils in other Special Schools as well. This may lead to parents/carers of children in the other schools exploring alternative provision for their own children’s education as the whole ethos and set up of that school will change.
  • The ideal time to bring Stanley and Lyndale together would have been when Stanley was rebuilt. The new Stanley school could have been designed to cater for all the children and would have brought the 2 schools together in one space under one roof in a totally planned and coordinated way having regards for the needs of both sets of children. This possibility of closing Lyndale and transferring the children to other schools just seems totally haphazard.
  • Yes Stanley can be changed, but at what cost to Lyndale and Stanley children’s current and future education and lives? For us as a family it is not a case of not wanting Lyndale children, rather it is more that it shouldn’t have come to this situation, forcing a decision by this consultation.
  • Closing Lyndale will severely reduce the flexibility and capacity of Special Educational Needs primary school places in the borough. This is a very piecemeal and frankly idiotic way of planning SEN provision in Wirral.
  • SEN provision in the borough needs to be considered as a whole and not on a school by school basis as seems to be happening at the moment. Closing one school will have a massive effect on the sector because of the relatively small size of that sector. Once a school is closed there is no going back for anyone! This is a very risky strategy.
  • Special schools are not the same as mainstream where they can fairly easily absorb pupils from other schools if one is closed. There are many more wider issues to consider around SEN and disability. Transition, well being, funding, resources and integration are more complex.
  • The Council should be looking at the whole picture. Look at what there is now and plan for the long term future. There is a real need to come up with a sensible plan and not do it school by school.
  • The Wirral Councillors making these important and ultimately life changing decisions for many children and their families have absolutely no understanding (unless they have a disabled child or relative themselves) of the demanding and challenging issues those children and families face day to day. That is why it was so important to visit Lyndale, see the children, the school, meet with the staff and gain a valuable insight into the educational lives of these children and what it means to their families.
  • Each day can be a massive struggle for parents/carers and their disabled children and it is the staff and health professionals at our special schools who provide much needed and essential support to these children and families. Our Special schools of Lyndale and Stanley are very different from mainstream schools in the way that they operate a very flexible open door policy and the staff are very much like an extended family you can call on for advice and support when you need it. They are more than educational establishments, they are family and treasured for what they bring to our children. The depth of feeling on this special relationship should not be under estimated. If Lyndale is closed that
    relationship will be ripped apart from those children and families. How can you replace that?
  • Our children are all individuals with their own specific needs and personalities and their parents/carers know their child best. They are the ones that should be listened to and taken notice of in all areas affecting their children, especially about their education, happiness, health, safety and security. Every child is different and you cannot generalise their needs. What may be ok for one child
    could be horrendous for another and people don’t always think about that. They are all children who deserve the best we can give them to enable them to flourish and have a happy life.
  • It was an absolute privilege to visit Lyndale School and it would benefit no one to
    close it. It would cause intolerable stress and anxiety to children, families and
    staff who are uncertain about their jobs. How can taking away a major part of
    their daily lives and support system be beneficial?

Mr & Mrs XXXXXX

If you have a response to the Lyndale School consultation you’d like published on this blog please email it to me at john.brace@gmail.com.

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Wirral Council plays the Regeneration Game (badly)

Wirral Council plays the Regeneration Game (badly)

Wirral Council plays the Regeneration Game (badly)

                                

Just before Christmas started Wirral Leaks asked for a guide to the BIG Fund/ISUS/Working Neighbourhood investigation. Well where to start?

BIG stands for business investment grants. ISUS stands for intensive start-up support.

BIG is not to be confused with Think Big (marketed under the rather terrible catchphrase Think Big! Think Wirral). Think BIG was for grants of over £20,000 and as far as I know isn’t included in the whistleblowing allegations. Think BIG had a budget of £300k a year in Wirral Council’s budget from 2009/10 and is now called the Think Big Investment Fund.

Business Investment Grants (for under £20,000) were awarded to companies that were successful in applying for a business investment grant. Grant Thornton (who are also Wirral Council’s auditors) were asked in October 2012 for a quotation for work to look into the whistleblowers’ concerns. As a result of this work, two reports were produced and sent to Wirral Council. One report was on BIG and the other on ISUS.

In response to a question from Nigel Hobro to Cllr Phil Davies at the full Council meeting in July, Wirral Council published the summary of Grant Thornton’s report into the BIG program.

I made a Freedom of Information request for Grant Thornton’s ISUS report in August 2013. On the 23rd September 2013 Wirral Council stated that “the report, which has been reported previously, has been handed over to the Police for their consideration, in accordance with the recommendations contained within the report” and refused providing the report using a s.30 exemption (Investigations and Proceedings conducted by Public Authorities).

I asked for an internal review as the investigation had been carried out by Grant Thornton UK LLP (who isn’t a public authority). Another factor I pointed out was that Wirral Council weren’t bringing criminal proceedings, but instead passing it to the police. I also pointed out that s.30 was a qualified exemption and subject to a public interest test (which Wirral Council hadn’t included in its original reply).

Wirral Council’s response to the internal review was that they still refused to release the report. However they did provide further detail as to why. Firstly they stated that the investigation into the BIG and ISUS program was done independently of Grant Thornton’s role as Wirral Council’s auditors. This was to “review the earlier investigation conducted by the authority’s Internal Audit section and to conduct their own investigation into these allegations” and referred to an assurance by Grant Thornton that their work on BIG & ISUS was independent to that of their work auditing Wirral Council’s accounts.

Wirral Council regarded the work that Grant Thornton had done on BIG and ISUS as on Wirral Council’s behalf, therefore in Wirral Council’s view a s.30 exemption still applied. Stating this in English only a person with a legal background would write “as such Section 30 of the Freedom of Information Act 2000 is still appropriate as the investigation was conducted by an organisation acting on behalf of the organisation.” Despite referring it to the police, Wirral Council gave the impression they hadn’t made their minds up as to whether they would start a criminal prosecution themselves. However if they hadn’t made their mind up already not to institute criminal proceedings on this why refer it to the police?

In a concession though, they did agree with me that the original refusal should have included Wirral Council considering the public interest test. The person doing the internal review did carry out a public interest test (of sorts).

They gave many reasons against disclosure (and none for). The reasons they gave were that they regarding it being in the public interest not to disclose the report were that “the investigatory process is safeguarded“, that it would “undermine an investigation/prosecution of criminal matters“, “dissuade members of the public from reporting potential or actual wrongdoings“, “undermine the prosecution process and the role of the criminal courts” and “could prejudice the right to a fair trial“.

However, there is more than this in this story. As referred to in this previous blog post headlined “Million pound contract between Wirral Council and Enterprise Solutions (NW) Ltd for ISUS scheme was never signed” and referred to at 1.16 to 1.22 of Grant Thornton’s report the contract between Wirral Council and Enterprise Solutions Limited (also known as Wirral Biz) was never signed (a copy of the unsigned contract is linked to from that blog post).

Therefore Enterprise Solutions (NW) Ltd don’t regard it as a binding contract. Enterprise Solutions (NW) Ltd are quoted in Grant Thornton’s report as stating in a letter to Wirral Council from December 2012 “this company has nothing to hide in relation to its involvement in any of the above programmes [one of which was the BIG programme] on which it provided services. We are therefore prepared to grant access on the basis requested, on the understanding that your costs of the exercise are borne by the Council.”

Despite this commitment by Enterprise Solutions (NW) Ltd to Wirral Council by letter in December 2012, that they had “nothing to hide” Grant Thornton state in 1.21 of their report that “we have not been given access to the documentation retained by the company concerning the services it provided under the BIG programme and have, therefore, been unable to discuss these with Enterprise Solutions.”

Complicating the matter further, Wirral Council was also in receipt of money from the (since abolished) North West Development Agency in the form of grants. This was for the ISUS (intensive startup side of things). The first ninety pages of the contract with the North West Development Agency is here and a further thirty-six pages here.

The North West Development Agency money given to Wirral Council under the terms in the contract (one hundred and twenty-six pages isn’t the whole contract as there were pages on publicity requirements I haven’t scanned in yet) came from Europe. Just to complicate things even further, Wirral Council also used Working Neighbourhood Funds money to fund these programs.

The whistleblowers’ concerns were that companies that didn’t qualify for grants were given them. On the BIG side, applications were first reviewed by the BIG Panel then the award of the grants were agreed by Wirral Council’s Cabinet (not part of public meetings of Cabinet but in private after the press and public were excluded) due to “commercial confidentiality“.

Grant Thornton looked into the applications of six companies that had applied for business investment grants. In five of these they found “financial anomalies” which were not explained to the BIG Panels. Four of these five were “significant anomalies” which had not been brought to the BIG Panel’s attention. The types of anomalies are outlined in 2.33 but ranged from accounts that indicated that the applicant had paid unlawful dividends (contrary to the Companies Acts) to balance sheets were one year’s opening balance didn’t match the previous year’s closing balance.

One applicant had included a £500 grant from Wirral Council in its accounts, which had been received four months before the accounting period that the accounts covered. Grant Thornton recommended that out of the six applications it looked at that Wirral Council should claw back the grant to the company referred to as BIG6 and refer that application to the police (which happened at some point earlier this year).

I asked Merseyside Police some questions in September about their investigation in September. The reply I got from a Detective Chief Inspector Gareth Thompson was “This matter is currently in the hands of Wirral Borough Council and any requests for information you have should be directed to them, perhaps by way of a Fredom of Information enquiry” (yes freedom is spelt incorrectly in the reply, but to be fair to Detective Chief Inspector Gareth Thompson I would guess that freedom is a word used very rarely by police officers).

This blog post contains a transcript of the answer given to Nigel Hobro by Cllr Phil Davies back in July 2013.

So who knows what’ll happen next in this overly complicated saga? Who knows? Certainly my attempts to make inquiries have been stonewalled (apart from the contracts which I’ve published). However there is an unconfirmed rumour that DCLG (the Department for Communities and Local Government) are going to clawback grant money from Wirral Council in 2014 which could come to a six-figure amount.

So there you have it, nearly everything I know about the BIG/ISUS saga and Wirral Council.

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