Birkenhead | A blog about Wirral Council, Wirral Council's councillors & officers

FOI request reveals Wirral Council issued 168 Fixed Penalty Notices (mainly for alleyway dumping)

Yesterday, Wirral Council responded to a Freedom of Information Act request I made last month for minutes of the meetings of the Partnering Board (which comprises of Wirral Council and Biffa Waste Services Limited) for the last year.

The minutes of the Partnering Board meetings of the 10th March 2015, 18th December 2014, 21st October 2014 and 14th July 2014 contain some interesting information.

Below are extracts from the minutes that hopefully will be of wider public/political interest starting with the meeting held on the 14th July 2014. I have submitted an internal review request to Wirral Council for the minutes without the names of Wirral Council employees redacted. RE stands for Roger Edwards, FPN stands for fixed penalty notices, MS stands for Mark Smith, Cllr BM for Councillor Bernie Mooney and VO stands for variation order.

2. ANNUAL REVIEW
….
Noted garden waste has now exceeded last year’s figure and hope to get to 40,000 properties. RE queried about incentives for signing up however XX noted we have to be very careful as the £5 reduction online has raised objections by some residents and opposition members and that XX is exploring alternative cost effective payment mechanisms. However, XX advised we can market to people who signed up last year who have not signed up this year and there are around 3,000 who have not re-signed.

Street Cleansing
….
The Entry Investigation Team has been introduced and 28 FPNs have been issued as a result of this.

7. AOB

Possible Industrial Action Update
RE updated that Biffa offered pay settlement to the workforce of 1.8% in line with RPI – the request from the workforce was 6%. RE advised the workforce have decided to ballot for industrial action before any decision made. RE is working hard to resolve this situation. The industrial action is planned for Fri 18 July.

There are parts of the minutes of the meeting held on the 21st October 2014 that will be of wider interest too:

Managing Down Demand – Missed Collections

XX have been looking at all the missed bin calls we had in for 2010-14 and the breakdown of unjustified (which was about half) to give an idea of the proportion of calls coming in. The 3 main reasons for unjustified bins are: bin not out, entry work and access issues. Disputes occur where resident is told the PDA said bin not out and they disagree. XX wants to look at the dispute figures and drill down i.e. is it the resident at fault, is it the crew not using the PDA properly etc. When a resident does not agree with PDA data this causes a lot of work in the back office. There could be an education issue here reminding residents that 7am is the time rounds start and the crews can come to roads at different times each week.

If we do some re-training around contamination to show the importance of the PDA and show the impact of not using the PDA correctly that should be beneficial. RE noted if we do not have confidence in the PDA data then everything else becomes difficult.”

…
Alleyway Dumping

XX advised had over 600 referrals for the Waste Investigate Unit (WIU) and issued 168 FPNs to mainly the Seacombe/Birkenhead areas. XX noted we need to do some work around where issuing the FPNs. 5 court cases regarding litter have gone well with the offenders being fined and this information is on the Council website. XX hoping to do full leaflet drop to relevant properties to say what we are doing and what success we have had. Currently drafting up a second leaflet to get out before Christmas to all terraced properties to highlight the good work we have been doing.

XX noted some new anti-social behaviour laws which are coming out and she is looking if we can go down this route with landlords. XX going to be looking at the licensing scheme and if we can make that work for us by adding in further conditions (Selective Licensing scheme). MS noted when speak to Senior Members of the Council enforcement is now an issue they are behind it. Noted 260 good neighbourhood packs have gone out to a variety of areas.”

From the meeting held on the 18th December 2014:

“Alleyway Dumping

XX advised the Waste Investigation Unit are doing a fantastic job. XX noted an incident where a disgruntled member of the public, because of his threatening behavior, was issued with an ASBO. Main issue is the Courts are only letting us take 5 cases a week. Legal services need to approach the courts to get more time to hear more cases. XX plans to do another leaflet drop after Christmas to highlight to the public the financial costs of failing to manage their waste responsibly, or through ignoring fixed penalty charges. XX next steps are to meet the selective licensing team. Birkenhead and Seacombe have been identified as a selective licensing areas which means we can prescribe to landlords what they must do re bins and as Birkenhead and Seacombe are where the most is, it is hoped this will have a significant impact over time.”

Transparency Code

The code is about being more transparent about what we publish for the public to see and waste collection is one of the things requiring more details including publishing a version of the contract. XX are going to look at refreshing the contract, redacting certain bits and then send to Biffa to consider. Agreed a good idea would be a half day session with both parties to look at updating and modernizing the contract.”

Finally from the meeting held on the 10th March 2015.

Action Log

50 Street Cleansing Transitional Money

MS advised there is £116,000 available. XX is currently working on a briefing note recommending how that money could be used. MS has the authority to spend this money however he would get endorsement from Cllr BM first.

64 Benchmarking Data

XX advised some of the information required is deemed as commercially sensitive and there is a strong reluctance to share this information at the moment. MS felt we do need to be getting to a stage where we have the mechanism in place to demonstrate value for money from this contract. XX also safeguard the financial position of Biffa. XX to send through further details to XX & SC showing exactly what it is we are looking for.

67. Contract under the Transparency Code

XX has started this piece of work. By the end of April we have to publish the contract on Council website. XX noted his intention to incorporate the VOs and XX send to Biffa to redact the finance. XX commented that there are inaccuracies in the contract in relation to execution on the ground but nothing of serious concern. MS noted as we are signing off a significant VO if there are any anomalies we need to resolve them before we publish.

CONTRACT PERFORMANCE OVERVIEW

SC queried whether there had been any thought about the garden waste service passing to Biffa? MS advised if Biffa want to put an offer to the Council formally they were welcome to.

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Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?

ICO Information Commissioner’s Office logo

A bit like the experience I had recently of waiting ages for a bus in Liverpool recently, only for four buses back to back to turn up, the Information Commissioner’s Office have in the last fortnight issued two decision notices involving FOI requests to Wirral Council.

There is a small delay in decision notices being published on ICO’s website, but the first (FS50576394) involving a request I made that was considered under the Environmental Information Regulations can be viewed here. I previously wrote about Wirral Council’s U-turn about disclosing information in response to this request back in May.

The decision notice states “As the information was disclosed outside the 20 working day timescale the Commissioner has concluded that the Council breached the requirements of regulation 5(2). ”

I made the request on the 26th January 2015. Wirral Council ignored my request, so on the 24th February 2015 I requested an internal review. Wirral Council responded to the internal review on the 23rd March 2015 stating it had the information but was withholding it based on a regulation 12(5)(e) exemption.

For those who don’t know what a regulation 12(5)(e) exemption is it’s:

“(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect

(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”

I appealed this to the Information Commissioner’s Office on the 25th March 2015 and on the 11th May 2015 Wirral Council did a U-turn stating (you can view the exchanges between myself and Wirral Council on the whatdotheyknow website):

“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”

As mentioned in my opening sentence, I’m also aware of a decision notice involving a Freedom of Information request that’s been issued recently that hasn’t yet been published on ICO’s website.

This decision notice (FS50568736) (which is not about a FOI request I’ve made) relates to the lack of response by Wirral Council to this FOI request made by Paul Cardin here.

This decision notice states:

“2. The Commissioner’s decision is that the Council has breached section 10(1) of FOIA by failing to respond to the request.

3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.

The Council should inform the complainant whether the requested information is held. If the information is held it should provide it to the complainant or else issue a refusal notice in accordance with section 17 of FOIA.

4. The public authority must take these steps within 35 calendar days of the date of this Decision Notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court (or the Court of Session in Scotland) pursuant to section 54 of the Act and may be dealt with as a contempt of court.”

and

“9. On receipt of the complaint the Commissioner contacted the Council to remind it of its duty to respond to requests for information within 20 working days and to ask that it respond to the complainant. Neither the complainant nor the Commissioner received a response.”

as well as

“11. The complainant made his request for information to the Council on 6 May 2014 but has failed to receive a response. The Council has clearly exceeded the 20 working day limit very significantly and therefore the Commissioner has found that the Council breached section 10(1) in its handling of the request.”

Certainly the common theme running through the two decision notices is Wirral Council exceeding the time limits in the legislation on responding to requests.

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Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner's Office

Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office

Last year, during the 2013/14 audit I requested various information on various payments Wirral Council has made to legal firms. One of these was an invoice for £700 for conveyancing done by DLA Piper UK LLP (a copy of which is below).

Wirral Council invoice DLA Piper UK LLP conveyance £700 7th August 2013

As you can see above it’s for a BACS payment (although the payments over £500 list this as a CHAPS payment) for £700, split into £200 for a contribution towards sewers (although the rest of what the £200 is for can’t be made out due to bad handwriting) and £500 to do with the purchase of the freehold title.

If you look at the image above you’ll find the address of the property is blacked out. Section 15 of the Audit Commission Act 1998 allow Wirral Council to redact information if it relates to a member of their staff (or payments or other benefits made to their staff connected with their employment) or to withhold personal information if the external auditor agrees to it.

However their auditor has confirmed that there were no such requests. Wirral Council also rely on the decision in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council & Ors [2010] EWCA Civ 1214 in blacking out information that falls into the meaning of “commercial confidentiality”.

So going back to the PR1 form above I wanted to know what the address that this £700 for conveyancing spent by Wirral Council was, so back on the 26th January 2015 I asked using the Freedom of Information Act for the address.

By the 24th February 2015, having received no reply to my request of the 26th January 2015 within the 20 days Wirral Council have to respond to FOI requests, I requested an internal review because of the lack of response.

On the 23rd March 2015, a Rosemary Lyon who is a solicitor working at Wirral Council replied to my request for an internal review. She regarded the request as one that fell within the Environmental Information Regulations 2004, so considered it as a representation under regulation 11.

She then went on to refuse the request using an exception in Regulation 12(5)(e) which states:

“the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”

The reasons she gave for refusing the request were:

“in that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. I have had regard to the guidance issued by the Information Commissioner’s Office, “Confidentiality of commercial or industrial information (regulation 12 (5) (e) Version 1.2. I consider that the following applies to the requested information in the context of the other information included in the payment requisition fund:-

The information is commercial or industrial in nature
Confidentiality is provided by law
The confidentiality is protecting a legitimate economic interest
The confidentiality would be adversely affected by disclosure.

I consider that the information relates to the commercial activity of a third party. I also consider that confidentiality is provided by law in that it is imposed on the Council as a public authority by the common law of confidence and contractual obligation. I consider that the confidentiality is protecting a legitimate economic interest. The First Tier Tribunal (Information Rights) confirmed in Elmbridge Borough Council v. Information Commissioner and Gladedale Group Ltd (EA/2010/0106, 4 January 2011) that to satisfy this element of the test, disclosure of the confidential information would have to adversely affect a legitimate economic interest of the person the confidentiality is designed to protect. I consider that disclosure of the requested information would adversely affect the legitimate economic interest of the third party and also that of the Council.

This exception is subject to the public interest test.

Public interest factors in favour of disclosure

Promotion of transparency and accountability of public authorities

Public interest factors in maintaining the exception

Disclosure would adversely affect the legitimate economic interest of a third party and interfere with commercial bargaining in the context of existing or future negotiations
Disclosure of the requested information would also affect the bargaining position of the Council with third parties.

I consider that in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. I am therefore refusing your request for information on the basis that the exception contained in Regulation 12 (5) (e) of the EIR applies.”

On the 25th March 2015 I appealed Wirral Council’s refusal to the Information Commissioner’s Office.

Today Wirral Council reversed their position and stated:

Now I know the address is 13 Thorneycroft Street, Birkenhead, I know what this payment for conveyancing is for. The properties in this road as far as I remember had been demolished by the date that this payment to DLA Piper UK LLP for conveyancing happened in August 2013.

In August 2013, Keepmoat were granted planning permission for 125 new houses here and have since built them and sold them on. In fact 13 Thorneycroft Street, Birkenhead doesn’t exist any more, it’s either part of the public open space at the back of the Laird Street Baptist Church or an off-street car parking space for one of the new properties.

So what was the “legitimate interest of a third party” that Wirral Council claimed it was protecting by not supplying the address? How on earth does giving this address interfere with Wirral Council’s “commercial bargaining in the context of existing or future negotiations”?

Unlike the Freedom of Information legislation, regulation 12(2) of the Environmental Information Regulations 2004 state:

A public authority shall apply a presumption in favour of disclosure.

Wirral Council invoice DLA Piper UK LLP conveyance 7th August 2013 address added

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Election: Wallasey (Labour hold), Birkenhead (Labour hold), Wirral South (Labour hold), Wirral West (Labour gain)

In the General Election for 2015 on Wirral the results are as follows.

Wallasey Constituency (declared at 3.41) LABOUR HOLD Electorate 65,495 Turnout 66.5%

Candidate	Party	Votes cast
Angela Eagle	Labour Party	26,176
Chris Clarkson	Conservative Party	9,828
Geoffrey Robert Caton	United Kingdom Independence Party	5,063
Julian Charles Pratt	Green Party	1,288
Kris Brown	Liberal Democrat	1,011

Birkenhead Constituency (declared at 3.49) LABOUR HOLD Electorate 62,410 Turnout 62.9%

Candidate	Party	Votes cast
Frank Field	Labour Party	26,468
Clark Edward Vasey	Conservative Party	5,816
Wayne Anthony Harling	United Kingdom Independence Party	3,838
Kenny Peers	Green Party	1,626
Allan Brame	Liberal Democrat	1,396

Wirral South Constituency (declared at 3.57) LABOUR HOLD Electorate 56,956 Turnout 73.7%

Candidate	Party	Votes cast
Alison McGovern	Labour Party	20,165
John Bell	Conservative Party	15,566
David Anthony Scott	United Kingdom Independence Party	3,737
Elizabeth Jewkes	Liberal Democrat	1,474
Paul Thomas Cartlidge	Green Party	895

Wirral West Constituency (declared at 4.58) LABOUR GAIN Electorate 55,377 Turnout 75.9%

Candidate	Party	Votes cast
Margaret Greenwood	Labour Party	18,898
Esther McVey	Conservative Party	18,481
Hilary Jane Jones	United Kingdom Independence Party	2,772
Peter Timothy Clifford Reisdorf	Liberal Democrat	1,433
David James		274

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Why did Wirral Council receive £2 million from an off shore company based in the Isle of Man?

Following on from yesterday’s blog post about how Wirral Council spent £16,412.04 on legal advice for regeneration of Birkenhead Town Centre, you only have to look at the lease for New Brighton’s Marine Point to see why Wirral Council sees these sorts of deals with companies such as Neptune Wirral Limited/Neptune Developments Limited & Neptune Projects Limited as lucrative.

In return for a 250 year lease of New Brighton’s Marine Point between Wirral Council and Neptune Wirral Limited (an offshore company based in the Isle of Man), Wirral Council received a premium of £2 million (plus VAT). In addition to this £2 million Wirral Council also receives 6% of the rents paid by commercial tenants in the Marine Point development as the documents below show.

It’s highly likely that if Neptune’s plan to redevelop Birkenhead Town Centre goes ahead, that there will be some sort of similar lease between Neptune and Wirral Council.