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

Biffa asks Wirral’s Cabinet for a 10 year extension to bins & street cleaning contract worth at least £120 million

Biffa Waste Service Limited November 2013 Invoice Wirral Council £1036840.28

Biffa Waste Service Limited December 2013 Invoice Wirral Council £1032201.28

Biffa Waste Service Limited January 2014 Invoice Wirral Council £1032201.28

Above are three of the recent monthly invoices to Wirral Council from Biffa Waste Services Limited for November 2013 (£1,036,840.28), December 2013 (£1,032,201.28) and January 2014 (£1,032,201.28).

I did not request the invoices for other months during that financial year (2013/14), but I would assume that the other nine are for similar amounts of around a million pounds. So why am I writing about this and what does Biffa Waste Services Limited actually do for it’s ~£12 million it receives each year from the taxpayer?

Well as shown on the invoices it’s for collecting the bins, cleaning the streets and extra amounts for working on a Bank Holiday. I’ll be looking more closely at the current contract with Biffa Waste Services Limited (which runs to 2017) tomorrow morning (if all goes well).

However there is some political news on the Biffa front, in fact Wirral Council seems to be bolstering itself for a bit of bad press coverage judging by the Cabinet papers for tonight’s Cabinet meeting (only tonight if you happen to reading this on the 11th September 2014).

If you’re interested in reading the papers yourself on Wirral Council’s website, it’s the Streetscene Environment Services Contract Extension item which is item 4 on Cabinet’s agenda.

I remember Mark Smith (a Wirral Council officer who is Head of Environment and Regulation) getting a grilling by the Chair (Rt Hon Frank Field MP) at a recent Birkenhead Constituency Committee meeting about what the Rt Hon Frank Field MP seemed to see as a lack of openness and transparency in the area of how Wirral Council manages the Biffa contract.

In the Rt Hon Frank Field MP’s view (from my memory of the meeting) he wanted (rather reasonably some might say) to know exactly what the public were getting for the ~£12 million a year that the taxpayer pays Biffa Waste Services Limited through Wirral Council. Sadly there was no one present at the meeting to answer for Biffa Waste Services Limited and Mark Smith seemed to struggle a little to give the kind of answers that Rt Hon Frank Field MP seemed to want to hear. However moving on from the frustrations of Birkenhead’s MP/Chair of the Birkenhead Constituency Committee to more local politics (although isn’t all politics local)?

Rather helpfully Appendix 5 to the Streetscene Environment Services Contract Extension item contains the following two entries on the risk register (copied below):

Risk No	Description of risk	Risk category	Risk Owner	Gross likelihood Score	Gross impact score	Total Gross Score	Net Likelihood Score	Net Impact Score	Total Net Score	Proposed Controls	Responsibility	Target date	RAG Status
1	District Audit scrutiny on decision process likely	Legal / Regulatory	Tara Dumas	3	4	12	3	2	6	Member decision based on thorough analysis of risks. Best value comparison work to be undertaken – Local benchmarking plus APSE/Audit commission comparison Update on market position sought from previous consultants contracted to review Biffa contract. Process to be reviewed by internal audit	TD TD TD MGa	07/07/14 completed 07/07/14 07/07/14	G C G G
2	Negative political and media attention	Political/societal	PR team – Kathryn Green	5	3	15	3	2	6	Proactive approach by PR with press releases Confirm offer not linked to service/workforce changes	LF	Post decision 31/5/2014		G C

In other words, Wirral Council know (before any decision is formally made tonight to enter into negotiations) that it will cause all kinds of trouble. They’ve already decided (it seems) on a public relations line of telling the press it won’t lead to job losses/workforce changes and giving them the “gift” of a press release in the hope that most of the media will just print the press release more or less verbatim and not ask too many awkward questions about the matter.

They even know their external auditor (Grant Thornton) will be asking them a whole bunch of questions to do with it too but surprisingly there are even bigger risks than the media and Wirral Council’s auditors to tackle, although read the risk register at appendix 5 and hopefully you’ll see what I mean.

So how can I sum up what is proposed to be decided tonight quickly? The current contract will Biffa Waste Services Limited will end on March 2017.

The impression I get from reading between the lines of the Cabinet papers, (a lot of the detail has been kept deliberately secret by officers who are recommending to politicians to keep it secret too on grounds of commercial confidentiality) is that Biffa Waste Services Limited seemed to be somewhat concerned that if their multi-million pound 11 year contract ends on March 2017, that they would have to bid in a competitive tender against other companies and organisations for the new contract.

There’s then uncertainty (from Biffa’s perspective) over whether they would end up being the successful bidder or not. It’s called “competition” and is generally required for such large multi-million pound contracts because of all kinds of laws I won’t go into at this point and competition is therefore required for a whole bunch of good reasons.

So someone as Biffa Waste Services Limited has read through the contract they have with Wirral Council and found a caveat. There was a part in the contract that could extend it a further ten years (current prices of ~£12 million a year but yearly increases and variation are usually built-in). This contract covers “all household waste and recycling collections, street cleansing and fly tip removal, waste collection from schools and council offices and wheeled bin deliveries.”

All Biffa had to do to get a further ten years (at ~£12 million a year) was make a formal offer to Wirral Council (which they did) and have this agreed to by Wirral Council (which hasn’t happened yet with the earliest date expected being October 2014).

Due to the size of the amounts involved it has to be a decision made by politicians, specifically Wirral Council’s Cabinet and the councillor with responsibility for this area is the new(ish) Cabinet Member for Environment and Sustainability Councillor Bernie Mooney (who replaced Brian Kenny earlier this year when he lost an election in May to the Green Party councillor Pat Cleary).

However what’s in the currently exempt appendices?

Well appendix 1 covers the “value and suggested terms of the formal offer from Biffa in return for the Council extending the contract to 2027. In summary the proposal offers the Council a one-off saving split between 2014/15, 2015/16 and 2016/17 followed by a continued annual reduction in the core contract price throughout the remainder of the extended contract period to the equivalent value. Officers asked Biffa to clarify the benefits to Biffa if the contract extension was agreed.”

I’m not allowed to link to appendix 1 (as it’s currently a big secret and you’d get an “access denied” type message from Wirral Council’s website if I did), but as the language used by a Wirral Council officer is rather opaque, it has to boil down to how I imagine a summary of what Biffa offered Wirral Council … “give us a further ten years and we will give you very good price if you pick us. Our price is very reasonable, many savings to be had, very good price, you buy from us again we treat you well. We are very good supplier and will take your bins to tip and keep streets clean for another 10 years for a very reasonable price.”

Wirral Council officers asked Biffa to clarify what Biffa would get out of extending the contract a further ten years.

Biffa responded to this on the 10th February 2014. Again I’m not allowed to show you Biffa’s response either on the instructions of Wirral Council officers!

The summary of this response is again in rather opaque language “Biffa indicated that the savings they could offer arose from avoiding future procurement and mobilisation costs, the ability to re-finance their operations and a reduction in overheads due to the stable nature of the contract. The discount is not linked to any service changes.”

In other words Biffa are saying “grant us a monopoly, save us the cost of having to retender for the contract in 2017, Wirral Council will save money from having to retender the contract” (which is a bit of a debatable point really anyway considering the extra costs this will cause doing it this way) “and Biffa will be able to borrow money cheaper because we’ll have a longer contract.” To be honest I don’t agree entirely with Biffa’s point about overheads being significantly lower to justify this.

Another letter from Biffa (exempt appendix 3) is also currently being kept secret by Wirral Council officers (pending a decision by politicians). This letter is about an offer to redesign the fleet of bin lorries from 2017 to collect things such as food waste (to meet Wirral Council’s recycling targets).

However Biffa make it clear that this is absolutely Biffa’s final offer (well unless Wirral Council’s Cabinet say no to negotiations or no to the offer in October 2014 and Biffa have to bid for the new contract starting in 2017)!

Wirral Council officers seem very keen to have the Labour councillors on Wirral Council’s Cabinet agree to Biffa’s plan. “80p cheaper per a Wirral person than Liverpool” they state in the report, but strangely 15p more per a person than in Sefton!

Of course Wirral Council’s Cabinet could just choose to reject Biffa’s proposal and decide to bring the service in-house from 2017.

The recent street cleansing cuts to the contract, have been the source of both political and media attention in the recent past. However, what’s the officer’s recommendation?

Oh and before I get to that, Wirral Council asked Eunomia (are they consultants?) in 2012 to look at the Biffa contract, the consultants in fact suggested the contract should be retendered! Eunomia also suggested that if Wirral Council did agree to extend the contract by a further ten years than there should be changes to “contract clauses relating to indexation, labour cost inflation and future efficiency gains” which would be extremely sensible to do considering the current contract is linked to RPI (and let’s face it inflation is quite high)! However the Eunomia assessment is now two years out of date and things have changed somewhat since then.

As Wirral Council officers freely admit in 5.3.4 of this report, they don’t really know if this will save any money at all versus retendering the contract, it all just seems to be educated guesswork and unknown quantities.

The estimated savings have been listed, but surprisingly (and isn’t this usually the case?) not the increased costs (such as an increased audit bill from Grant Thornton for extra work).

It’s the report gets to “legal implications” that things start to get interesting!

Here’s a quote from 10.2 “The Legal colleagues have highlighted that it is necessary to limit the amount of material changes to the contract in order to minimise the risk of the Council being challenged on the legalities of the extension.”

In other words, do it right otherwise one of Biffa’s competitors, or in fact anyone could sue Wirral Council over how it was done.

Then entering into catch 22 territory the legal advice continues:

“Due consideration has been given to establishing whether the Biffa proposal offers Value for Money (Sections 4 and 5 refers) as required under the Council’s Contract Procedure Rules. However, it is important to note that the only decisive way to determine whether a more advantageous contract could be secured by the Council would be through retendering the contract.”

In other words, Wirral Council don’t know whether this saves them money without retendering the contract in 2017, but if they agree to Biffa’s proposal they won’t be retendering the contract in 2017 so they’ll never really know or be able to prove “value for money” to their external auditors Grant Thornton.

However let’s see, what do officers want? They want politicians to agree to them to enter into negotiations with Biffa, more specifically the Strategic Director of Regeneration and Environment (currently Kevin Adderley) and then report back to Cabinet no later than October 2014.

Personally (and this is just an opinion) I think politicians on the Cabinet will probably agree to enter into negotiations with Biffa tonight (even though Labour’s tendency in the past has been to bring back services in-house), if only just to keep their options open in October 2014. Quite what the Rt Hon Frank Field MP’s views on this latest development in the Biffa saga are at the time of writing unknown.

Coming up next today: What Wirral Council’s Cabinet is planning to do about Children’s Centres.

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Wirral Council publish draft minutes on 4th September Cabinet decision on Lyndale School

Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith, Cllr Bernie Mooney and Lyndzay Roberts — Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith (Cabinet Member for Children and Family Services), Cllr Bernie Mooney and Lyndzay Roberts

The author of this piece has sent a letter following the pre-application protocol for judicial review to Wirral Council. However as no case has yet been filed, the matter is not sub judice. I felt it was however best to mention this as an interest in the below piece.

Wirral Council has published the draft minutes of the special Cabinet meeting held on the 4th September 2014 to consider the future of Lyndale School.

Councillors have between the date the draft minutes were published and the 18th September 2014 to decide whether they wish to “call in” the Cabinet decision and have it reviewed by a meeting of the Coordinating Committee as long as a minimum of six (out of sixty-six) councillors call for it to be called in.

A copy of the draft minutes for the Cabinet meeting are below.

40.	Members’ Code of Conduct – Declarations of Interest Members of the Cabinet are asked to consider whether they have any disclosable pecuniary or non pecuniary interests in connection with any item(s) on this agenda and, if so, to declare them and state the nature of the interest. Minutes: Councillor S Whittingham declared a personal interest by virtue of his appointment as a school governor at Millbrook Special School.
41.	Minutes The minutes of the last meeting have been printed and published. Any matters called in will be reported at the meeting. RECOMMENDATION: That the minutes be approved and adopted. Minutes: RESOLVED: That the minutes of the last meeting held on 7^th July 2014 be approved as a correct record.
42.	Chairs Announcement Minutes: The Leader of the Councillor indicated that following requests received, prior to the consideration of TheLyndale School item, the Cabinet will be show a video from The Lyndale School first
43.	Council Referral: The Lyndale School At its meeting held on 14 July 2014, Council considered a Notice of Motion proposed by Councillor Paul Hayes in relation to The Lyndale School. Council requested the Cabinet consider this along with all options relating to Lyndale School together with the outcome of the consultation exercise at a special meeting. (Minute 18 is attached) Minutes: At the meeting of the Council held on 14 July 2014 (minute 18 refers), the attached Notice of Motion, proposed by Councillor Paul Hayes and seconded by Councillor Jeff Green, in relation to The Lyndale School, was debated. Council requested the Cabinet consider this along with all options relating to the Lyndale School together with the outcome of the consultation exercise at a special meeting. RESOLVED: That the Notice of Motion in the relation to The Lyndale School be noted.
44.	Outcome of Lyndale School Consultation Additional documents: Lyndale Cabinet Appendix 1 , item 44 Lyndale Cabinet Appendix 2 , item 44 Lyndale Cabinet Appendix 3 , item 44 Lyndale Cabinet Appendix 4 consultation published copy , item 44 Lyndale Cabinet Appendix 5 , item 44 Lyndale Cabinet Appendix 6, item 44. Lyndale cabinet Appendix 7, item 44. Minutes: Prior to consideration of the item the Cabinet considered a video which had been submitted by Ms D. Hughes. The Leader of the Council, having welcomed everyone to the meeting, invited Ms Zoe Anderson, Parent Governor and parent of a child at The Lyndale School to address the Cabinet. Ms Anderson, spoke on behalf of the staff and parents of the school and spoke of the particular needs of the children at The Lyndale and gave a personal account of her own child’s needs and experiences which she felt could only be provided for at The Lyndale School. Speaking on behalf of parents Ms Anderson made representations in strong support of retaining The Lyndale School, the consultation responses, the expert report and the proposed options. Ms Anderson specifically stated that the staff at The Lyndale had gained the trust of all the parents to look after their child’s medical, physical and educational needs – which was the fundamental concern. Ms Anderson highlighted the excellent support, care and education provided all the children at The Lyndale School. The school had excellent facilities including very good outside space to which the children had full access. Ms Anderson commented that The Lyndale School provided the children with a wonderful sensory environment that was safe and relaxed. She asked that a full review be undertaken of the care given to each individual child by staff at The Lyndale School. Ms Anderson commented that the school’s staff provided specialised care, support and education; they were adept at communicating effectively with the children – skills which took many years to perfect. She stated that it took time to build up trust, and it was unfair that staff did not know what was to happen from week to week. The school played an integral part in the community, and interacted and participated with other neighbouring schools. Ms Anderson shared/circulated a Parents Survey that had been undertaken that showed parents wanted their children to remain at The Lyndale School. Within her representations, Ms Anderson asked that the funding bands be revisited to reflect the needs of each individual child that attended the school. She highlighted that the school had previously asked for the Schools Forum to revisit the schools banding due to the change in circumstances. In relation to the consultation document, Ms Anderson reiterated that The Lyndale School was not looking for the Council to enhance the funding but to maintain the funding that was already in place. Ms Anderson stated that parents had confidence in the school but not the process that the parents were involved in. She reminded Cabinet Members that the Council had a legal obligation to listen to the parents under the SEN Test. Ms Anderson drew an analogy with medical consultants who always ask parents for their views and thoughts. Ms Anderson stated that consultation responses clearly showed overwhelming support for The Lyndale School to be retained. Comments were also made in relation to the consultant (Ms L Wright) and her report. Concerns were expressed that the ethos of The Lyndale School would not be replicated at either the Stanley orElleray Park Schools, not least because the children attending these schools had different needs. Ms Anderson stated that the suitability of expanding these two schools was based upon assumptions, which was not evidence; and that simply providing training to staff was no substitute for experience. Concerns were raised over health and safety issues and the need for both schools to be upgraded at considerable cost. Ms Anderson concluded by stating that experienced and effective staff would leave due to the uncertainty and proposals. There would be no investment in The Lyndale School and it would instead stagnate; and parents would not want or be willing to subject their children to such an outcome. The Leader of the Council thanked Ms Hughes for her informative video and Ms Anderson for her representations. He acknowledged and confirmed that he appreciated the time and effort expended by everyone in supporting the school and pupils. He indicated that Members of the Cabinet had read all reports, representations and the feedback received in relation to The Lyndale School and had also met with parents and staff. He sincerely thanked all staff and parents. Introduced by the Director of Children’s Services, the Cabinet considered the report from the Director of Children’s Services which detailed the outcome of the consultation on the closure of The Lyndale School. The report outlined the responses received during the consultation, reviewed alternative options identified, as well as detailing the outcome of the SEN Improvement Test. The report indicated that, on 16 January 2014 (Minute 129 refers) Cabinet agreed to undertake a consultation on the closure of The Lyndale School. The consultation closed in June 2014. The report recommended that Cabinet considered the contents of the report and made a decision on this matter. The Director of Children’s Services commended the care, quality and passion of the staff at The Lyndale School which was endorsed by Ofsted and noted their excellent quality of care towards all pupils who attended the school and indicated that she along with her Department would be working closely with all staff and parents to end the uncertainty surrounding the future of The Lyndale School and bring this to a conclusion as soon as possible for both children, parents, and staff. In relation to consultation, the Director of Children’s Services indicated that she had met with parents,’ school staff, school governors and an MP; Councillors had also undertaken site visits to the schools and various public meetings had been held to encourage consultation and feedback. In relation to concerns raised by parents regarding health and safety at Elleray Park and Stanley School these were sent to both Headteachers of the schools who responded to the Council who then responded to the parents questions. In relation to staff, the Director of Children’s Services indicated that she had spoken to all staff at The Lyndale School when she visited as and reiterated that those affected would be fully supported throughout the transition as far as the Council can do. In response to comments from parents, the Director of Children’s Services indicated that there had been no evidence to suggest that parents had been steered away from The Lyndale School by Children’s Services officers although accepted that due to the uncertainty that surrounded The Lyndale School this could be a contributing factor. In relation to the option in which it was proposed that The Lyndale School close and a new PMLD base be opened on the new Foxfield site, the Director of Children’s Services indicated that she had recently spoken with theHeadteacher of Foxfield School who had spoken with his Chair of Governors and the Headteacher indicated that it would be inappropriate to have a primary setting even in a separate unit, therefore this option could not be considered. The Chair welcomed Ms Lynn Wright, Independent Consultant, who had been appointed to consult on the proposal to close The Lyndale School, the options, including those which had emerged throughout the consultation period, and give her view on the SEN Improvement Test. Ms Wright gave feedback on her findings in relation to each of the options considered; the full report was attached as an appendix. In response to the Council’s intention to increase the closure period from 2015 to 2016, Ms Wright advised against this as this would have huge implications for the pupils and staff that already had gone through a long period of uncertainty. Ms Wright indicated that the funding system had changed nationally and that schools that were no longer viable or sustainable should not be allowed to continue. The Leader of the Council thanked Ms Wright for her detailed report and feedback on the considered options. The Cabinet Member for Children and Family Services thanked all staff and parents for their comments and feedback and indicated that the Cabinet had considered all options in a transparent manner and had listened carefully to what had been said. Cabinet Members were reminded to have regard to the Council Referral under the previous Agenda Item in considering this matter. The Cabinet Member reiterated the need for stability at The Lyndale School and that this had been looked at for both financial and educational reasons, which had to be taken into consideration due to the funding formula changes introduced by Central Government. Councillor T Smith moved the following motion duly seconded by G. Davies: (1) Cabinet thanks all those who have participated in the consultation exercise, with particular regard to submissions from parents of children at The Lyndale School; (2) Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, it is recommended that: Statutory notices be published in respect of the closure of The Lyndale School from January 2016. That Wirral Council, under the leadership of the Director of Children’s Services, work individually, with children and families, towards effecting a smooth and supportive transition to an alternative place at one of the following schools: Elleray Park Special School Stanley Special School Another appropriate school In doing so, that the Director of Children’s Services, in acknowledgement of the close relationships that exist between staff and pupils at The Lyndale School, investigates if staff could be employed, where possible, at receiving schools, (subject to legal practice and the approval of governing bodies). The Director of Children’s Services be authorised to take all necessary steps to publish the proposals and ensure the prescribed procedures are followed, including requesting permissions from the Secretary of State, in furtherance of the proposals. A further report be brought on the outcome of the publication of the statutory notices. and outlined the following reasons for the motion. Having looked at all the options, and applied the SEN Improvement Test, it is our opinion that, while we recognise the special place that The Lyndale School has in the affection of parents and children, the continued operation and maintenance of a school of this size will not meet the future educational needs of the children, nor is a financially viable option, especially when there are good alternative options available. The Council has a responsibility to ensure for the sustainable future provision of education for the pupils of The Lyndale School. In addition, we have to manage resources effectively for all schools and the school population. This was a difficult decision to make, and we would like to affirm our continued intention to work positively with the families and the children affected, and reassure parents of our continued commitment to their child’s wellbeing and education. Councillor P. Davies moved an amendment, duly seconded by Councillor Mooney, that an additional point be included in the motion, namely: The Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of The Lyndale School are completed by 31^st October 2014. which was carried unanimously. IT WAS RESOLVED: That (1) Cabinet thanks all those who have participated in the consultation exercise, with particular regard to submissions from parents of children at The Lyndale School; (2) Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, it is recommended that: Statutory notices be published in respect of the closure of The Lyndale School from January 2016. That Wirral Council, under the leadership of the Director of Children’s Services, work individually, with children and families, towards effecting a smooth and supportive transition to an alternative place at one of the following schools: Elleray Park Special School Stanley Special School Another appropriate school In doing so, that the Director of Children’s Services, in acknowledgement of the close relationships that exist between staff and pupils at The Lyndale School, investigates if staff could be employed, where possible, at receiving schools, (subject to legal practice and the approval of governing bodies). The Director of Children’s Services be authorised to take all necessary steps to publish the proposals and ensure the prescribed procedures are followed, including requesting permissions from the Secretary of State, in furtherance of the proposals. A further report be brought on the outcome of the publication of the statutory notices. The Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of The Lyndale School are completed by 31^st October 2014. Supporting documents: Lyndale Cabinet 4th Sept 2014 Final Draft, item 44 Lyndale Cabinet Appendix 1, item 44 Lyndale Cabinet Appendix 2, item 44 Lyndale Cabinet Appendix 3, item 44 Lyndale Cabinet Appendix 4 consultation published copy, item 44 Lyndale Cabinet Appendix 5, item 44 Lyndale Cabinet Appendix 6, item 44 Lyndale cabinet Appendix 7, item 44

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The 25 ways in which the Wirral Council Cabinet decision about Lyndale School is flawed

Here are my thoughts on a few aspects of the recent Cabinet decision last Thursday evening about Lyndale School.

Q1. So who was the decision with regards to Lyndale School made by?

A1. The decisions about Lyndale School were made by Cllr Phil Davies (Labour, Birkenhead and Tranmere), Cllr Tony Smith (Labour, Upton), Cllr Bernie Mooney (Labour, Liscard), Cllr Stuart Whittingham (Labour, Upton), Cllr Chris Meaden (Labour, Rock Ferry), Cllr Chris Jones (Labour, Seacombe), Cllr Adrian Jones (Labour, Seacombe), Cllr George Davies (Labour, Claughton) and Cllr Pat Hackett (Labour, New Brighton).

Q2. But that’s only 9? I thought the Cabinet had 10 councillors on it!

A2. Cllr Ann McLachlan (the tenth Cabinet Member) wasn’t present at the meeting.

Q3. So does the fact she was missing alter things?

A3. No, nine out of ten is still enough to be quorate (enough councillors there to make a decision). One less councillor means one less vote to be counted, one less person possibly speaking and therefore a shorter meeting. There is no deputy system for Cabinet Members. There was no vote held during the meeting where her vote (one way or the other) would’ve made a difference to the outcome anyway. According to an email, Councillor Ann McLachlan is “away” from 29th August 2014 to the 8th September 2014 which covers the evening this meeting was held on the 4th September 2014.

Q4. So what’s she Cabinet Member for anyway?

A4. Cllr Ann McLachlan is the Cabinet Member for Governance, Commissioning and Improvement

Q5. Sorry I’m too busy laughing that Wirral Council has a Cabinet Member for “Improvement”. You’re joking right?

A5. No, I’m not.

Q6. So what was the Cllr Phil Davies’ amendment (seconded by Cllr Bernie Mooney) to the original recommendation?

A6. The recommendation (as amended) is here. Cllr Phil Davies’ amendment to the original recommendation is as follows:

Add new additional item to recommendation after paragraph 1.2:

1.3 That the Director of Childrens’ Services to ensure that Education, Health and Care Plans for all pupils of the Lyndale School are completed by the 31st October.

As Cllr Phil Davies said at the time of proposing his amendment, “It’s really important we have them in place as soon as possible.” I am presuming here that implies 31st October 2014 rather than 31st October 2015 as he didn’t specify a year at the Cabinet meeting.

Q7. So what’s an “Education, Health and Care Plan” anyway?

A7. It’s a legal requirement on Wirral Council to produce an “EHC needs assessment” (an assessment of the educational, health care and social care needs of a child or young person) on request because of the legal requirements placed upon them by the Children and Families Act 2014 c.6 (sections 33-34, 36-60).

Q8. So who can make such a request for an EHC Plan?

A8. Either parents, the young person his or herself, a person acting on behalf of a school or a person acting on behalf of a post-16 institution.

Q9. Does Wirral Council’s Cabinet fall into one of these categories?

A9. No, but Cabinet has other legal powers to make recommendations to the Director of Childrens’ Services who is Julia Hassall if they so wish.

Q10. OK, so going back to the Cabinet decision. What is the first legal concern you have about it?

A10. Well it relates to Regulations 8-11 of SI 2012/2089.

Q11. Interesting so what are Regulations 8-11 of SI 2012/2089 about?

A11. It is about key decisions, publicity in connection with key decisions, general exception and cases of special urgency.

Q12. OK, so is the decision about Lyndale School a “key decision”?

A12. Yes, key decisions are defined in Regulation 8 as a Cabinet decision (executive refers to the Cabinet) which is defined as follows:

“8. (1) In these Regulations a “key decision” means an executive decision, which is likely–

1 (a) to result in the relevant local authority incurring expenditure which is, or the making of savings which are, significant having regard to the relevant local authority’s budget for the service or function to which the decision relates; or

(b) to be significant in terms of its effects on communities living or working in an area comprising two or more wards or electoral divisions in the area of the relevant local authority.

In determining the meaning of “significant” for the purposes of paragraph (1) the local authority must have regard to any guidance for the time being issued by the Secretary of State in accordance with section 9Q of the 2000 Act (guidance).

Q13. So do Wirral Council regard it as a “key decision”?

A13. Yes.

Q14. So what’s the problem then?

A14. Well the regulations state in relation to a key decision that “that decision must not be made” unless certain requirements in Regulations 9-11 are met.

Q15. So what are the requirements in Regulations 9-11?

A15. That Wirral Council has to either “28 clear days” before the Cabinet meeting of the 4th September 2014 both publish a document on its website (and have that document open for inspection) which states the required information outlined in 9(1)(a) to 9(1)(h), or inform Cllr Moira McLaughlin and publish a notice on its website 5 clear days before the meeting or get Cllr Moira McLaughlin’s permission that the meeting is urgent and publish a notice to that effect on its website.

Q16. So did Wirral Council publish a document 28 clear days before the meeting containing the information in 9(1)(a) to 9(1)(h)?

A16. No, however it did publish a document 28 clear days before the meeting containing information in 9(1)(a), 9(1)(b), part of 9(1)(c) and 9(1)(d).

Q17. So they didn’t publish the information required by part of 9(1)(c), 9(1)(e), 9(1)(f), 9(1)(g) and 9(1)(h)?

A17. Yes.

Q18. Did they get Cllr Moira McLaughlin’s permission and publish a notice to that effect then?

A18. No.

Q19. Did they inform Cllr Moira McLaughlin and publish a notice to that effect then?

A19. No.

Q20. So what happens then if they don’t do these things?

Q20. They’re not allowed to make the decision. The regulations are quite clear on that “the decision must not be made”. Therefore the decision is unlawful/ultra vires.

Q21. So you’re alleging the decision on Lyndale School is unlawful, but they’ll just go ahead and implement it anyway?

A21. Yes.

Q22. Are there any other grounds too on which it could be challenged?

A22. Yes. The decision was made by the wrong people.

Q23. Why’s that?

A23. It’s an education matter and they didn’t have the parent governors and Diocesan representatives as part of the Cabinet making the decision.

Q24. But I thought Cabinets didn’t have to have such people as their decisions could be “called in” to the Coordinating Committee that does?

A24. The Coordinating Committee does have parent governor representatives and a Catholic representative (as of February this year) but is missing an Anglican representative.

Q25. But does it really have to have an Anglican representative?

A25. Yes it does. It’s a legal requirement, see s.9 of the School Standards and Framework Act 1998 c.31 / s.499 of the Education Act 1996 and the underlying regulations such as Regulation 5 of The Local Authorities (Committee System) (England) Regulations 2012 and Regulation 5 of The Education (School Organisation Committees) (England) Regulations 1999.

The Anglican representative has to be decided by the Diocesan Board of Education (Chester Diocese) not Wirral Council.

Q26. Well why doesn’t it have one?

A26. Well the Coordinating Committee made a recommendation to Council to add an Anglican representative on February 5th 2014. The Coordinating Committee suggested Mrs H Shoebridge and Mrs Nicola Smith as parent governors representative as well as Damien Cunningham (Catholic representative) but left the decision over who the Anglican representative would be to Council.

Council met on 25th February 2014 and chose to add Mrs H Shoebridge, Mrs Nicola Smith and Damien Cunnigham to the Coordinating Committee. An extra place for the Church of England representative was added to the committee but nobody was appointed to it.

Q27. So who proposed and seconded this motion at Council?

A27. Cllr Phil Davies proposed it and Cllr Ann McLachlan seconded it.

Q28. Well surely there was some scrutiny from the 63 councillors present as to this oversight?

A28. No, it had been a long meeting by then to decide the Budget for 2014/15 with many card votes and councillors were getting tired. 63 councillors voted unanimously to add the three named representatives to the Coordinating Committee and the extra place for the Church of England representative but failed to decide on who the representative for the latter was.

Q29. So basically they had one job to do (pick a name) and they bodged it due to a lack of scrutiny and oversight.

A29. Yes.

Q30. So what are the consequences of not having a properly constituted Coordinating Committee?

A30. The legislation is clear that if the Coordinating Committee doesn’t have the required two parent governor reps, Catholic and Anglican representatives then Cabinet has to when considering education matters (in my interpretation).

Q31. So does Cabinet have two parent governor representatives, a Catholic and an Anglican representative?

A31. No.

Q32. Are there other reasons (other than the two above) why this decision about Lyndale could be unlawful?

A32. Yes.

Q33. What are they?

A33. Well they relate to Wirral Council’s responsibilities under the Equality Act 2010 c.15, Disability Discrimination Act 1995 c.50, Disability Discrimination Act 2005 c.13 and Human Rights Act 1998 c.42. There may be others I haven’t thought of.

Q34. Wow that’s a lot! Can you be a little more detailed?

A34. S. 6(1) of the Human Rights Act 1998 c.42 in relation to Protocol 1 (Article 2) “Right to education”.

In relation to the Equality Act 2010 c.15 there would be legal concerns about Section 13, section 15, section 19, section 26, section 27, section 85, section 86, section 112, section 149, section 150 and section 158.

In relation to the Disability Discrimination Act 1995 c.50 there would be concerns about sections 19, 21, 21B, 21D, 28A, 28B, 28C, 28F and 49A.

In relation to the Disability Discrimination Act 2005 c.13 there would be concerns about sections 2 & 3.

Q35. So there are in total legal concerns about four different Acts of Parliament, two different sets of regulations comprising 25 different legal concerns?

A35. Yes.

Q36. So what’s the first step in the legal process?

A36. Someone involved in the Lyndale decision, whether staff, parents, children, a person who submitted a consultation response, attended a consultation meeting or signed the petition should write a letter to Wirral Council’s Cabinet and Wirral Council’s legal department stating that if it isn’t sorted out then court action will follow. The general protocol is that Wirral Council then have two weeks to provide a response.

Q37. And if Wirral Council says no, what happens next?

A37. It would result in multiple cases would be filed in the courts with jurisdiction to hear such matters. Two examples would be the Birkenhead County Court and Royal Courts of Justice (sometimes referred to as the High Court).

It would then be up to the courts to decide who was right and wrong in this matter if Wirral Council was in the wrong, appropriate compensation and possibly quashing of all or part of the original Cabinet decision.

Based on my past experience of such cases (which I will point out at this stage that none of this is not to be construed as legal advice) some of the many legal grounds listed above (on their own) would not be sufficient for a judicial decision to be made against Wirral Council.

Some however are stronger than others.

My opinion is based on other reported cases, being personally involved in at least one involving one of the pieces of legislation and knowing that in a civil matter it would be decided on the “balance of probablities”, that this is a highly complex and hard to predict legal matter that boils down to both subjective and objective matters, interpretation of the facts and other matters. The legislation as written opens up wide opportunity for Wirral Council to claim various defences to their actions and undoubtedly Wirral Council would hire an experienced barrister to do this.

Some alleged breaches are just purely technical and in the past the judicial viewpoint has been that caveats in the legislation provide defences to those sued. Some would depend on the judicial interpretation of the various law as there are multiple interpretations of the same words. The external costs of Wirral Council defending such a legal action could go to tens of thousands of pounds with internal legal costs possibly being a similar amount (officer time, resources etc). However the costs of bringing such an action (solicitor, barrister, court fees, postage, documentation preparation etc) would also come to a similar sum.

Obviously if the cases were won, such legal costs (if a judge agreed to it) could be claimed back from Wirral Council. It would not be something to be considered “lightly”. Cutbacks made in recent years by the government to the courts system mean that cases now take far longer than they used to. Fees for court cases have also been increased.

However if something isn’t done soon, any case (whatever its merits) would be rejected by the courts for being out of time. Judicial reviews have to be brought “promptly” (and within three months of the decision although it is not advisable to wait so long as permission will be denied). Disability discrimination cases have to be brought within six months of the action complained about. Outside of this time it is up to the Court whether they accept them or not.

It is also possible that there are legal matters that I have not contemplated that could be grounds for challenging the Cabinet decision.

The Cabinet decision could also be called in by opposition politicians once the Cabinet minutes are published in draft form. However as the Coordinating Committee does not have an Anglican representative it would have to again refer a recommendation to a future meeting of the Council and then adjourn its meeting until after Council has decided. Pending legal action would also possibly complicate the call in process (which would not be quick).

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Video of Wirral Council Special Cabinet meeting over Lyndale School and copy of Cabinet recommendation for closure

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Video of the Special Cabinet meeting held on the 4th September 2014 to discuss Lyndale School. Please note there is a small break in filming between parts 5 and 6 in order for depleted batteries to be changed.

Below is a copy of the recommendation agreed at the special meeting of Wirral Council’s Cabinet on the 4th September 2014. An amendment to this recommendation was also proposed and agreed, however the amendment wasn’t circulated to those present at the meeting and the below is the ~~original (unamended) recommendation~~ Ed – 7/9/14 10:18 recommendation as amended by the new amendment which adds part 1.3.

CABINET – 4^TH SEPTEMBER 2014

THE LYNDALE SCHOOL

RECOMMENDATION

1.1 Cabinet thanks all those who have participated in the consultation exercise, with particular regard to submissions from parents of children at The Lyndale School.

1.2 Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, is it recommended that:

Statutory notices be published in respect of the closure of The Lyndale School from January 2016.
That Wirral Council, under the leadership of the Director of Children’s Services, work individually, with children and families, towards effecting a smooth and supportive transition to an alternative place at one of the following schools:
Elleray Park Special School
Stanley Special School
Another appropriate school
In doing so, that the Director of Children’s Services, in acknowledgement of the close relationships that exist between staff and pupils at The Lyndale School, investigates if staff could be employed, where possible, at receiving schools, (subject to legal practice and the approval of governing bodies).
The Director of Children’s Services be authorised to take all necessary steps to publish the proposals and ensure the prescribed procedures are followed, including requesting permissions from the Secretary of State, in furtherance of the proposals.
A further report be brought on the outcome of the publication of the statutory notices.

</UL

1.3 That the Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of the Lyndale School are completed by the 31st October.

2.0 REASONS FOR RECOMMENDATION

2.1 Having looked at all the options, and applied the SEN Improvement Test, it is our opinion that, while we recognise the special place that The Lyndale School has in the affection of parents and children, the continued operation and maintenance of a school of this size will not meet the future educational needs of the children, nor is a financially viable option, especially when there are good alternative options available.

The Council has a responsibility to ensure for the sustainable future provision of education for the pupils of The Lyndale School. In addition, we have to manage resources effectively for all schools and the school population.

This has been a difficult decision to make, and we would like to affirm our continued intention to work positively with the families and the children affected, and reassure parents of our continued commitment to their child’s wellbeing and education.

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A Martian tries to understand the incredible Lyndale School situation (episode 2)

Marvin the Martian from Disney's Looney Tunes — Marvin the Martian from Disney’s Looney Tunes

The below is a fictional interview with Marvin the Martian about Lyndale School. Marvin the Martian is trademarked to Warner Brothers Entertainment. Our legal team point out their trademark doesn’t actually cover its use on blogs but in case they try to argue this blog is an “entertainment service”, it isn’t, so no laughing! Yes I mean it, not even a smile! We also point out it’s not an infringing use of class 9 of this trademark as that refers to its use on goods rather than virtually.

We rely on s.30 of the Copyright, Designs and Patents Act 1988 and class this as “fair dealing” due to the acknowledgement above. When the The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 come into force in October, we’ll probably rely on them too and the new section 30A on parody.

Continues from A Martian tries to understand the incredible Lyndale School situation (episode 2).

JOHN BRACE: Thanks for agreeing to talk about Lyndale School (again).

MARVIN THE MARTIAN: You’re welcome, but I must admit we’re even more confused today.

JOHN BRACE: Why’s that?

MARVIN THE MARTIAN: Well we just listened from our spaceship to the BBC Radio Merseyside broadcast.

JOHN BRACE: Ahh, I see.

MARVIN THE MARTIAN: The way Lyndale was described it’s a hospital, not a school.

JOHN BRACE: I see why you’re confused. It’s both in a way.

MARVIN THE MARTIAN: Well thanks for clearing that point up. So now we can say the red politicians want to close a hospital?

JOHN BRACE: No the red politicians will say they invented free hospitals, that hospitals are very dear to their heart and that they don’t want to privatise them as it doesn’t fit with their socialist ideals. They’ll tell you that hospitals aren’t safe in the hands of the blues or the yellows (or any other colour than red).

MARVIN THE MARTIAN: But the blues, yellows and greens want to keep this “hospital” open! The reds keep voting at every stage to close it!

JOHN BRACE: The reds will say they just voted for “consultation”, won’t call it a hospital and if pressed, they’ll just blame it on the blues and the yellows.

MARVIN THE MARTIAN: Right there’s another point I want clearing up now too. The bureaucrats who work for the reds, say that the blues and yellows are giving the reds an extra £260,029 this year for special educational needs.

JOHN BRACE: Yes.

MARVIN THE MARTIAN: But the blues and the yellows say that it’s not £260,029, but £364,135 and that the reds were told in January that they can spend this SEN Reform Revenue Grant to “choose how to spend the money in order to best meet local need” and that its purposes is (according to the blues/yellows) to “improve outcomes for children and young people with SEN; increase choice and control for parents; and promote a less adversarial system.”?

JOHN BRACE: The reds would prefer you didn’t mention that.

MARVIN THE MARTIAN: Why?

JOHN BRACE: Well their whole argument is blaming the blues and yellows for giving them less money, not more. It’s an “inconvenient truth”.

MARVIN THE MARTIAN: And in politics you don’t talk about the inconvenient truths?

JOHN BRACE: Yes, it’s not diplomatic or tactful to do so. If you try that with a red politician they’ll call you “political”.

MARVIN THE MARTIAN: And why is that a bad thing?

JOHN BRACE: Because like unravelling a ball of string, once you start plucking away at one bit the whole thing starts falling apart.

MARVIN THE MARTIAN: So the reds believe if they repeat enough that the blues and yellows are giving them less money that people like BBC Radio Merseyside will repeat it?

JOHN BRACE: Yes, they’ve been on a media training course you see.

MARVIN THE MARTIAN: Oh, in how to deal with people like you?

JOHN BRACE: Partly, but anyway your arguments about money are pointless.

MARVIN THE MARTIAN: Why?

JOHN BRACE: Because Wirral Council has been given the money referred to above (at least the first two instalments), but they don’t officially have it.

MARVIN THE MARTIAN: What kind of double talk is that?

JOHN BRACE: It’s not part of the budget that Labour agreed back in the Spring of 2014.

MARVIN THE MARTIAN: Was that deliberate?

JOHN BRACE: You mean they’d deliberately try to close the school, then suddenly magically find money they knew they had all along but tried to keep quiet and then use that to keep it open to make themselves look wonderful?

MARVIN THE MARTIAN: No, did they deliberately set a budget knowing they had this extra money?

JOHN BRACE: I don’t know, you’d better ask them.

MARVIN THE MARTIAN: Going back to the radio show, they said it should be about the children.

JOHN BRACE: Yes it should.

MARVIN THE MARTIAN: So why do they keep getting talked out of the discussion?

JOHN BRACE: Because politicians would rather score political points.

MARVIN THE MARTIAN: I listened to the parents, they referred to a “David versus Goliath” battle.

JOHN BRACE: It always is with Wirral Council, see the battles I had with them over filming meetings (until central government stepped in).

MARVIN THE MARTIAN: So they were worried you’d film them “scoring political points”?

JOHN BRACE: No.

MARVIN THE MARTIAN: Oh so they were worried you’d film them trying to close a school?

JOHN BRACE: No.

MARVIN THE MARTIAN: So what were the reasons then?

JOHN BRACE: Health and safety.

MARVIN THE MARTIAN: Well that’s ironic in a way isn’t it? They’re bothered about the health and safety implications of you filming meetings but not the health and safety of the Lyndale children?

JOHN BRACE: You might put it that way, I couldn’t possibly comment.

MARVIN THE MARTIAN: Well, the parents seem to think it’ll affect their children’s health if the school is closed.

JOHN BRACE: A lot of people think it would.

MARVIN THE MARTIAN: And if the school closes all the staff are out of a job too.

JOHN BRACE: Yes, but the reds are the “party of the workers”.

MARVIN THE MARTIAN: What does that mean?

JOHN BRACE: It means they side with the unions and the workers.

MARVIN THE MARTIAN: Ahh, so the unions want to close Lyndale?

JOHN BRACE: No, the unions are against closure. See UNISON’s response starting on page 37 which states the consultation was “misleading” and compared to Children’s Centres that there is no “equality or fairness” for Lyndale staff. NUT (National Union of Teachers) also states the consultation was “misleading” and that if Lyndale was closed “some of our most vulnerable pupils will be left without access to a local school.”

MARVIN THE MARTIAN: This whole politics thing is starting not to make any sense!

JOHN BRACE: Now you know how people feel about the whole thing.

MARVIN THE MARTIAN: So to recap, the blues and yellows gave the reds more money for this sort of thing that the reds won’t spend (yet). The reds say the blues and yellows are giving them less money.

The blues, yellows, reds and greens all say they’re on the side of the people and the reds say they’re the party of the unions. The unions seem to be on the same side as the blues, yellows and greens?

JOHN BRACE: No because a lot of those involved with the unions to put it mildly dislike the blues.

MARVIN THE MARTIAN: Your whole political system makes no sense whatsoever!!!

JOHN BRACE: That’s “democracy” for you.

MARVIN THE MARTIAN: Don’t people get frustrated having to live under such a system?

JOHN BRACE: Yes which is why they get a vote.

MARVIN THE MARTIAN: And what does a vote do?

JOHN BRACE: It allows people to pick the politicians out of the reds, blues, greens, yellows, purples et cetera.

MARVIN THE MARTIAN: So if your political system is as it is it’s the public who are to blame?

JOHN BRACE: Well no, our system ignores a majority of their votes. Let’s give an example. This year in Pensby and Thingwall 4,086 people voted.

MARVIN THE MARTIAN: OK.

JOHN BRACE: Roughly one in three of those voted for the red party, the rest (two in three) voted for someone else.

MARVIN THE MARTIAN: So someone else won?

JOHN BRACE: No the red party won, although most people voted for someone else.

MARVIN THE MARTIAN: So you’re saying the red party is now in charge making the decisions, even though most people who voted in Pensby & Thingwall didn’t want them in charge?

JOHN BRACE: Yes.

MARVIN THE MARTIAN: So your voting system means you ignore the wishes of most people and then just pick someone that most people don’t want?

JOHN BRACE: Sometimes.

MARVIN THE MARTIAN: Well doesn’t that mean whoever is in charge is unpopular?

JOHN BRACE: Well that’s the weird thing about our political system, since the red party have been in charge, they’ve become slightly more popular with the public.

MARVIN THE MARTIAN: Well according to what you just told me they weren’t very popular to start with!

JOHN BRACE: Indeed, but if you look at that election I just mentioned it was between a red and a former red that had switched to the blues. The reds really really did not want their former colleague to win.

MARVIN THE MARTIAN: So the public were asked to vote to choose between a red and a former red who is now a blue!

JOHN BRACE: Yes.

MARVIN THE MARTIAN: So let’s get this straight, the reds are in charge not because they’re terribly popular but because of your voting system.

JOHN BRACE: Yes.

MARVIN THE MARTIAN: And most people don’t vote or when they do vote often their vote doesn’t count (which is why they often choose not to vote)?

JOHN BRACE: Yes.

MARVIN THE MARTIAN: And that’s called democracy?

JOHN BRACE: Yes.

MARVIN THE MARTIAN: But the children of Lyndale are not allowed to vote?

JOHN BRACE: No.

MARVIN THE MARTIAN: Why not?

JOHN BRACE: I don’t make the rules here.

MARVIN THE MARTIAN: So Lyndale School can be closed by a bunch of red politicians that most people never voted for and in some places a majority don’t want, that claim to be the party of the unions (who are against the idea), claim to the party of the people (who are also against the idea) and the ones who will be affected (the children) don’t even get a say in whether the politicians are red, blue, yellow, green (or something else) this year?

JOHN BRACE: You left out the bit about the reds blaming it all on the blues and the yellows.

MARVIN THE MARTIAN: Oh yes, the red politicians say they don’t have any money because of the blues and the yellows, but the blues and the yellows say well that’s the reds’ fault but they’ve given the reds more money anyway?

JOHN BRACE: As usual it is more complicated than that.

MARVIN THE MARTIAN: And you call that “democracy”, sounds like disorganised chaos!

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Biffa asks Wirral’s Cabinet for a 10 year extension to bins & street cleaning contract worth at least £120 million

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Wirral Council publish draft minutes on 4th September Cabinet decision on Lyndale School

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The 25 ways in which the Wirral Council Cabinet decision about Lyndale School is flawed

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Video of Wirral Council Special Cabinet meeting over Lyndale School and copy of Cabinet recommendation for closure

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A Martian tries to understand the incredible Lyndale School situation (episode 2)

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