2nd consultation response to Lyndale School closure consultation from Cllr Phil Gilchrist
2nd consultation response to Lyndale School closure consultation from Cllr Phil Gilchrist
Councillor Tony Smith 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, Lyndzay Roberts
I’m still awaiting a response to my FOI request made a week ago, but as my FOI requests get routinely sent to Wirral Council’s press office for final approval before I get a full response I’m not surprised.
Here is the second response I am publishing to the closure consultation. If you have responded to this consultation and would like me to publish your response (please tell me if you wish your published response to be anonymised) please email me at john.brace@gmail.com. I’ve linked to the Cabinet reports and Cabinet agenda item referred to by Cllr Phil Gilchrist in his consultation response for ease of reference.
From: Cllr Phil Gilchrist, 2 Gordon Avenue, Bromborough, CH62 6AL 334 1923
I object to the closure of The Lyndale School.
The Cabinet adopted funding arrangements which could be re-visited if there was a willingness to address the financial constraints imposed on the school. The report to Cabinet (Agenda Item 13 of 16th January 2014) included a number of comments that foresaw and helped create the financial straitjacket for the Lyndale School.
Section 2.5 made it clear that there was a need for any banded approach to..
‘recognise the resource intensive nature of making provision for those with the most profound and multiple difficulties ‘
The Cabinet report promised that the changes.
‘will be kept under review with regular reports to the Schools Forum’
Section 2.5 also raised the prospect that there would be.
..’a contingency fund which would be used to support specialist provision experiencing financial difficulties whilst future options are considered’
Section 2.7 described the Wirral banding model as seen by respondents to the consultation as…‘a reasonable starting point for development’
The aforementioned paragraphs suggested that there was a recognition that the authority was creating a system which needed reviewing and developing.
It was clearly reported that..
‘One respondent argued for a school specific top up significantly higher than the banding proposed because without it the school will not be financially viable next year.’ (2.7)
Instead of heeding the concerns raised the Cabinet adopted a funding arrangement which did not fully reflect the costs of providing the specialist provision valued by the parents of children at The Lyndale School..
During the consultation process covering the options for the future of The Lyndale School the parents made it clear that the school was meeting the needs of their children..
They did not wish to see the teamwork, the expertise of teaching staff and of the support staff at The Lyndale School fragmented and broken up. They made this point throughout.
There was an opportunity to ‘replicate’ the provision at The Lyndale, to plan and develop a modern unit that would have achieved this, but it was broached in a half hearted manner. The local authority seems determined to break up The Lyndale’s centre of expertise by sending the children to other schools.
The children will need the same high quality support in any new setting. The parents have remained unconvinced that this will be the case. They have put the needs of their children first and the authority should do likewise.
Cllr Phil Gilchrist 18th Nov 2014
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The 25 ways in which the Wirral Council Cabinet decision about Lyndale School is flawed
The 25 ways in which the Wirral Council Cabinet decision about Lyndale School is flawed
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
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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The £1,092,160.12 PFI invoice connected to Lyndale School & why Wirral Council can afford to keep Lyndale open
The £1,092,160.12 PFI invoice connected to Lyndale School & why Wirral Council can afford to keep Lyndale open
To the left is a £1,092,160.12 invoice for Wirral Council for paying a company called Wirral School Services Limited under a PFI agreement. This is a monthly invoice, so the yearly total comes to about £12 million. As previously reported this is a story about money and education that is rather complex, but does connect to Lyndale School.
The current PFI contract was signed ten years ago, when Cllr Phil Davies was Cabinet Member for this area. It was originally supposed to run for 25 years in 2001 but was extended in 2004.
For many of these years, if I am getting this right, it was funded from general Council resources and not through the Schools Budget. This year £600,000 of costs for the PFI agreement are paid for by an £1.4 million underspend in money that it was agreed would be spent on special educational needs.
Next year, it’s been stated that Wirral Council want to reduce its contribution to the PFI agreement by £2 million, which led to some angry exchanges at a recent Wirral Schools Forum meeting about the consequences of this decision.
Basically it means that for 2015-16 (the year that there’s been the recent consultation on closing Lyndale) that £2 million of extra compensatory savings will have to be found because of a political decision. The actual funding from one year to the next that Wirral Council is receiving for education isn’t really changing that much so this £2 million issue has dare I say it ruffled some feathers.
I state political decision because (yes there was a U-turn on this last year so who knows really) statements already made are that Labour want to freeze Council Tax in 2015-16 at 2014-15 levels.
However, going back to Lyndale School (soon to be discussed at a special Cabinet meeting). This underspend on special educational needs (money already agreed that should be spent in this area) was shifted out of that budget to pay for the PFI costs. I have requested the actual contract between Wirral Council and Wirral School Services Limited, first by a freedom of information request (denied), now as part of the audit (I’m still waiting).
Based on what I do know, I can tell you this. Part of the PFI cost is funded by a fixed grant Wirral Council get of £5.5 million a year. There are facilities management support costs built into the contract that Wirral Council charge the schools for which total about £3.3 million a year. However this leaves a gap of £2.5 million.
Until this year (although strangely at the Lyndale call in officers stated that funding educational items from outside the schools budget would cause problems and as far as I remember somehwat glossed over the fact that they were already doing this to the tune of £millions for the PFI schools), Wirral Council have plugged this gap.
The problem is essentially due to a political decision not to raise Council Tax in 2015-16 and not carry on with this arrangement (diverting an underspend from special educational needs to plug the gap this year) that although the education money Wirral Council receive is hardly changing that from next year (when there’s a General Election on) the cuts to education can be blamed on the national coalition government despite this being a local decision that’s been made.
I’ve looked at what happened in another borough on Merseyside at their Schools Forum when there’s an underspend in special educational needs. The money didn’t get diverted in this way and was carried forward to the next year to be also spent in that budget area.
There’s no legal impediment in money between different budget headings in the schools budget being shifted around in this way, but as far as I can tell not one of the schools covered by the PFI agreement fall into the special schools category (please correct me if I’m wrong on this point). Therefore there is the moral question to be asked should money previously agreed to be spent on special educational needs be diverted to pay for PFI projects in this way?
Obviously if you’re a parent or member of staff at Lyndale School the answer to that would probably be no. Yes, I have somewhat simplified matters and there are complicated factors involved also in schools funding such as the minimum funding guarantee which for example for this year guarantees that the money schools receive from Wirral Council won’t drop by more than 1.5%.
Interestingly as Wirral Council wanted to bring in its “banding” for special educational needs this year, it asked the Education Funding Agency for permission to drop school budgets by more than the minimum funding guarantee (which is a legal requirement) allows. However this request was withdrawn.
There is also a little confusion as to what was agreed by the Wirral Schools Forum in its five bands for special educational needs. There’s £10,000 for each child, then bands depending on need that go up to £16,000 (band five). However band five was never an absolute limit and from what I remember there was flexibility to go above this in certain circumstances. In fact I doubt putting funding into bands would have ever been agreed by the Wirral Schools Forum without that uncapped band.
You see there is an uncapped band that applies to independent schools, non-maintained schools or schools located outside of Wirral. If Lyndale closed and some children were transferred to schools outside of Wirral there wouldn’t be a cap on their education funding. In fact it almost seems wrong to cap funding to Wirral’s special schools, but not outside of the Wirral.
To give an example of a special education school on the Wirral that falls into the independent category, below is a three page invoice to Wirral Council for one term which totals £535,098.00. These fees range from £10,213 a term to £23,361.00 (or over a year would be from ~£31k to £69k per a pupil). Just for comparison, the consultation on closing Lyndale is because ~£33k a child per a year is seen as high, but when you compare that to what children at West Kirby Residential School cost Wirral Council is actually lower.
44 children at West Kirby Residential School cost £535,098 a term (£12,161 a term). There are three terms in a year, so that works out at about £36,483 a child there compared to ~£33k at Lyndale.
The truth is Wirral Council officers have made an artificial comparison between Lyndale School and other special schools were the needs of children (and therefore staffing costs) were far, far less than at Lyndale School which made Lyndale School look expensive by comparison.
What do you think? Below is a heavily redacted invoice (unfortunately as its double-sided some of the redactions come through on the other side) that backs up my argument that Wirral Council does have the money currently to fund special schools at Lyndale levels (or even in the case of West Kirby Residential School above Lyndale levels).
West Kirby Residential School invoice November 2013 Page 1 of 3 £535098West Kirby Residential School invoice November 2013 Page 2 of 3 £535098West Kirby Residential School invoice November 2013 Page 3 of 3 £535098
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Wirral Council’s Cabinet to decide on one of 3 options for Lyndale: keep it open, close it or change it to an academy
Wirral Council’s Cabinet to decide on one of 3 options for Lyndale: keep it open, close it or change it to an academy
Phil Ward (Wirral Council’s SEN Lead) at a later meeting of Wirral Schools Forum 2nd July 2014 (who chaired the consultation meeting at Acre Lane on the 16th June and is referred to in some of the consultation responses)
Well the papers for the special meeting of Wirral Council’s Cabinet to decide on the next steps about Lyndale School have appeared on Wirral Council’s website.
I hate to labour the point, but this is how consultations are “supposed to work”. An idea or policy is proposed, you have a consultation on it, you then publish the consultation responses in an open and transparent way so that the decision makers take them on board.
Not including the consultation responses with the Cabinet papers for the special meeting, gives the impression that officers don’t want material published that would lead to say “awkward questions”. Surely doing consultations isn’t rocket science, surely Wirral Council has run so many consultations they know how to do it by now?
The “bureaucratic machinations” go beyond just this “oversight” of not including the approximately three hundred pages of consultation responses. After all some of those responses are very critical of the way the consultation was actually run.
Let’s take how officers deal with the large petition. This gets a brief mention in appendix 5 on the last page.
I quote “A petition was received in support of Lyndale School containing 10,692 entries, of which 2,580 were duplicates, illegible or un-named, missing or non-existent addresses and 3,178 were resident outside Wirral. The remaining 4,935 entries comprised 702 “written” entries and 4,233 “epetition” entries.”
Last time I checked, Wirral wasn’t its own country with a big twenty-foot wall on the border and rumours of “barbarians” outside Wirral that well, you don’t have to listen to. The school is in Eastham which is on the edge of Wirral! Of course there are going to be people outside of Wirral are going to sign the petition (some of whom will probably live far nearer the school than I do living in Bidston). To callously state or imply that the views of over three thousand people don’t count because they don’t live here, I mean well doesn’t this sum up an attitude that has caused some of the problems and got Wirral nicknamed the “insular peninsula”? Family members of those attending the school could be living outside the Wirral, so could staff or other people closely associated with the school.
Moving on to duplicates, there was a written petition and an e-petition, obviously some people will have signed both versions. As to “illegible or un-named, missing or non-existent addresses”, well (I’m writing this as someone who has in the past gone door to door collecting petition signatures but I’ll point out not this petition) there are many adults in today’s society that couldn’t write their own name and address even if they wanted to (a sad reflection of our education system). It doesn’t mean their views don’t count!
The report goes on to state “Note that the Wirral Council Petition Scheme says a valid e-petition entry requires name, postcode and e-mail address. The e-petition was submitted as part of the consultation with name and postcode but without e-mail address”, so basically what this is saying is that out of 10,692 petition signatures, a Wirral Council officer only classes the 702 on a written petition as “valid” and feels happy enough to just disregard the views of the other ten thousand people.
There is a breakdown of the petition signers by ward, obviously the ward where the school is based Eastham attracts the highest number.
The reason given is “The Council has a responsibility to manage resources effectively for all schools and the school population. We would like to affirm our continued intention to work positively with the children and families affected by any recommendations, and reassure parents of our continued commitment to their child’s wellbeing and education.”
I will translate these two into plainer English for those not as familiar as myself with “Council speak”:
“In January* politicians decided to ask the public for their views on closing Lyndale School. Consultation with the public happened and finished in June. This report (written from the perspective of officers) tells you what we think happened during that consultation and it’s now time for politicians to make a decision.”
* Note: since January the politicians on the Cabinet have changed as B
