Category: Cllr Phil Davies

A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong

A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong

A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong

                                                                                      

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

Below is a copy of a letter emailed to Wirral Council’s Surjit Tour, the nine councillors on the Cabinet that took the “decision” and Julia Hassall.

Jenmaleo,

134 Boundary Road,

Bidston

Wirral

CH43 7PH

Wirral Council

Metropolitan Borough of Wirral

Wallasey Town Hall,

Brighton Street,

Wallasey,

Merseyside,

CH44 8ED,

England

8th September 2014

By email

Surjit Tour surjittour@wirral.gov.uk

Cllr Phil Davies phildavies@wirral.gov.uk

Cllr Tony Smith tonysmith@wirral.gov.uk

Cllr Bernie Mooney berniemooney@wirral.gov.uk

Cllr Stuart Whittingham stuartwhittingham@wirral.gov.uk

Cllr Chris Meaden chrismeaden@wirral.gov.uk

Cllr Chris Jones christinejones@wirral.gov.uk

Cllr Adrian Jones adrianjones@wirral.gov.uk

Cllr George Davies georgedavies@wirral.gov.uk

Cllr Pat Hackett pathackett@wirral.gov.uk

Julia Hassall juliahassall@wirral.gov.uk

LETTER BEFORE CLAIM

Proposed claim for judicial review

1. TO

SURJIT TOUR

Legal and Member Services

Metropolitan Borough of Wirral

Wallasey Town Hall,

Brighton Street,

Wallasey,

Merseyside,

CH44 8ED,

England

2. The claimant

MR JOHN BRACE

Jenmaleo,

134 Boundary Road,

Bidston,

CH43 7PH

3. Reference details

Amended Cabinet recommendation of 4th September 2014 with respect to Lyndale School (agenda items 4&5)

4. The details of the matter being challenged

What is being challenged is the decision of Wirral Council’s Cabinet on the evening of the 4th September 2014 to make the amended recommendation which is copied below. More specifically the details of the matter being challenged are 1.1, 1.2, 1.3, 2.0 and 2.1 of the recommendation.

“CABINET – 4TH 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.

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.”

5

The issue

Brief summary of facts:

Wirral Council’s Cabinet made a key decision on the evening of 4th September 2014 at a public meeting to proceed to a second round of consultation on the closure of the Lyndale School. The recommendation agreed by nine councillors is outlined above.

Why it is contended to be wrong:

It is contended to be wrong because:

(a) The notice requirements before the meeting were not met.

The actions specified to be taken in advance of the Cabinet meeting in the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 specifically Regulations 9-11 weren’t met. More specifically the document specified in Regulation 9 wasn’t published 28 days before the meeting or the notice in Regulation 10(3)(b) or the notice in Regulation 11(2)(b).

Regulation 9(1) makes it quite clear that if these requirements are not met that “that decision must not be made)

(b) The key decision was made by the wrong people.

In addition to the Cabinet between four and nine other people should’ve been included in the decision. Specifically these are:

between 2-5 parent governor representatives,

a representative of the Catholic diocese and

a representative of the Anglican diocese

These people should have all had voting/speaking rights and been invited to take part in the Cabinet meeting.

Normally Cabinet would not be required to have such representatives on it as it has oversight by the Families and Wellbeing Policy and Performance Committee and Coordinating Committee.

However as a representative of the Anglican diocese has not yet been appointed to the Families and Wellbeing Policy and Performance Committee or the Coordinating Committee due to this lack of oversight the Cabinet was required to have them take part in the decision making on this matter.

This legal requirement is outlined in the School Standards and Framework Act 1998 c.31/ s.499 of the Education Act 1996 c.56 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 and other underlying regulations.

(c) Human Rights issues

Wirral Council have to make decisions that are compatible with the Convention Rights (s.6(1) Human Rights Act 1998 c.42). Specifically these concerns are about Protocol 1 (Article 2), article 2, article 3, article 11 and article 14.

The concerns are briefly outlined below:

Protocol 1 (Article 2) “right to education” as closure of the school would interfere with the parent’s right to “ensure such education and teaching in conformity with their religious and philosophical convictions”

Article 2 “right to life” as closure of the school would possibly cause the death of one or more of its current pupils

Article 3 “prohibition of torture” as closure of the school would be “degrading treatment or punishment” of the parents and pupils

Article 11 “freedom of assembly and association” as closure of the school would interfere with the rights of the pupils, staff and parents to associate with each other and none of the requirements in 11(2) are known to be met

Article 14 “prohibition of discrimination” as:

(a) the school is for severely disabled children therefore closing (whilst not making known closures elsewhere) could be classed as discrimination

(b) the political views of the parents are that the school should not close which has been widely expressed in the media prior to the meeting in opposition to the stated views of the Labour administration at Wirral Council

(c) many of the severely disabled children at the school were born that way

(d) Equality Act 2010 c.15 considerations

Section 13 – the Lyndale pupils (person B) have a protected characteristic (disability). They would be treated less favourably if the school closed as less money would be spent on their education. Furthermore many of the approximately thirty staff have protected characteristics (who will be out of a job if the school closes)

Section 15 – this relates to discrimination arising from disability. The pupils at the school are disabled. Wirral Council would have to show that the treatment is “a proportionate means of achieving a legitimate aim” which has not yet been demonstrated

Section 19 – this relates to indirect discrimination of the parents and family members of the Lyndale pupils

Section 26 – “harrasment”, the closure plans have resulted in a violation of dignity of those with protected characteristics and have intimidated staff, parents and pupils at the school. One example of this would be that the headteacher has left.

Section 27 – the parents have threatened legal action which is a protected act

Section 85 – these plans force the Lyndale School to breach s.85(2)(f) as it subjects pupils and their parents to detriment

Section 86 – this relates to victimisation of the pupils for the conduct of their parents. The parents have petitioned, campaigned and lobbied against closure. The siblings and parents of the children at the Lyndale School are being penalised for this

Section 112 – the way Wirral Council behaved (for example making a false public statement that if the school was closed that staff would be redeployed during the consultation) is aiding contraventions of the Equality Act 2010

Section 149 – “public sector equality duty” Due regard to 149(a), (b) and (c) by Wirral Council has not been given. The same goes for the duties under 149(5)(a) and 149(5)(b). These relate to the proteted characterists of pupils, staff and parents at the school.

Section 150 – “public authorities and public functions” – the Metropolitan Borough of Wirral Council is a “district council” in England as defined in Schedule 19, therefore 150(3), 150(4) and 150(5) apply to it.

Section 158 – “positive action: general” the pupils of Lyndale school have needs that are different from the needs of person that are not disabled. Those that have PMLD (which is a protected characteristic) are a disproportinately low proportion of the school population. The Lyndale pupils are at this school because it’s a special school that caters for the needs of disabled pupils with PMLD. Therefore they will suffer a disadvantage if the school closes. The level of education they receive will change if the school closes and it is alleged that this new provision will not meet their needs.

(e) Disability Discrimination Act 1995 c.50 considerations

Section 19 – Wirral Council provides the service of education to the disabled pupils at the Lyndale School. If the school is closed the current (and potential future) disabled pupils would find it “impossible” or “unreasonably difficult” to use the school. Although Wirral Council is a “local education authority in England” and therefore a “relevant body” as defined in s.19(6), it remains to be seen whether education & transport are services that fall under s.19(5)(a) or not.

Section 21 – The adjustment required would be to fund the running costs of the Lyndale School, whilst it is appreciated that Wirral Council is a “local education authority in England” and therefore a “relevant body”, this duty of providers of services to make adjustments could/could not apply to Wirral Council

Section 21B – Wirral Council is a “public authority” and is discriminating against disabled people in carrying out its functions.

Section 21D – Wirral Council is failing in its general duties to:

(1)(a) the need to eliminate discrimination that is unlawful

(1)(b) the need to eliminate harrassment of disabled persons that is related to their disabilities

(1)(c) the need to promote equality of opportunity between disabled persons and other persons

(1)(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons

(1)(e) the need to promote positive attitudes towards disabled persons

(1)(f) the need to encourage participation by disabled persons in public life

Section 28A – “Discrimination against disabled pupils and prospective pupils” This relations to 28A(2) and 28A(1)(a) as Wirral Council is “the local education authority” defined in Schedule 4A. Wirral Council is proposing altering its admission arrangements which discriminate against the current disabled pupils at the Lyndale School. Closure would result in the current pupils being excluded permanently.

Section 28B – Lyndale pupils are being treated less favourably because of reasons realted to their disability/ies. It is unreasonable to assume that Wirral Council does not know they are disabled as it is a special school

Section 28C – “disabled pupils not to be substantially disadvantaged” The Lyndale pupils are being put at a substansial disadvantage compared to persons who are not disabled with regards to the admission arrangemnts.

Section 28F – There has been a failure of the duty of the education authority not to discriminate, it is unknown at this stage what prescribed function this relates to (if any).

Section 49A – In carrying out its functions, Wirral Council is not having due regard to

(1)(a) the need to eliminate discrimination that is unlawful

(1)(b) the need to eliminate harrassment of disabled persons that is related to their disabilities

(1)(c) the need to promote equality of opportunity between disabled persons and other persons

(1)(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons

(1)(e) the need to promote positive attitudes towards disabled persons

(1)(f) the need to encourage participation by disabled persons in public life

(f) Disability Discrimination Act 2005 c.13 considerations

Section 2 – This section inserted 21B in the Disability Discrimination Act 2005 (see arguments above for s.21B of the Disability Discrimination Act 2005)

Section 3 – This section inserted 49A in the Disability Discrimination Act 2005 (see arguments above for s.49A of the Disability Discrimination Act 2005)

(g) statutory guidance

Statutory guidance has been issued which includes the application of a test to such proposals known as the “SEN Improvement Test” to such decisions. Wirral Council claims that its plans for closure meet the SEN Improvement Test. The Claimant disagrees that the requirements of the SEN Improvement Test have been met to the preferred option (which is closure of the Lyndale School). This is because:

(i) it would not lead to improved access to education and associated services

(ii) it would not lead to improved access to specialist staff

(iii) it would not lead to improved access to suitable accommodation

(iv) it would not lead to an improved supply of suitable places

(v) there seems little clarity that the host schools mentioned in the decision (Elleray Park and Stanley School) are willing to receive pupils with communication and interaction needs

(vi) there is confusion as to how the proposals will be funded and the planned staffing arrangements that will be put in place

(Set out the date and details of the decision, or act or omission being challenged, a brief summary of the facts and why it is contented to be wrong)

6

The details of the action that the defendant is expected to take are:

(a) to make a written undertaking not implement the decision as an interim measure until a new Cabinet meeting happens,

(b) hold a further meeting of the Cabinet to make a decision that complies with:

(i) the notice requirements for the meeting (SI 2012/2089 Regulations 9-11) and

(ii) the other legal issues addressed in this letter

(c) to carry out a review of the matters raised in this letter and inform the Claimant of the outcome of that review

(d) to inform the Claimant if the decision is implemented and if so from what date

(e) to respond to this letter before the proposed reply date in section 12

(f) meet with Mr. John Brace before the proposed reply date so that these issues can be explored in depth in the hope that litigation can be avoided.

7

The details of the legal advisers, if any, dealing with this claim

N/A

8

The details of any interested parties

Cllr Phil Davies phildavies@wirral.gov.uk

Cllr Tony Smith tonysmith@wirral.gov.uk

Cllr Bernie Mooney berniemooney@wirral.gov.uk

Cllr Stuart Whittingham stuartwhittingham@wirral.gov.uk

Cllr Chris Meaden chrismeaden@wirral.gov.uk

Cllr Chris Jones christinejones@wirral.gov.uk

Cllr Adrian Jones adrianjones@wirral.gov.uk

Cllr George Davies georgedavies@wirral.gov.uk

Cllr Pat Hackett pathackett@wirral.gov.uk

Julia Hassall juliahassall@wirral.gov.uk

9

The details of any information sought

Details of information sought:

(a) a request for a fuller explanation of the reasons for the decision being challenged beyond those that form a part of the recommendation at 2.1

(b) statistical information on staff at the Lyndale School with reference to all protected characteristics

(c) statistical information on Wirral Council’s workforce with reference to all protected characteristics

(d) statistical information on current pupils at the Lyndale School with reference to all protected characteristics

(e) three year projected financial information about the Lyndale School projected budgets supplied to Wirral Council by the Lyndale School governors including total projected expenditure, total projected costs and total projected income

(f) earlier drafts of report titled “Report detailing the outcome of the consultation on the closure of the Lyndale School”

(g) earlier drafts of the report at Appendix 1 titled “The Independent Consultant’s Report”

10

The details of any documents that are considered relevant and necessary

(a) The consultation responses. These are considered necessary as they are referred to in 1.1 and 1.2 of the decision. Although I have already published some, I am unsure whether it is a complete set of consultation responses.

(b) Those documents outlined in section (9) specifically (e) to (g) (financial information and earlier drafts of reports)

(h) details of consultation with staff and relevant trade unions

(i) details of consultation with the governing body at Lyndale School

(j) Principal Educational Psychologist’s report

(k) detail as to how Wirral Council think the preferred option of closure meets the “SEN Improvement Test”

11

The address for reply and service of court documents

Jenmaleo

134 Boundary Road

Bidston

Wirral

CH43 7PH

12

Proposed reply date

24th September 2014

Yours sincerely,

John Brace

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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

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, 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

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

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

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.

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

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 – 4TH 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

A Martian tries to understand the incredible Lyndale School situation

A Martian tries to understand the incredible Lyndale School situation

                                                  

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.

JOHN BRACE: Thanks for agreeing to be interviewed about Lyndale School.

MARVIN THE MARTIAN: You’re welcome. We have watched your news broadcasts about this school and are frankly confused. Back on Mars we would be asking our politicians to resign if they behaved as yours do. Why do your politicians think they can get away with being like this?

JOHN BRACE: Well they don’t operate under Martian law for a start. British law gives them wide latitude to do what they like within reason.

MARVIN THE MARTIAN: Well our politicians always tell us they’re on the side of the people, how come yours aren’t?

JOHN BRACE: Well that’s difficult to say. The yellow, blue and green politicians have said they are. The red ones are being careful not to express an opinion.

MARVIN THE MARTIAN: “Not to express an opinion”! If we had politicians like that it would spark a revolution!

JOHN BRACE: We’re too polite for revolutions here, the most the British tend to do if they’re cross is write a grumpy letter.

MARVIN THE MARTIAN: Does that work?

JOHN BRACE: Sometimes.

MARVIN THE MARTIAN: So getting back to Lyndale, can you explain it simply in terms we can understand?

JOHN BRACE: If someone could they would have. Money is taken off the people in the form of taxes. These taxes are then used for services such as education and schools such as Lyndale.

MARVIN THE MARTIAN: Yes, we have schools for our young Martians too.

JOHN BRACE: The politicians decide how the money is spent and what on. They’ve decided to spend it on Lyndale this year, but have yet to make their minds up about next year.

MARVIN THE MARTIAN: So what’s changed?

JOHN BRACE: Well, there’s been a consultation about closing the school. This is because of lack of money, but everyone’s also been told it won’t save any money and could in fact cost more.

MARVIN THE MARTIAN: That sounds very confusing.

JOHN BRACE: It is. The other reason given is that the school is small.

MARVIN THE MARTIAN: What’s the problem with small schools then?

JOHN BRACE: Seems the bureaucrats don’t like them. More schools means more problems for them.

MARVIN THE MARTIAN: So this is being done to suit the bureaucrats?

JOHN BRACE: Well no, the politicians decided on this.

MARVIN THE MARTIAN: Why?

JOHN BRACE: Because the bureaucrats told them too.

MARVIN THE MARTIAN: These bureaucrats sound like they have more power than the politicians.

JOHN BRACE: Well we’ll leave that discussion for another day. The bureaucrats blame it on the government.

MARVIN THE MARTIAN: What’s “the government”?

JOHN BRACE: Another set of politicians.

MARVIN THE MARTIAN: So let’s recap, one set of politicians “the government” is used as a reason by the bureaucrats to persuade another set of politicians to close the school?

JOHN BRACE: Almost right, but “the government” deny that they want to close the school.

MARVIN THE MARTIAN: I’m confused again.

JOHN BRACE: So am I.

MARVIN THE MARTIAN: Wouldn’t it be easier if we just invaded Wallasey Town Hall and promised not to close the school?

JOHN BRACE: Maybe it would, but sadly as you’re a fictional character it won’t happen.

MARVIN THE MARTIAN: A shame, I was looking forward to invading your planet. So going back to Lyndale, apart from confusing arguments about money and its small size is there any other unstated reason why they want to shut it?

JOHN BRACE: Well the person in charge of special educational needs left and a new guy came in. Some people don’t like him.

MARVIN THE MARTIAN: Why don’t they like him?

JOHN BRACE: For a wide variety of reasons I won’t go into because it’ll probably lead to another libel threat.

MARVIN THE MARTIAN: What’s that?

JOHN BRACE: Where Wirral Council threaten to sue you for telling the public the truth.

MARVIN THE MARTIAN: Can they do that?

JOHN BRACE: No they can’t, our laws don’t allow it but sometimes they get a little cheesed off with me.

MARVIN THE MARTIAN: Why would they have issues with someone telling the truth about them?

JOHN BRACE: Because they have been known in the past not to tell the truth, if the public hears two mutually contradictory versions of the same thing they tend to assume Wirral Council is lying.

MARVIN THE MARTIAN: So why would they lie?

JOHN BRACE: The less the public know about what goes on, the easier it is for them to do things. If the public do find out they can get quite grumpy and ask the politicians to do something about it.

MARVIN THE MARTIAN: Ahh, so the public have been asking the politicians to do something about Lyndale?

JOHN BRACE: Yes.

MARVIN THE MARTIAN: So if the red politicians are so gung-ho about closure that must mean lots of people have asked them to close it?

JOHN BRACE: No, quite the opposite the majority of people have told the red politicians not to close it.

MARVIN THE MARTIAN: I’m confused again, I thought the politicians were supposed to be on the side of the people.

JOHN BRACE: Well you’d hope so, but not always. Generally the public don’t get a say in political decision-making, it all gets carved up by the establishment.

MARVIN THE MARTIAN: And who or what are the “establishment”?

JOHN BRACE: People with the connections to make sure the decision-making always goes their way.

MARVIN THE MARTIAN: Wow, they sound very powerful.!

JOHN BRACE: They are.

MARVIN THE MARTIAN: So why don’t the “establishment” just listen to the people?

JOHN BRACE: Well in public they say they do, in private things are a little more complex. Sometimes different sections of the public ask for two completely different things.

MARVIN THE MARTIN: So they have to use their own judgement on matters?

JOHN BRACE: Yes, but getting back to Lyndale.

MARVIN THE MARTIAN: Ahh yes Lyndale. You have red, green, blue and yellow politicians who individually don’t seem to understand the “big picture”.

JOHN BRACE: Yes.

MARVIN THE MARTIAN: And who all say they’re on the side of the public?

JOHN BRACE: Yes.

MARVIN THE MARTIAN: The green, blue and yellow politicians all say they’ll do their best with Lyndale knowing it’s only the red politicians that will decide?

JOHN BRACE: Yes.

MARVIN THE MARTIAN: The red politicians are doing this because the bureaucrats told them that they’d have to because of a different set of blue and yellow (but not green) politicians?

JOHN BRACE: Sort of.

MARVIN THE MARTIAN: But it’s not about money.

JOHN BRACE: Different answers have been given to that one.

MARVIN THE MARTIAN: So what is it really about?

JOHN BRACE: Well the school is for disabled children, some of whom thankfully have a sense of humour and laugh at all this.

MARVIN THE MARTIAN: Good for them, but it’s no “laughing matter”?

JOHN BRACE: You got it it’s a very serious matter.

MARVIN THE MARTIAN: So why don’t they just let the children decide?

JOHN BRACE: It’s a novel suggestion, but the red politicians wouldn’t allow it no.

MARVIN THE MARTIAN: Is there another reason why the red politicians could be doing it this way?

JOHN BRACE: Well another red politician called Alison is in a battle with the blues to carry on as a politician.

MARVIN THE MARTIAN: So is she on the side of the reds or the people?

JOHN BRACE: She would say both. However it would be breaking the rules to use such issues for party political gain.

MARVIN THE MARTIAN: But that could explain why the red politicians are keeping quiet?

JOHN BRACE: The red politicians just do what they’re told.

MARVIN THE MARTIAN: By who?

JOHN BRACE: The red leader and the Cabinet Member.

MARVIN THE MARTIAN: Why?

JOHN BRACE: Because if they didn’t, they’d be causing trouble and nobody wants to be seen to rock the boat.

MARVIN THE MARTIAN: So they have to vote for something they may not personally agree with?

JOHN BRACE: Yes.

MARVIN THE MARTIAN: Sounds strange, I thought they were supposed to represent the people.

JOHN BRACE: At election time yes, but they also represent their party too.

MARVIN THE MARTIAN: So what will happen about Lyndale?

JOHN BRACE: A solution will have to be found that means the red politicians save face.

MARVIN THE MARTIAN: What does that mean?

JOHN BRACE: Well they will need to both blame what’s happened on someone (something they’ve had a lot of practice doing) and come out of it smelling like roses.

MARVIN THE MARTIAN: But the public think something stinks?

JOHN BRACE: Yes they do, but as I said before the public aren’t the establishment.

MARVIN THE MARTIAN: I see, so it’s terribly complicated isn’t it? The blue, green and yellow politicians can say what they like because they don’t make the decisions. The red politicians do make the decision but won’t talk. The bureaucrats have told the red politicians it’s all the blue and yellow politicians’ (but not green politicians’) fault. The shadowy “establishment” always gets its own way and basically the wishes of the children, staff, public are pushed to one side and politely ignored?

JOHN BRACE: In a nutshell, but it’s a little more complicated than that. There’s also a group called the media or press that is powerful too.

MARVIN THE MARTIAN: Ahh, you haven’t mentioned them yet!

JOHN BRACE: Well I’m part of them so I have. The broadcast (TV), print (newspaper), online (blogs) have all decided to side with the school.

MARVIN THE MARTIAN: Why’s that?

JOHN BRACE: Well the media don’t have to give reasons, but they think the politicians are being unfair by picking on people that can’t stick up for themselves.

MARVIN THE MARTIAN: But they are!

JOHN BRACE: That’s a matter of opinion.

MARVIN THE MARTIAN: Only a coward would pick on someone that couldn’t fight back.

JOHN BRACE: Indeed. However the media are powerful because they influence how people think.

MARVIN THE MARTIAN: Ahh, including the politicians, the establishment, the bureaucrats and the people.

JOHN BRACE: Yes, however there are wider international considerations too. Nobody wants another war.

MARVIN THE MARTIAN: Why would picking on disabled kids and closing a school start a war?

JOHN BRACE: On its own no, but pandering to society’s prejudices towards the disabled, coupled with the purple party talking about immigration and other factors could.

MARVIN THE MARTIAN: Ahh there’s a purple party too!

JOHN BRACE: Yes but they really don’t feature in this tale. They have politicians at the European level but not national or local.

MARVIN THE MARTIAN: Good as we’re starting to run out of colours.

JOHN BRACE: As I was saying, the fragmentation of society by playing off people against each other and scapegoating minorities leads eventually to war.

MARVIN THE MARTIAN: Oh dear. Has that happened before?

JOHN BRACE: Yes. Many times which is why measures were put in place to prevent things getting to that stage.

MARVIN THE MARTIAN: So will these “measures” prevent Lyndale being closed?

JOHN BRACE: Who knows? We’ll just have to wait and see.

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

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A stranger rides in to Wirral Town in a thrilling Wild West tale about gold, greed, horses, the law and a land grab

A stranger rides in to Wirral Town in a thrilling Wild West tale about gold, greed, horses, the law and a land grab

A stranger rides in to Wirral Town in a thrilling Wild West tale about gold, greed, horses, the law and a land grab

                                     

John Wayne as the sheriff in Rio Bravo
John Wayne as the sheriff in Rio Bravo

The following is a work of satire.

Deep in the dusty, hot West was a town called Wirral. This tale is about a land grab, a common theme in these parts as some townsfolk had let greed enter into their hearts.

Outside of town were about ten acres of farmland known as Fernbank Farm where all day the pony club offered rides to the local children. Everyone had fun there and the pony club had been there for as long as people could remember and paid rent for the use of the land to their landlord. Everybody was happy.

Little did the pony club know then, but their landlord wanted them off that land. At first they thought everything was going as it had in years gone by as their landlord even sent them a new lease to sign, which they returned back thinking everything would be just as it was in the past.

However they didn’t know that the local politicians had had a meeting and at this meeting they had changed the rules so a hundred houses could be built on the land. This was deliberately kept a secret from the pony club on the instructions of Tony Simpson.

Once a deadline had been passed and a new lease had deliberately not been agreed (while telling the pony club they would happily agree to a new lease), the landlord went to Surjit “the Sheriff” Tour, who worked for the landlord to ask him what to do. He told them that he couldn’t turf the pony club off their land yet and in order to evict them he’d first need a judge to agree to it.

The pony club were surprised by this move and got Kirwan (a lawman and former politician to help them), he did his best but the pony club soon ran out of gold coins to pay him and asked for help from Lewis instead.

The pony club’s day in court came and in the judge’s chambers in the town’s courthouse a Judge explained to all (including two curious journalists from the local reservation) that it would have to go to a proper trial where everyone would have their say. Reluctantly the landlord agreed to this.

The day of the trial came and another Judge was in charge. The landlord had hired expensive help from far, far away. The Judge said he was very sorry, but that he had no choice but to sign a possession order to turf the pony club off the landlord’s land. His hands were tied, he felt he had no choice but was very apologetic. If their landlord hadn’t been so underhand he said, he would have granted the pony club a new lease, but now unfortunately his hands were tied.

Once again the two curious journalists from the local reservation were there including a large number of the townsfolk who wanted the pony club to stay. The journalists wrote down what happened, told the local people and a story about the trial appeared in the town’s newspaper.

The husband of one of those put on trial felt the whole thing was unfair and complained. The landlord read his complaint but (surprise, surprise) said he didn’t agree. One of the two curious journalists from the local reservation even asked a question at a meeting of the politicians (it took a month for the politician to answer).

The landlord wasn’t entirely happy with these two going off the reservation at all, as well, these two were known to have caused trouble in the past but they also knew the townsfolk would really start kicking up a fuss if a large number of braves on horseback rode into the town because of how badly it had been handled. You see those on the reservation quite liked horses and didn’t like as it tended to be translated “white man speak with forked tongue”.

It wasn’t the done thing anymore for the landlord to label people (even those from the reservation) they saw as troublemakers as “crazy”. They’d done just that and ending up having to pay many, many, many (and probably a few more) gold coins to a Mr. Morton (a former employee) after he’d raised a big stink about their past skullduggery and a large amount of gold coins that the landlord had stolen accidentally removed in one of their “mistakes” and had said that they wouldn’t pay back (later changing their mind).

So what was the landlord to do? They asked a stranger from far away to come into town. The stranger did come into town, he talked with the pony club and he talked with the landlord.

Not quite understanding the rules of the game* Mr Aspin (the stranger) was from a far away town called Rochdale. He was not a lawman, but a surveyor but he did not like all he surveyed. Phrases such as “this is not an appropriate action for a Local Authority landlord to take”, “accusation of dishonesty”, “gnawed at his professional conscience” and “unfortunate sequence of events” ran through his report as a series of criticisms as to how the landlord had behaved.

*rules of the game referring to the landlord’s rule in that they preferred “independent” people to agree with them as if they didn’t it would mean no more gold coins from the landlord for them.

The stranger recommended they send an immediate written apology to the pony club, pay them them the gold coins they had paid to Kirwan and allow them to stay rent free as well as finding them somewhere else to move to.

Oh dear, what was the landlord to do? Sooner or later those two pesky reservation journalists would start writing about it (although on the plus side the landlord thought it might stop them writing about another of their dastardly schemes to try and close a local school called Lyndale) and then their mistakes would end up in the newspaper again which would mean all the townsfolk would know. Oh dear! How could they stop the press writing about it they thought? Let’s release the report on a Saturday they decided, the press won’t be at work then.

As no politician wanted to associate themselves with such an unpopular issue, they got the big cheese and well-known troubleshooter Mr. Burgess to apologise. “We apologise for the distress”, “the site is on of the three most valuable council-owned development sites”, “savings targets” and “we should have communicated better” he wrote as well as making the same commitment his boss had Councillor Phil Davies to find the pony club somewhere else.

Mr Burgess even went a little too far in some people’s minds in his enthusiasm and wrote things like “the independent investigation”… “found that the Council acted legally throughout possession proceedings” when the investigator’s report in fact stated “I am satisfied that the Council followed the correct procedure in the preparation and issuing of Court proceedings. It is outside my remit to make further comments in this regard as a legal process subsequently followed resulting in the Court granting permission.”

So, one of the two journalists on the reservation saw what went on and wrote this tale and here it is. A partial victory for the pony club, but it seems that the fight will carry on.

Tune in for next week’s thrilling episode about the Wild West Town of Wirral to hear how about the landlord continues to get into hot water in its efforts to “evict” disabled children from the local school called Lyndale in another tale of communication problems, politicians, apologies but this time (as far as we know at this point) not involving horses.

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