Category: Cllr Tony Smith

Free School Meals and pages 87-88 of Wirral Council’s ~£12 million/year PFI contract with Wirral Schools Services Ltd

Free School Meals and pages 87-88 of Wirral Council’s ~£12 million/year PFI contract with Wirral Schools Services Ltd

Free School Meals and pages 87-88 of Wirral Council’s ~£12 million/year PFI contract with Wirral Schools Services Ltd

A delicious meal (not a school meal which we don't have any stock photos of) prepared for John by Leonora my wife who also writes for this blog and is a better at cook than I am.
A delicious meal (not a school meal which we don’t have any stock photos of) prepared for John by Leonora my wife who also writes for this blog and is a better at cook than I am.

This is a small part of the Schools PFI contract that Wirral Council has that costs the taxpayer this year ~£12 million a year. This is part of a massive contract that I estimate being between 500 and 1000 pages long.

It relates to the following schools (one primary and eight secondary) plus two City Learning Centres:

Leasowe Primary
Bebington High
University Academy of Birkenhead (formerly called Park High)
South Wirral High
Weatherhead High
Hilbre High
Prenton High
Wallasey High
Wirral Grammar Girls

Wallasey City Learning Centre
Hilbre City Learning Centre

Before I start on quoting from the contract on page 87, I need to first explain what the following terms mean.

“Authority” refers to Wirral Council.

“Schools” are the schools listed above that are part of the PFI contract.

“Category A Consumers” means “school meals supplied to those pupils at a School who pay for meals and/or refreshments taken in the Catering Area of the Schools.”

“Category B Consumers” means “those pupils who have been notified to Projet Co as being entitled to free meals, and who take these meals in the School’s Catering Area.”

Category A Consumers & Category B Consumers are treated as non-business for VAT purposes. To be honest a lot of this contract is about tax!

“Category C Consumers” means “meals supplied to members of staff of the Schools and visitors who have been notified to Project Co as being entitled to a free meal are supplied free of charge by the Authority to the consumer and output tax is not applicable.”

“Category D Consumers” are “meals supplied to persons other than pupils who take and pay for a meal and/or refreshments are treated as taxable supplies for VAT purposes. Project Co shall include the appropriate rate of VAT in the prices charged for such meals and refreshments and supply output statistics and the value of VAT output tax to the Authority within a timetable specified by the Authority which has been agreed with HM Customs & Excise”

Right now onto the bit of the contract about free school meals (pages 87-88), my comments are in italics.

20.4 Free School Meals

(1) The Authority has a duty to provide free school meals to those pupils at the Schools who fall into Category B Consumers. Members of staff and visitors of the School who are Category C Consumers are also entitled to a free meal paid for by the Authority or School.

OK, reasonable so far, restates legal requirement in sentence 1. Didn’t know about sentence 2 though… which is a tad unclear as to who pays.

(2) The Authority will issue to all individuals referred to in Clause 20.4(1) a card (the “Smart Card“) in a design to be agreed from time to time by the Authority and Project Co, but including the person’s name, photograph and the name of the School, which shall be credited with cash equivalent to the number of free school meals that person is entitled to in that Contract Month.

Wow, things have changed a lot since my day. So, just because their parents are on means tested benefits, you’re insisting children have photo ID and presumably present such photo ID every time they get a “free school meal”? Sounds like it’s “free” but with strings attached?! OK, call me a civil liberties person who rejoiced when the Coalition government scrapped the ID card plan, but forcing children from poor backgrounds to use photo ID?? Maybe I’m just old fashioned?

(3) The Authority will, using its own data and confidential information on free meals, prior to the commencement of each Contract Month issue a list to Project Co of the number of persons entitled to free school meals.

So wait a sec, Project Co is being given a list of all children that get free school meals and children also have to present photo ID to get them? What’s the point of the photo ID then??? Why not just ask them their name or am I missing something??? Surely kids know their own name? Yes, it’s “confidential information” so why is Wirral Council handing it over to a private company as part of this contract??? *sentence deleted following editorial meeting* Bristol based Wirral Schools Services Limited was called Jarvishelf 2 Limited prior to 29th December 2000.

(4) Project Co will invoice the Authority on the last day of each Contract Month for the number of free school meals supplied to Category B Consumers at the Meal of the Day Price together with VAT if applicable.

Eh, I thought page 86 said that Category A&B Consumers were “non-business” for VAT purposes? I suppose I’m not a contract lawyer being paid an extortionate amount to write this stuff though.

(5) Project Co will invoice the Authority on the last day of the each Contract Month for the number of free school meals supplied to Category C Consumers at a charge pre-agreed with the relevant School together with VAT if applicable.

Free meals for staff and visitors eh? Must be one of the few perks of the job I suppose… mind you teaching staff have to put up with a lot so I suppose a “free school meal” is the least they deserve.

(6) In addition to Clauses 20.4(4) and (5), Project Co will invoice the Authority on the last day of each Contract Month for any function, hospitality or visitors’ meals supplied together with VAT if applicable.

Functions, hospitality, oh dear are we getting into “golf” territory again eh? OK, I can envisage visiting sports teams from other schools needing something to eat, staff from other schools and places, meetings held at the school etc, but how much “hospitality” goes on in a school anyway. I get the impression Wirral Schools aren’t inviting the Mayor of Helsinki over every week to their school for a start (or maybe they are?)

(7) Project Co in its capacity as agent for the Authority (or the relevant Support Service Provider acting on behalf of Project Co) will provide:

(a) to each Category B Consumer bearing a Smart Card, a meal to the value of the Meal of the Day Price; and

(b) to each Category C Consumer bearing a Smart Card, a meal to the value of the pre-agreed charge referred to in Clause 20.4(5).

Oh dear, cash seems so old fashioned now doesn’t it? What’s “Meal of the Day” anyway? Gruel? Bread and water? Maybe I’m thinking of Oliver (the musical). I find it worrying that even at primary school age kids are forced to use photo ID cards just to get what they’re entitled to although maybe that’s just the way society has changed. It’s enough to drive people to packed lunches! What if the poor child leaves their “Smart Card” at home, do they go hungry? No “Meal of the Day” for them? After all in the days of cash (yes seems I’m old fashioned), your friends could give you (or even lend you) the money if you were short at the till. No more it seems in these contracts for cashless school meals!

(8) If the price of a meal chosen by:

(a) a Category B Consumer exceeds the Meal of the Day Price; or

(b) a Category C Consumer exceeds the value of the pre-agreed charge referred to in Clause 20.4(5)

the bearer shall be responsible for crediting its card with the excess via the dining room tills and the Authority shall have no liability in respect of the excess. If the price of a meal chosen by a Category B Consumer or a Category C Consumer is less than the value of the Meal of the Day or the pre-agreed charge (as the case may be) Project Co or the relevant Support Service Provider shall be entitled to retain the excess.

Wow, just wow. Let’s take a hypothetical Meal of the Day price at £2.30 (which this recent article about the Cabinet decision on increasing it helpfully provides). If someone choses items to eat that go over this £2.30 threshold, they have to pay more. If someone choses items that go under it, there is no refund but the “Project Co” (Wirral Schools Services Limited) or “Support Service Provider” gets to keep the difference!!! I suppose that’s what you call capitalism!

Category B Consumers are free school meals paid for by the taxpayer. However, even if the cost of providing such meals (out of taxes) is less than the “Meal of the Day” price, this company charges the taxpayer at the “Meal of the Day” price and makes profit on the difference! Yes, they’re making profit out of school children’s’ meals!!!

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And so ends the lesson for today on capitalism. It goes without saying that the Cabinet Member for this area at the time the contract was signed in 2004 was Councillor Phil Davies (currently Leader of the Council) doesn’t it?

And yes, there are even more worrying bits of this massive contract (that keeps on running in the gift that keeps on giving for the capitalists for well over another decade) than the minor section on free school meals above, but if I wrote about the but I’m thinking about it would probably lead to questions being asked (even a panic!) and I might be misconstrued due to the millions of pounds that particular bit involves being transferred from Wirral Council to this company to sort out that “mistake”. No wonder the first page is marked “private and confidential”!

However there are some positives about this new approach:

(a) other pupils can’t do the faux pas I did when I was 10 and transferred schools in year 6 (last year of primary school). The new school I transferred to was in a “working class” area, whereas where I had come from was “middle class”.

I reminded a friend of mine (I still remember this embarrassing conversation twenty-four years later although I hope the other guy has forgotten it by now) he’d forgotten to pay at the till for his school meal for him to look extremely embarrassed and have to explain that he hadn’t forgotten to pay and that he was on free school meals. I then committed a second faux pas as I had to ask what “free school meals” actually meant as at age ten I didn’t know why (strangely but perhaps understandably my education (paid for by Wirral Council) had been somewhat lacking to this point on the intricacies of the UK welfare benefits system in 1991, free school meals and other such matters). Such matters were communicated by schools in mind numbing detail to parents in long detailed communications, but concepts not really understood by ten year old children such as myself (the guy I was talking to understood but not me). Maybe these days children have a better understanding of such things than I did then or maybe they don’t.

In the approach above (as outlined in the contract) all kids are issued with a photo ID card and presumably the children on free school meals don’t have “FREE SCHOOL MEALS” emblazoned in large capital letters written on the card.

(b) it reduces the risk of bullying of kids for their lunch money as the card has a photo on it. Unlike money the photo ID cards (unless you happen to be identical twins and I remember the identical twins when I was at school playing all kids of jokes on the adults as their fellow children could tell them apart but the adults couldn’t) can’t be transferred between people easily if the photo is compared to the person using it.

(c) all this bureaucracy is why some parents then and now probably just opt for the simpler option of packed lunches (although if your family is entitled to free school meals this might be ruled out on terms of cost). The upside is no queuing, parents know what their children are eating and fewer profits going to companies making money out of the taxpayer and others.

(d) free school meals have been introduced for all primary school children this month by the Coalition government for under 7 year olds (1.5 million children). The fact all children on this age group (and not just those on means tested benefits) get an entitlement to free school meals should cut down on a lot of bureaucracy.

To put it simply, it is far easier from an administrative perspective giving everyone an entitlement to a free school meal from school age to age seven, then having to process each form detailing the benefits that qualify a family (who may have one or more children at one or more schools) for free school meals, checking that said benefit is now claimed and if so over which dates, tracking said child through the school system if they move schools and sorting out the paperwork, et cetera, et cetera. The current system is a minefield of bureaucracy and takes a lot of staff time who could be using their time to do things that are more use to society than shuffling paperwork around (not to say that isn’t important).

It’s also been a lot of work for schools, a lot of work for the LEA too, which has reduced somewhat now, although a lot of questions have been asked before and after this change about the knock on effect of how the “pupil premium” is calculated as this is a measure whereby schools get extra money based on how many children there get free school meals.

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A fictional conversation with our own legal department about Lyndale and other matters

A fictional conversation with our own legal department about Lyndale and other matters

A fictional conversation with our own legal department about Lyndale and other matters

                                                     

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

Legal department: You’re skating on thin ice you know. That article you published last Friday morning about the ~£2.7 million valuation of Lyndale School months before the decision over closure probably led to an article in the local newspaper/website called the Wirral Globe by Emma Rigby carrying quotes from various well-known people and well you’re causing trouble again.

John Brace: Yes I know I wrote it. So your point is?

Legal department: You cause us enough stress and sleepless nights as it is without adding to it. You remember that letter you wrote to Wirral Council?

John Brace: Yes. How can I forget it as I had a hand in it and published it?

Legal department: And you remember our advice at the time?

John Brace: Yes. Although thankfully nobody can FOI us for legal advice unlike our modern “open and transparent” Wirral Council and Surjit Tour’s advice to councillors on the Lyndale matter which I was slightly shocked they actually released in response to a FOI request.

Legal department: Now, there you go again! Don’t you know when you stop?! We know you’re a good at what you do but there are frankly limits to this you know! What does it take to keep your mouth shut for once!? Why are you meddling in the Lyndale matter again and making waves yet again? Just let it be!

Write about bin collection and Biffa, a consultation on closing children’s centres, Birkenhead Market and the Traffic Regulation Order issue, New Brighton & Neptune, golf (there’s an awful lot you could write about golf), councillor’s expenses, job cuts, even Kevin Adderley if you have to but please anything apart from Lyndale School! Please!!!

John Brace: Because the public have a right to know! Plus there are sound commercial reasons for doing so due to the demographic makeup of our readers/viewers.

Legal department: *sighs* Well let someone else tell them then! There are some things you just shouldn’t put in the public domain or draw attention to at this stage.

Please don’t write anything more about Lyndale connected to that letter. That is the advice.

John Brace: For how long?

Legal department: Just steer clear of anything specific with regards to that letter for obvious reasons!!!

John Brace: But even if the case was “active” (which it isn’t) s.5 of the Contempt of Court Act 1981 c.49 allows for “a publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest” …. “if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”

Legal Department: Look you indeed wrote the policy on this about keeping your mouth shut when it comes to legal matters. It complicates things. You know the reasons why.

If you write too much before a matter is even put before a court, it tips off the other side in the case as believe it or not people involved with Wirral Council read your blog and the last thing you want to do is complicate things that are complicated enough.

John Brace: True I did. For extremely sound reasons. Thanks for reminding me. However I also wrote an editorial override in that policy which requires two people to agree.

Legal Department: Well you don’t have the approval of two people yet (thankfully). The matter has been somewhat complicated by the call in anyway as the Cabinet decision will now not be implemented until a further meeting of the Coordinating Committee.

John Brace: Who’s the lead signatory?

Legal Department: Councillor Paul Hayes. However 27 other councillors have also called it in.

John Brace: Wow must be a record, so you’re saying write about other stuff?

Legal Department: Yes, or limit yourself on Lyndale to writing just about other people or just merely reporting the facts of what’s going on, preferably facts that are already in the public domain.

John Brace: So for example starting on a transcript of the Cabinet meeting on 4th September 2014 about Lyndale School for the hard of hearing?

Legal Department: That’s ok, as we have protections under libel laws from reporting on public meetings at Wirral Council which is referred to as “qualified privilege”. Anyway there’s already been a request for that. You’ve got a bit behind with subtitling videos anyway.

John Brace: But nobody’s ever threatened us with libel over Lyndale School, just about the Chief Executive’s email about the golf (later withdrawn) but I take your point about subtitling.

Legal Department: Yes, but the impression in some quarters is that you’re putting a bunch of highly inconvenient truths out there in the public domain about Lyndale School that could be easily used for party political purposes (and have been).

John Brace: Oh come on, a politician and party members at the report produced as a result of my disciplinary panel hearing said I was writing a “little read blog” or words to that effect. I’m not really that influential.

Legal Department: Exactly, but that was three years ago. Comparing September 2014 to September 2011 is like comparing apples with pears. There are thousands of people reading this blog each month now, compared with only hundreds of people a month back in September 2011. This is party because since leaving the Lib Dems you’ve spent more time at your “day job”.

Things have changed. Politicians disliked you even back then for telling the public the truth as you saw it as to what was really happening and the Lib Dem ones ended up getting somewhat censured as a result for using Wirral Council resources for party political purposes. Remember what happened to Martin Morton? Don’t end up like him!

Understandably they wanted to bury the truth (which was tied in to a conspiracy of silence on Martin Morton/Anna Klonowski/another disability matter and corporate governance issues) and cover things up for party political reasons. Even though all but one of the things that you were actually accused of were false, therefore the suspension wasn’t legitimate but as a Lib Dem politician (and former Lib Dem politician) had said this to their fellow Lib Dems they could hardly turn round and admit that any of their former politicians told lies (even though they may say that in private) could they? As you well knew at the time, they decided it was best to keep you in the party as a way to control you, as even at that stage you knew too much and you were becoming a nuisance to those in power as how they wanted things to play out.

Yours and Leonora’s resignation from the Lib Dems in January 2012 was somewhat unexpected, but resolved an ongoing conflict of interest about reporting on Lib Dem politicians and let’s face it Labour got exactly what they wanted out of this as four months later when they got a majority on Wirral Council.

Even the version of events that everybody actually agreed upon at your disciplinary panel hearing back in September 2011 was so extremely damaging to the reputation of the Lib Dem Party itself so they understandably took the “shoot the messenger”/ “rewrite history” approach and they took it out on you (as you must have expected on some level that they would do so and if you didn’t perhaps as the youngest party member in Birkenhead you needed to “grow up” and let’s face it one of the older party members at that meeting that made the decision had referred to you as a “baby” in a previous meeting which of course is not “ageist” is it?).

Your attempts at somewhat humourous comments during that meeting (which according to their own constitution and later concluded lawsuit was indeed a flagrant breach of their own party’s constitution to even hold (as you pointed out to them at the time but they once again ignored you)) but hey they’re Lib Dems and it seems that their own rules can be twisted by themselves beyond breaking point in an abuse of power) about a dead dog and a shooting at your disciplinary panel, were in extremely poor taste considering two of the people who had been shot at were actually at the meeting itself. It’s a party that would prefer to forget Jeremy Thorpe and how much of a PR nightmare that was for them (even though he was acquitted in a court) and to be honest with you were somewhat goading them into having to explain themselves because they’d been all instructed to keep their mouths shut and stick to a “party line” when you previously had asked them questions.

Let’s face it you sued an entire party (and won) and took a politician to court (and won)! How many people ever do that? Not many! You’re unusual, even when during the meeting in June 2011 when they tried to suspend you your threats of legal action and “seeing them in court” seemed to them like bluster so one of them laughed (which is partly why you got kicked at under the table and then slapped in the face but then people can lose their cool at party political meetings) and even though you later did have the judiciary intervene, your repeated warnings fell on completely deaf ears because they had (especially the politicians) made their minds up as to what to do before the meeting even started and were going to stick to this agreed party line.

That is part of the reason why you weren’t allowed to attend your own disciplinary meeting. By deliberately starting it late, it gave a chance for the decision to be made before the meeting had even started and in a way where you’d have no influence over the outcome.

You know as well as I do that two former Lib Dem councillors were being used as proxies as part of a renewed Labour plot to blacken your name and make things up about you (because let’s face it you were fast becoming a threat to the Labour Party too and deemed to be less of a threat to them if you weren’t a member of another rival political party) Let’s face it Cllr Harry Smith had already had a right moan to both you and the party about you (including a “With Compliments” Wirral Council slip with his letter) about telling the public in a party political publication delivered to the Bidston & St. James area that he wasn’t (when he was Vice-Chair) at a Pensions Committee meeting of Wirral Council at the time when it was reported that the Pension Fund dropped by around £700 million and let’s face it if the Fund drops considerably the difference has to be made up by the taxpayer).

Cllr Harry Smith felt it was terribly unfair that people were going along to his councillor’s surgery and asking him pointed questions about why (even though he was Vice-Chair of the Pensions Committee) that the Merseyside Pension Fund had dropped by so much. Let’s face it it is a fund that affects over a hundred thousand people and even the local newspapers reported it at the time.

If Cllr Harry Smith wishes to go on holiday, miss a public meeting and not even send a deputy along to a meeting and then somewhat unfortunately get suspended as a councillor (in an unrelated matter) for a week for bullying other people, well as we all know from past experience these type of people are exactly the kind of person the Liberal Democrat Party have to take seriously because they’d rather the likes of Councillor Harry Smith were getting irked at someone else instead of at them!

This goes so far as even if it seems like they’re breaking their own party rules by pandering to another political party’s interests in that process because as we all know Lib Dems love their “due process” even if that results in an “abuse of power” or a “court case”.

John Brace: However in perhaps a flagrant breach of etiquette I will say that during that particular meeting and I won’t state who (other than it wasn’t me or Leonora) said that Councillor Harry Smith moaning about someone else for holding him to account was like “the pot calling the kettle black” and let’s face it Cllr Harry Smith has been referred to by one of his fellow Labour councillors as “royalty”.

That is partly why the renewed plot in 2011 had to be done through two Lib Dem proxies.

Let’s face it if you do anything in politics, you will attract more complaints, even fictional ones. If a party spends hours looking into every fictional complaint however trivial it is time that is not spent delivering leaflets or winning elections.

The actual politicians attracted far more complaints than I ever did (even during my brief years as a politician over in Liverpool) and although they never went so far as to suspending them from the party they did exactly the same thing to them in removing them from all committee positions and blackening their name in public. They tried to embarrass them into toeing a party line and it backfired, just look at how disastrous the libraries matter was handled and the resultant public inquiry led by Sue Charteris. It made the fromer Lib Dem politician that said in public that Wirral Council would be “vindicated” by the public inquiry look to be completely wrong.

But let’s face it if they’re taking the likes of the Labour’s Councillor Harry Smith seriously (even his own party has had concerns about him to put it mildly), it is seriously the thin end of the wedge from a party political perspective.

After all once people start getting beaten up and shot at for political reasons, it’s gone well beyond being politics and become the realms of terrorism. It’s moved well beyond merely political debate into law and order issues.

As I know myself from bitter personal experience in that court case the Lib Dems were not on the side of law and order (hence why the whole political party has a County Court court order against it), they have known links to foreign terrorism, which makes them people better not to associate with if at all possible.

This “paragon of virtue” in Councillor Harry Smith, who of course would never do things for party political purposes, is of course the kind of person the Liberal Democrats obviously have to listen seriously to, take his concerns seriously and let’s face it Cllr Harry Smith seriously wanted me out of the way.

He wanted to be reselected by his local Labour branch and complaining about me and eventually many years later persuading the Lib Dem Party to pick someone else in Bidston & Saint James who was less trouble to him (let’s face it how much trouble are you if you finish last in an election?) which they eventually they did in 2012 is all part of what led to Labour getting a majority on Wirral Council. The easiest way for them to achieve this was to destabilise the Lib Dems (which let’s face it wasn’t too hard and such tactics wouldn’t work as well on the Tories).

During that court case in 2011-2012, one of their party (Lib Dem party) employees that was someone high up in the party in fact he was Chief Executive, being paid the same salary as an MP, was around that time serving out his period of notice. Another party member working in party HQ seemed to want to scapegoat him, which I of course meddled in and prevented from happening by making an undefended application to the court and dragging a Judge in the County Court into the whole matter because to be honest by then it had gone beyond the actions of one person by then into an issue about a extremely badly run organisation. The Lib Dem Party of course want to make this former Chief Executive Chris Fox a member of the House of Lords (which let’s face it if one of the two parties of government pick you it’s pretty likely to happen)!

It’s all highly political and highly party political and perhaps a chapter of my life I’d rather forget! I do have a way of holding people to account that is somewhat unusual, highly unpredictable and not always in keeping with the demands of social and political etiquette because I have to sleep at night. It must be my background and training then.

Legal Department: Partly, but that’s still a complete mystery to us because you’re one of those odd people subject to the Official Secrets Act 1989 c.6 we don’t have access to your unredacted personnel file.

John Brace: Ha ha, indeed. Everyone has their secrets eh and you’re right there are things I’d better keep my mouth shut over (for now) after all things can snowball but it’s about time the public knew what really went on in the past but that is a story for another day. At least I got an apology later from one of the Lib Dems, but I suppose the party that extols the virtues of “freedom of speech” until somebody happens to mention something about the Lib Dem Party would accuse me of “breaching confidentiality” if wrote about which one it was! Best not to take politics too personally eh?

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Cabinet to decide on 6-week consultation on closure of children’s centres

Cabinet to decide on 6-week consultation on closure of children’s centres

Cabinet to decide on 6-week consultation on closure of children’s centres

                                                    

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

Now for what I promised earlier with a story about children’s centres. Basically Cabinet is going to have to decide tonight whether or not to proceed to a six-week consultation on recommendations for the early years service and children’s centres.

The proposals which may/may not go out to consultation is to try to save £2 million. Staff at risk of losing their jobs (if a decision to go to consultation tonight) will also be consulted.

Admittedly the report has the odd type, for example at 6.1 it refers to the 2104 budget which should read the 2014 budget as Wirral Council officers don’t tend to consider the budgetary implications in ninety years time of their decisions! 😀

The proposals that may/may not go out to consultation would involve the closure of at least eight children’s centres with four being downgraded to satellite/outreach. The outright closure of some could result in a grant clawback of the money Wirral Council got to build them.

Of course if the Labour Cabinet does decide to go down this path of consultation on closure, eventually a decision will have to be made.

I’m sure at that stage or even before (if consultation is agreed tonight) the Conservatives will be reminding Labour of the election leaflets they’ve put out in recent years that told the people of Wirral that the children’s centres are not safe in Tory hands so please vote Labour. 😀

Oh dear, and what will the local newspapers make of it all?

The report on that item and revised appendix can be found by following these links.

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Legal advice from Surjit Tour to 62 Wirral Council councillors on Lyndale School matter

Legal advice from Surjit Tour to 62 Wirral Council councillors on Lyndale School matter

Legal advice from Surjit Tour to 62 Wirral Council councillors on Lyndale School matter

 

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 this is a copy of the multi page legal advice written by Surjit Tour on the 11th July 2014 and distribute to all 62 councillors present at the Council meeting on 14th July 2014 on the Lyndale School motion.

This was provided (rather surprisingly to me as it must mark a change from the past towards more openness and transparency) in response to a Freedom of Information Act request of mine made on the 14th August 2014.

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ADVICE NOTE

PRE-DETERMINATION, PRE-DISPOSITION AND BIAS

COUNCIL MEETING – 14 July 2014

Notice of Motion – The Lyndale School

(Council Agenda Item 11 (ii))

  1. Purpose

  1. In view of the Notice of Motion relating to The Lyndale School being debated at Council on 14 July 2014, I have set out below some advice for your consideration in relation to the issues of ‘Pre-determination’, ‘Pre-disposition’ and ‘Bias’ given the significance and high profile nature of this particular subject matter.

  1. This Note is intended as guidance only and provided to help you in your consideration of these issues in the context of The Lyndale School Notice of Motion arising at Council on 14 July and thereafter.

  1. Pre-determination and Pre-disposition

  1. Pre-determination is defined as:

“occurring when a Member has fixed views on a matter and retains a closed mind when it comes to making a determination”.

  1. Pre-disposition is defined as:

“a Member being open to the possibility that, however unlikely, they will hear argument during the debate about the issue that will change their mind about how they intend to vote. As long as they are willing to keep an open mind about the issue they are entitled to take part in any vote on it”.

  1. In National Assembly for Wales v Condron and another [2006], the court recognised that there is a two stage test for pre-determination:

First – the behaviour complained of has to be relevant to the issue.

Second – the situation has to be one where a notional fair-minded and well-informed observer, looking objectively at all circumstances, would consider that there is a real risk that the decision maker has refused even to consider a relevant argument or would refuse to consider a new argument.

  1. In summary, there are no restrictions on a Member holding a provisional view on an issue (pre-disposition) but there is a problem if he/she acts with a closed mind on a subject (pre-determination).

  1. The pre-disposition can be strong and can be publicly voiced. It might be in favour of or against a particular point. The expressing of an intention to vote in a particular way before a meeting (pre-determination) is not the same as when a Member makes it clear he/she is willing to listen to views of all sides before deciding on how to vote (pre-disposition).

  1. Pre-disposition in decision making is fine.

  1. Whereas, decisions made by Members later judged to have pre-determined views have been quashed by way of judicial review.

  1. Bias

  1. Bias is defined as:

‘a particular tendency or inclination, especially one that prevents impartial consideration of a question; prejudice’.

  1. The test is outlined in the case of Porter v. Magill [2001] where Lord Hope said that:

‘…the question is whether the fair minded and informed observer, having considered the facts would conclude that there was a real possibility that the tribunal was biased.’

  1. It is therefore important that each Member considers his/her stance from the position of a ‘reasonable onlooker’ and decides whether there would be or could be the appearance of bias.

  1. Only you can say whether you are biased or not.

  1. Localism Act 2012

  1. Section 25 of the Localism Act states that a Member should not be regarded as having a closed mind simply because he/she has previously said/or acted in a way that may have directly or indirectly indicated the view he/she may take in relation to a matter.

  1. Section 25 does not attempt to change case law in respect of pre-determination and bias, but it has attempted to clarify it.

  1. The section applies if there is an issue about the validity of a decision, as a result of an “allegation of bias or pre-determination”, or “otherwise” and it is relevant to that issue whether the decision maker, or any of the decision makers, had or appeared to have had a closed mind (to any extent) when making the decision. Thus it is drafted so as to catch as many cases as possible in which an allegation of pre-determination might be made which might affect the validity of a decision.

  1. Section 25 catches allegations of actual, and apparent, pre-determination (however tenuous).

  1. The provision is also widely phrased in another sense. It applies to views not just about the subject matter of the decision in question, but to anything a Member has done which might show, directly, or indirectly, what view he/she takes, or would take, or might take, about any matter which is relevant to the decision.

  1. The explanatory notes to the Localism Act 2011 in relation to section 25 state that ‘Predetermination occurs where someone has a closed mind, with the effect that they are unable to apply their judgement fully and properly to an issue requiring a decision.

  1. Section 25 is set out on pages 4 and 5 below for your reference.

5. Summary

  1. In summary, Members are asked to consider the above advice when considering all items of Council business requiring Members to make a decision; however particularly so in relation to the Notice of Motion re: The Lyndale School.

  1. Members are aware that no firm/final decision has been taken by the Administration in relation to The Lyndale School and therefore the Council’s Executive decision making arrangements have yet to be administered and concluded. These arrangements also include options that are still relevant to non-executive Members and accordingly you are advised to consider the implications/impact of pre-determination, pre-disposition and bias on the decision making arrangements relevant to this subject matter.

If you have any queries concerning this matter, please do not hesitate to contact me.

Kind regards

Surjit Tour

Head of Legal & Member Services

and Monitoring Officer

11 July 2014

LOCALISM ACT 2011

Section 25

(1) Subsection (2) applies if—

(a) as a result of an allegation of bias or predetermination, or otherwise, there is an issue about the validity of a decision of a relevant authority, and

(b) it is relevant to that issue whether the decision-maker, or any of the decision-makers, had or appeared to have had a closed mind (to any extent) when making the decision.

(2) A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because—

(a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and

(b) the matter was relevant to the decision.

(3) Subsection (2) applies in relation to a decision-maker only if that decision-maker—

(a) is a member (whether elected or not) of the relevant authority, or

(b) is a co-opted member of that authority.

(4) In this section—

“co-opted member”, in relation to a relevant authority, means a person who is not a member of the authority but who—

(a) is a member of any committee or sub-committee of the authority, or

(b) is a member of, and represents the authority on, any joint committee or joint sub-committee of the authority, and who is entitled to vote on any question which falls to be decided a any meeting of the committee or sub-committee;

“decision”, in relation to a relevant authority, means a decision made in discharging functions of the authority, functions of the authority’s executive, functions of a committee of the authority or functions of an officer of the authority (including decisions made in the discharge of any of those functions otherwise than by the person to whom the function was originally given);

“elected mayor” has the meaning given by section 9H or 39 of the Local Government Act 2000;

“member”—

(a) in relation to the Greater London Authority, means the Mayor of London or a London Assembly member, and

(b) in relation to a county council, district council, county borough council or London borough council, includes an elected mayor of the council;

“relevant authority” means—

(a) a county council,

(b) a district council,

(c) a county borough council,

(d) a London borough council,

(e) the Common Council of the City of London,

(f) the Greater London Authority,

(g) a National Park authority,

(h) the Broads Authority,

(i) the Council of the Isles of Scilly,

(j) a parish council, or

(k) a community council.

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

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

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 7th 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:

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 31st 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 31st October 2014.

Supporting documents:

 

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