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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A5. No, I’m not.

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

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

Add new additional item to recommendation after paragraph 1.2:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A13. Yes.

Q14. So what’s the problem then?

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

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

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

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

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

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

A17. Yes.

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

A18. No.

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

A19. No.

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

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

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

A21. Yes.

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

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

Q23. Why’s that?

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

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

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

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

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

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

Q26. Well why doesn’t it have one?

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

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

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

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

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

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

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

A29. Yes.

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

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

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

A31. No.

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

A32. Yes.

Q33. What are they?

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

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

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

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

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

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

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

A35. Yes.

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

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

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

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

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

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

Some however are stronger than others.

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

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

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

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

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

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

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Lyndale School Closure Consultation: Cllr Phil Gilchrist “this looks to be a set of moving goalposts”

Cllr Phil Gilchrist presented with Andy Day Memorial Cup by former Mayor Cllr Dave Mitchell
Cllr Phil Gilchrist (left) presented with the Andy Day Memorial Cup by former Mayor Cllr Dave Mitchell (right)

Councillor Phil Gilchrist (the Leader of the Liberal Democrat Group on Wirral Council) has kindly provided this blog with his consultation response to the Lyndale School Closure Consultation. It is reproduced below. For the purpose of clarity when reading the acronyms SEN and DCSF have been expanded and this addition appears in brackets [] in bold italic text.

Ed – Updated (revision 4) 10:50 12/8/14 to replace absolute values in table 1 with relative values to fix display problem.
Ed – Updated (revision 5) 10:55 12/8/14 to replace absolute values in table 2 with relative values to fix display problem. Linked email address.

Feedback Form

Please let us know the main relationships you have with the school(s) by putting a tick in the appropriate box or boxes. You might be a parent and a member of staff, for example.

School	Parent	Member of Staff	Governor	Other Person
Elleray Park
Lyndale
Stanley
Foxfield
Meadowside
Other (Please Specify)				Cllr

I attended the consultative meeting held at Acre Lane on 10^th April and the further meeting held on 16^th June.

I have also visited The Lyndale School on 27^th January on a private fact finding arrangement, and, on 9^th May after a request from parents.

In addition I have visited the school and Stanley, Foxfield, Meadowside and Elleray Park with other councillors on 16^th and 17^th June.

I was also a signatory to the ‘Call In’ considered by the Council committee.

Short fact finding visits can only provide a brief picture of how a school works day by day. In making the recent visits I formed a strong impression of the way the children at The Lyndale might be ‘compared’ with children of the same ages at Elleray Park and Stanley.

In attempting this I also need to take account of the needs that I did not see – children who are not in the school, that day, because of their poor health.

It seems to me that a high proportion of children attending Lyndale have the most serious needs.

Lyndale may not be the best laid out building but is ‘home’ and provides the atmosphere and the facilities to stimulate the children.

The financial problems flow from the formula adopted by the Council.

Consultation on changing the funding formula began in 2010, under the last Government, when the DSCF [Department for Children, Schools and Families] looked at the formula (Chapter 4) for high cost pupils.

The formula the Council adopted in 2013 arose from discussions at the Schools Forum which chose the present banding system which has added to the pressures on Lyndale’s finances.

The parents need the utmost assurances that the care and education being provided must continue to that same high standard.

Without sight of ‘the answers’ provided to parents I am aware that reference is regularly made to what the SEN [Special Educational Needs] ‘test’ should ensure.

As I mentioned at the last meeting this looks to be a set of moving goalposts.

A ‘pale imitation’ is not good enough for the children.

Some years ago parents did seek the creation of an all through school, up to the age of 19. One of the ‘drivers’ was the issue of ‘transition’ at age 11.

Councillors who visited Foxfield and Meadowside were assured that there is a very thorough process for transition – with study of the children, visits to Lyndale by staff before children move, and visits by parents to those schools.

These visits showed the differences in the buildings ‘on offer’.

The new Stanley building was ‘sparse’ and assurances were given that any new additions could be designed with needs of ‘The Lyndale’ children in mind

However this appeared to be an addition as an ‘afterthought’.

The children at Elleray Park had different needs from the children at Lyndale.

Assurances have been given that schools can adapt their teaching styles and methods to the needs of children, that parents have choice and that there is good communication between professionals.

It is apparent that the parents at Lyndale place great emphasis on the way the staff the children ‘know’ interact with them Equally the staff are able to ‘read’ the developing signs and gestures that the children are able to return.

I have asked how the ‘Lyndale’ can be completely replicated elsewhere.

The answer has not, as yet, as far as I know, been given in a way that fully satisfies the parents,

However, if the Council insists on change then it should design a setting that has the atmosphere and facilities valued by parents, several classrooms with accessible changing, a communal hall where children can fully socialise and guaranteed access to hydrotherapy. .

Please tell us your name and address, postcode, and email address if you have one. We will not use your personal information for anything other than this consultation.

Name: Phil Gilchrist
Address: 2 Gordon Avenue Bromborough

	Postcode: CH62 6AL
Telephone: 0151 334 1923
E-Mail:philgilchrist@wirral.gov.uk

Please note: In order to ensure that this process is fully open and transparent, other people will be able to read all the responses to this consultation.

Please return this form to:

Email: specialreview@wirral.gov.uk

Post: The Lyndale School Consultation

Children and Young People’s Department

Hamilton Building

Birkenhead

CH41 4FD

Please make sure your response is submitted by:

Wednesday 25^th June 2014.

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Despite Tory objections, Labour adjourn meeting to revisit 2 matters (leisure centre concessions and Forest Schools)

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Video of the entire Coordinating Committee meeting of the 7th August 2014 can be viewed above

Yesterday Wirral Council’s Coordinating Committee met to consider two call-ins of Cabinet decisions. In a short ten minute meeting, Councillor Moira McLaughlin (the Chair) explained that the meeting had been called to consider call-ins about the cancellation of the “Forest Schools” funding and changes to the concessions that current and former Armed Forces personnel receive at the Council’s leisure centres.

It was agreed that despite the Chair’s initial view that both call ins should be considered in the same evening that they will be heard over two different evenings instead. Due to a constitutional requirement, the Coordinating Committee had to meet to consider these decisions within 15 days, however was unable to proceed any further as officers were not available (presumably as they are on holiday).

Therefore (as previously reported on this blog even before the decision was formally made) the call-in about Forest Schools will be heard starting at 6pm on the 18th September 2014 and the call-in about leisure centres will be heard starting at 6pm on the 23rd September 2014.

Councillor Chris Blakeley (Conservative spokesperson) suggested a different date as he was not happy with the choice of date for one of the reconvened meetings. However Labour councillors used their majority on the committee to vote through their preferred choice of date. The Chair Cllr Moira McLaughlin gave a detailed explanation as to why the dates had been chosen and why she disagreed with Councillor Chris Blakeley’s motion that a different date should be used.

Due to the call-ins the Cabinet decisions will not be implemented until a decision has been reached by the Coordinating Committee. Therefore the existing concessions at the Council’s leisure centres for current and former Armed Forces personnel will continue and so will the funding for the Forest Schools program in order to not prejudge the outcome of the Coordinating Committee decisions in September.

Similar reasons to do with availability and holidays were given behind the recent adjournment of the Audit and Risk Management Committee’s BIG/ISUS investigations.

Councillor Chris Blakeley (Conservative spokesperson) did raise the point that the meeting was being adjourned to suit Wirral Council officers, therefore why couldn’t it be rearranged to suit councillors (referring to three Conservative councillors)? However the Labour councillors on the Coordinating Committee disagreed with this approach.

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Cabinet takes 38 seconds to consider Lyndale School call in minutes and 10 councillors fail to mention at least 4 factual errors in them

Cabinet consider Lyndale School call in minutes in 38 seconds,10 councillors fail to mention at least 4 factual errors

Councillor Phil Davies asked Surjit Tour for advice on what to do about the draft minutes on the call ins about consulting on closing Lyndale School and special educational needs funding at a Wirral Council Cabinet meeting of the 13th March 2014

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Wirral Council’s Cabinet considers the draft minutes of the call ins on consulting on closing Lyndale School and how special education needs funding is allocated starting at 9:10 in the video above and finishing at 9:48 (a total of thirty-eight seconds on a matter on which 6,440 people signed a petition

We have left undone those things which we ought to have done;
And we have done those things which we ought not to have done;

I rarely refer to religion on this blog (which is about politics) as although we don’t have the kind of constitutional separation of church and state that a country like America does, religion rarely features in Wirral’s politics. I was raised up a Catholic but for many years was an organist (until sadly I broke my wrist in two places) at St. James’ church. The quote above is from the Anglican General Confession which I heard many times over the years. There also a bit in it that says “We have erred, and strayed from thy ways like lost sheep. We have followed too much the devices and desires of our own hearts” which some would say sums up why things went so pear-shaped at Wirral Council. However this blog post (much as it might be more interesting to write such a piece) isn’t going to be a fire and brimstone opinion piece or about whether making immoral decisions puts the immortal souls of politicians in jeopardy.

So moving on to things that Wirral Council has done which it ought not to have done and the things it should have done but didn’t. Yesterday’s Cabinet meeting had at agenda item 15 an item described on the agenda in this way:

“Recommendations from Policy and Performance Coordinating Committee – 27 February 2014

The Cabinet is requested to consider recommendations from the Policy and Performance Coordinating Committee held on 27 February 2014, in respect of the following call-in notices:-

Cabinet 16 December 2013 (Minute 129) – Report Seeking Approval to Consult on the Closure of The Lyndale School
Cabinet 16 December 2013 (Minute 140) – Proposals for Changes to School Top Up Payments for Students with High Needs

Minutes to follow”

Now in the “bad old days”, when Wirral Council officers wanted politicians not to thoroughly scrutinise something it would be handed out on the night of the meeting itself and not included with the reports published on the Council’s website a week before the meeting or with the papers sent out to people on that committee.

I did see Cllr Tony Smith ask for (and receive) a copy of the draft minutes in the minutes before the Cabinet meeting started. Councillor Phil Davies said that the Cabinet had been given the draft minutes given to them “this evening” but would any councillor have had the time to read twenty-one pages of minutes before getting to agenda item 15?

“We have left undone those things which we ought to have done”

So why am I going on about all this? It’s unlawful to do things this way and yet politicians (and officers) seem to either in total blissful ignorance about this or do know and are deliberately keeping quiet.

The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 is a law that govern how Wirral Council’s Cabinet meeting is supposed to do things and regulation 6 and 7 are relevant to this particular situation. Oh and this law has been in effect since 10th September 2012. Decision-making body refers to Cabinet and local authority to Wirral Council. I’ve put in bold the particular bits that apply here.

Procedures prior to public meetings

6. (1) The decision-making body must give notice of the time and place of a public meeting by displaying it at the offices of the relevant local authority and publishing it on that authority’s website, if it has one—

(a) at least five clear days before the meeting; or
(b) where the meeting is convened at shorter notice, at the time that the meeting is convened.

(2) An item of business may only be considered at a public meeting—

(a) where a copy of the agenda or part of the agenda including the item has been available for inspection by the public as required by regulation 7 for at least five clear days before the meeting; or
(b) where the meeting is convened at shorter notice, a copy of the agenda including the item has been available for inspection by the public from the time that the meeting was convened.

7. (1) Subject to paragraph (2), a copy of the agenda and every report for a meeting must be made available for inspection by the public—

(a) at the offices of the relevant local authority; and
(b) on the relevant local authority’s website, if it has one.

(2) If the proper officer thinks fit, there may be excluded from the copy of any report provided pursuant to paragraph (1) the whole, or any part, of the report which relates only to matters during which, in the proper officer’s opinion, the meeting is likely to be a private meeting.

(3) Any document which is required by paragraph (1) to be available for inspection by the public must be available for such inspection for at least five clear days before the meeting except that—

(a) where the meeting is convened at shorter notice, a copy of the agenda and associated reports must be available for inspection when the meeting is convened; and
(b) where an item which would be available for inspection by the public is added to the agenda, copies of the revised agenda and any report relating to the item for consideration at the meeting, must be available for inspection by the public when the item is added to the agenda.
(4) Nothing in paragraph (3) requires a copy of the agenda, item or report to be available for inspection by the public until a copy is available to members of the decision-making body concerned.

(5) Where by virtue of paragraph (2) the whole or any part of a report for a public meeting is not available for inspection by the public—

(a) every copy of the whole report or of the part of the report, as the case may be, must be marked “not for publication”; and
(b) there must be stated on every copy of the whole or the part of the report—
(i) that it contains confidential information; or
(ii) by reference to the descriptions in Schedule 12A to the 1972 Act, the description of exempt information by virtue of which the decision-making body discharging the executive function are likely to exclude the public during the item to which the report relates.
(6) Except during any part of a meeting during which the public are excluded, the relevant local authority must make available for the use of members of the public present at the meeting a reasonable number of copies of the agenda and of the reports for the meeting.

(7) Subject to regulation 20, following a request made by a member of the public or on behalf of a newspaper and on payment being made of postage, copying or other necessary charge for transmission, a relevant local authority must supply to that person or newspaper—

(a) a copy of the agenda for a public meeting and a copy of each of the reports for consideration at the meeting;
(b) such further statements or particulars, as are necessary to indicate the nature of the items contained in the agenda; and
(c) if the proper officer thinks fit in the case of any item, a copy of any other document supplied to members of the executive in connection with the item.
(8) Paragraph (2) applies in relation to copies of reports provided pursuant to paragraph (6) or (7) as it applies in relation to copies of reports made available for inspection pursuant to paragraph (1).

In fact Cllr Phil Davies (the Chair of the Cabinet meeting) referred to the draft minutes during the Cabinet meeting itself as Cabinet agreed to note “the report”.

“And we have done those things which we ought not to have done;”

Moving onto the actual draft minutes of the meeting on the 27th February to consider the Lyndale School call in, there are many factual inaccuracies in these minutes, which if the above procedure had been followed, both politicians and the public would have had a chance to spot these in advance of the Cabinet meeting.

These draft minutes are now on Wirral Council’s website.

The first error starts even with the list of who was present. A Councillor “A McLaughlin” is incorrectly listed as present which should be “M McLaughlin”. Three years ago when Cllr Moira McLaughlin was Mayor, her daughter Anna McLaughlin was Mayoress but that’s the only A McLaughlin I am aware of.

Moving onto page 2 the draft minutes state in relation to the procedure for the call-in “This procedure had been agreed and adopted by the Committee for this purpose at its meeting on 24 June 2014. (Minute No. 4 refers.)”

As the observant among you will have noticed a meeting on the 24th June 2014 can’t have happened yet! This is wildly inaccurate. Firstly the meeting it’s referring to is the one on the 24th June 2013 which decided “That the procedure be agreed and adopted for managing the present call-in, in relation to the LGA Annual Conference and Exhibition.”, therefore the decision on 24th June 2013 was about a previous call in, not the ones about Lyndale School and how funding is allocated to schools.

Secondly when the call in meeting started on 5th February agenda item 3 was “Procedure for considering a decision that has been called in” which also stated on the agenda of that meeting “The procedure to be used when considering a decision that has been call in is attached. This procedure was agreed by the Committee at its meeting on 3 July 2013 (Minute No. 4 refers).”

On the 3rd July 2013 the Coordinating Committee did agree meeting procedure rules (which then went on to be part of Wirral Council’s constitution) about call ins.

However, moving on… dates and years do seem to be a particular problem. In the bit about the reasons for the call in it’s stated in the last bullet point

The resolution of the Council of February 14 2010 and the work done by the Local Authority following this have not been referred to, not even mentioned. This should have formed the context for the present decision.

There wasn’t a Council meeting on the 14th February 2010, this was in fact a Sunday. It should be February 14 2011 and refers to this resolution following a large petition signed by 1,874 people.

Three paragraphs later things are getting confused again, “Councillor Harney reminded the Cabinet that at its meeting on 14 February 2014 the Council had received a petition from the Lyndale School of 1874 signatures asking the Council to develop, as a matter of urgency, a consistent and coherent policy for children with profound and multiple learning difficulties.”

Firstly the date of 14 February 2014 should read 14 February 2011. It’s also written in a misleading way that could imply he was referring to a Cabinet meeting on the 14th February 2014 (when it wasn’t, he was referring to the Council meeting of the 14th February 2011). Although a Cabinet Member (Cllr Tony Smith) was present at the Coordinating Committee meeting to decide on the call ins, Cllr Tom Harney wasn’t reminding the Cabinet, he was reminding the Coordinating Committee.

Moving to Cllr Tony Smith’s explanation of the decision the draft minutes state “Councillor Tony Smith informed that under the Education Act 1996, the local education authority had a statutory duty to ensure that there were sufficient school places in its administrative area and with fair access to educational opportunity to promote the fulfilment of every child’s potential. To do this any future plans had to consider the educational benefits for children, value for money, and the ways schools could develop collaborative practice in the best interest of children.”

Now the way that is written it sounds like Cllr Tony Smith is stating (or at least its implied) that the Education Act 1996 means there’s a legal requirement under this act on Wirral Council to consider value for money. The only reference to value for money in the Education Act 1996 was to Section 23 which did originally refer to local Councils conducting value for money studies on grant maintained schools. However this provision was repealed in November 1999 and anyway Lyndale School is not a grant maintained school. Grant maintained schools was the term used between 1988 and 1998 for a school that had opted out of local government (which in Wirral’s case is Wirral Council) control and instead got their grant directly from central government.

Councillor Smith then goes on in the minutes to describe the “Place plus” system. This (for the financial year referred to) is determined by the The School and Early Years Finance (England) Regulations 2013. However what’s missing from the minutes and is a point that’s very important to mention in all this is the legal requirement on Wirral Council under regulation 19 in respect of the minimum funding guarantee. In a nutshell this legal requirement means that what Wirral Council give a school to spend on education in 2014-15 can’t be less than 98.5% of what they gave them to spend on education in 2013-14.

There is however a caveat in the regulations, part (4) of Regulation 19 states “(4) A local authority may make changes to the operation of this regulation and to the operation of Schedule 4 in determining and redetermining budget shares where authorised to do so by the Secretary of State under regulation 25 (Alternative arrangements).”

As far as I know Wirral Council have asked the Department for Education for an agreement that the the minimum funding guarantee requirements don’t apply to them, but I don’t know if they have received a response back yet (although the Schools Budget for 2014-15 makes the assumption this consent is given).

Over three weeks ago I made this Freedom of Information Act request to the Education Funding Agency for details of Wirral Council’s application to the Education Funding Agency for permission that the minimum funding guarantee doesn’t apply and the Education Funding Agency’s replies to Wirral Council. I expect a reply to my Freedom of Information Act request in the next week.

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

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

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Despite Tory objections, Labour adjourn meeting to revisit 2 matters (leisure centre concessions and Forest Schools)

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Cabinet consider Lyndale School call in minutes in 38 seconds,10 councillors fail to mention at least 4 factual errors

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