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 (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.
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.
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.
Pre-determination and Pre-disposition
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”.
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”.
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.
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).
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).
Pre-disposition in decision making is fine.
Whereas, decisions made by Members later judged to have pre-determined views have been quashed by way of judicial review.
Bias
Bias is defined as:
‘a particular tendency or inclination, especially one that prevents impartial consideration of a question; prejudice’.
‘…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.’
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.
Only you can say whether you are biased or not.
Localism Act 2012
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.
Section 25 does not attempt to change case law in respect of pre-determination and bias, but it has attempted to clarify it.
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.
Section 25 catches allegations of actual, and apparent, pre-determination (however tenuous).
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.
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.
Section 25 is set out on pages 4 and 5 below for your reference.
5. Summary
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.
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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A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong
A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong
Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith (Cabinet Member for Children and Family Services), Cllr Bernie Mooney and Lyndzay Roberts
Below is a copy of a letter emailed to Wirral Council’s Surjit Tour, the nine councillors on the Cabinet that took the “decision” and Julia Hassall.
Jenmaleo,
134 Boundary Road,
Bidston
Wirral
CH43 7PH
Wirral Council
Metropolitan Borough of Wirral
Wallasey Town Hall,
Brighton Street,
Wallasey,
Merseyside,
CH44 8ED,
England
8th September 2014
By email
Surjit Tour surjittour@wirral.gov.uk
Cllr Phil Davies phildavies@wirral.gov.uk
Cllr Tony Smith tonysmith@wirral.gov.uk
Cllr Bernie Mooney berniemooney@wirral.gov.uk
Cllr Stuart Whittingham stuartwhittingham@wirral.gov.uk
Cllr Chris Meaden chrismeaden@wirral.gov.uk
Cllr Chris Jones christinejones@wirral.gov.uk
Cllr Adrian Jones adrianjones@wirral.gov.uk
Cllr George Davies georgedavies@wirral.gov.uk
Cllr Pat Hackett pathackett@wirral.gov.uk
Julia Hassall juliahassall@wirral.gov.uk
LETTER BEFORE CLAIM
Proposed claim for judicial review
1. TO
SURJIT TOUR
Legal and Member Services
Metropolitan Borough of Wirral
Wallasey Town Hall,
Brighton Street,
Wallasey,
Merseyside,
CH44 8ED,
England
2. The claimant
MR JOHN BRACE
Jenmaleo,
134 Boundary Road,
Bidston,
CH43 7PH
3. Reference details
Amended Cabinet recommendation of 4th September 2014 with respect to Lyndale School (agenda items 4&5)
4. The details of the matter being challenged
What is being challenged is the decision of Wirral Council’s Cabinet on the evening of the 4th September 2014 to make the amended recommendation which is copied below. More specifically the details of the matter being challenged are 1.1, 1.2, 1.3, 2.0 and 2.1 of the recommendation.
“CABINET – 4TH SEPTEMBER 2014
THE LYNDALE SCHOOL
RECOMMENDATION
1.1 Cabinet thanks all those who have participated in the consultation exercise, with particular regard to submissions from parents of children at The Lyndale School.
1.2 Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, is it recommended that:
Statutory notices be published in respect of the closure of The Lyndale School from January 2016.
That Wirral Council, under the leadership of the Director of Children’s Services, work individually, with children and families, towards effecting a smooth and supportive transition to an alternative place at one of the following schools:
Elleray Park Special School
Stanley Special School
Another appropriate school
In doing so, that the Director of Children’s Services, in acknowledgement of the close relationships that exist between staff and pupils at The Lyndale School, investigates if staff could be employed, where possible, at receiving schools, (subject to legal practice and the approval of governing bodies).
The Director of Children’s Services be authorised to take all necessary steps to publish the proposals and ensure the prescribed procedures are followed, including requesting permissions from the Secretary of State, in furtherance of the proposals.
A further report be brought on the outcome of the publication of the statutory notices.
1.3 That the Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of the Lyndale School are completed by the 31st October.
2.0 REASONS FOR RECOMMENDATION
2.1 Having looked at all the options, and applied the SEN Improvement Test, it is our opinion that, while we recognise the special place that The Lyndale School has in the affection of parents and children, the continued operation and maintenance of a school of this size will not meet the future educational needs of the children, nor is a financially viable option, especially when there are good alternative options available.
The Council has a responsibility to ensure for the sustainable future provision of education for the pupils of The Lyndale School. In addition, we have to manage resources effectively for all schools and the school population.
This has been a difficult decision to make, and we would like to affirm our continued intention to work positively with the families and the children affected, and reassure parents of our continued commitment to their child’s wellbeing and education.”
5
The issue
Brief summary of facts:
Wirral Council’s Cabinet made a key decision on the evening of 4th September 2014 at a public meeting to proceed to a second round of consultation on the closure of the Lyndale School. The recommendation agreed by nine councillors is outlined above.
Why it is contended to be wrong:
It is contended to be wrong because:
(a) The notice requirements before the meeting were not met.
The actions specified to be taken in advance of the Cabinet meeting in the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 specifically Regulations 9-11 weren’t met. More specifically the document specified in Regulation 9 wasn’t published 28 days before the meeting or the notice in Regulation 10(3)(b) or the notice in Regulation 11(2)(b).
Regulation 9(1) makes it quite clear that if these requirements are not met that “that decision must not be made)
(b) The key decision was made by the wrong people.
In addition to the Cabinet between four and nine other people should’ve been included in the decision. Specifically these are:
between 2-5 parent governor representatives,
a representative of the Catholic diocese and
a representative of the Anglican diocese
These people should have all had voting/speaking rights and been invited to take part in the Cabinet meeting.
Normally Cabinet would not be required to have such representatives on it as it has oversight by the Families and Wellbeing Policy and Performance Committee and Coordinating Committee.
However as a representative of the Anglican diocese has not yet been appointed to the Families and Wellbeing Policy and Performance Committee or the Coordinating Committee due to this lack of oversight the Cabinet was required to have them take part in the decision making on this matter.
This legal requirement is outlined in the School Standards and Framework Act 1998 c.31/ s.499 of the Education Act 1996 c.56 and the underlying regulations such as Regulation 5 of the Local Authorities (Committee System) (England) Regulations 2012 and regulation 5 of The Education (School Organisation Committees) (England) Regulations 1999 and other underlying regulations.
(c) Human Rights issues
Wirral Council have to make decisions that are compatible with the Convention Rights (s.6(1) Human Rights Act 1998 c.42). Specifically these concerns are about Protocol 1 (Article 2), article 2, article 3, article 11 and article 14.
The concerns are briefly outlined below:
Protocol 1 (Article 2) “right to education” as closure of the school would interfere with the parent’s right to “ensure such education and teaching in conformity with their religious and philosophical convictions”
Article 2 “right to life” as closure of the school would possibly cause the death of one or more of its current pupils
Article 3 “prohibition of torture” as closure of the school would be “degrading treatment or punishment” of the parents and pupils
Article 11 “freedom of assembly and association” as closure of the school would interfere with the rights of the pupils, staff and parents to associate with each other and none of the requirements in 11(2) are known to be met
Article 14 “prohibition of discrimination” as:
(a) the school is for severely disabled children therefore closing (whilst not making known closures elsewhere) could be classed as discrimination
(b) the political views of the parents are that the school should not close which has been widely expressed in the media prior to the meeting in opposition to the stated views of the Labour administration at Wirral Council
(c) many of the severely disabled children at the school were born that way
(d) Equality Act 2010 c.15 considerations
Section 13 – the Lyndale pupils (person B) have a protected characteristic (disability). They would be treated less favourably if the school closed as less money would be spent on their education. Furthermore many of the approximately thirty staff have protected characteristics (who will be out of a job if the school closes)
Section 15 – this relates to discrimination arising from disability. The pupils at the school are disabled. Wirral Council would have to show that the treatment is “a proportionate means of achieving a legitimate aim” which has not yet been demonstrated
Section 19 – this relates to indirect discrimination of the parents and family members of the Lyndale pupils
Section 26 – “harrasment”, the closure plans have resulted in a violation of dignity of those with protected characteristics and have intimidated staff, parents and pupils at the school. One example of this would be that the headteacher has left.
Section 27 – the parents have threatened legal action which is a protected act
Section 85 – these plans force the Lyndale School to breach s.85(2)(f) as it subjects pupils and their parents to detriment
Section 86 – this relates to victimisation of the pupils for the conduct of their parents. The parents have petitioned, campaigned and lobbied against closure. The siblings and parents of the children at the Lyndale School are being penalised for this
Section 112 – the way Wirral Council behaved (for example making a false public statement that if the school was closed that staff would be redeployed during the consultation) is aiding contraventions of the Equality Act 2010
Section 149 – “public sector equality duty” Due regard to 149(a), (b) and (c) by Wirral Council has not been given. The same goes for the duties under 149(5)(a) and 149(5)(b). These relate to the proteted characterists of pupils, staff and parents at the school.
Section 150 – “public authorities and public functions” – the Metropolitan Borough of Wirral Council is a “district council” in England as defined in Schedule 19, therefore 150(3), 150(4) and 150(5) apply to it.
Section 158 – “positive action: general” the pupils of Lyndale school have needs that are different from the needs of person that are not disabled. Those that have PMLD (which is a protected characteristic) are a disproportinately low proportion of the school population. The Lyndale pupils are at this school because it’s a special school that caters for the needs of disabled pupils with PMLD. Therefore they will suffer a disadvantage if the school closes. The level of education they receive will change if the school closes and it is alleged that this new provision will not meet their needs.
Section 19 – Wirral Council provides the service of education to the disabled pupils at the Lyndale School. If the school is closed the current (and potential future) disabled pupils would find it “impossible” or “unreasonably difficult” to use the school. Although Wirral Council is a “local education authority in England” and therefore a “relevant body” as defined in s.19(6), it remains to be seen whether education & transport are services that fall under s.19(5)(a) or not.
Section 21 – The adjustment required would be to fund the running costs of the Lyndale School, whilst it is appreciated that Wirral Council is a “local education authority in England” and therefore a “relevant body”, this duty of providers of services to make adjustments could/could not apply to Wirral Council
Section 21B – Wirral Council is a “public authority” and is discriminating against disabled people in carrying out its functions.
Section 21D – Wirral Council is failing in its general duties to:
(1)(a) the need to eliminate discrimination that is unlawful
(1)(b) the need to eliminate harrassment of disabled persons that is related to their disabilities
(1)(c) the need to promote equality of opportunity between disabled persons and other persons
(1)(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons
(1)(e) the need to promote positive attitudes towards disabled persons
(1)(f) the need to encourage participation by disabled persons in public life
Section 28A – “Discrimination against disabled pupils and prospective pupils” This relations to 28A(2) and 28A(1)(a) as Wirral Council is “the local education authority” defined in Schedule 4A. Wirral Council is proposing altering its admission arrangements which discriminate against the current disabled pupils at the Lyndale School. Closure would result in the current pupils being excluded permanently.
Section 28B – Lyndale pupils are being treated less favourably because of reasons realted to their disability/ies. It is unreasonable to assume that Wirral Council does not know they are disabled as it is a special school
Section 28C – “disabled pupils not to be substantially disadvantaged” The Lyndale pupils are being put at a substansial disadvantage compared to persons who are not disabled with regards to the admission arrangemnts.
Section 28F – There has been a failure of the duty of the education authority not to discriminate, it is unknown at this stage what prescribed function this relates to (if any).
Section 49A – In carrying out its functions, Wirral Council is not having due regard to
(1)(a) the need to eliminate discrimination that is unlawful
(1)(b) the need to eliminate harrassment of disabled persons that is related to their disabilities
(1)(c) the need to promote equality of opportunity between disabled persons and other persons
(1)(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons
(1)(e) the need to promote positive attitudes towards disabled persons
(1)(f) the need to encourage participation by disabled persons in public life
Section 2 – This section inserted 21B in the Disability Discrimination Act 2005 (see arguments above for s.21B of the Disability Discrimination Act 2005)
Section 3 – This section inserted 49A in the Disability Discrimination Act 2005 (see arguments above for s.49A of the Disability Discrimination Act 2005)
(g) statutory guidance
Statutory guidance has been issued which includes the application of a test to such proposals known as the “SEN Improvement Test” to such decisions. Wirral Council claims that its plans for closure meet the SEN Improvement Test. The Claimant disagrees that the requirements of the SEN Improvement Test have been met to the preferred option (which is closure of the Lyndale School). This is because:
(i) it would not lead to improved access to education and associated services
(ii) it would not lead to improved access to specialist staff
(iii) it would not lead to improved access to suitable accommodation
(iv) it would not lead to an improved supply of suitable places
(v) there seems little clarity that the host schools mentioned in the decision (Elleray Park and Stanley School) are willing to receive pupils with communication and interaction needs
(vi) there is confusion as to how the proposals will be funded and the planned staffing arrangements that will be put in place
(Set out the date and details of the decision, or act or omission being challenged, a brief summary of the facts and why it is contented to be wrong)
6
The details of the action that the defendant is expected to take are:
(a) to make a written undertaking not implement the decision as an interim measure until a new Cabinet meeting happens,
(b) hold a further meeting of the Cabinet to make a decision that complies with:
(i) the notice requirements for the meeting (SI 2012/2089 Regulations 9-11) and
(ii) the other legal issues addressed in this letter
(c) to carry out a review of the matters raised in this letter and inform the Claimant of the outcome of that review
(d) to inform the Claimant if the decision is implemented and if so from what date
(e) to respond to this letter before the proposed reply date in section 12
(f) meet with Mr. John Brace before the proposed reply date so that these issues can be explored in depth in the hope that litigation can be avoided.
7
The details of the legal advisers, if any, dealing with this claim
N/A
8
The details of any interested parties
Cllr Phil Davies phildavies@wirral.gov.uk
Cllr Tony Smith tonysmith@wirral.gov.uk
Cllr Bernie Mooney berniemooney@wirral.gov.uk
Cllr Stuart Whittingham stuartwhittingham@wirral.gov.uk
Cllr Chris Meaden chrismeaden@wirral.gov.uk
Cllr Chris Jones christinejones@wirral.gov.uk
Cllr Adrian Jones adrianjones@wirral.gov.uk
Cllr George Davies georgedavies@wirral.gov.uk
Cllr Pat Hackett pathackett@wirral.gov.uk
Julia Hassall juliahassall@wirral.gov.uk
9
The details of any information sought
Details of information sought:
(a) a request for a fuller explanation of the reasons for the decision being challenged beyond those that form a part of the recommendation at 2.1
(b) statistical information on staff at the Lyndale School with reference to all protected characteristics
(c) statistical information on Wirral Council’s workforce with reference to all protected characteristics
(d) statistical information on current pupils at the Lyndale School with reference to all protected characteristics
(e) three year projected financial information about the Lyndale School projected budgets supplied to Wirral Council by the Lyndale School governors including total projected expenditure, total projected costs and total projected income
(f) earlier drafts of report titled “Report detailing the outcome of the consultation on the closure of the Lyndale School”
(g) earlier drafts of the report at Appendix 1 titled “The Independent Consultant’s Report”
10
The details of any documents that are considered relevant and necessary
(a) The consultation responses. These are considered necessary as they are referred to in 1.1 and 1.2 of the decision. Although I have already published some, I am unsure whether it is a complete set of consultation responses.
(b) Those documents outlined in section (9) specifically (e) to (g) (financial information and earlier drafts of reports)
(h) details of consultation with staff and relevant trade unions
(i) details of consultation with the governing body at Lyndale School
(j) Principal Educational Psychologist’s report
(k) detail as to how Wirral Council think the preferred option of closure meets the “SEN Improvement Test”
11
The address for reply and service of court documents
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
12
Proposed reply date
24th September 2014
Yours sincerely,
John Brace
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The 25 ways in which the Wirral Council Cabinet decision about Lyndale School is flawed
The 25 ways in which the Wirral Council Cabinet decision about Lyndale School is flawed
Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith (Cabinet Member for Children and Family Services), Cllr Bernie Mooney and Lyndzay Roberts
Here are my thoughts on a few aspects of the recent Cabinet decision last Thursday evening about Lyndale School.
Q1. So who was the decision with regards to Lyndale School made by?
A1. The decisions about Lyndale School were made by Cllr Phil Davies (Labour, Birkenhead and Tranmere), Cllr Tony Smith (Labour, Upton), Cllr Bernie Mooney (Labour, Liscard), Cllr Stuart Whittingham (Labour, Upton), Cllr Chris Meaden (Labour, Rock Ferry), Cllr Chris Jones (Labour, Seacombe), Cllr Adrian Jones (Labour, Seacombe), Cllr George Davies (Labour, Claughton) and Cllr Pat Hackett (Labour, New Brighton).
Q2. But that’s only 9? I thought the Cabinet had 10 councillors on it!
A2. Cllr Ann McLachlan (the tenth Cabinet Member) wasn’t present at the meeting.
Q3. So does the fact she was missing alter things?
A3. No, nine out of ten is still enough to be quorate (enough councillors there to make a decision). One less councillor means one less vote to be counted, one less person possibly speaking and therefore a shorter meeting. There is no deputy system for Cabinet Members. There was no vote held during the meeting where her vote (one way or the other) would’ve made a difference to the outcome anyway. According to an email, Councillor Ann McLachlan is “away” from 29th August 2014 to the 8th September 2014 which covers the evening this meeting was held on the 4th September 2014.
Q4. So what’s she Cabinet Member for anyway?
A4. Cllr Ann McLachlan is the Cabinet Member for Governance, Commissioning and Improvement
Q5. Sorry I’m too busy laughing that Wirral Council has a Cabinet Member for “Improvement”. You’re joking right?
A5. No, I’m not.
Q6. So what was the Cllr Phil Davies’ amendment (seconded by Cllr Bernie Mooney) to the original recommendation?
A6. The recommendation (as amended) is here. Cllr Phil Davies’ amendment to the original recommendation is as follows:
Add new additional item to recommendation after paragraph 1.2:
1.3 That the Director of Childrens’ Services to ensure that Education, Health and Care Plans for all pupils of the Lyndale School are completed by the 31st October.
As Cllr Phil Davies said at the time of proposing his amendment, “It’s really important we have them in place as soon as possible.” I am presuming here that implies 31st October 2014 rather than 31st October 2015 as he didn’t specify a year at the Cabinet meeting.
Q7. So what’s an “Education, Health and Care Plan” anyway?
A7. It’s a legal requirement on Wirral Council to produce an “EHC needs assessment” (an assessment of the educational, health care and social care needs of a child or young person) on request because of the legal requirements placed upon them by the Children and Families Act 2014 c.6 (sections 33-34, 36-60).
Q8. So who can make such a request for an EHC Plan?
A8. Either parents, the young person his or herself, a person acting on behalf of a school or a person acting on behalf of a post-16 institution.
Q9. Does Wirral Council’s Cabinet fall into one of these categories?
A9. No, but Cabinet has other legal powers to make recommendations to the Director of Childrens’ Services who is Julia Hassall if they so wish.
Q10. OK, so going back to the Cabinet decision. What is the first legal concern you have about it?
A10. Well it relates to Regulations 8-11 of SI 2012/2089.
Q11. Interesting so what are Regulations 8-11 of SI 2012/2089 about?
A11. It is about key decisions, publicity in connection with key decisions, general exception and cases of special urgency.
Q12. OK, so is the decision about Lyndale School a “key decision”?
A12. Yes, key decisions are defined in Regulation 8 as a Cabinet decision (executive refers to the Cabinet) which is defined as follows:
“8. (1) In these Regulations a “key decision” means an executive decision, which is likely–
1 (a) to result in the relevant local authority incurring expenditure which is, or the making of savings which are, significant having regard to the relevant local authority’s budget for the service or function to which the decision relates; or
(b) to be significant in terms of its effects on communities living or working in an area comprising two or more wards or electoral divisions in the area of the relevant local authority.
In determining the meaning of “significant” for the purposes of paragraph (1) the local authority must have regard to any guidance for the time being issued by the Secretary of State in accordance with section 9Q of the 2000 Act (guidance).
Q13. So do Wirral Council regard it as a “key decision”?
A13. Yes.
Q14. So what’s the problem then?
A14. Well the regulations state in relation to a key decision that “that decision must not be made” unless certain requirements in Regulations 9-11 are met.
Q15. So what are the requirements in Regulations 9-11?
A15. That Wirral Council has to either “28 clear days” before the Cabinet meeting of the 4th September 2014 both publish a document on its website (and have that document open for inspection) which states the required information outlined in 9(1)(a) to 9(1)(h), or inform Cllr Moira McLaughlin and publish a notice on its website 5 clear days before the meeting or get Cllr Moira McLaughlin’s permission that the meeting is urgent and publish a notice to that effect on its website.
Q16. So did Wirral Council publish a document 28 clear days before the meeting containing the information in 9(1)(a) to 9(1)(h)?
A16. No, however it did publish a document 28 clear days before the meeting containing information in 9(1)(a), 9(1)(b), part of 9(1)(c) and 9(1)(d).
Q17. So they didn’t publish the information required by part of 9(1)(c), 9(1)(e), 9(1)(f), 9(1)(g) and 9(1)(h)?
A17. Yes.
Q18. Did they get Cllr Moira McLaughlin’s permission and publish a notice to that effect then?
A18. No.
Q19. Did they inform Cllr Moira McLaughlin and publish a notice to that effect then?
A19. No.
Q20. So what happens then if they don’t do these things?
Q20. They’re not allowed to make the decision. The regulations are quite clear on that “the decision must not be made”. Therefore the decision is unlawful/ultra vires.
Q21. So you’re alleging the decision on Lyndale School is unlawful, but they’ll just go ahead and implement it anyway?
A21. Yes.
Q22. Are there any other grounds too on which it could be challenged?
A22. Yes. The decision was made by the wrong people.
Q23. Why’s that?
A23. It’s an education matter and they didn’t have the parent governors and Diocesan representatives as part of the Cabinet making the decision.
Q24. But I thought Cabinets didn’t have to have such people as their decisions could be “called in” to the Coordinating Committee that does?
A24. The Coordinating Committee does have parent governor representatives and a Catholic representative (as of February this year) but is missing an Anglican representative.
Q25. But does it really have to have an Anglican representative?
A25. Yes it does. It’s a legal requirement, see s.9 of the School Standards and Framework Act 1998 c.31 / s.499 of the Education Act 1996 and the underlying regulations such as Regulation 5 of The Local Authorities (Committee System) (England) Regulations 2012 and Regulation 5 of The Education (School Organisation Committees) (England) Regulations 1999.
The Anglican representative has to be decided by the Diocesan Board of Education (Chester Diocese) not Wirral Council.
Q26. Well why doesn’t it have one?
A26. Well the Coordinating Committee made a recommendation to Council to add an Anglican representative on February 5th 2014. The Coordinating Committee suggested Mrs H Shoebridge and Mrs Nicola Smith as parent governors representative as well as Damien Cunningham (Catholic representative) but left the decision over who the Anglican representative would be to Council.
Council met on 25th February 2014 and chose to add Mrs H Shoebridge, Mrs Nicola Smith and Damien Cunnigham to the Coordinating Committee. An extra place for the Church of England representative was added to the committee but nobody was appointed to it.
Q27. So who proposed and seconded this motion at Council?
A27. Cllr Phil Davies proposed it and Cllr Ann McLachlan seconded it.
Q28. Well surely there was some scrutiny from the 63 councillors present as to this oversight?
A28. No, it had been a long meeting by then to decide the Budget for 2014/15 with many card votes and councillors were getting tired. 63 councillors voted unanimously to add the three named representatives to the Coordinating Committee and the extra place for the Church of England representative but failed to decide on who the representative for the latter was.
Q29. So basically they had one job to do (pick a name) and they bodged it due to a lack of scrutiny and oversight.
A29. Yes.
Q30. So what are the consequences of not having a properly constituted Coordinating Committee?
A30. The legislation is clear that if the Coordinating Committee doesn’t have the required two parent governor reps, Catholic and Anglican representatives then Cabinet has to when considering education matters (in my interpretation).
Q31. So does Cabinet have two parent governor representatives, a Catholic and an Anglican representative?
A31. No.
Q32. Are there other reasons (other than the two above) why this decision about Lyndale could be unlawful?
A32. Yes.
Q33. What are they?
A33. Well they relate to Wirral Council’s responsibilities under the Equality Act 2010 c.15, Disability Discrimination Act 1995 c.50, Disability Discrimination Act 2005 c.13 and Human Rights Act 1998 c.42. There may be others I haven’t thought of.
Q34. Wow that’s a lot! Can you be a little more detailed?
A34. S. 6(1) of the Human Rights Act 1998 c.42 in relation to Protocol 1 (Article 2) “Right to education”.
In relation to the Equality Act 2010 c.15 there would be legal concerns about Section 13, section 15, section 19, section 26, section 27, section 85, section 86, section 112, section 149, section 150 and section 158.
In relation to the Disability Discrimination Act 1995 c.50 there would be concerns about sections 19, 21, 21B, 21D, 28A, 28B, 28C, 28F and 49A.
In relation to the Disability Discrimination Act 2005 c.13 there would be concerns about sections 2 & 3.
Q35. So there are in total legal concerns about four different Acts of Parliament, two different sets of regulations comprising 25 different legal concerns?
A35. Yes.
Q36. So what’s the first step in the legal process?
A36. Someone involved in the Lyndale decision, whether staff, parents, children, a person who submitted a consultation response, attended a consultation meeting or signed the petition should write a letter to Wirral Council’s Cabinet and Wirral Council’s legal department stating that if it isn’t sorted out then court action will follow. The general protocol is that Wirral Council then have two weeks to provide a response.
Q37. And if Wirral Council says no, what happens next?
A37. It would result in multiple cases would be filed in the courts with jurisdiction to hear such matters. Two examples would be the Birkenhead County Court and Royal Courts of Justice (sometimes referred to as the High Court).
It would then be up to the courts to decide who was right and wrong in this matter if Wirral Council was in the wrong, appropriate compensation and possibly quashing of all or part of the original Cabinet decision.
Based on my past experience of such cases (which I will point out at this stage that none of this is not to be construed as legal advice) some of the many legal grounds listed above (on their own) would not be sufficient for a judicial decision to be made against Wirral Council.
Some however are stronger than others.
My opinion is based on other reported cases, being personally involved in at least one involving one of the pieces of legislation and knowing that in a civil matter it would be decided on the “balance of probablities”, that this is a highly complex and hard to predict legal matter that boils down to both subjective and objective matters, interpretation of the facts and other matters. The legislation as written opens up wide opportunity for Wirral Council to claim various defences to their actions and undoubtedly Wirral Council would hire an experienced barrister to do this.
Some alleged breaches are just purely technical and in the past the judicial viewpoint has been that caveats in the legislation provide defences to those sued. Some would depend on the judicial interpretation of the various law as there are multiple interpretations of the same words. The external costs of Wirral Council defending such a legal action could go to tens of thousands of pounds with internal legal costs possibly being a similar amount (officer time, resources etc). However the costs of bringing such an action (solicitor, barrister, court fees, postage, documentation preparation etc) would also come to a similar sum.
Obviously if the cases were won, such legal costs (if a judge agreed to it) could be claimed back from Wirral Council. It would not be something to be considered “lightly”. Cutbacks made in recent years by the government to the courts system mean that cases now take far longer than they used to. Fees for court cases have also been increased.
However if something isn’t done soon, any case (whatever its merits) would be rejected by the courts for being out of time. Judicial reviews have to be brought “promptly” (and within three months of the decision although it is not advisable to wait so long as permission will be denied). Disability discrimination cases have to be brought within six months of the action complained about. Outside of this time it is up to the Court whether they accept them or not.
It is also possible that there are legal matters that I have not contemplated that could be grounds for challenging the Cabinet decision.
The Cabinet decision could also be called in by opposition politicians once the Cabinet minutes are published in draft form. However as the Coordinating Committee does not have an Anglican representative it would have to again refer a recommendation to a future meeting of the Council and then adjourn its meeting until after Council has decided. Pending legal action would also possibly complicate the call in process (which would not be quick).
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Video of Wirral Council Special Cabinet meeting over Lyndale School and copy of Cabinet recommendation for closure
Video of Wirral Council Special Cabinet meeting over Lyndale School and copy of Cabinet recommendation for closure
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Video of the Special Cabinet meeting held on the 4th September 2014 to discuss Lyndale School. Please note there is a small break in filming between parts 5 and 6 in order for depleted batteries to be changed.
Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith (Cabinet Member for Children and Family Services), Cllr Bernie Mooney and Lyndzay Roberts
Below is a copy of the recommendation agreed at the special meeting of Wirral Council’s Cabinet on the 4th September 2014. An amendment to this recommendation was also proposed and agreed, however the amendment wasn’t circulated to those present at the meeting and the below is the original (unamended) recommendationEd – 7/9/14 10:18 recommendation as amended by the new amendment which adds part 1.3.
CABINET – 4TH SEPTEMBER 2014
THE LYNDALE SCHOOL
RECOMMENDATION
1.1 Cabinet thanks all those who have participated in the consultation exercise, with particular regard to submissions from parents of children at The Lyndale School.
1.2 Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, is it recommended that:
Statutory notices be published in respect of the closure of The Lyndale School from January 2016.
That Wirral Council, under the leadership of the Director of Children’s Services, work individually, with children and families, towards effecting a smooth and supportive transition to an alternative place at one of the following schools:
Elleray Park Special School
Stanley Special School
Another appropriate school
In doing so, that the Director of Children’s Services, in acknowledgement of the close relationships that exist between staff and pupils at The Lyndale School, investigates if staff could be employed, where possible, at receiving schools, (subject to legal practice and the approval of governing bodies).
The Director of Children’s Services be authorised to take all necessary steps to publish the proposals and ensure the prescribed procedures are followed, including requesting permissions from the Secretary of State, in furtherance of the proposals.
A further report be brought on the outcome of the publication of the statutory notices.
</UL
1.3 That the Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of the Lyndale School are completed by the 31st October.
2.0 REASONS FOR RECOMMENDATION
2.1 Having looked at all the options, and applied the SEN Improvement Test, it is our opinion that, while we recognise the special place that The Lyndale School has in the affection of parents and children, the continued operation and maintenance of a school of this size will not meet the future educational needs of the children, nor is a financially viable option, especially when there are good alternative options available.
The Council has a responsibility to ensure for the sustainable future provision of education for the pupils of The Lyndale School. In addition, we have to manage resources effectively for all schools and the school population.
This has been a difficult decision to make, and we would like to affirm our continued intention to work positively with the families and the children affected, and reassure parents of our continued commitment to their child’s wellbeing and education.
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Wirral Council’s Cabinet to decide on one of 3 options for Lyndale: keep it open, close it or change it to an academy
Wirral Council’s Cabinet to decide on one of 3 options for Lyndale: keep it open, close it or change it to an academy
Phil Ward (Wirral Council’s SEN Lead) at a later meeting of Wirral Schools Forum 2nd July 2014 (who chaired the consultation meeting at Acre Lane on the 16th June and is referred to in some of the consultation responses)
Well the papers for the special meeting of Wirral Council’s Cabinet to decide on the next steps about Lyndale School have appeared on Wirral Council’s website.
I hate to labour the point, but this is how consultations are “supposed to work”. An idea or policy is proposed, you have a consultation on it, you then publish the consultation responses in an open and transparent way so that the decision makers take them on board.
Not including the consultation responses with the Cabinet papers for the special meeting, gives the impression that officers don’t want material published that would lead to say “awkward questions”. Surely doing consultations isn’t rocket science, surely Wirral Council has run so many consultations they know how to do it by now?
The “bureaucratic machinations” go beyond just this “oversight” of not including the approximately three hundred pages of consultation responses. After all some of those responses are very critical of the way the consultation was actually run.
Let’s take how officers deal with the large petition. This gets a brief mention in appendix 5 on the last page.
I quote “A petition was received in support of Lyndale School containing 10,692 entries, of which 2,580 were duplicates, illegible or un-named, missing or non-existent addresses and 3,178 were resident outside Wirral. The remaining 4,935 entries comprised 702 “written” entries and 4,233 “epetition” entries.”
Last time I checked, Wirral wasn’t its own country with a big twenty-foot wall on the border and rumours of “barbarians” outside Wirral that well, you don’t have to listen to. The school is in Eastham which is on the edge of Wirral! Of course there are going to be people outside of Wirral are going to sign the petition (some of whom will probably live far nearer the school than I do living in Bidston). To callously state or imply that the views of over three thousand people don’t count because they don’t live here, I mean well doesn’t this sum up an attitude that has caused some of the problems and got Wirral nicknamed the “insular peninsula”? Family members of those attending the school could be living outside the Wirral, so could staff or other people closely associated with the school.
Moving on to duplicates, there was a written petition and an e-petition, obviously some people will have signed both versions. As to “illegible or un-named, missing or non-existent addresses”, well (I’m writing this as someone who has in the past gone door to door collecting petition signatures but I’ll point out not this petition) there are many adults in today’s society that couldn’t write their own name and address even if they wanted to (a sad reflection of our education system). It doesn’t mean their views don’t count!
The report goes on to state “Note that the Wirral Council Petition Scheme says a valid e-petition entry requires name, postcode and e-mail address. The e-petition was submitted as part of the consultation with name and postcode but without e-mail address”, so basically what this is saying is that out of 10,692 petition signatures, a Wirral Council officer only classes the 702 on a written petition as “valid” and feels happy enough to just disregard the views of the other ten thousand people.
There is a breakdown of the petition signers by ward, obviously the ward where the school is based Eastham attracts the highest number.
The reason given is “The Council has a responsibility to manage resources effectively for all schools and the school population. We would like to affirm our continued intention to work positively with the children and families affected by any recommendations, and reassure parents of our continued commitment to their child’s wellbeing and education.”
I will translate these two into plainer English for those not as familiar as myself with “Council speak”:
“In January* politicians decided to ask the public for their views on closing Lyndale School. Consultation with the public happened and finished in June. This report (written from the perspective of officers) tells you what we think happened during that consultation and it’s now time for politicians to make a decision.”
* Note: since January the politicians on the Cabinet have changed as Brian Kenny lost his seat in the May elections to the Green Party and Cllr Harry Smith has also left meaning there are two different Labour councillors taking these places (Cllr Stuart Whittingham and Cllr Bernie Mooney).
“It is about money, but don’t blame us senior officers for all this as we’re trying to put children first.”
So, what’s likely to happen and which of the options have been ruled out as they don’t meet the SEN Improvement Test?
This report states in section 5.2 “In reality the only viable course of action is Option 7, to close the Lyndale
School and expand Stanley School and Elleray Park School to provide 220/230 places.”
However the report is more detailed than that. Let’s analyse each of the options in detail:
Option 7.1 which are variations on retaining Lyndale
Retain Lyndale and change funding bands
The report states that it is unlikely that the funding bands will be reviewed until after the end of financial year 2014/15, which let’s face it by the time a review and consultation is undertaken on this, Lyndale could’ve been closed down. Even though the banding decision is a political one that politicians could change their minds (if they so wished) on at any time and a final decision on next year’s school budget has yet to be made. The independent report refers to the deficit, but many schools operate with a surplus or a deficit (they don’t get earmarked for closure though). As this is “no change” option, the SEN Improvement Test is met.
Retain Lyndale School and restrict places at Elleray Park and Stanley
The report author seems to be against this option on grounds of parental choice “Restriction of places at either of the schools will restrict parental choice. This may result in appeals by parents to the SEN Tribunal. Restriction of places also goes against Government policy which encourages the expansion of popular schools.”
Retain Lyndale School and extend to full range of CLD
The report author states that if Lyndale School took on children with CLD then these would be children they would receive less money for (per a child) than the children with PMLD which would worsen their financial situation rather than improve it.
Retain Lyndale School and school commits to take full range of CLD. Stanley and Elleray Park admissions kept to place numbers
This option also includes changing the funding bands for children at Lyndale. There aren’t any major quibbles the report author seems to have with this option and quotes statistics (based on July 2014 figures) of Stanley with 100 children and ninety places, Elleray Park has 94 children and 90 places. So both schools are currently oversubscribed based on their places.
It mentions that Stanley School could take as high as 120 children and once the building work at Elleray Park is completed in September 2015, that its capacity will increase to 110.
Option 7.2 Lyndale becomes a 2-19 school
The report author goes into detail as to this option, but points out that it could take about seven years for numbers to reach about fifty. The report author sees this as a “high risk option” as it would require capital investment in the school and run the risk of not working out. Four parts of the SEN Improvement test are quoted as not being met for this option. Although this is an option parents want, it seems highly unlikely this will happen.
7.3 Federate (hard or soft) with another school with Lyndale remaining on current site
There is nobody obvious that Lyndale would federate with and this option is ruled out as not meeting three of SEN Improvement Test requirements.
7.4 Co-locate Lyndale School with another special school (which also covers co-locate and federate with another special school)
As with 7.3 there’s no-one obvious that Lyndale would federate with, this option is looked at in detail and ruled out as not meeting three of the SEN Improvement Test requirements.
7.5 Lyndale becoming an Academy/Free School
Such a decision is for the Department for Education and parents, the report author still thinks that Lyndale will have problems with funding but cannot demonstrate how it would/wouldn’t meet the SEN Improvement Test.
7.6 Close Lyndale School. Open two SLD bases in Primary schools for 6/8 pupils each. Expand
Elleray Park and Stanley schools to 100 each
This has a number of sub options which are
Close Lyndale
Close Lyndale and open SLD bases in two primary schools
Close Lyndale, open SLD places in two primary schools and expand Elleray Park and Stanley to 100 each
Close Lyndale and open a PMLD base on the new Foxfield site
However this is ruled out as it doesn’t meet four of the requirements in the SEN Improvement Test.
7.7 Close Lyndale. Expand Stanley/Elleray Park schools to provide 220/230 places
This option also contains the option “Close Lyndale and expand either Stanley or Elleray Park”.
The report author considers the first option as meeting the SEN Improvement Test (however doesn’t go into much detail). The second option is considered to not meet the SEN Improvement Test because of parental choice grounds.
7.8 Close Lyndale School but retain the site making another school a split site school. The Lyndale site would be retained for as long as felt necessary
The suboptions are “until children currently at the school had left” and “until the receiving school no longer required it”.
This is ruled out as not meeting four of the requirements of the SEN Improvement Test.
So the options Cabinet will be considering next Thursday that aren’t ruled out as they breach the requirements of the SEN Improvement Test (which can be quite subjective but this is based on the report author’s opinion are):
Option 7.1 Retain Lyndale
This is further split into sub options such as retain Lyndale and change funding bands, retain Lyndale School and restrict places at Elleray Park and Stanley, retain Lyndale School and extend to full range of CLD and retain Lyndale School and school commits to take full range of CLD. Stanley and Elleray Park admissions kept to place numbers.
Option 7.5 Lyndale becoming an Academy/Free School
The author can’t say one way or the author as to whether this option breaches any of the requirements of the SEN Improvement Test.
Option 7.7 Close Lyndale. Expand Stanley/Elleray Park schools to provide 220/230 places
This is the option that people associated with Lyndale School don’t want. However if Cabinet chose this option it would trigger a further consultation and a future decision to be made following that consultation.
So therefore the three options that aren’t ruled out by in some way breaching the SEN Improvement Test (according to the report author) are:
1) various options on the theme of keeping Lyndale,
2) the Academy/Free School option (which depends on the Department for Education agreeing to it) or
3) closing Lyndale.
Wirral Council’s Cabinet will meet in Committee Room 1 at Wallasey Town Hall in Brighton Street, Seacombe starting at 6.15pm for a special meeting just to make a decision on Lyndale School (which will be a public meeting).
If you would like to contact the people who will be making the decision, contact details are below (although it is always possible that some of these people will not be able to make it to the meeting, however even if not present at the meeting they are bound by collective responsibility for decisions taken). Please note the addresses below are home addresses in case you want to write to them in advance of the meeting by post.
Councillor Phil Davies (he chairs the Cabinet meetings) phildavies@wirral.gov.uk/ 0151 625 3320 / 07720 073154 / 16 Westbourne Grove, West Kirby, Wirral, CH48 4DL
Cllr Ann McLachlan (she often chairs Cabinet meetings if Cllr Phil Davies is not available) annmclachlan@wirral.gov.uk / 0151 522 0299 / 27 Danefield Road, Greasby, CH49 3BP
Cllr Tony Smith (he is the Cabinet Member for Children and Family Services whose portfolio Lyndale School falls under) tonysmith@wirral.gov.uk / 0151 677 1384 / 27 South Drive, Upton, Wirral, Merseyside, CH49 6LA
All of the above ten politicians are members of the Labour Party. If you wish to contact one of your three local councillors (assuming that you live on the Wirral) their contact details are here, but it will only be names listed above (assuming they can make it) who will be making the decision at the special Cabinet meeting about Lyndale School.
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